UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN G. RICHARDSON,

Plaintiff,

v. Civ. Action No. 17-1588 (EGS/ZMF) ALEJANDRO MAYORKAS, in his official capacity as Secretary of the United States Department of Homeland Security,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff John G. Richardson (“Mr. Richardson” or

“Plaintiff”) has sued his former employer—Defendant Alejandro

Mayorkas in his official capacity as Secretary of the United

States Department of Homeland Security (“DHS” or “Defendant”). 1

He raises claims of discrimination based on disability and

failure to accommodate under the Rehabilitation Act of 1973

(“Rehabilitation Act”),

, et seq., and 42 U.S.C.

§ 1981a of the Civil Service Reform Act of 1978 (“Civil Service

Reform Act”); hostile work environment and retaliation under

1 Pursuant to Federal Rule of Civil Procedure 25(d), the current Secretary of DHS “is automatically substituted as a party” for his predecessor. 1 Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e, et seq.; a due process violation pursuant to

(b)(1); failure to reemploy in violation of the

Uniformed Services Employment and Reemployment Rights Act of

1994 (“USERRA”), codified at

; and failure

to consider efficiency of service. See Am. Compl., ECF No. 26 at

1-2 ¶¶ 1-3, 14-18 ¶¶ 68-95. 2

Pending before the Court is Defendant’s Motion for Summary

Judgment. See Def.’s Mot., ECF No. 41. The Court referred this

case to Magistrate Judge Zia M. Faruqui for full case

management, including preparation of a Report and Recommendation

(“R. & R.”) for this motion. See Minute Order (Oct. 13, 2020).

Magistrate Judge Faruqui issued his R. & R. recommending that

this Court grant Defendant’s Motion for Summary Judgment. See R.

& R., ECF No. 52 at 1. Mr. Richardson raises several objections

to Magistrate Judge Faruqui’s R. & R. See generally Pl.’s Objs.

to Magistrate Judge’s R. & R. (“Pl.’s Objs.”), ECF No. 53.

Upon careful consideration of the R. & R., the objections

and response thereto, the applicable law and regulations, and

the entire record herein, the Court hereby ADOPTS Magistrate

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document, with the exception of deposition testimony, which is to the page number of the deposition transcript. 2 Judge Faruqui’s R. & R., see ECF No. 52; and GRANTS Defendant’s

Motion for Summary Judgment, see ECF No. 41.

II. Background 3

A. Factual Background

In 2008, Mr. Richardson began his career with DHS as a

Senior Operations Analysis Specialist (“SOAS”) within Customs

and Border Patrol (“CBP”), Office of Internal Affairs (“IA”),

Integrity Programs Division (“IPD”). See Pl.’s Counterstatement

of Disputed Facts (“SOMF”), ECF No. 47-4 at 1 ¶ 1. In 2010, Mr.

Richardson was deployed to Africa with the U.S. Navy, and during

pre-deployment combat training, he sustained injuries that

manifested in chronic lower back pain with associated weakness

and numbness in his leg, and pain radiating to his right lower

extremity. See

at 1-2 ¶¶ 2-3; Pl.’s Ex. Z, ECF No. 47-31 at

4. These injuries limited Mr. Richardson’s ability to sit or

stand for prolonged periods of time and reduced his ability to

concentrate. See SOMF, ECF No. 47-4 at 2 ¶ 3; Pl.’s Ex. Z, ECF

No. 47-31 at 2.

In September 2011, after completing his deployment, Mr.

Richardson returned to the U.S., SOMF, ECF No. 47-4 at 2 ¶ 4;

and from then until September 2012, he was placed on a temporary

medical hold for physical evaluation,

at 3 ¶ 7. After being

3 The Background section closely tracks Magistrate Judge Faruqui’s R. & R. See R. & R., ECF No. 52 at 2-9. 3 medically separated from the military, on September 18, 2012,

Mr. Richardson returned to DHS in the same position that he held

prior to deployment—as a SOAS.

at 2 ¶ 5, 3 ¶ 9. His first-

line supervisor was Mr. Ryan Lid (“Mr. Lid”), his second-line

supervisor was Ms. Susan Keverline (“Ms. Keverline”), and his

third-line supervisor was Mr. Jeffery Matta (“Mr. Matta”).

at 2 ¶ 6; Def.’s Ex. B., ECF No. 41-7 at 3.

1. Mr. Richardson’s Request for Reasonable Accommodations

On August 3, 2012, prior to his return to work, Plaintiff

emailed Mr. Matta—the then-Director of IA, IPD—estimating his

return date and advising that “I am now an [eighty] percent

disabled veteran. Also, I have some accommodations that I will

be requesting necessary to support my long-term health.” Pl.’s

Ex. A, ECF No. 47-6 at 1. Mr. Matta requested that Mr.

Richardson forward “whatever special accommodations [he might]

require so that [management could] ensure they [were] addressed

timely.” Pl.’s Ex. G, ECF No. 47-12 at 3. On August 6, 2012, Mr.

Matta and Mr. Richardson spoke on the phone, during which

Plaintiff stated that he had problems with prolonged sitting and

standing, that he needed to be hyper-vigilant about his physical

fitness, and that he did not think returning to IPD was a good

idea. Def.’s Ex. D, ECF No. 41-9 at 2. On August 16, 2012, Mr.

Matta emailed Mr. Richardson in follow up, directing him to

4 identify the “specific job [he was] interested in and [Mr. Matta

would] do everything [he could] to facilitate a reassignment.”

Pl.’s Ex. G, ECF No. 47-12 at 1. Mr. Richardson later updated

his return date to September 17, 2012 and provided his resume to

Mr. Matta “in case it prove[d] helpful in placing [him] within

CBP.” Def.’s Ex. D-1, ECF No. 41-10 at 3.

On his first day back, Mr. Richardson was met with a return

celebration for his service. See Pl.’s Ex. K, ECF No. 47-16 at

409:21–410:17. During the celebration, he alleges that Assistant

Commissioner James Tomsheck (“AC Tomsheck”) said that IPD was

the “best place” for him.

at 411:10–12. Later that day, Mr.

Richardson met with Mr. Matta, Mr. Lid, and Ms. Keverline. See

. During that meeting, Mr. Richardson alleges

that Mr. Matta stated: “John, you’re staying in IPD. . . . You

can go out there and tell anybody you want to tell about it, I

don’t care. That’s your business.”

. Thereafter,

Mr. Richardson claims he reiterated his need for reassignment to

his supervisors, but that Mr. Lid responded, “Well, why don’t

you just retire retire?”—id. at 413:1-414:17; which Mr. Lid

testified meant reference to general retirement as opposed to

military retirement, see Pl.’s Ex. L, ECF No. 47-17 at 271:2-15.

On September 26, 2012, Mr. Lid put Mr. Richardson in contact

with an Employment Relations (“ER”) Specialist to address his

accommodation request. See Def.’s Ex. I-3, ECF No. 41-28 at 2.

5 On October 2, 2012, Mr. Richardson contacted Mr.

Christopher Smoot (“Mr. Smoot”) of the Office of Diversity and

Civil Rights (“DCR”) within DHS to allege the denial of his

accommodation request and his concern about being “subjected to

[ ] additional hostile treatment, harassment, and/or prohibited

personnel practices between now and whenever [he was]

reassigned.” Pl.’s Ex. Q, ECF No. 47-22 at 6. But see Def.’s Ex.

L, ECF No. 41-35 at 14 (disputing Mr. Richardson’s claim that

his “request for reasonable accommodations ha[d ] been denied”).

Mr. Smoot met with Mr. Richardson the next day to discuss his

complaints. See SOMF, ECF No. 47-4 at 7 ¶ 18. Based on their

communications, Mr. Smoot believed that Mr. Richardson did not

want to enter the DCR reasonable accommodation or the Equal

Employment Opportunity (“EEO”) complaint process because he was

focused instead on filing an external complaint. See Pl.’s Ex.

F, ECF No. 47-11 at 118:17–22; Pl.’s Ex. Q, ECF No. 47-22 at 4-

5. Mr. Richardson agrees that he declined to enter the EEO

process but disputes that he refused to move forward with his

accommodation request. See SOMF, ECF No. 47-4 at 7-8 ¶¶ 18–19.

On October 22, 2012, Mr. Richardson informed DCR of his

intent to file an EEO complaint against CBP “for denial of [his]

request for accommodations due to [his] military-service related

veterans disabilities[,]” directing subsequent communications to

his attorney. Pl.’s Ex. Y, ECF No. 47-30 at 1. The next day, Mr.

6 Richardson forwarded this email to his supervisors, see id.; and

on October 24, 2012, Mr. Matta sent a letter to Mr. Richardson’s

physician requesting medical documentation to determine his

entitlement to reasonable accommodations, see Def.’s Ex. G-1,

ECF No. 41-14 at 2-4. In a letter dated November 1, 2012, Mr.

Richardson’s physician, Dr. MariaPaz Babcock (“Dr. Babcock”),

recommended that DHS implement the following accommodations: (1)

reassignment to a position that was not predominantly sedentary;

(2) use of leave for continued rehabilitation; and (3) access to

gym facilities, with reassignment to the Reagan Building as one

solution to provide facility access. See Pl.’s Ex. Z, ECF No.

47-31 at 2. Dr. Babcock opined that “with reasonable

accommodations, Mr. Richardson [could] work for the Agency in a

productive capacity, but that without accommodations, [his]

health [would] quickly decline.”

Mr. Smoot then contacted the Job Accommodation Network

(“JAN”) on November 7, 2012 to obtain technical guidance on

accommodating Mr. Richardson. 4 See Def.’s Ex. G-4, ECF No. 41-17

at 1. JAN made recommendations for a “Contract Specialist” with

Mr. Richardson’s medical conditions, including: reducing or

eliminating physical exertion and workplace stress; scheduling

4 JAN is “a free consulting service, provided by the U.S. Department of Labor’s Office of Disability Employment Policy, designed to increase the employability of people with disabilities[.]” See Def.’s Ex. G-5, ECF No. 41-18 at 4 n.1. 7 periodic rest breaks away from the workstation; allowing a

flexible work schedule and flexible use of leave time; allowing

work from home; implementing an ergonomic workstation design;

providing a scooter or other mobility aid if walking could not

be reduced; providing a height adjustable desk and ergonomic

chair; moving the workstation close to common use office

equipment; providing a low task chair and rolling safety ladder;

and providing a cart to move files, mail, and supplies.

On November 9, 2012, Mr. Smoot submitted an accommodation

request on behalf of Mr. Richardson, relaying his request for

reassignment to a non-sedentary position outside of IA, IPD. See

Def.’s Ex. G-5, ECF No. 41-18 at 3. By letter dated November 23,

2012, Mr. Matta denied this request, stating: “Reassignment to

an open position is the accommodation of last resort and is

implemented only when no other accommodation has proved

effective.” See Def.’s Ex. G-6, ECF No. 41-19 at 3. Instead, Mr.

Matta offered Mr. Richardson six accommodations: (1) the ability

to take frequent breaks within the building of up to 15 minutes

without supervisory approval; (2) access to any team meeting

room or empty office space during breaks if he needed to stretch

or rest in private; (3) the ability to take longer breaks or

breaks outside the building, as long as he advised management of

the break in advance and of his approximate return time; (4) the

ability to adjust his arrival or departure time in order to use

8 the gym facilities in the Reagan Building so long as he worked

his eight-hour shift during IPD’s core business hours; (5) the

ability to have his work station evaluated by a specialist in

ergonomic workplaces and thereafter have the “best work station”

provided to him; and (6) guaranteed approval of leave for all

prescribed rehabilitation appointments for the next six months.

. The letter informed Plaintiff that he could seek to

modify these accommodations if they proved ineffective and could

request reconsideration by submitting a written request within

ten calendar days of his receipt of the letter.

.

While Mr. Richardson had already taken stretch breaks

during the workday, he did not try the other accommodations he

was offered. See Def.’s Ex. A, ECF No. 41-6 at 43:8–44:19.

However, by letter dated November 29, 2012, Mr. Richardson

requested “reconsideration of the reasonable accommodation

options the Agency offered to him,” and asked to telework or be

transferred internally while IA processed his request. See

Def.’s Ex. G-7, ECF No. 41-20 at 2-3. Mr. Richardson

acknowledged that reassignment could require him to reduce his

pay grade, and he expressed his willingness to do so.

.

In support of his request for reconsideration, Dr. Babcock

provided a supplemental letter reiterating Mr. Richardson’s

request for reassignment to a more active position. See Def.’s

Ex. G-8, ECF No. 41-21 at 2. However, Dr. Babcock was unaware of

9 DHS’s six proffered accommodations at the time she wrote this

letter. See Def.’s Ex. H, ECF No. 41-25 at 32:9–12. In later

deposition testimony, Dr. Babcock stated her opinion that each

of the accommodations would have been beneficial to Plaintiff in

continuing to perform in his sedentary position, and that she

“would have been very pleased with those accommodations if [she]

had known about them.”

at 32:13–34:9.

Following invocation of his rights under the Family Medical

Leave Act (“FMLA”), Mr. Richardson completed his last day in the

office on December 5, 2012 before going on approved FMLA leave.

SOMF, ECF No. 47-4 at 29 ¶ 86, 30 ¶ 88. That month, Mr. Matta

learned of an available position with the Security Management

Division in the Reagan Building. See Pl.’s Ex. JJ, ECF No. 47-41

at 1. However, after forwarding the position to Mr. Smoot, it

was determined that the duties of that position were primarily

sedentary and nearly equivalent to that of an SOAS, and so the

position was not offered to Plaintiff. See id.; Pl.’s Ex. B, ECF

No. 47-7 at 104:13–105:15, 213:7-214:16. In January 2013, DHS

granted Mr. Richardson’s reconsideration request and initiated a

search for non-sedentary vacancies. See SOMF, ECF No. 47-4 at 14

¶ 34. Mr. Matta informed Mr. Richardson of this decision via

letter on January 22, 2013, stating that a “job search [would]

be conducted to identify vacant funded positions in the local

commuting area.” Def.’s Ex. G-9, ECF No. 41-22 at 3.

10 In March 2013, Defendant conducted the first search for

positions equivalent to Mr. Richardson’s grade or one level

lower, but it did not yield any non-sedentary vacancies for

which he was qualified. See Def.’s Ex. E-1, ECF No. 41-12 at 7 ¶

17; Pl.’s Ex. J, ECF No. 47-15 at 3-5; SOMF, ECF No. 47-4 at 15

¶¶ 37-38. Two positions in Baltimore were identified, but they

were not raised because Baltimore was outside the local

commuting area. See Pl.’s Ex. LL, ECF No. 47-43 at 1-3.

Defendant then performed a DHS-wide job search for local,

vacant, funded, non-sedentary positions, but this search also

did not yield any qualifying positions. See Def.’s Ex. E-1, ECF

No. 41-12 at 8 ¶ 17. On May 28, 2013, Mr. Matta advised Mr.

Richardson by letter that no qualifying non-sedentary positions

were available. See Def.’s Ex. G-11, ECF No. 41-24 at 3. The

letter instructed Mr. Richardson to contact Mr. Matta if he

wished to have the job search expanded outside the Washington,

D.C. local commuting area, reemphasized Defendant’s willingness

to implement the six accommodations previously proposed, and

noted that failure to respond would constitute an end to the

accommodation process. See

. Mr. Richardson did not

respond to this letter. See SOMF, ECF No. 47-4 at 16 ¶ 41.

2. Disputes Between Mr. Richardson and DHS

On September 24, 2012, shortly after his return to IA, IPD,

Mr. Richardson was mistakenly notified that he owed $1,800.42

11 for unpaid health benefits. See Def.’s Ex. K-1, ECF No. 41-33 at

2. On September 28, 2012, Mr. Richardson emailed IA, with the

subject line, “Billed for [the Federal Employees Health Benefits

Program (“FEHB”)] while on Active Duty—Again!”—to explain that

he was “erroneously billed over ($1800.00) by FEHB for unpaid

health benefits” while he was on active duty, an error which

“happened to [him] in 2011 as well.” See Def.’s Ex. K-2, ECF No.

41-34 at 2-3. Mr. Richardson also claims he received erroneous

bills on a weekly basis as well as federal debt notification

letters. SOMF, ECF No. 47-4 at 22 ¶ 66; see Pl.’s Ex. RR, ECF

No. 47-48 at 36. Mr. Richardson was advised that officials would

look into the issue, see SOMF, ECF No. 47-4 at 22 ¶ 64; and on

October 12, 2012, Ms. Keverline informed Mr. Richardson that the

error had been resolved and “the FEHB bill was cancelled as of

10/4/12[,]”

; Def.’s Ex. K-1, ECF No. 41-33 at 6.

On October 15, 2012, Mr. Richardson sent an email to Mr.

Matta with the subject line “Financial Harassment Continues—

10/15/2022, Hostile Environment Update,” advising Defendant of

40 hours missing from his paycheck. See Def.’s Ex. L, ECF No.

41-35 at 13. He requested an audit of his pay, to “include a

complete accounting of [his] military leave and [to] address the

erroneous health care bill deductions for coverage during [his]

active military duty time.”

. Defendant conducted two

audits for various pay periods, see

; and ultimately

12 paid Mr. Richardson for this missing time.

; see Def.’s

Ex. K-1, ECF No. 41-33 at 8 (“With respect to the 40 hours—We

already corrected the timecard[.]”).

In late October 2012, Mr. Richardson’s supervisors emailed

him to ask about his whereabouts after seeing him leave work

early. See Pl.’s Ex. V, ECF No. 47-27 at 2. Mr. Richardson

responded that he had already notified them that he was leaving

early due to “intolerable” back pain and stated that they “were

too preoccupied with finding fault with” him.

.

In November 2012, Mr. Matta advised an ER Specialist of his

and Ms. Keverline’s concerns about Mr. Richardson. See Def.’s

Ex. N, ECF No. 41-37 at 2. Ms. Keverline noted that Plaintiff

appeared frustrated about his perceived mistreatment by IA

leadership, that the tone of his emails had changed over time,

and that he had created office stress. See

. Likewise,

Mr. Matta noted that Mr. Richardson was “becoming increasingly

irrational, withdrawn, non-responsive, [and] agitated,” causing

him to have “an altered view of reality” that was “creating

anxiety” in the workplace and “cause for concern.”

.

He believed Mr. Richardson was “demonstrating warning signs that

[were] consistent with other workplace violence episodes.”

. The ER Specialist recommended referring Mr. Richardson to

the Employee Assistance Program (“EAP”). See

. When Mr.

13 Matta informed Mr. Richardson of the EAP referral, he objected

and left the room. See SOMF, ECF No. 47-4 at 26 ¶ 79.

On January 22, 2013, Mr. Richardson forwarded an email to

Mr. Lid expressing frustration about the effects of his leave

without pay (“LWOP”) status on his family and career. See Def.’s

Ex. O, ECF No. 41-38 at 7. He stated that he belonged to two

high-risk categories for suicide—service member and member of

law enforcement—and that he was not operating under optimal

conditions. See

. DHS contacted Mr. Richardson about the

possible implications of these statements regarding suicide. See

. He denied having suicidal thoughts but claimed he was

raising the issue out of obligation “to those who would follow

in his footsteps” at DHS. Id.; SOMF, ECF No. 47-4 at 27 ¶ 81.

Between December 2012 and June 2013, Defendant placed Mr.

Richardson on “Do Not Admit” (“DNA”) status and issued a notice

featuring his picture to security personnel. See Def.’s Ex. M,

ECF No. 41-36 at 2; SOMF, ECF No. 47-4 at 28-29 ¶ 85. 5

3. Mr. Richardson’s Termination Following Excessive Absenteeism

On November 1, 2012, Mr. Richardson invoked his FMLA

rights, which allowed him to take LWOP for up to twelve work

weeks during a twelve-month period. See Def.’s Ex. P, ECF No.

5 It is unclear from the record evidence when, for how long, and who proposed the DNA notice. See R. & R., ECF No. 52 at 8 n.2. 14 41-39 at 2–3. Mr. Richardson was on approved FMLA leave from

December 6, 2012 to April 11, 2013, SOMF, ECF No. 47-4 at 30 ¶

88; but he did not return to the office after taking FMLA leave,

see Def.’s Ex. A, ECF No. 41-6 at 46:4–47:2.

On September 16, 2013, DHS sent Mr. Richardson a letter

proposing his removal from the Federal Service due to excessive

absenteeism. See Def.’s Ex. P-1, ECF No. 41-40 at 2. From

September 23, 2012 to September 7, 2013, he used “69.5 hours of

annual leave, 165 hours of sick leave, and 1016 hours of [LWOP]

. . . outside of the hours . . . invoked under the [FMLA].”

After Mr. Richardson replied to his proposed removal, see SOMF,

ECF No. 47-4 at 30 ¶ 91; Mr. Joseph Gaudiano, the deciding

official, sustained the excessive absenteeism charge and issued

notice of Mr. Richardson’s removal, effective March 8, 2014, see

Def.’s Ex. P-2, ECF No. 41-41 at 2; Def.’s Ex. P-3, ECF No. 41-

42 at 2.

On April 7, 2014, Mr. Richardson filed an appeal with the

U.S. Merit Systems Protection Board (“MSPB”). See Def.’s Ex. Q,

ECF No. 41-43 at 2. He alleged disability discrimination,

retaliation, violation of his due process rights, denial of

reemployment under USERRA, and discrimination based on his

military service. See

. On September 22, 2017, the MSPB

Administrative Judge (“AJ”) affirmed the removal action and

denied corrective action under USERRA. See

.

15 B. Procedural Background

On August 7, 2017, Mr. Richardson filed this action. See

Compl., ECF No. 1 at 1. On March 16, 2020, DHS filed its Motion

for Summary Judgment. See Def.’s Mot., ECF No. 41. Plaintiff

initially filed his opposition on June 26, 2020, see ECF No. 44;

but the parties consented to him filing a revised opposition

brief since the initial filing exceeded the allowable page

limit, see Unopposed Consent Mot. for Extension of Time to File

Pl.’s Revised & Compliant Opp’n, ECF No. 46 at 1-2; Minute Order

(July 15, 2020) (granting this motion). On August 13, 2020, Mr.

Richardson filed his Amended Opposition and accompanying

exhibits, see Pl.’s Opp’n, ECF No. 47; to which DHS replied on

November 13, 2020, see Def.’s Reply, ECF No. 51.

Magistrate Judge Faruqui, having been referred this case

for full case management, see Minute Order (Oct. 13, 2020);

issued the R. & R. on July 23, 2021, recommending that the Court

grant DHS’s Motion for Summary Judgment, see R. & R., ECF No. 52

at 1. On August 6, 2021, Mr. Richardson submitted his objections

to the R. & R. See Pl.’s Objs., ECF No. 53. DHS filed its

response on August 20, 2021. See Def.’s Resp., ECF No. 54. Mr.

Richardson’s objections are now ripe and ready for the Court’s

adjudication.

16 III. Standard of Review

A. Objections to a Magistrate Judge’s Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. See Fed. R. Civ. P. 72(b)(1)-

(2). A district court “may accept, reject or modify the

recommended disposition[.]” Fed. R. Civ. P. 72(b)(3); see also

(b)(1)(C) (“A judge of the court may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.”). A district

court “must determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P.

72(b)(3). “If, however, the party makes only conclusory or

general objections, or simply reiterates his original arguments,

the [c]ourt reviews the [R. & R.] only for clear error.”

Houlahan v. Brown,

(D.D.C. 2013)

(citation and internal quotation marks omitted). “Under the

clearly erroneous standard, the magistrate judge’s decision is

entitled to great deference and is clearly erroneous only if on

the entire evidence the court is left with the definite and firm

conviction that a mistake has been committed.” Buie v. Dist. of

Columbia, No. 16-1920,

, at *3 (D.D.C. Sept. 12,

17 2019) (citing Graham v. Mukasey,

(D.D.C.

2009) (internal quotation marks omitted)).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for objection.” LCvR 72.3(b). “[O]bjections which

merely rehash an argument presented [to] and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA,

(D.D.C. 2013) (citation omitted).

B. Motion for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Waterhouse v. Dist. of Columbia,

(D.C.

Cir. 2002). The moving party bears the initial burden “of

informing the district court of the basis for its motion, and

identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett,

,

,

(1986) (internal quotation marks omitted). This burden “may be

18 discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.”

.

On the other hand, to defeat summary judgment, the

nonmoving party must “go beyond the pleadings” to designate

specific facts showing that there is a genuine issue of material

fact for trial.

. A material fact is one that is

capable of affecting the outcome of the litigation, while a

genuine dispute is one in which “the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc.,

,

,

(1986). The nonmoving party’s

opposition “must consist of more than mere unsupported

allegations or denials and must be supported by affidavits or

other competent evidence” in the record. Musgrove v. Dist. of

Columbia,

(D.D.C. 2011), aff’d,

(D.C. Cir. 2012); Celotex,

. Furthermore,

in the summary judgment analysis, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to

be drawn in his favor.” Anderson,

.

IV. Analysis

DHS has moved for summary judgment on Plaintiff’s claims

for: (1) failure to accommodate; (2) hostile work environment;

(3) retaliation; (4) violation of due process; (5) failure to

reemploy; and (6) failure to consider efficiency of service

19 under the Rehabilitation Act, Title VII, the Civil Service

Reform Act,

(b)(1), and USERRA, see Def.’s Mot.,

ECF No. 41-3 at 1; and Magistrate Judge Faruqui recommended

granting DHS’s motion “for each claim[,]” R. & R., ECF No. 52 at

1. Mr. Richardson does not object to the R. & R.’s conclusions

as to his hostile work environment, due process, and efficiency

of service claims, see generally Pl.’s Objs., ECF No. 53; and

thus the Court adopts those findings and grants summary judgment

as to those claims. Instead, Plaintiff raises seven objections,

one pertaining to Magistrate Judge Faruqui’s determination of

the undisputed facts, two relating to Mr. Richardson’s

Rehabilitation Act claim, three pertaining to his retaliation

claim under Title VII, and one regarding his USERRA claims. The

Court addresses each objection in turn.

A. Magistrate Judge Faruqui Did Not Err in His Determination of the Undisputed Facts

Mr. Richardson’s first objection is a factual one, claiming

that Magistrate Judge Faruqui failed to discuss a genuine issue

of material fact related to errors in his retirement pay

calculations, which he claims “contributed to the [financial]

harassment by Defendant[.]” See Pl.’s Objs., ECF No. 53 at 3-4.

Specifically, Mr. Richardson claims that the issue of whether

DHS “resolved the error regarding retirement pay calculations”

was not addressed in Magistrate Judge Faruqui’s determination

20 that DHS resolved the financial issues between itself and Mr.

Richardson.

(citing R. & R., ECF No. 52 at 7). DHS counters

that there is no genuine dispute regarding “whether the Agency

properly calculated Plaintiff’s retirement annuity date” because

he “never presented” this argument to the Court, and plus, “the

purported dispute related to [his] retirement pay calculation .

. . [was] related to [his] dispute with the Office of Personnel

Management[,]” not with DHS. Def.’s Resp., ECF No. 54 at 3-4.

The relevant summary judgment rules make clear that a court

may deem undisputed assertions of fact in a movant’s statement

of material facts that are not properly “controverted.” See LCvR

7(h)(1); Fed. R. Civ. P. 56(e)(2). “An assertion of fact

properly presented in a movant’s statement of material facts is

not ‘controverted’ when a non-movant supplies additional facts

and ‘factual context’ . . . that do not actually dispute the

movant’s asserted fact.” Toomer v. Mattis,

(D.D.C. 2017); see also Gibson v. Off. of the Architect of

the Capitol, No. 00-2424,

, at *1 n.1 (D.D.C.

Nov. 19, 2002) (“Plaintiff’s Statement is almost completely

unhelpful to the Court as its provisions rarely address the

facts outlined in Defendant’s Statement, instead describing in

lengthy detail the ‘contextual and structural background’

surrounding Defendant’s stated facts.”); Learnard v. Inhabitants

of the Town of Van Buren,

, 119–20 (D. Me.

21 2002) (disregarding the plaintiff’s responsive factual

statements in part because many did “not actually controvert the

[d]efendants’ facts that they purport[ed] to address”). The

Court’s review of Plaintiff’s Counterstatement of Disputed Facts

reveals a pattern of failing to properly controvert DHS’s

asserted facts, in which he often writes “[u]ndisputed, subject

to clarification” before providing “additional, non-responsive

facts,” Toomer,

; or “[d]isputed in part”

based, not on an actual disputed fact, but on a disingenuous

objection to “an incomplete paraphrase of the cited exhibit[,]”

see generally SOMF, ECF No. 47-4; Gibson,

, at

*1 n.1 (“Such excess, unresponsive verbiage is a clear violation

of both the letter and spirit of Local Rule [7(h)].”).

Mr. Richardson only raised the topic of his retirement

annuity calculation in response to the following fact proffered

by DHS: “By email dated October 12, 2012, Plaintiff was advised

that the FEHB bill was cancelled.” SOMF, ECF No. 47-4 at 22 ¶

66. He replied that this was “[u]ndisputed, subject to

clarification[,]” and then supplied unresponsive “factual

context,” writing that “[t]his statement [did] not reflect full

context of range of thousands of dollars of pay and benefits

mistakes [he] faced” upon his return to the office, and included

the issue of his retirement annuity as part of this “context.”

See

(replying, irrelevantly, that “[o]n October 17, 2017,

22 [AJ] Mehrring ordered the Agency [to] accurately account from

and pay Plaintiff’s retirement annuity correctly[.]”). Not only

does this information not controvert DHS’s asserted fact, but

neither did Mr. Richardson properly identify the retirement pay

issue in his paragraphed list of the genuine issues of material

fact at the end of his Counterstatement of Disputed Facts. See

Graves v. Dist. of Columbia,

, 111–12 (D.D.C.

2011) (“Where the opposing party has additional facts that are

not directly relevant to its response, it must identify such

facts in consecutively numbered paragraphs at the end of its

responsive statement of facts.”). Thus, regardless of whether

the issue was brought “to the Magistrate Judge’s attention in”

Plaintiff’s opposition, see Pl.’s Objs., ECF No. 53 at 4;

Magistrate Judge Faruqui was not required to consider this

“unhelpful” context in the SOMF that did not “admit, deny, or

qualify” DHS’s proffered fact about the FEHB bill, see Gibson,

, at *1 n.1; Learnard,

.

Accordingly, Magistrate Judge Faruqui did not err in his

determination of the undisputed facts. Instead, the R. & R.

correctly summarizes the undisputed facts from the “Corrected

FEHB” and “Audit of Leave” sections of the SOMF, see R. & R.,

ECF No. 52 at 7; in which it was undisputed that Defendant

“resolved” the FEHB billing issues and notified Mr. Richardson

that the FEHB bill had been cancelled, see SOMF, ECF No. 47-4 at

23 22 ¶¶ 65-66. Magistrate Judge Faruqui also supplemented the

facts from the SOMF with evidence indicating that DHS

“ultimately paid Plaintiff for [the forty hours of] missing

time” from his paycheck. See R. & R., ECF No. 52 at 7 (citing

Def.’s Ex. L, ECF No. 41-35 at 11; Def.’s Ex. K-1, ECF No. 41-33

at 8). In sum, Magistrate Judge Faruqui “properly deemed

undisputed those facts which the parties explicitly stated were

not in dispute and those facts which the parties failed to

adequately controvert, and he appropriately filled in factual

gaps by scrutinizing the record submitted to the Court.” Toomer,

. The Court therefore overrules Mr.

Richardson’s objection to the R. & R.’s characterization of the

undisputed facts as to the financial issues between him and DHS. 6

B. Magistrate Judge Faruqui Correctly Granted Summary Judgment on Mr. Richardson’s Rehabilitation Act Claim

The Rehabilitation Act of 1973 “provides that ‘[n]o

otherwise qualified individual with a disability’ shall be

discriminated against by a federal agency ‘solely by reason of .

. . his disability.’” Ward v. McDonald,

(D.C.

6 In addition, as DHS notes, the “dispute related to Plaintiff’s retirement pay calculation, which resulted in an overpayment, is related to [his] dispute with the Office of Personnel Management[ (“OPM”),]” not DHS. See Def.’s Resp., ECF No. 54 at 4 (citing Pl.’s Ex. SS, ECF No. 47-49, Order & Summ. of Status Conference, Richardson v. OPM, DC-0845-16-0798-I-1 (MSPB Oct. 17, 2016)). The record indicates that OPM resolved the overpayment issue in Mr. Richardson’s favor. See Pl.’s Ex. RR, ECF No. 47-48 at 51. 24 Cir. 2014) (quoting

(a)). The “basic tenet” of

the Act is that the federal government “must take reasonable

affirmative steps to accommodate the handicapped, except where

undue hardship would result.” Barth v. Gelb,

(D.C. Cir. 1993). To prevail on a failure to accommodate claim,

a plaintiff bears the burden of producing sufficient evidence

that: (1) he was a qualified individual with a disability; (2)

his employer had notice of his disability; and (3) the employer

denied his request for a reasonable accommodation. See Ward,

. Here, only the third element is disputed. See R. &

R., ECF No. 52 at 11. To establish that his request was denied,

Mr. Richardson must also show that DHS “in fact ended the

interactive process or that it participated in the process in

bad faith.” Minter v. Dist. of Columbia,

(D.C.

Cir. 2015) (quoting Ward,

).

Magistrate Judge Faruqui recommended that the Court dismiss

Mr. Richardson’s Rehabilitation Act claim because he concluded

that: (1) Plaintiff was not denied reasonable accommodations,

and (2) DHS was not responsible for the breakdown in the

interactive accommodation process. See R. & R., ECF No. 52 at

12-14, 16-19. Mr. Richardson objects to these portions of the R.

& R. See Pl.’s Objs., ECF No. 53 at 5-11 (objections two and

25 three). The Court reviews these objections de novo, 7 and for the

reasons below, adopts the Magistrate Judge’s recommendations.

1. Mr. Richardson Was Not Denied Reasonable Accommodations

“[W]hile a plaintiff may prove discrimination by showing

that his employer failed to provide a reasonable accommodation[]

[for] his disability, . . . an employer need only provide an

accommodation that is responsive to and tailored to a specific

disability.” Edwards v. Gray,

(D.D.C.

2013) (citation and internal quotation marks omitted). An

“employer is not required to provide an employee that

accommodation he requests or prefers[;] the employer need only

provide some reasonable accommodation.” Aka v. Washington Hosp.

Ctr.,

(D.C. Cir. 1998) (citation omitted).

If accommodation is not possible in the employee’s current

position, then “the federal employer must consider the

feasibility of reassigning the disabled employee to a vacant

position.” Norden v. Samper,

(D.D.C.

2007). However, there are “[r]ecognized constraints on an

employer’s obligation to reassign a disabled employee[,]” as

“[a]n employee need not be reassigned if no vacant [qualifying]

7 Of note, while DHS argues for the general application of clear error review to all of Plaintiff’s objections, it only provides specific reasons for applying this standard to his fourth and fifth objections. See Def.’s Resp., ECF No. 54 at 2-3. 26 position exists,” and “employers are not required to ‘bump’ an

employee, or to create a new position” solely for the purposes

of an accommodation. Aka,

. In addition, “when

an employee requests a transfer as reasonable accommodation and

the employer offers alternative reasonable accommodation[s],

which the employee then refuses, the employer cannot be liable

for failing to reasonably accommodate the employee by not

transferring him to another position.” Gile v. United Airlines,

Inc.,

(7th Cir. 1996).

Mr. Richardson objects to Magistrate Judge Faruqui’s

conclusion that “the six accommodations proposed by Defendant

were reasonable and tailored to enable Plaintiff to perform his

essential duties.” Pl.’s Objs., ECF No. 53 at 5 (citing R. & R.,

ECF No. 52 at 12). While Plaintiff claimed that the proffered

accommodations failed his medical needs because Dr. Babcock had

“characterized reassignment as ‘medically necessary,’” R. & R.,

ECF No. 52 at 14; Magistrate Judge Faruqui called this argument

“toothless” because of “Dr. Babcock’s lack of knowledge [about]

the proposed accommodations at the time of her recommendation

and by her later testimony that she would have ‘been very

pleased with those accommodations’” if she had known about them,

(citing Def.’s Ex. H, ECF No. 41-25 at 33:24-34:9). The

Magistrate Judge concluded that “Plaintiff could not demonstrate

27 that Dr. Babcock would have testified differently about the

proposed accommodations when they were made.”

Mr. Richardson claims there is a genuine issue of material

fact because Magistrate Judge Faruqui “speculated that Plaintiff

could not demonstrate Dr. Babcock would have testified

differently” about DHS’s proposed accommodations when they were

made in 2012, which renders the issue “not appropriate for

summary judgment.” Pl.’s Objs., ECF No. 53 at 5-6. DHS responds

that “[t]he record demonstrates that Dr. Babcock testified she

would have considered the Agency’s offered accommodations

adequate to address Plaintiff’s medical condition.” Def.’s

Resp., ECF No. 54 at 4. The Court agrees with DHS.

The record indicates that Dr. Babcock submitted two letters

on Mr. Richardson’s behalf, recommending “[r]eassignment to a

position that is not predominantly sedentary.” See Pl.’s Ex. Z,

ECF No. 47-31 at 2; Def.’s Ex. G-8, ECF No. 41-21 at 2. Yet, in

her deposition in 2019, Dr. Babcock testified that at no point

was she made aware of the accommodations DHS offered Mr.

Richardson on November 23, 2012. See Def.’s Ex. H, ECF No. 41-25

at 32:9–12; Def.’s Ex. G-6, ECF No. 41-19 at 3-4. Specifically,

the following exchange occurred between Dr. Babcock and

Defendant’s attorney in her deposition:

Q: Now, using all six of those options at the same time, rest breaks, the empty space to stretch out, to change his work time so he

28 could go to the gym, an ergonomic specialist to come in to work with him on the work space that he -- setting it up in the way that works for him better, and the ability to take the leave for his rehab appointments, would all of those together make it so that he could continue doing his sedentary job?

A: I would have been very pleased with those accommodations if I had known about them.

Def.’s Ex. H, ECF No. 41-25 at 33:24-34:9. This dialogue

provides sufficient facts from which a jury could reasonably

conclude that “if [Dr. Babcock] had known about” the six

accommodations in 2012 when DHS proposed them, id.; she would

have considered them “adequate to address Plaintiff’s medical

condition[,]” Def.’s Resp., ECF No. 54 at 4. Indeed, Plaintiff

offers only “speculation and conjecture” that Dr. Babcock would

testify differently before a jury today than she did in her 2019

deposition regarding her medical opinion from 2012, which are

“insufficient to avoid summary judgment[.]” See Hancock v.

Washington Hosp. Ctr.,

(D.D.C. 2012).

Although DHS did not offer every accommodation requested, it did

proffer reasonable alternatives, “which is all the law requires

it to do.” See Doak v. Johnson,

(D.D.C.

2014); Aka, 156 F. Supp. 3d at 1305. Accordingly, the Court

ADOPTS the R. & R.’s finding that Plaintiff was not denied

reasonable accommodations, see ECF No. 52 at 12-14.

29 2. DHS Was Not Responsible for the Breakdown in the Interactive Accommodation Process

The Court next considers Mr. Richardson’s objection that

there is a genuine issue of material fact regarding whether DHS

“participated in the reasonable accommodation request process in

bad faith” and was thus responsible for the breakdown in the

interactive accommodation process. Pl.’s Objs., ECF No. 53 at 6.

To prove the denial of a reasonable accommodation request,

a plaintiff must show “either that the [agency] in fact ended

the interactive process or that it participated in the process

in bad faith.” Minter,

. “Few disabilities are

amenable to one-size-fits-all accommodations[,]” and “[t]he

process contemplated is ‘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)). “[C]ourts should look for signs

of failure to participate in good faith or failure by one of the

parties to make reasonable efforts to help the other party

determine what specific accommodations are necessary.”

(quoting Sears,

). This analysis considers

whether a party “obstructs or delays the interactive process” or

“fails to communicate, by way of initiation or response,” and

should “isolate the cause of the breakdown and then assign

30 responsibility.”

(quoting Sears,

). “An

employee’s rejection of an employer’s proposed reasonable

accommodation is one example of bad-faith termination of the

interaction process.” R. & R., ECF No. 52 at 16 (citing Senatore

v. Lynch,

(D.D.C. 2016)). In contrast,

employers can show good faith by meeting with the employee,

requesting information about his condition and limitations,

asking the employee what he specifically wants, showing signs of

having considered the employee’s request, and discussing

alternatives when the request is burdensome. See Woodruff v.

LaHood,

, 41–42 (D.D.C. 2011) (citation

omitted). Ultimately, the “failure to provide [an employee] with

exactly the accommodation [he] requested is not, in and of

itself, evidence that the [employer] did not engage in good

faith in the interactive process.” Morris v. Jackson,

(D.D.C. 2013).

Mr. Richardson objects to Magistrate Judge Faruqui’s

rejection of the possibility that DHS “exhibited bad faith

during the [interactive] process” and claims there is a genuine

dispute of material fact on this issue. See Pl.’s Objs., ECF No.

53 at 7, 11. Mr. Richardson alleges he is not “tak[ing] issue

with the Magistrate finding some indicators of good faith by

Defendant” but is taking “issue with the Magistrate not properly

31 recognizing that [DHS] also engaged in statements and actions

demonstrating bad faith.” Id. at 7.

To support his objection, Mr. Richardson proffers three

purported instances of bad faith by Defendant, to which DHS

responds that each are “without merit.” Def.’s Resp., ECF No. 54

at 5. First, Plaintiff points to statements made by AC Tomsheck

and his supervisors after his return to work to argue that DHS

demonstrated bad faith by “immediately eliminating reassignment

as a possible accommodation as early as August 2012 without

fairly considering it[.]” See Pl.’s Obj.’s, ECF No. 53 at 7-8

(quoting AC Tomsheck: “IPD was the best place for Plaintiff[;]”

Mr. Matta: “John, you’re staying in IPD[;]” and Mr. Lid: “[W]hy

don’t you just retire retire?”; and claiming these statements

exhibited “a ‘closed mind’ to [his] request for reassignment”).

However, “the record is replete with evidence that the

Agency did consider reassignment” despite these alleged

statements. Def.’s Resp., ECF No. 54 at 5 (citing SOMF, ECF No.

47-4 at 14 ¶ 34, 15-16 ¶¶ 37-40). For example, on August 16,

2012, in an email following his initial phone conversation with

Mr. Richardson about his request for accommodations, Mr. Matta

stated: “[I]f you are interested in moving to another IA

division, I will support your movement to another division . . .

I suggest you identify the component and specific job you are

interested in[,] and I will do everything I can to facilitate a

32 reassignment.” Pl.’s Ex. G, ECF No. 47-12 at 1. In another email

on September 7, 2012, Mr. Matta wrote to Plaintiff: “Should you

wish to move within IA or to another component, I will try to

facilitate.” Def.’s Ex. I-1, ECF No. 41-26 at 4 (emphasis in

original). These statements were made “early in the

accommodation process” and do not indicate that management

“view[ed] reassignment negatively as an option during the early

stages of the interactive process[.]” Pl.’s Objs., ECF No. 53 at

8.

The record demonstrates that DHS engaged with the

possibility of reassignment throughout the accommodation

process. In January 2013, “Defendant granted Plaintiff’s request

for reconsideration despite his refusal to attempt the six

accommodations offered[,]” R. & R., ECF No. 52 at 17 (citing

SOMF, ECF No. 47-4 at 14 ¶ 34); and initiated two searches for

“vacant funded positions in the local commuting area” to which

Mr. Richardson could be reassigned, see Def.’s Ex. G-9, ECF No.

41-22 at 3; Def.’s Ex. E-1, ECF No. 41-12 at 7-8 ¶ 17 (noting

that both searches yielded no vacancies). Given that “[a]n

employee need not be reassigned if no vacant position exists,”

Aka,

; the Court is therefore unpersuaded that a

jury could reasonably conclude that the above statements from IA

leadership were sufficient to indicate bad faith and overcome

the other evidence of good faith. Moreover, DHS was not, as Mr.

33 Richardson argues, required to consider reassignment or any of

his preferred accommodations before other alternatives. See

Norden,

(concluding that “[i]f

accommodation cannot be made in the employee’s current

position,” only then must the employer “consider the feasibility

of” reassignment); Aka,

(negating preferential

treatment of the accommodation an employee “prefers”).

Mr. Richardson’s second purported indication of bad faith

is “Defendant’s passivity and indifference in the initial two

months” following his request for accommodations on August 3,

2012. Pl.’s Objs., ECF No. 53 at 9. He claims that during those

two months, DHS did not meaningfully respond to his request and

that this “earliest reaction . . . is more important than [its]

later actions” in exploring possible accommodations.

at 9-

10. The Court disagrees, as the record indicates Mr. Matta

immediately engaged with Mr. Richardson via phone and email

after receiving his August 3, 2012 email. See SOMF, ECF No. 47-4

at 4 ¶ 11. In addition, Plaintiff fails to cite any authority

proving that an employer’s earlier reactions are weighed more

heavily than its later actions in the interactive process, when

in fact the duty to accommodate is an evolving and “continuing

duty that is not exhausted” by any one effort, Norden,

; and the evidence indicates Mr. Richardson’s

request “was still under consideration” throughout 2013, see

34 Ward,

n.3 (affirming summary judgment, despite

the plaintiff’s testimony that her accommodation request was

denied at an earlier meeting, when a follow-up letter from her

employer showed her request was still pending). 8

Mr. Richardson’s final proffer of bad faith is DHS’s

“failure to truly consider telework as an option or list it as a

possibility from the [JAN].” Pl.’s Objs., ECF No. 53 at 10. As

with his argument regarding reassignment, Mr. Richardson claims

that DHS “showed a closed mind to telework by rejecting it

(quickly) without ever really explaining why.” Id. at 11.

However, the only evidence he points to to support this

statement is Mr. Matta’s MSPB testimony about telework, in which

Mr. Matta stated that if an employee “were unable to focus,

concentrate[,] and look at a computer monitor and type, it was

irrelevant” whether the work was performed at the office or at

home. Id. at 10; Pl.’s Ex. B, ECF No. 47-7 at 185:17-186:4.

However, this statement does not indicate that Defendant

“quickly” denied telework as a reasonable accommodation, much

8 The Court notes similarities between this portion of the objection and Plaintiff’s opposition brief. See Pl.’s Opp’n, ECF No. 47 at 27 (“The evidence directly shows that between August 3, 2012 and November 23, 2012, the Agency did not take a single proactive measure to ensure that Plaintiff’s request was properly processed, much less even considered.”). Had the Court not reached the above de novo conclusion, it also believes this portion of Plaintiff’s objection could be overruled under clear error review for attempting to “rehash” this prior argument. Shurtleff v. EPA,

(D.D.C. 2013). 35 less never considered it throughout the interactive process, and

it also does not raise an inference of bad faith. See Morris,

(finding that the breakdown in the

interactive process may have in fact been “caused by [the

plaintiff’s] insistence on telecommuting, but no evidence

show[ed] it was caused by any misfeasance or lack of good faith”

by her employer). As Mr. Richardson concedes, all that was

required of DHS was to act in good faith by considering his

telework request, alongside the reasonable available

alternatives. See

; Pl.’s Objs., ECF No. 53 at 10.

Because Mr. Richardson’s three arguments do not raise a

genuine dispute as to DHS’s purported bad faith, the Court

ADOPTS this portion of the R. & R, see ECF No. 52 at 16-19.

Moreover, because the Court agrees with Magistrate Judge Faruqui

that: (1) Mr. Richardson was not denied reasonable

accommodations; and (2) DHS was not responsible for the

breakdown in the interactive accommodation process, the Court

GRANTS Defendant’s Motion for Summary Judgment as to Mr.

Richardson’s Rehabilitation Act claim, see ECF No. 41.

C. Magistrate Judge Faruqui Correctly Granted Summary Judgment on Mr. Richardson’s Retaliation Claim

The Court next considers Plaintiff’s three objections to

the portions of the R. & R. recommending denial of his Title VII

retaliation claim. See R. & R., ECF No. 52 at 22-28.

36 Title VII makes it unlawful for an employer to retaliate

against an employee because he opposed an unlawful employment

practice and asserted his Title VII rights. See 42 U.S.C. §

2000e-3(a); Jeffries v. Barr,

(D.C. Cir.

2020). Where the plaintiff lacks direct evidence of retaliation,

he must proceed under the burden-shifting analysis set out

in McDonnell Douglas Corp. v. Green,

,

,

(1973). See Iyoha v. Architect of the

Capitol,

(D.C. Cir. 2019). This framework

requires the plaintiff to first plead his prima

facie case, see McDonnell Douglas,

; which

requires establishing that: (1) “he engaged in statutorily

protected activity;” (2) “he suffered a materially adverse

action by his employer;” and (3) “a causal link connects the

two[,]” Iyoha,

(quoting Jones v. Bernanke,

(D.C. Cir. 2009)). Upon this showing, “the burden

shifts to the employer to articulate a legitimate, non-

retaliatory reason for its actions[,]” and if it does so, the

burden returns to the plaintiff to prove that the “asserted non-

retaliatory reason was mere pretext for retaliation.” Carter-

Frost v. Dist. of Columbia,

(D.D.C.

2018). The “sole remaining question” becomes “whether, based on

all the evidence, a reasonable jury could conclude that [the]

proffered reason was” not the real reason for the adverse action

37 “and that the employer intentionally . . . retaliated against

the employee.” Pardo–Kronemann v. Donovan,

(D.C. Cir. 2010); Walker v. Johnson,

(D.C.

Cir. 2015); see also Jones,

(noting that “the

burden-shifting framework disappears” once an employer carries

its burden, and courts must consider “whether a reasonable jury

could infer . . . retaliation from all the evidence”).

“[O]nly a retaliatory act that is ‘materially adverse’ to

the plaintiff is actionable[.]” Chambers v. Dist. of Columbia,

(D.C. Cir. 2022) (citing Burlington N. & Santa

Fe Ry. Co. v. White,

,

(2006)), judgment entered, No. 19-7098,

(D.C.

Cir. June 23, 2022). Courts determine whether an action is

materially adverse using an objective standard, see id.; that

is, “the employer's actions must be harmful to the point that

they could well dissuade a reasonable worker from making or

supporting a charge of discrimination[,]” White,

.

Materially adverse actions are thus “objectively tangible

harm[s],” Forkkio v. Powell,

(D.C. Cir.

2002); and not “those petty slights or minor annoyances that

often take place at work[,]” White,

; see also

Tyes-Williams v. Whitaker,

(D.D.C. 2019)

(requiring the action to affect “the terms, conditions, or

privileges of employment or future employment opportunities”).

38 Magistrate Judge Faruqui considered the material adversity

of three actions before “moving onto the non-retaliatory reasons

offered” by DHS for them: (1) the alleged denial of reasonable

accommodations; (2) Plaintiff’s placement on DNA status; and (3)

his termination. See R. & R., ECF No. 52 at 23. First,

Magistrate Judge Faruqui concluded that “[b]ecause Defendant

provided reasonable accommodations[,] . . . no materially

adverse action arose” in this regard.

. Second, because

he found “a question as to material adversity of the DNA

notice,” Magistrate Judge Faruqui examined DHS’s proffered

reason for the notice and determined it was not pretextual.

. Lastly, because DHS conceded that Plaintiff’s

termination was materially adverse, Magistrate Judge Faruqui

assessed its proffered non-retaliatory rationale—Mr.

Richardson’s “excessive absenteeism”—to conclude that he failed

to prove pretext.

. Plaintiff’s fourth, fifth, and

sixth objections pertain to these portions of the R. & R. See

Pl.’s Objs., ECF No. 53 at 11-19. For the reasons below, the

Court adopts Magistrate Judge Faruqui’s three recommendations as

to Mr. Richardson’s retaliation claim.

1. Because DHS Provided Reasonable Accommodations to Mr. Richardson, He Cannot Dispute the “Material Adversity” of This Action

In his fourth objection, Mr. Richardson objects to

Magistrate Judge Faruqui’s conclusion that DHS provided him

39 reasonable accommodations and that no materially adverse action

arose in this regard for purposes of his retaliation claim. See

; R. & R., ECF No. 52 at 23. He argues that

“evidence from Dr. Babcock on the issue of what would be

considered reasonable accommodations should not be disregarded

to the point of deciding that no genuine issue of material fact

was presented by whether reasonable accommodations were

granted.”

. DHS argues that this objection should be

reviewed for clear error, as it amounts to “a cut and paste”

from Plaintiff’s Amended Opposition. Def.’s Resp., ECF No. 54 at

2. The Court agrees.

“Under the clearly erroneous standard, the magistrate

judge’s decision is entitled to great deference and is clearly

erroneous only if on the entire evidence the court is left with

the definite and firm conviction that a mistake has been

committed.” Buie,

, at *3 (citation and internal

quotation marks omitted). Courts must review an R. & R. in line

with this standard when a party “simply reiterates his original

arguments,” Houlahan,

; or attempts to

“merely rehash an argument presented [to] and considered by the

magistrate judge[,]” Shurtleff,

.

The substance of Mr. Richardson’s fourth objection is a

reiteration of arguments already presented to and considered by

Magistrate Judge Faruqui. Compare Pl.’s Opp’n, ECF No. 47 at 12

40 (“Any attempt to use Dr. Babcock’s testimony—almost seven (7)

years after her evaluation of Plaintiff—regarding hypothetical

accommodations as a way to contradict her real-time, unwavering,

definitive medical conclusions based on real-time physical

examinations, numerous conversations with Plaintiff, and

diagnostic tests she performed on him, is nonsensical.”

(emphasis in original)), with Pl.’s Objs., ECF No. 53 at 13

(disagreeing with Magistrate Judge Faruqui’s conclusion because

“Defendant’s attempt to use Dr. Babcock’s testimony almost seven

(7) years after her evaluation of Plaintiff regarding

hypothetical accommodations is nonsensical, considering her

unwavering, definitive medical conclusions of Plaintiff’s

conditions based on her physical examinations and her

interactions with Plaintiff, as well as diagnostic tests she

performed and the relevant medical records”). This repetitive

wording indeed indicates “a cut and paste” job that does not

persuade the Court that Magistrate Judge Faruqui made a definite

mistake. Def.’s Resp., ECF No. 54 at 2. Accordingly, the Court

defers to Magistrate Judge Faruqui’s decision and ADOPTS this

portion of the R. & R., see ECF No. 52 at 23-24. 9

9 Moreover, for the same reasons the Court found no genuine dispute of material fact regarding Dr. Babcock’s testimony under the second objection and adopted the R. & R.’s conclusion that Mr. Richardson was not denied reasonable accommodations under the Rehabilitation Act, see supra section IV.B.1.; so too does the Court conclude that this Title VII retaliation objection 41 2. Mr. Richardson Has Failed to Produce Sufficient Evidence from Which a Reasonable Jury Could Conclude That DHS’s Stated Reasons for the DNA Notice Are Pretextual

In his fifth objection, Plaintiff objects to Magistrate

Judge Faruqui’s conclusion that DHS proffered a legitimate, non-

retaliatory reason for the DNA notice that he failed to show is

pretextual. See Pl.’s Objs., ECF No. 53 at 15-16; Def.’s Resp.,

ECF No. 54 at 9 (“Plaintiff’s argument is whether the Magistrate

Judge erred in finding whether [he] demonstrated pretext.”). Mr.

Richardson also argues that the DNA notice harmed him, such that

summary judgment should be precluded. See Pl.’s Objs., ECF No.

53 at 14. However, the Court rejects these “harm” arguments, as

Magistrate Judge Faruqui already concluded, after analyzing the

record, that “a genuine dispute of fact exists as to whether

Plaintiff suffered harm because of the DNA notice.” R. & R., ECF

No. 52 at 25. Because the Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) has instructed that on motions

for summary judgment, “a district court need not consider

whether a plaintiff has actually satisfied the elements of a

prima facie case if the defendant has offered a legitimate, non-

discriminatory reason for its actions[,]” Musgrove, 775 F. Supp.

fails on the same grounds, see R. & R., ECF No. 52 at 24 (“[T]he Court’s conclusion that [P]laintiff’s Rehabilitation Act claim fails . . . defeats [his] retaliation claim based on the same alleged denial of reasonable accommodation.” (quoting Lester v. Natsios,

(D.D.C. 2003))). 42 2d at 169 (citing Brady v. Off. of Sergeant at Arms,

(D.C. Cir. 2008)); the Court only reviews DHS’s stated

reason for the notice “to determine if it was pretextual[,]” R.

& R., ECF No. 52 at 25. Although DHS argues for clear error

review, Def.’s Resp., ECF No. 54 at 2-3; the Court applies de

novo review since Plaintiff’s prior arguments about the notice

were in the context of his hostile work environment claim, not

his retaliation claim, see Pl.’s Opp’n, ECF No. 47 at 38-39.

A legitimate, non-retaliatory reason is a “clear and

reasonably specific” explanation for the employer’s actions,

i.e., “produc[ing] evidence of [those] legitimate [ ] reasons.”

Tex. Dep’t of Cmty. Affs. v. Burdine,

,

,

(1981) (internal quotation marks

omitted). “[I]n all instances where a defendant has asserted a

legitimate, non-[retaliatory] reason for its conduct, the Court

shall evaluate all of the evidence in the record” when assessing

the legitimacy of that reason. Washington v. Chao,

(D.D.C. 2008). On summary judgment, the central

question reduces to whether the employee has “produced

sufficient evidence for a reasonable jury to find that the

employer’s asserted . . . non-retaliatory reason was not the

actual reason and that the employer intentionally . . .

retaliated against the employee.” Walker,

. Upon

the articulation of a legitimate reason for the adverse action,

43 the burden shifts back to the plaintiff to rebut the defendant’s

stated reason as pretextual. See Musgrove,

. The plaintiff can “carry this burden by showing” that the

“reason offered by [the] defendant is false,”

(citing

Montgomery v. Chao,

(D.C. Cir. 2008)); or by

“presenting enough evidence to allow a reasonable trier of fact

to conclude that the employer’s proffered explanation is

unworthy of credence[,]”

(quoting Desmond v. Mukasey,

(D.C. Cir. 2008)).

Magistrate Judge Faruqui concluded that DHS’s “proffered

reason for the DNA placement—that Plaintiff’s supervisors

believed that he posed a risk to other employees—is supported

by” the record, R. & R., ECF No. 52 at 25; and the Court agrees.

In November 2012, Mr. Matta advised an ER Specialist of his and

Ms. Keverline’s concerns about Plaintiff. See Def.’s Ex. N, ECF

No. 41-37 at 2. Mr. Matta expressed his concern that Mr.

Richardson’s “perceived fear and paranoia [ ] provid[ed] him an

altered view of reality[,]” and that “his erratic behavior [was]

cause for concern.” Id. at 5. He added that Mr. Richardson’s

“email responses and actions” had created “anxiety” in the

workplace, and he feared Mr. Richardson was “demonstrating

warning signs that [were] consistent with other workplace

violence episodes” that “could place the staff at risk.” Id. at

6. Ms. Keverline also observed that Plaintiff’s behaviors were

44 raising “the stress level in the office.” Id. at 4. Then, on

January 22, 2013, Mr. Richardson forwarded an email to Mr. Lid

in which he stated that he belonged to two high-risk categories

for suicide—service member and member of law enforcement—and was

not operating under optimal conditions. See Def.’s Ex. O, ECF

No. 41-38 at 8. Despite later denying having suicidal thoughts,

see id. at 4; and even assuming that none of his supervisors

“were afraid of [him] or felt physically threatened by him[,]”

Pl.’s Objs., ECF No. 53 at 16; based on the record, the Court

adopts the Magistrate Judge’s conclusion that DHS has asserted a

legitimate, non-retaliatory reason for placing him on DNA

status, see R. & R., ECF No. 52 at 26.

Mr. Richardson claims that DHS issued the DNA notice to

“perpetuat[e] [its] false narrative that [he] was somehow a

safety threat” so that it had a reason to remove him. Pl.’s

Objs., ECF No. 53 at 16. In an attempt to establish pretext,

Plaintiff argues that because DHS “has been unable to provide

the identity of those responsible for the DNA status[,]” the

Court should cast doubt on whether DHS “genuinely believed” he

posed a risk to others. Pl.’s Objs., ECF No. 53 at 14-15. Even

if DHS is unable to pinpoint the officials involved, Plaintiff

still needs to prove that the “actual reason” for the decision

was retaliatory. See Walker,

. The Court agrees

that “[w]ho made the DNA decision is of little consequence[,]”

45 as “[w]hy it was made is what matters[,]” R. & R., ECF No. 52 at

27 n.11; and nothing in this “minor inconsistency” supports an

inference of retaliation, Minter,

; see Alexander

v. Tomlinson,

(D.D.C. 2007) (finding that

a discrepancy in a supervisor’s testimony “may cast some doubt

on [his] credibility,” but was insufficient to infer a

retaliatory motive for the plaintiff’s termination). Moreover,

nowhere in his objection does Plaintiff attempt to create “a

causal link” between the DNA notice and protected activity,

which is fatal to his retaliation claim. See Iyoha,

. Accordingly, the Court ADOPTS the R. & R.’s findings as to

the DNA notice, see ECF No. 52 at 25-27.

3. Mr. Richardson Has Failed to Produce Sufficient Evidence from Which a Reasonable Jury Could Conclude That DHS’s Stated Reasons for His Termination Are Pretextual

In his sixth objection, Mr. Richardson objects to two of

Magistrate Judge Faruqui’s conclusions as to his termination:

(1) DHS proffered a non-retaliatory reason—his “excessive

absenteeism”—that he failed to show is pretextual, and (2) he

“failed to establish a causal connection between the protected

activity and termination.” Pl.’s Objs., ECF No. 53 at 17; R. &

R., ECF No. 52 at 27 n.12-28. To support pretext and the

requisite causal connection, Mr. Richardson directs the Court to

an October 2012 email from AC Tomsheck sent to agency leaders,

46 in which he noted “Plaintiff’s interactions with the Agency,

including [his] past complaints and that some ‘ha[d] asked that

[AC Tomsheck] take action to remove [Plaintiff] from the

workplace.’” R. & R., ECF No. 52 at 28 n.12 (quoting Pl.’s Ex.

U, ECF No. 47-26 at 3-4). He argues that “this email

demonstrates sufficient pretext from a high-level Agency

official within Plaintiff’s chain-of-command, even if [AC

Tomsheck] was not the proposing or deciding official” of his

termination. Pl.’s Objs., ECF No. 53 at 18. He also argues that

this email creates a genuine issue of material fact regarding a

causal connection between his EEO activity and his termination.

Id. at 17-18. The Court reviews this objection de novo.

Because Mr. Richardson’s termination was materially

adverse, see Douglas v. Donovan,

(D.C. Cir.

2009) (“An adverse employment action is a significant change in

employment status, such as hiring[ or] firing[.]” (citation and

internal quotation marks omitted)); the Court follows Magistrate

Judge Faruqui’s approach in first analyzing DHS’s “proffered

non-retaliatory rationale[,]” see R. & R., ECF No. 52 at 27-28

(“At this stage, Plaintiff’s prima facie case falls away and the

question becomes whether [he] can show by a preponderance of the

evidence that Defendant’s given rationale was pretextual.”);

Jeffries,

(instructing district courts, “where

appropriate, to avoid the ‘unnecessary sideshow’ of the first

47 two prongs, . . . and proceed to [ ] the question of pretext”).

DHS has stated that it terminated Mr. Richardson due to

excessive absenteeism. See Def.’s Ex. P-1, ECF No. 41-40 at 2;

Def.’s Ex. P-2, ECF No. 41-41 at 2. In the letter proposing

termination, DHS informed Plaintiff that from September 23, 2012

to September 7, 2013, he used “69.5 hours of annual leave, 165

hours of sick leave, and 1016 hours of [LWOP] . . . outside of

the hours . . . [he had] invoked under the [FMLA].” Def.’s Ex.

P-1, ECF No. 41-40 at 2. The letter also noted that Plaintiff’s

“recurrent absences [had] continued beyond a reasonable time and

[had] placed burdens on [his] supervisor in maintaining

continuity of work . . . [and] on other employees who [had] to

cover and complete work that would otherwise [have been]

assigned to” Mr. Richardson if he had been present.

Mr.

Richardson has not disputed DHS’s accounting of his absenteeism

in this letter. See SOMF, ECF No. 47-4 at 30 ¶ 90. After

reviewing the record, Mr. Joseph Gaudiano, the deciding

official, concluded that “the reason as articulated in the

proposal letter [was] supported by the evidence” and issued

notice of Mr. Richardson’s removal, effective March 8, 2014. See

Def.’s Ex. P-2, ECF No. 41-41 at 2; Pl.’s Ex. QQ, ECF No. 47-47

at 350:16-352:6. Mr. Richardson filed an appeal with the MSPB,

and on September 22, 2017, the AJ affirmed the removal action.

See Def.’s Ex. Q, ECF No. 41-43 at 2-3.

48 Based on this evidence, the Court adopts Magistrate Judge

Faruqui’s conclusion that DHS has asserted a legitimate, non-

retaliatory reason for terminating Mr. Richardson, as it agrees

that “absenteeism is a classic non-retaliatory reason for

termination.” See R. & R., ECF No. 52 at 28 (citing Doak,

). In his objection, Mr. Richardson now claims

that this reason is “a smokescreen obscuring the true” reason

for his removal, “as reflected by [AC] Tomsheck’s [October 2012]

email[,]” Pl.’s Objs., ECF No. 53 at 19; but the Court is not

persuaded that this email “provide[s] sufficient evidence for a

reasonable jury to infer retaliation[,]” Jones,

.

In his email, AC Tomsheck merely “la[id] out the facts” as to

“the situation with John Richardson” in a discussion with other

agency leaders regarding his request for accommodations. See

Pl.’s Ex. U, ECF No. 47-26 at 3-4. AC Tomsheck noted that

“[s]ome leadership in IA . . . ha[d] expressed concern for their

safety and fear that [Plaintiff] ha[d] a potential for workplace

violence” and asked that he “remove [Plaintiff] from the

workplace.” Id. at 4. Instead of indicating pretext, this email

demonstrates another legitimate reason DHS may have had for

later terminating Plaintiff, apart from absenteeism. Moreover,

later in the email chain, AC Tomsheck expressed his concern for

Mr. Richardson and “those in our workplace,” while also stating

that he really “wish[ed] there [was] something [he] could do to

49 help him.” Id. at 3. These statements do not evince an illicit,

retaliatory motive. See Jeffries,

; Doak,

(concluding that “no reasonable jury could

conclude that chronic absenteeism” was “not the real reason for

[the plaintiff’s] termination” when the defendant’s stated

reason for her removal was “her repeated absences, her failure

to comply with leave procedures, and the effect of both on her

team”). And, in addition, AC Tomsheck was not the deciding

official of Plaintiff’s removal. See Alexander,

(refusing to heavily consider a supervisor’s credibility

in the pretext analysis when he was “not the decisionmaker with

respect to plaintiff’s removal from his position”). 10

Although temporal proximity between an employee’s protected

activity and an employer’s adverse action “is a common and often

10Mr. Richardson appears to attempt to cast doubt on Mr. Joseph Gaudiano, the official who made the removal decision, by pointing to Mr. Gaudiano’s testimony from his appeal to the U.S. Merit Systems Protection Board (“MSPB”), in his objection pertaining to his placement on DNA status, rather than in his objection regarding termination. See Pl.’s Objs., ECF No. 53 at 17. To the extent Plaintiff may have intended to also use Mr. Gaudiano’s testimony to object to Magistrate Judge Faruqui’s conclusions regarding his termination, the Court rejects this attempt, as it does not read this testimony to support Plaintiff’s statement that Mr. Gaudiano “would not have removed Plaintiff for absenteeism[.]” Id.; see also Pl.’s Ex. QQ, ECF No. 47-47 at 350:16-353:12. Moreover, the MSPB Administrative Judge considered this testimony before affirming Mr. Richardson’s removal action, finding that DHS had “proven its excessive absenteeism charge by a preponderance of the evidence.” See Def.’s Ex. Q, ECF No. 41-43 at 3, 5, 31-32. 50 probative form of evidence of retaliation[,]” Walker,

(citing Taylor v. Solis,

(D.C. Cir.

2009)); Magistrate Judge Faruqui concluded that Mr. Richardson

failed to establish temporal proximity indicating retaliation,

see R. & R., ECF No. 52 at 27-28 n.12; and the Court adopts that

finding. Magistrate Judge Faruqui reasoned that the “correct

timeline” for temporal proximity “is between when the employee’s

protected activity occurred and when the employer notified the

employee of removal (at the earliest) or when the employee was

removed (at the latest).” See

(citing Durant v. Dist. of

Columbia,

(D.D.C. 2013)). Given that Mr.

Richardson’s protected activity and AC Tomsheck’s email occurred

in October 2012, but Plaintiff was not notified of his proposed

removal until September 16, 2013, the Court concludes that there

is insufficient temporal proximity to support a causal link

indicating pretext. See Taylor,

(summarizing

cases noting that even between a two and three-month interval

“is, as a matter of law, not close enough”). Moreover, Plaintiff

does not proffer new facts or caselaw to challenge the specific

timeline Magistrate Judge Faruqui used in his temporal proximity

calculations. See Pl.’s Objs., ECF No. 53 at 18 (conceding “that

removal was not actually started until a later date” after AC

Tomsheck’s email). Accordingly, the Court ADOPTS the R. & R.’s

findings as to Plaintiff’s termination, see ECF No. 52 at 27-28.

51 Because the Court agrees with Magistrate Judge Faruqui that

(1) there is no genuine dispute as to “material adversity” since

DHS provided Mr. Richardson reasonable accommodations, and (2)

there is insufficient evidence of pretext to rebut DHS’s stated

reasons for placing him on DNA status and terminating him, the

Court GRANTS Defendant’s Motion for Summary Judgment as to Mr.

Richardson’s retaliation claim under Title VII, see ECF No. 41.

D. Magistrate Judge Faruqui Correctly Granted Summary Judgment on Mr. Richardson’s USERRA Claims

Finally, Mr. Richardson objects to Magistrate Judge

Faruqui’s recommendation that the Court dismiss his claims under

USERRA on the basis that DHS “acted consistently with [its]

USERRA obligations” when it offered him reasonable

accommodations “in the position for which he was qualified[.]”

See Pl.’s Objs., ECF No. 53 at 20 (citing R. & R., ECF No. 52 at

32). Specifically, he argues that there is a genuine issue of

material fact regarding whether DHS violated USERRA “by failing

to make reasonable efforts to help him become qualified to

perform the duties of vacant positions.” Id. at 19.

“Enacted in 1994, ‘USERRA is the latest in a series of laws

protecting veterans’ employment and reemployment rights.’” Vahey

v. Gen. Motors Co.,

(D.D.C. 2013). Courts

have noted that USERRA’s protections “should be broadly

construed in favor of military service members as its purpose is

52 to protect such members.”

(citation omitted). “Service

members may bring two types of USERRA actions: (1) claims for

failure to reemploy under

(which does not

require proof of intent); and (2) claims for intentional

discrimination/retaliation under

[.]” Jbari v.

Dist. of Columbia,

(D.D.C. 2018). Here,

Plaintiff objects only to Magistrate Judge Faruqui’s conclusions

as to his failure to reemploy claim.

As relevant here, USERRA provides that an employee

returning from uniformed service “shall be promptly reemployed”

as follows:

In the case of a person who has a disability incurred in, or aggravated during, such service, and who (after reasonable efforts by the employer to accommodate the disability) is not qualified due to such disability to be employed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service—

(A) in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer; or (B) if not employed under subparagraph (A), in a position which is the nearest approximation to a position referred to in subparagraph (A) in terms of seniority, status, and pay consistent with circumstances of such person’s case.

53

(a)(3)(A)-(B). The position is known as the

“escalator position.” Vahey,

; see

(defining the “escalator principle” as the

requirement that a service member “be reemployed in a position

that reflects with reasonable certainty the pay, benefits,

seniority, and other job perquisites, that he [ ] would have

attained if not for the period of service”);

(applying the “escalator principle” to disabled service

members, who are entitled “to the escalator position he or she

would have attained but for uniformed service” and requiring the

employer to “make reasonable efforts to accommodate [the]

disability and to help the employee become qualified to perform

the duties of his or her reemployment [or escalator] position”).

The Court reviews this objection only for clear error, as

it amounts to “a cut and paste” from Plaintiff’s Amended

Opposition brief. Def.’s Resp., ECF No. 54 at 2. Compare Pl.’s

Opp’n, ECF No. 47 at 32-33 (“[T]he Agency has not provided one

iota of evidence that reemployment would impose an undue

hardship, that its circumstances have so changed as to make such

reemployment of Plaintiff impossible or unreasonable, or that

Plaintiff’s position was for a brief, nonrecurrent period and

there was no reasonable expectation that such employment would

continue indefinitely or for a significant period.”), with Pl.’s

Objs., ECF No. 53 at 20 (“Defendant offered no evidence that

54 reemployment of Plaintiff would impose an undue hardship, that

its circumstances have so changed as to make such reemployment

of Plaintiff impossible or unreasonable, or that Plaintiff’s

position was for a brie[f], nonrecurrent period and there was

not reasonable expectation that such employment would continue

indefinitely or for a significant period.”). The same is true

for Mr. Richardson’s argument regarding agency officials’ “lack

of knowledge relating to USERRA” that he claims amounted to

“reckless disregard” and “incompetence in USERRA matters.”

Compare Pl.’s Opp’n, ECF No. 47 at 34, with Pl.’s Objs., ECF No.

53 at 21 (moving material from page 34, footnote 16 of his

opposition brief into the body of his seventh objection).

Because Magistrate Judge Faruqui’s conclusions are

“entitled to great deference” on clear error review, and because

Mr. Richardson’s final objection is a mere reiteration of

arguments already presented, the Court concludes that there is

no evidence that Magistrate Judge Faruqui made a definite

mistake. See Buie,

, at *3. Instead, the Court

agrees that the statutory provisions of USERRA make “the

employer’s duty to search for [escalator] positions [ ]

conditional on Plaintiff remaining unqualified for his current

position even after reasonable accommodations are made.” R. &

R., ECF No. 52 at 32 (citing

). Because DHS

provided six accommodations tailored to Mr. Richardson’s needs

55 so as to reemploy him in the very position he held prior to

deployment, see supra section IV.B.1.; and engaged in

reconsideration of his request that resulted in two searches for

vacancies, it “acted consistently with its USERRA

obligations[,]” R. & R., ECF No. 52 at 32; see also Def.’s Ex.

Q, ECF No. 41-43 at 50 (indicating that the MSPB AJ also found

that “the agency complied with USERRA . . . by returning [Mr.

Richardson] to the position he held prior to his deployment” and

attempted to “accommodate his limitations in his position”).

Because Plaintiff refused to attempt DHS’s proffered

accommodations apart from stretch breaks during the workday, see

Def.’s Ex. A, ECF No. 41-6 at 43:8–44:19; SOMF, ECF No. 47-4 at

12 ¶ 29; he is not entitled to claim that he remained “not

qualified for reemployment in the escalator position” following

DHS’s reasonable efforts to accommodate him, see

; R. & R., ECF No. 52 at 32; see also Def.’s Ex. Q, ECF

No. 41-43 at 50-51 (concluding that Mr. Richardson “failed to

prove any violation of his rights under USERRA” when he “refused

to try any of the suggested accommodations” and thus “failed to

engage in the interactive process” after DHS “agree[d] to

explore positions to reassign [him] to”). 11

11The Court also adopts Magistrate Judge Faruqui’s conclusion that “[b]ecause Defendant satisfied its [USERRA] duty, Defendant’s lack of knowledge regarding the different 56 Accordingly, the Court ADOPTS this portion of the R. & R.,

see ECF No. 52 at 29-33; and GRANTS Defendant’s Motion for

Summary Judgment as to Mr. Richardson’s USERRA claims, see ECF

No. 41.

V. Conclusion

For the foregoing reasons, the Court ADOPTS Magistrate

Judge Faruqui’s R. & R., see ECF No. 52; and GRANTS Defendant’s

Motion for Summary Judgment, see ECF No. 41. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 17, 2023

obligations between USERRA and the [Americans with Disabilities Act] is immaterial.” See R. & R., ECF No. 52 at 32-33. 57