UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUSARRAT ROOHI HUSAIN,

Plaintiff,

v. Civil Action No. 15-0708 (RDM) SAMANTHA POWER, 1 in her official capacity as Administrator, U.S. Agency for International Development,

Defendant.

MEMORANDUM OPINION

This matter is before the Court on Defendant’s renewed motion for summary judgment.

Dkt. 93. As relevant here, Plaintiff Musarrat Roohi Husain alleges that Defendant U.S. Agency

for International Development (“USAID”) discriminated against her by denying her reasonable

accommodations for her disabilities in violation of the Rehabilitation Act of 1973 (the

“Rehabilitation Act”),

et seq. Dkt. 46 at 29–30 (2d Am. Compl. ¶¶ 144–49).

For the reasons that follow, the Court will GRANT USAID’s renewed motion for summary

judgment.

1 Pursuant to Fed. R. Civ. P. 25(d), the current Administrator of the United States Agency for International Development, Samantha Power, “is automatically substituted as a party” with no effect on Husain’s “substantial rights.” Fed. R. Civ. P. 25(d). I. BACKGROUND

A. Factual Background

The Court has previously recounted the factual background of this case in detail, see Dkt.

88, and, for present purposes, repeats only that portion of the background necessary for the

disposition of the pending motion.

In describing the relevant factual context, the Court relies principally, as it has

previously, on USAID’s Statement of Undisputed Material Facts (“SUMF”), Dkt. 83-2, which

USAID incorporates into its renewed motion for summary judgment, Dkt. 93-1 at 6. Despite the

Court’s repeated admonitions to comply with the strictures of Local Rule 7(h) and Federal Rule

of Civil Procedure 56, see Dkt. 94 at 2–3; Dkt. 85 at 2–3, Plaintiff’s opposition to USAID’s

renewed motion for summary judgment has again failed to controvert USAID’s SUMF or to

direct the Court to specific documents in the record that support her factual assertions, beyond

the general references to Defendant’s “many false statements” that are “established by evidence

in the record.” Dkt. 96 at 19; see also

(pointing to “all evidence filed over the last 6

years” and “all 7 Exhibits” attached to Plaintiff’s opposition (emphasis removed)). As the Court

previously explained, see Husain v. Smith, No. 15-cv-708,

, at *1 (D.D.C.

Aug. 19, 2016) (“Husain I”); Husain v. Barsa, No. 15-cv-708,

, at *1 (D.D.C.

Feb. 19, 2021) (“Husain II”), it is not the Court’s function to “assume the role of an advocate”

for Husain or to hunt through the voluminous record in this case in search of facts to support her

motion. Husain I,

, at *1; Husain II,

, at *1. Against that

backdrop, the Court considers the uncontroverted facts.

Plaintiff began working at USAID in March 2011 as a GS-13 Management and Program

Analyst, Dkt. 83-2 at 1 (SUMF ¶ 1), and received a promotion to GS-14 on January 29, 2012,

(SUMF ¶ 2). Beginning in April 2012, Plaintiff was reassigned to USAID’s Bureau for Policy,

Planning, and Learning (“PPL”).

(SUMF ¶ 4). After Plaintiff leveled allegations of “biased

supervision” against her initial supervisor, Cynthia Clapp-Wincek, Dkt. 83-7 at 7 (Clapp-Wincek

Aff.) (Ex. 5), PPL management assigned Clapp-Wincek’s supervisor, Larry Garber, to serve as

Plaintiff’s supervisor, Dkt. 83-2 (SUMF ¶ 7); Dkt. 83-5 at 5 (Garber Aff.) (Ex. 3). A variety of

controversies arose while Garber was Plaintiff’s supervisor in PPL, see Husain II,

, at *3–5, most of which the Court need not recount to resolve the instant motion. The

Court focuses, instead, on Plaintiff’s medical concerns that arose during her assignment to PPL

and her requests for accommodation to address those issues.

As early as April 2012, right before and after she joined PPL, Plaintiff began to submit a

series of letters from physicians recommending medical leave and accommodations of different

varieties. That month, multiple physicians wrote letters recommending that Plaintiff rest for a

series of week-long stretches. Dkt. 87-5 at 28–32 (Ex. 5). On August 15, 2012, a hospital

emergency department referred Plaintiff to a pulmonology and critical care practice, where a

doctor wrote a letter recommending that she take medical leave “from her stressful work

situation” and explaining that she exhibited “vocal cord dysfunction . . . precipitated by

psychological stress.”

(Ex. 5). On August 20, 2012, Plaintiff’s infectious disease

doctor wrote a letter noting that she “continued to have marked fatigue[,] . . . exacerbated by the

stress of her job” and that she had been seen in the emergency room on two separate occasions

for “severe chest pain and the possibility of pulmonary emboli.”

(Ex. 5). On August

24, 2012, Plaintiff’s primary care physician wrote a letter recommending that she be transferred

to a different office, explaining that “[s]pecialists have opined that work[-]related stress has been

a significant contributing factor to [Plaintiff’s symptoms] and [that] transferring [her] to another

3 office would help alleviate her symptoms.”

. Neither this letter nor any of the other

letters identify what circumstances specific to PPL caused this stress, but, according to Plaintiff,

“unfavorable discriminatory treatment and marginalization” caused her “physical illness and

mental stress.” Dkt. 46 at 3 (2d Am. Compl. ¶¶ 9–10). In light of the health concerns raised by

her doctors, Plaintiff received approval for sick leave from August 31 to October 8, 2012. Dkt.

83-5 at 9 (Garber Aff.) (Ex. 3).

In the months immediately following Plaintiff’s return to work, one of Plaintiff’s doctors

wrote three more letters recommending telework for varying periods of time, although the letters

did not mention work-related stress as a cause. Dkt. 87-5 at 21–23 (Ex. 5). On May 6, 2013,

Plaintiff emailed Garber’s supervisor, Susan Reichle, to request situational telework for medical

reasons from May 8 to May 24, 2013. Dkt. 83-2 at 3 (SUMF ¶ 18); Dkt. 83-21 at 2–3 (Ex. 19).

Claiming that she had “been working under extreme emotional and physical distress solely from

[a] hostile work environment . . . since October 2012,” Plaintiff’s email to Reichle demanded

that she “be immediately removed from th[is] hostile work environment and [placed] under a

different [s]upervisor who is not hostile.” Dkt. 83-21 at 2–3 (Ex. 19). Plaintiff attached to her

email a letter from her psychiatrist, F. J. Pepper, M.D., who indicated that she suffered “from

severe anxiety, depression, and fear, resulting from a hostile work environment created by her

immediate supervisor” and should “be placed under a different supervisor[] immediately.” Dkt.

83-22 at 74 (Ex. 20).

Two days after Plaintiff sent this email (“the 2013 request”), she received a response

from Ann Kaufmann, Reasonable Accommodation Manager at USAID’s Office of Civil Rights

and Diversity (“OCRD”). Dkt. 83-2 at 4 (SUMF ¶ 19). Kaufmann attached two forms for

Plaintiff to fill out: (1) a request-for-reasonable-accommodation form requiring a description of

4 the medical condition requiring accommodation and the specific accommodation requested, and

(2) an authorization form allowing Plaintiff’s doctors to release her medical information to

USAID. Dkt. 83-23 at 3–4 (Ex. 21). The same day, Kaufmann sent Plaintiff a “reasonable

accommodation interactive dialogue plan” and stressed that, “until [she] receive[d] a description

of the essential functions of [Plaintiff’s] job and [] daily tasks, [she could not] send [Plaintiff] the

medical questionnaire.” Dkt. 83-24 at 2 (Ex. 22); Dkt. 83-2 at 4 (SUMF ¶ 20). As Kaufmann

explained, she “need[ed] to describe the daily tasks and essential functions of [Plaintiff’s] job in

the letter to [her] doctor so he [could] properly answer the questionnaire.” Dkt. 83-24 at 2 (Ex.

22). Plaintiff, however, emailed Kaufmann on May 16, 2013, asserting, “For OCRD record

keeping purposes, I did not request . . . reasonable accommodation,” Dkt. 83-25 at 2 (Ex. 23);

Dkt. 83-2 at 5 (SUMF ¶ 22), thereby terminating the “interactive process” that Defendant

initiated, Husain II,

, at *17. Plaintiff did not explain this decision, other than

referring to a “very clear conflict of interest[] and lack of OCRD responsibility about this

process.” Dkt. 83- 25 at 3 (Ex. 23).

On June 21, 2013, Plaintiff filed her first, formal EEO complaint, which she amended

several times over the next four months. Dkt. 83-2 at 8 (SUMF ¶ 35). She alleged

discrimination based on her “sex (female), race (Asian), religion (Islam), national origin

(Zambia), age (DOB 1962), color (unspecified)[,] and reprisal [due to her opposition to

discrimination].” Dkt. 83-3 at 3 (Ex. 1). At some point along the way, Plaintiff also submitted a

worker’s compensation claim, alleging “that she had suffered a workplace injury—specifically

[that she] was under stress from her supervisor.” Dkt. 83-8 at 6 (Kolmstetter Aff. ¶ 26) (Ex. 6);

see also Dkt. 83-9 at 5 (Peters Aff. ¶ 24) (Ex. 7). Plaintiff took leave during most of August

2013, Dkt. 83-2 at 10 (SUMF ¶ 44), and was eventually “placed on administrative leave” in

5 October 2013, which was (1) “extended several times while her worker[’s] compensation claims

were investigated” and (2) extended indefinitely in December 2013.

(SUMF ¶¶ 48, 50).

The USAID Office of Human Resources explained that “administrative leave [was] not a

punitive action,” but that it had taken this action because Plaintiff had claimed “that she [felt] she

had been harmed in the workplace, and [the Office had] a duty to ensure a safe workplace.” Dkt.

83-48 at 2 (Ex. 46).

Plaintiff returned to work in April 2014, at which point she was supervised by Garber and

a newly added supervisor, Patricia Rader. Dkt. 83-2 at 11 (SUMF ¶ 62); Dkt. 83-62 at 2 (Ex.

60); Dkt. 46 at 18 (2d Am. Compl. ¶ 92). Shortly after her return to work, on May 14, 2014,

Plaintiff emailed Kaufmann and Patricia Lamond, Acting Director of OCRD, with another

reasonable accommodation request (“the 2014 request”). Dkt. 83-2 at 13 (SUMF ¶ 64); Dkt. 5 at

58–76. The accommodation request rehashed the same accusations against PPL and Plaintiff’s

supervisors that she had previously raised, but also alleged that her supervisors were retaliating

against her for filing an EEO complaint. Dkt. 5 at 60–67. As an accommodation, Plaintiff

requested “[i]mmediate removal from the USAID PPL Bureau . . . to a safe[,] non-threatening

work environment.”

(emphasis omitted).

In support of her request, Plaintiff attached several letters from her doctors. One letter

from her cardiologist recommended that she be excused intermittently for the next two weeks for

medical testing.

. All of the other letters were from Plaintiff’s psychiatrist, Dr. Pepper,

who asserted that Plaintiff had “developed Post Traumatic Stress disorder (PTSD),” “panic

attacks, severe anticipatory anxiety of going back to the same hostile environment, and

[d]epression,” as a result of a hostile work environment.

, 71–73. Plaintiff

supplemented her request with further letters from her doctors in the following weeks. Dkt. 83-

6 22 at 37–42 (Ex. 20); Dkt. 96 at 47–52; Dkt. 83-2 at 14–15 (SUMF ¶¶ 68–72). One—a May 19,

2014 letter from Dr. Jiho Choi—“concur[red] with Dr. Pepper’s medical recommendations that

[Plaintiff] needs to be transferred immediately to another office, a non-hostile atmosphere.” Dkt.

96 at 51 (Ex. 1). A May 22, 2014 letter from Dr. Pepper made a rare reference to specific

conduct causing Plaintiff’s concerns: that her new supervisor, Rader, forced her to leave a note

indicating where she was going each time that she left her office chair. Dkt. 96 at 48 (Ex. 1). In

this letter, Dr. Pepper requested that USAID “make arrangements to immediately remove and

relocate Ms. Husain to an agency outside USAID, preferably the Department of State, . . . or

other Federal agencies for the period of at least one year via the Federal ‘Detail’ process.”

(Ex. 1). Plaintiff supplemented Dr. Pepper’s request that same day with an email in which she

stated, “[f]or my reasonable accommodation, I request to go for a one[-]year Detail outside of

USAID, ASAP.” Dkt. 5 at 53.

A representative from OCRD responded to Plaintiff on May 29, 2014, asking her to

complete and to send back an authorization form to allow her doctors to release medical

information to OCRD so that the Office could “discuss or seek clarification from [her] doctors

on the information provided.” Dkt. 83-2 at 15 (SUMF ¶ 73); Dkt. 83-22 at 53 (Ex. 20). In reply,

Plaintiff—copying others, including Dr. Pepper—stated that the letters from her doctors had

“provided all necessary medical information” and that because the letters provided her

physicians’ contact information, OCRD should “contact them directly” for “further medical

clarity.” Dkt. 83-22 at 51 (Ex. 20). Plaintiff also indicated that she “give[s] Dr. Pepper[] [her]

permission to respond to any/all medical clarity that USAID/OCRD Office is now requiring.”

(Ex. 20). “Therefore,” Plaintiff concluded, “it is not necessary for me to sign the attachment.”

(Ex. 20).

7 In the following weeks, Plaintiff was repeatedly out sick. Dkt. 83-2 at 16–17 (SUMF ¶¶

75–78). It appears from the record that OCRD did not communicate with Plaintiff further about

her request for an accommodation, although she followed up on June 16 and June 26, 2014 and

noted that OCRD had not provided any final decision on her request. Dkt. 83-22 at 48–50 (Ex.

20). On July 8, 2014, Plaintiff received a notice of proposed termination from her supervisor,

Patricia Rader. Dkt. 83-2 at 17 (SUMF ¶ 79). Among other grounds, the notice relied upon (1)

Plaintiff’s failure to produce any work product since returning to work on April 21, 2014, and (2)

her failure to maintain a regular work schedule as a result of taking more than 200 hours of sick

leave since April 21, 2014, with no definite plan to resume work, notwithstanding abandonment

of her worker’s compensation claim and a resultant lack of “basis for believing [Plaintiff] could

be suffering harm in the workplace.” Dkt. 83-56 at 2–4 (Ex. 54). Plaintiff appealed her removal,

but, after several delays, her termination was eventually affirmed by Alex Their, the “Assistant

to the Administrator, PPL.” Dkt. 46 at 25 (2d Am. Compl. ¶ 123); Dkt. 83-2 at 17–18 (SUMF ¶¶

79, 81, 85).

B. Procedural History

Plaintiff commenced this action on May 8, 2015. Dkts. 1–8. In 2016, this Court

dismissed most of her claims in Husain I,

. Husain, represented by counsel at

the time, filed a second amended complaint on June 9, 2017, alleging that USAID engaged in

unlawful retaliation to punish her for filing EEO complaints (Count I), violated Title VII by

taking discriminatory adverse employment actions against her (Count II), and denied her

reasonable accommodations for her disabilities in violation of the ADA and the Rehabilitation

Act (Count III). Dkt. 46 at 26–30 (2d Am. Compl. ¶¶ 128–49). After a number of delays due to

Husain’s medical condition, the appointment and withdrawal of counsel, unsuccessful settlement

8 negotiations, and discovery, USAID moved for summary judgment in February 2020. Dkt. 83.

The Court granted summary judgment to USAID as to Husain’s Title VII claims, Counts I and II,

and denied the motion with respect to Husain’s Rehabilitation Act claim in Count III. Husain II,

, at *1. 2 In September 2021, USAID filed a renewed motion for summary

judgment with respect to Count III. Dkt. 93. Husain, proceeding pro se, opposes that motion.

Dkt. 96.

II. LEGAL STANDARD

Summary judgment is warranted if a party can “show[] that there is no genuine dispute as

to any material fact and [that the party] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The party seeking summary judgment “bears the initial responsibility” of “identifying

those portions” of the record that “demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett,

(1986); see also Fed. R. Civ. P. 56(a). A fact is

“material” if it could affect the outcome of the litigation under governing law, see Anderson v.

Liberty Lobby, Inc.,

(1986), and a dispute is “genuine” if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party, see Scott v. Harris,

(2007). In construing the facts, the Court must view the evidence in the light most

favorable to the nonmoving party and must draw all reasonable inferences in the nonmovant’s

favor. Talavera v. Shah,

(D.C. Cir. 2011).

If the moving party carries this initial burden, the burden then shifts to the nonmoving

party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving

2 The Court also dismissed Plaintiff’s ADA claim because “the Rehabilitation Act provides the exclusive judicial remedy for federal employees who allege that they are victims of workplace discrimination based on disabilities.” Husain II,

, at *16 (citing Richardson v. Yellen,

(D.D.C. 2016)).

9 party’s favor with respect to the “element[s] essential to that party’s case, and on which that

party will bear the burden of proof at trial.”

(quoting Holcomb v. Powell,

(D.C. Cir. 2006)). The nonmoving party’s opposition, accordingly, must consist of more than

unsupported allegations or denials, and must be supported by affidavits, declarations, or other

competent evidence setting forth specific facts showing that there is a genuine issue for trial. See

Fed. R. Civ. P. 56(c); Celotex Corp.,

. “[A] complete failure of proof concerning

an essential element of the nonmoving party’s case,” in other words, “renders all other facts

immaterial.” Celotex Corp.,

; see also Durant v. District of Columbia,

(D.C. Cir. 2017) (concluding that the moving party “need only identify the ways in

which the plaintiff has failed to come forward with sufficient evidence to support a reasonable

jury to find in [her] favor on one or more essential elements of [her] claim” (citation omitted)).

“Where the nonmoving party is proceeding pro se, courts in this jurisdiction will construe

the non-moving party’s filings liberally.” Cunningham v. U.S. Dep’t of Just.,

(D.D.C. 2014) (collecting cases). But on a motion for summary judgment, a pro se plaintiff is

held to the same evidentiary burdens as those represented by counsel and must therefore

“‘provide evidence that would permit a reasonable jury to find’ in his favor.” Prunte v. Univ’l

Music Grp.,

, 21–22 (D.D.C. 2010) (quoting Lanningham v. U.S. Navy,

(D.C. Cir. 1987)), aff’d,

(D.C. Cir. 2011) (per curiam). And

because a trial court is not “obliged to sift through hundreds of pages . . . to make [its] own

analysis and determination of what may[] or may not” support the plaintiff’s claims, Twist v.

Meese,

(D.C. Cir. 1988), “the Court may assume that facts identified by the

moving party in its statement of material facts are admitted, unless such a fact is controverted in

the statement of genuine issues filed in opposition to the motion,” Loc. Civ. R. 7(h); see also

10 Dyer v. McCormick & Schmick’s Seafood Rests., Inc.,

, 212 n.2 (D.D.C.

2017).

III. ANALYSIS

Plaintiff claims that USAID violated the Rehabilitation Act “by denying her reasonable

accommodation for her disabilities, including a breakdown in her physical health and severe

emotional distress.” Dkt. 46 at 29 (2d Am. Comp. ¶ 145). To prevail on a failure-to-

accommodate claim under the Rehabilitation Act, a plaintiff “must produce sufficient evidence

that (1) she was a qualified individual with a disability, (2) [her employer] had notice of her

disability[,] and (3) [her employer] denied her request for a reasonable accommodation.”

Ward v. McDonald,

(D.C. Cir. 2014); see also Woodruff v. Peters,

(D.C. Cir. 2007). USAID’s renewed motion for summary judgment does not dispute

whether Plaintiff was disabled or whether the agency had notice of her disability. See Dkt. 93-1

at 11, 14. The only relevant issues at this stage, then, are “whether [Husain] could have done her

job with a reasonable accommodation” and “if so, whether [USAID] actually or constructively

denied her such assistance.” McNair v. District of Columbia,

(D.D.C.

2014); see also Dkt. 93-1 at 14.

A requested accommodation is “reasonable” if it “allows the employee to fulfill all

essential functions of her job without imposing an undue hardship on the employer.” Graffius v.

Shinseki,

(D.D.C. 2009) (citing

(c)(1)). “The

employee has the burden of identifying reasonable accommodations, and the agency has the

burden of showing undue hardship.”

Where, as in Plaintiff’s 2014 accommodation request, 3

3 Defendant correctly notes that, as to Plaintiff’s 2013 request for accommodation, this Court previously concluded that Plaintiff terminated the interactive process and thus “cannot prevail on

11 Plaintiff requests reassignment to a vacant position, it is “the plaintiff’s burden to identify

available positions and to demonstrate that she was qualified for those positions.” Faison v.

Vance-Cooks,

(D.D.C. 2012) (citation and internal quotation marks

omitted); see also Aka v. Wash. Hosp. Ctr.,

, 1304 n.27 (D.C. Cir. 1998)

(“[Plaintiff] had an obligation to demonstrate that there existed some vacant position to which he

could have been reassigned.”); Alston v. Wash. Metro. Area Transp. Auth.,

(D.D.C. 2008) (noting that the plaintiff “bears both the burden of production and the burden

of persuasion on the question whether a suitable vacancy existed at the time [she] sought

transfer” (quoting Jackan v. N.Y. State Dep’t of Labor,

(2d Cir. 2000)));

Lester v. Natsios,

(D.D.C. 2003) (“With respect to reasonable

accommodation, it is plaintiff’s burden to identify available positions and to demonstrate that she

was qualified for those positions.”).

At summary judgment, the moving party is not required to prove a negative; if the

nonmoving party bears the burden of proof on a dispositive issue, the moving party need only

“point[] out to the district court . . . that there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp.,

(noting that district courts may grant summary

judgment in such circumstances). In this respect, the summary judgment standard is similar to

the standard for directing a verdict. See Anderson,

. The relevant “inquiry under

each” is essentially the same: Does “the evidence present[] a sufficient disagreement to require

submission to a jury or . . . is [it] so one-sided that one party must prevail as a matter of law?”

a failure-to-accommodate claim” relating to that request. Husain II,

, at *17 (citing Ward, 762 F.3d at 33–35); see Dkt. 93-1 at 19 n.8. To the extent the Court did not enter summary judgment as to any Rehabilitation Act claim arising from Plaintiff’s 2013 request for accommodation in Husain II, the Court does so now.

12

Or, to put it most simply, there is no point in incurring the expense and burden of a trial on

the merits if, at the end of the day, the nonmoving party cannot prevail because she has failed to

elicit—in discovery or otherwise—any evidence supporting an essential element of her claim.

In USAID’s view, this is such a case, and the Court agrees. Notwithstanding Plaintiff’s

burden “to demonstrate that there existed some vacant position to which [s]he could have been

reassigned,” Aka,

n.27, she has failed to identify any position—much less a

suitable position—that was open when she requested a transfer in 2014. At most, the letters from

Plaintiff and her doctors suggest vague transfer possibilities, including that she be relocated via

the “federal detail” process, Dkt. 5 at 53; Dkt. 46 at 17–19 (2d Am. Compl. ¶¶ 89, 94), to “an

agency outside USAID, preferably the Department of State,” Dkt. 96 at 48 (Ex. 1). But these

requests did not identify any vacant position within or “outside USAID” to which Plaintiff could

have been detailed at that time. They are, rather, akin to the vague transfer requests this Court

found insufficient in Senatore v. Lynch,

(D.D.C. 2016), where the plaintiff

sought “a job as a GS-11” that would allow her “to utilize [her] research, interpretive, and

analytical skills.”

; cf. Harris v. Chao,

(D.D.C. 2017) (denying

defendant’s motion for summary judgment where plaintiff “identifie[d] 11 job postings that he

claim[ed] he was qualified for and flagged during the reassignment process” (footnote omitted)).

Even more importantly, to this day—after Plaintiff has had the opportunity to take

discovery and to explore whether a suitable position was, in fact, vacant, and after USAID has

pointed to Plaintiff’s lack of essential evidence in its motion for summary judgment—Plaintiff

has done nothing to fill this gap. No matter how liberally construed, the record contains no

evidence that would permit a reasonable jury to find that a suitable position existed anywhere

within USAID, the State Department, or any other agency. Nor can the Court fill this gap based

13 on the understanding that the State Department is a large organization with tens of thousands of

positions, some of which are presumably vacant at any given time, and that the executive branch

employs many times that number of people. It is Plaintiff’s burden to identify “some vacant

position to which [s]he could have been reassigned,” Aka,

n.27, and neither the

Court nor a jury may guess or assume, in the absence of any evidence, that a suitable position

existed to which Plaintiff could have been detailed or transferred. As a result, were the case to

go to trial on the existing, post-discovery record, the result would be foreordained; USAID

would be entitled to a directed verdict.

Notably, Plaintiff does not ask the Court to infer that some position must have been

available somewhere in the United States government, nor does she make any effort to identify

any suitable position that was available within USAID, the State Department, or anywhere else

in the U.S. government. Instead, her opposition to USAID’s renewed motion for summary

judgment turns on a single argument, which posits that a plaintiff is relieved of her obligation to

identify a suitable, vacant position when the employer “refuse[s] to engage in any interactive

process with [the employee].” Dkt. 96 at 21; see also id. at 17. Plaintiff is correct that once an

employer has notice of an employee’s disability, the Rehabilitation Act requires “‘a flexible

give-and-take’ between employer and employee ‘so that together they can determine what

accommodation would enable the employee to continue working.’” Ward,

(quoting EEOC v. Sears, Roebuck & Co.,

(7th Cir. 2005)). The governing

regulations provide, to this point, that “it may be necessary for the [employer] to initiate an

informal, interactive process with the individual with a disability in need of the accommodation”

and that “[t]his process should identify the precise limitations resulting from the disability and

potential reasonable accommodations that could overcome those limitations.” 29 C.F.R.

14 § 1630.2(o)(3); see also Ward,

; Mogenhan v. Napolitano,

, 1167 &

n.4 (D.C. Cir. 2010). The D.C. Circuit has explained, moreover, that where this interactive

process breaks down, “courts should attempt to isolate the cause of the breakdown and then

assign responsibility.” Ward,

(quoting Sears, Roebuck & Co.,

).

Although USAID argued in its first motion for summary judgment that Plaintiff “either

terminated the EEO process or did not comply [with USAID’s requests]” as to her 2014 transfer

request, Dkt. 83-1 at 28–29, its present motion does not seek to relitigate that point. Dkt. 95 at

12 n.8. But even assuming for present purposes that USAID was responsible for the breakdown

of the 2014 interactive process, that shortcoming does not relieve Plaintiff’s burden—at this

stage of the dispute—to come forward with some evidence that a suitable vacancy existed. To be

sure, evidence that an employer failed to engage in the interactive process—or failed to engage

in the process in “good faith”—might suffice to show that the employer, in effect, denied the

employee’s request for an accommodation. See Ward,

. And, because the

interactive process contemplates efforts by the employer and employee to “identify appropriate

job vacancies,” an employer’s failure “to help [a disabled employee to] identify some job that the

employee might be able to fill,” Aka,

n.27 (citation and internal quotation

marks omitted), might show that the employer, in effect, denied the employee’s request. By

declining to engage in a meaningful dialogue with the employee—about suitable

accommodations, available positions, or the like—the employer has ignored its obligation under

the governing regulations and, more importantly, has closed the door on the employee’s request

for an accommodation.

That question, however, is distinct from the question posed here. At least for present

purposes, USAID does not dispute Plaintiff’s contention that the agency denied her request. It

15 argues, instead, that Plaintiff has failed to carry her distinct burden of showing that a suitable

vacant position existed. Put somewhat differently, under USAID’s view of the law, an employer

is not liable for declining a request for a reasonable accommodation (i.e., transfer to a different

position) when, in any event, no accommodation (i.e., no vacant position) was available.

Although the D.C. Circuit has yet to address this precise question, those courts that have

done so have come out on USAID’s side of the argument and have held that a plaintiff is not

entitled to prevail on summary judgment or at trial merely because the defendant failed to engage

in the interactive process. The Second Circuit’s decision in McBride v. BIC Consumer Products

Mfg. Co.,

(2d Cir. 2009), is instructive. As the court explained, an ADA (and,

presumably, a Rehabilitation Act) plaintiff “must demonstrate the existence, at or around the

time when accommodation was sought, of an existing position to which she could have been

reassigned” and “for which she was qualified.”

at 97–98. That premise is consistent with the

D.C. Circuit’s admonition that an ADA plaintiff has “an obligation to demonstrate that there

existed some vacant position to which he could have been reassigned.” Aka,

n.27 (citing McCreary v. Libbey-Owens-Ford Co.,

(7th Cir. 1997)); see

also McCreary,

(“The plaintiff bears the burden of showing that a vacant

position exists and that the plaintiff is qualified for that position.”). But, building on that

premise, the McBride decision goes on to reject the contention, which Plaintiff advances here,

that a plaintiff’s “failure to identify an accommodation of any form . . . should be excused in

light of [the employer’s] failure to engage in a sufficient interactive process intended to develop

a mutually agreeable accommodation of her disability.”

. As the decision

explains, the ADA (and, by extension, the Rehabilitation Act) “imposes liability for . . .

discriminatory refusal to undertake a feasible accommodation, not mere refusal to explore

16 possible accommodations where, in the end, no accommodation was possible.”

. The

Second Circuit then cites decisions from the First, Third, Seventh, Eighth, Tenth, and Eleventh

Circuits to the same effect.

at 100–01 (collecting cases).

The only circuit that even hints at a different view is the Ninth Circuit. But, as the

Second Circuit explained, the Ninth Circuit agrees “that liability attaches as a result of a failure

to engage in a sufficient interactive process only ‘if a reasonable accommodation would have

been possible.’”

at 100 n.5 (quoting Barnett v. U.S. Air, Inc.,

(9th Cir.

2000) (en banc), rev’d on other grounds,

(2002)). Although the Ninth Circuit has

also observed that “an employer cannot prevail at the summary judgment stage if there is a

genuine dispute as to whether the employer engaged in good faith in the interactive process,”

Barnett,

, the Second Circuit attributed that view to the fact that, unlike every

other circuit, the Ninth Circuit places the burden of demonstrating that no accommodation was

available on the “offending employer throughout the litigation.” McBride, 83 F.3d at 100 n.5.

The Second Circuit’s analysis is persuasive.

The Third Circuit’s analysis under the Rehabilitation Act is consistent with the Second

Circuit’s analysis under the ADA and is equally convincing. In Donahue v. Consolidated Rail

Corp.,

(3d Cir. 2000), the Third Circuit, as did the Second Circuit in McBride,

recognized an employer’s obligation to engage in the interactive process, but nonetheless

concluded that it still “falls to the employee to make at least a facial showing that there were

vacant, funded positions whose essential functions [the plaintiff] was capable of performing.”

(citation and internal quotation marks omitted). Quoting the Eleventh Circuit, the

Third Circuit then explained that “where a plaintiff cannot demonstrate reasonable

accommodation, the employer’s lack of investigation into reasonable accommodation is

17 unimportant.”

(internal quotation marks omitted) (quoting Willis Conopco, Inc.,

(11th Cir. 1997)).

The Second and Third Circuits, respectively, addressed two possible counterarguments

and persuasively dispatched those contentions. The first argument, which the Second Circuit

addressed, is the strong policy interest in encouraging employers and employees alike to engage

fully in the interactive process, thereby affording accommodations expeditiously, where

appropriate, and without the need for litigation. But, as the Second Circuit explained, even if

employees are required to prove in litigation that a vacant position was available, employers still

have powerful incentives to engage in the interactive process. To start, as noted above, an

employer’s failure to engage in the process in good faith might show that the employer denied a

requested accommodation. “It is [also] possible,” as the Second Circuit observed without

deciding, “that a failure to engage in a sufficient interactive process where accommodation was,

in fact, possible constitutes prima facie evidence of discrimination on the basis of disability.”

McBride,

.

The second possible counterargument, which the Third Circuit addressed, is that the

employer will typically have greater access to information about suitable vacant positions. That

concern is most significant for purposes of the interactive process itself and thus explains the

D.C. Circuit’s admonition that employers have an “obligation to help [their employees] identify

appropriate job vacancies (since plaintiffs can hardly be expected to hire detectives to look for

vacancies).” Aka,

n.27. Once the parties are in litigation, however, the

employee-turned-plaintiff has at her disposal the powerful tool of discovery. “If the defendant in

a failure-to-transfer Rehabilitation Act case moves for summary judgment on the ground that the

plaintiff has not identified any appropriate vacant position to which the plaintiff could have been

18 transferred, the plaintiff may move for a continuance to permit discovery regarding such

positions.” Donahue,

. “But after a full opportunity for discovery, a motion for

summary judgment must be granted if the summary judgment record is insufficient to support a

judgment in favor of the non-moving party.”

(citing Anderson, 477 U.S. at 255–56).

Beyond the Third Circuit’s response, this Court notes that the burden that the typical

Rehabilitation Act plaintiff will face in resisting a motion for summary judgment premised on

this ground is not a heavy one. To avoid the entry of summary judgment, a Rehabilitation Act

plaintiff need not conclusively establish that a suitable, vacant position was available. She need

only come forward with evidence that would permit a reasonable jury to find in her favor with

respect to this requirement. The difficulty in this case, however, is that Plaintiff had failed to

offer any evidence respecting a possible transfer or detail, despite ample opportunity to explore

that question in discovery. The Court recognizes that, at this point in the litigation, Plaintiff is

proceeding pro se and that, as result, she is not held to the same pleading standards that apply to

those represented by counsel. See Haines v. Kerner,

(1972) (per curiam). But

pro se plaintiffs remain bound by the Federal Rules of Civil Procedure, including Rule 56(e),

and, like any other plaintiffs, they bear the burden of responding to a motion for summary

judgment with evidence sufficient to show that the case raises a triable issue of fact. See, e.g.,

Mokhtar v. Kerry,

(D.D.C. 2015).

Finally, the Court notes that numerous decisions from this district have held that “[t]here

is no independent cause of action for failure to engage in the interactive process” and have

confirmed that “under the ADA and in turn, the Rehabilitation Act, there is only a cause of

action for failure to accommodate generally.” Doak v. Johnson,

, 278 n.20

(D.D.C. 2014); see also, e.g., Matos v. DeVos,

(D.D.C. 2018), aff’d,

19 No. 18-5281,

(D.C. Cir. 2019) (per curiam); McNair,

;

Pantazes v. Jackson,

(D.D.C. 2005). But see Ward v. District of

Columbia,

(D.D.C. 2016) (suggesting that an agency’s failure to engage

in the interactive process might preclude summary judgment where “it [was] unclear the extent

to which there were vacant positions for which Plaintiff was qualified”). Although the D.C.

Circuit has made clear that an agency cannot “cause a breakdown in the process for the purpose

of . . . avoiding . . . liability,” Ward,

(quoting Sears, Roebuck & Co.,

), there can be no failure to accommodate where no accommodation was available (e.g.,

where there was no suitable vacancy) at the relevant time.

The Court, accordingly, rejects Plaintiff’s contention that USAID “already lost the

reasonable accommodation claim when the employer . . . failed to engage in the mandatory

interactive process,” Dkt. 96 at 17, and, instead, holds that Plaintiff retains throughout litigation

the antecedent burden of establishing that a suitable vacancy existed. See Geter v. U.S. Gov’t

Publ’g Off.,

, 234 (D.D.C. 2020) (“[O]nce a case reaches litigation, it falls to

the plaintiff to ‘demonstrate that there existed some vacant position to which he [or she] could

have been reassigned.’” (footnote omitted) (quoting Aka,

n.27)). Where, as

here, Plaintiff has not—even after a full opportunity for discovery—made any showing of a

vacant position to which she could have been reassigned, Defendant’s failure to engage in the

interactive process cannot entirely relieve Plaintiff of her burden to establish that she “could have

done her job with a reasonable accommodation.” See McNair,

.

Finally, the Court notes that Plaintiff devotes the bulk of her opposition brief to the

contention that USAID is estopped from moving for renewed summary judgment because it did

not move to dismiss Plaintiff’s Rehabilitation Act claim at the motion-to-dismiss stage. Dkt. 96

20 at 11. Plaintiff raised a similar argument as to her Title VII claims in opposition to USAID’s

first motion for summary judgment, Dkt. 87-1 at 6, and the Court explains, as it did in response

to that argument, that “a defendant does not lose the right to move for summary judgment on a

claim merely because it did not move to dismiss that claim.” Husain II,

, at

*12. To the extent Plaintiff seeks to invoke the doctrine of judicial estoppel to revive her Title

VII claims that this Court has previously dismissed, Dkt. 96 at 12–15, moreover, the Court

necessarily declines to do so on the same grounds.

CONCLUSION

For the foregoing reasons, the Court will GRANT Defendant’s renewed motion for

summary judgment, Dkt. 93.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 23, 2022

21