Weatherspoon v. Azar
Weatherspoon v. Azar
Opinion of the Court
This is a case about a civil servant's dissatisfaction with the government's sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.
Monique Weatherspoon suffers from a sensitivity to light that can make it difficult for her to travel to her office and to read her computer screen. She works for the U.S. Department of Health and Human Services. The Department tried to address these problems by devising telework arrangements, providing her with a docking station and large monitor so that she could work from home, and providing her with software specifically designed for visually impaired people so that she could read her screen better. Nonetheless, Ms. Weatherspoon sued Secretary Alex Azar on behalf of the Department,
*69I.
Ms. Weatherspoon works as a Grants Management Specialist in the Division of Discretionary Grants within the Department's Administration for Children and Families ("ACF"). Compl. ¶ 7, ECF No. 1. She also suffers from severe uveitis. Weatherspoon Dep., ECF No. 19-1 at 6.
Based on her condition, the Department granted her a series of accommodations and various telework arrangements. In April 2011, the Department allowed her to work from home two days a week for part of the year and one day a week for the other part of the year. April 13, 2011 Mem., ECF No. 19-1 at 241. In September 2012, the Department went further, allowing her to work from home when her condition made it "difficult or impossible" for her to commute to the office. Jan. 14, 2014 Mem., ECF No. 19-1 at 245.
Her vision continued to deteriorate. In July 2015, Ms. Weatherspoon emailed the Reasonable Accommodation Coordinator to tell her that she needed a laptop with a screen larger than 17 inches because of her vision condition. Pl.'s Ex., ECF No. 20-1 at 1. She copied her supervisor, Bridget Shea Westfall, on that email. Id. Ms. Shea Westfall approved her request the next month. Aug. 20, 2015 Mem., ECF No. 19-1 at 247.
But the Reasonable Accommodation Coordinator later explained to Ms. Weatherspoon that the Department could not actually provide her a larger laptop because of the Department's Information Technology Infrastructure and Operations' rules and guidelines. Sept. 24, 2015 Email, ECF No. 19-1 at 267. Instead, the Department offered her a docking station and a large monitor for her to set up at home. Id. at 268.
Ms. Weatherspoon took medical leave throughout November and December of 2015. Weatherspoon Rebuttal Affidavit, ECF No. 19-1 at 69. In early February, the IT Department told Ms. Weatherspoon that her docking station and large monitor were ready for her to pick up. Feb. 4, 2016 Email, ECF No. 19-1 at 270. The IT Department asked her to come into the office, so technicians could test the equipment with her. Id. Ms. Weatherspoon cancelled several appointments with the IT Department to pick up the new equipment. Feb. 11, 2016 Email, ECF No. 19-1 at 274. It is unclear when Ms. Weatherspoon eventually picked up the equipment.
Even with this accommodation, Ms. Weatherspoon had trouble using her computer. The Department of Defense Computer/Electronic Accommodations Program ("CAP") suggested to Ms. Weatherspoon that a software called ZoomText could help and sent her a link to a trial version. Pl.'s Ex. 2, ECF No. 20-2 at 1. Copying Ms. Shea Westfall on her email, Ms. Weatherspoon told CAP that ZoomText was not helping. Id. Ms. Weatherspoon eventually visited CAP for an in-person needs assessment. Pl.'s Ex. 3, ECF No. 20-3 at 2. After that meeting, CAP recommended a ZoomText Magnifier/Reader 10.1 along with a larger laptop. Id. In April, Ms. Shea Westfall learned that CAP would purchase the ZoomText software for Ms. Weatherspoon. Id. at 1-2. According to Ms. Weatherspoon, she picked up the ZoomText software when she came into the office for the annual holiday party in December. Pl.'s Ex. 6, ECF No. 20-6 at 17.
*70During this time, Ms. Shea Westfall found Ms. Weatherspoon's job performance deficient. Report to Duty Mem., ECF No. 19-1 at 252. On March 26, 2016, Ms. Shea Westfall issued Ms. Weatherspoon a formal Report to Duty Memorandum.
According to Ms. Weatherspoon, Ms. Shea Westfall issued this Memorandum to retaliate against her for claiming discrimination earlier that month. Id. She cites a March 2, 2016 email in which Ms. Weatherspoon complained that Ms. Shea Westfall had used her disability against her in a performance review. See Pl.'s Ex. 25, ECF No. 20-25 at 1.
In May, Ms. Weatherspoon asked for 100% telework as an accommodation. June 8, 2016 Mem., ECF No. 19-1 at 257. Ms. Shea Westfall denied that specific request and instead granted a different accommodation: Ms. Weatherspoon could telework two days a week and then request "episodic" telework when her medical condition kept her from commuting. June 14, 2016 Mem., ECF No. 19-1 at 262-63.
Ms. Weatherspoon has sued, alleging both employment discrimination and retaliation. Compl. ¶ 1. Specifically, she first asserts that the Department "violated the Rehabilitation Act by failing to reasonably and effectively accommodate" her disability. Id. ¶ 19. She also asserts that the Department violated the Rehabilitation Act by denying her "the right to telework based on her complaint of disability discrimination and her request for a larger-screened laptop computer." Id. ¶ 20.
II.
To prevail on a motion for summary judgment, a movant must show 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) ; see also Anderson v. Liberty Lobby, Inc. ,
When ruling on a motion for summary judgment, a court must consider all facts and inferences in the light most favorable to the non-moving party. McCready v. Nicholson ,
III.
Ms. Weatherspoon brings her claims under the Rehabilitation Act,
A.
The Rehabilitation Act requires federal employers to "take reasonable affirmative steps to accommodate the handicapped, except where undue hardship would result." Barth v. Gelb ,
There are times "a 'long-delayed accommodation could be considered' unreasonable and hence 'actionable under the ADA [or Rehabilitation Act].' " Mogenhan v. Napolitano ,
*72Not so. First, the evidence shows that there was no 17-month delay. Ms. Weatherspoon requested a larger laptop on July 24, 2015, see Pl.'s Ex. 1, and the Department told her that her computer equipment
As for the ZoomText software, Ms. Weatherspoon offers no evidence that she asked Ms. Shea Westfall for it until April 2016. Ms. Weatherspoon did tell the Department earlier that she needed increased contrast to use her computer. See, e.g. , Pl.'s Ex. 20, ECF 20-20; Pl.'s Ex. 24, EF 20-24. But she did not request ZoomText software. It took time and effort for Ms. Weatherspoon and her supervisor to figure out what precisely she would need to read the screen. In fact, Ms. Weatherspoon first told Ms. Shea Westfall that ZoomText was not helping. Pl.'s Ex. 2. As Ms. Weatherspoon admits, it was not until April that she forwarded CAP's recommendation that she use the ZoomText software to the Department's management. See Pl.'s Mem. at 6; Pl.'s Ex. 3 at 2. And then four months later, the software was available for her. Pl.'s Ex. 4, ECF 20-4 at 1-2.
It is not clear whether a six-month (or four-month) delay of this sort could ever qualify as "unreasonable" under the Rehabilitation Act. Ms. Weatherspoon offers no examples where a court denied the government's motion for summary judgment based on a six-month delay alone.
In any event, the Court finds that the delay here was not unreasonable considering the entirety of the record. First, the accommodation was not actually "long-delayed." See Mogenhan ,
Consider the six-month delay for the new computer equipment. Ms. Weatherspoon requested a laptop with a larger screen, and less than a month later, her supervisor approved that request. Pl.'s Ex. 1; Aug. 20, 2015 Mem. at 247. But then one month after that, the Reasonable Accommodation Coordinator learned that the Department could not provide her a larger laptop because of the Department's Information Technology Infrastructure and Operations' rules and guidelines. Sept. 24, 2015 Email at 267. Still trying to address Ms. Weatherspoon's concerns, the Department offered her a docking station and a large monitor for her to set up at home. Id. at 268. So around September, the Department found equipment that would be acceptable to both her and the Department. It took another few months for the Department to provide her with the agreed-upon accommodation.
Some of the delay was out of the Department's control. Recall that Ms. Weatherspoon was out of the office for six weeks. Weatherspoon Rebuttal Affidavit at 70. And after the Department ordered her *73new computer equipment, she did not pick it up immediately. Feb. 9, 2016 Email at 274. Throughout the process, the record reflects that Ms. Weatherspoon's supervisor was in regular communication with her. Indeed, Ms. Weatherspoon does not accuse Ms. Shea Westfall of being unresponsive. And this was not a situation where the delay kept Ms. Weatherspoon from performing her job. She could still use her old laptop, but with difficulty. See Feb. 4, 2016 Email at 270 ("She called back and she was successfully able to login with her existing laptop.").
As to the ZoomText software, it took months to figure out what software would enable Ms. Weatherspoon to read her computer screen. This collaborative process involved Ms. Weatherspoon, her supervisor, the Department's Information Technology Infrastructure and Operations Office, the ACF Reasonable Accommodations Coordinator, the ACF 508 Compliance Coordinator, the Grant Solutions Help Desk, and CAP. Ms. Weatherspoon and Ms. Shea Westfall were in regular dialogue as they tried to figure out how to solve Ms. Weatherspoon's difficulties reading the screen. Eventually, CAP was able to provide her with ZoomText software and teach her how to use it on her computer. While Ms. Weatherspoon wanted the software sooner, it was not unreasonable, on these facts, that she did not receive it until December. Aka v. Wash. Hosp. Ctr. ,
According to Ms. Weatherspoon, Ms. Shea Westfall delayed the process by telling her that she had mailed the ZoomText software to her without doing so. Indeed, the Department does not dispute that Ms. Shea Westfall told Ms. Weatherspoon in an email that she dropped the software off "with the mail room guy" on July 26, 2016. Pl.'s Ex. 4 at 2. And the Department concedes that Ms. Weatherspoon eventually had to pick up her software from the office.
But Ms. Weatherspoon does not explain why the Department had to mail her the software. Ms. Weatherspoon could pick up her new computer equipment from her office, and she attended the Department's annual holiday party. In any event, the record demonstrates that Ms. Shea Westfall worked to address Ms. Weatherspoon's vision problems, for example, by emailing her own supervisors for assistance, providing Ms. Weatherspoon with paper so that she could print documents at home, and promptly providing information to the Reasonable Accommodation Coordinator.
Given the short length of the delay, the Department's repeated efforts to accommodate her needs, and the reasons for the delay, the Court finds that the delay was reasonable as a matter of law. No one familiar with the operation of our government would be surprised that its movements were more tortoise-like than hare-like, especially where an individualized accommodation was requested. But that's just business as usual, not evidence of discrimination.
In any event, Ms. Weatherspoon's accommodation claim fails for another reason. An employer is not liable for denying an accommodation request if it participated "in good faith" in an "interactive process" aimed to satisfy the request. Ward ,
The back-and-forth process detailed here would not allow a reasonable jury to conclude that the Department participated in bad faith. As discussed above, throughout the process, the Department proposed alternative accommodations, kept Ms. Weatherspoon informed, and responded promptly to her questions and requests for information. There is no evidence that the Department obstructed the process or failed to communicate with her. And, of course, the Department did provide her with reasonable accommodations. Perhaps the Department could have provided her with the equipment quicker, but there is no evidence of bad faith. So, to the extent that the delayed accommodations qualify as denials, the Court concludes that the Department is not liable because it participated in the interactive process in good faith.
B.
The Rehabilitation Act states that "[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under [provisions of] the Americans with Disabilities Act."
In March 2016, Ms. Weatherspoon complained to Ms. Shea Westfall that she had used her disability against her in a performance review. See Pl.'s Ex. 25, ECF 20-25 at 1. Ms. Weatherspoon claims that-in retaliation-Ms. Shea Westfall: (1) charged her 40 hours of sick leave; (2) ordered her to report to the office; and (3) threatened to fire her if she did not report to the office. Pl.'s Mem. at 16.
*75To state a claim for retaliation, a plaintiff must show (1) that she engaged in statutorily protected activity; (2) that the defendant took an adverse employment action against her; and (3) a causal connection between the two. See Smith v. District of Columbia ,
Ms. Weatherspoon's first theory of retaliation fails because it is not in her Complaint. See Compl. at 6. Plaintiffs cannot use summary judgment briefing to press claims not raised in their complaints. Winder v. District of Columbia ,
Her other two theories fail, as well, because they do not allege adverse employment actions. Ms. Weatherspoon claims that Ms. Shea Westfall issued the Report to Duty Memorandum as retaliation. That letter, however, "contained no abusive language, but rather job-related constructive criticism, which 'can prompt an employee to improve her performance.' " Baloch v. Kempthorne ,
Ms. Weatherspoon argues that the Memorandum's alleged "threats" themselves were materially adverse actions. But "courts have been unwilling to find adverse actions" when threats are not actualized. See Baloch ,
In any event, the Department has asserted legitimate, nondiscriminatory reasons for it, and Ms. Weatherspoon has not produced evidence that would discredit those reasons and show that its action was retaliatory. See Baloch ,
The Department asserted that Ms. Shea Westfall issued the Memorandum because Ms. Weatherspoon had failed to address the computer issues that allegedly kept *76her from doing her job. Def.'s Mot., ECF 19 at 16. In response, Ms. Weatherspoon argues that the evidence shows that she "made great efforts to address her computer issues." Pl.'s Mem. at 18. She does not, however, deny that despite such alleged effort, she had not resolved these issues when Ms. Shea Westfall issued her Memorandum. "[G]ood institutional administration" justified Ms. Shea Westfall telling Ms. Weatherspoon to come into the office so that they could work together, in person, to resolve the persistent technology problems. See Baloch ,
In sum, no jury could conclude that the Department's asserted reasons for the Memorandum (even assuming that the act was materially adverse) were so ill-justified that they were not the actual reasons and that she suffered retaliation for her disability complaint.
IV.
For all these reasons, the Department's motion will be granted. A separate order will issue.
Alex M. Azar, the current Secretary of Health and Human Services, is automatically substituted for former Secretary Thomas E. Price under Fed. R. Civ. P. 25(d).
All citations are to the page numbers generated by ECF.
On the same day, Ms. Weatherspoon filed a step one grievance against Ms. Shea Westfall based on a rating that she received during a performance review. See March 21, 2016 Grievance, ECF No. 19-1 at 280. The grievance was denied as untimely, see April 14, 2016 Step 1 Grievance Decision, ECF No. 19-1 at 287, and it is not the subject of this lawsuit. Pl.'s Mem. in Opp. ("Pl.'s Mem."), ECF No. 20 at 18.
A former supervisor had allowed Ms. Weatherspoon to work from home without individual requests. See Pl.'s Ex. 26, ECF No. 20-26 at 2.
Ms. Weatherspoon requested a laptop with a larger screen, but the Department eventually gave her a docking station and large monitor. Pl.'s Mem. at 4. In her briefing, she makes clear that she is not objecting to this alternative as a reasonable accommodation. Pl.'s Mem. at 5. ("[S]he has not claimed that the Agency failed to accommodate her because they gave her a larger monitor instead of the larger laptop.").
At times, it seems like Ms. Weatherspoon may be making a more general claim that the Department failed to engage in the interactive process in good faith. The Court is skeptical that there is an independent cause of action for failure to engage in the interactive process during the accommodation process. See, e.g., Matos ,
In her Complaint, Ms. Weatherspoon appears to claim that the Department violated the Rehabilitation Act by denying her "the right to telework based on her complaint of disability discrimination and her request for a larger-screened laptop computer." Id. ¶ 20. But the Department has never denied her request to telework. Maybe this is why Ms. Weatherspoon abandoned this theory at the summary judgment stage.
The Court also rejects Ms. Weatherspoon's claim that it was prohibitively expensive for her to report to the office after receiving this Memorandum because it would cost her $ 59 a day to take an Uber. She did not need to choose between termination and "risking her life." Pl.'s Mem. at 17. Ms. Weatherspoon admits that she can use public transportation, so she could have taken an Uber to her closest metro station and then taken the metro into the office.
Reference
- Full Case Name
- Monique N. WEATHERSPOON v. Alex M. AZAR, II, Secretary, Department of Health and Human Services
- Cited By
- 13 cases
- Status
- Published