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Plummer v. Wright

United States District Court, D. Maryland

October 3, 2017

JO'EL PLUMMER, Plaintiff,
DON WRIGHT, [1] Acting Secretary, United States Department of Health and Human Services, Defendant.



         Plaintiff Jo'el Plummer, currently employed as a Program Specialist with the United States Food and Drug Administration ("FDA"), has brought this action against Defendant Don Wright, the Acting Secretary of Health and Human Services ("HHS"), alleging that she has been subjected to discrimination on the basis of disability, age, and race through the denial of reasonable accommodations and promotion opportunities, as well as retaliation for filing a complaint in 2009 against HHS with the United States Equal Employment Opportunity Commission ("EEOC"), all in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796 (2012); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2012), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. Presently pending before the Court is HHS's Motion to Dismiss or, Alternatively, for Summary Judgment and Plummer's "Motion, Pursuant to Fed.R.Civ.P. 12(d) and 56(d), for Court to Deny or Defer Entry of Summary Judgment or Dismissal to Permit Plaintiff to Conduct Discovery" ("Rule 56(d) Motion"). Having reviewed the Complaint, briefs, and other submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Rule 56(d) Motion is GRANTED, and HHS's Motion, construed as a Motion to Dismiss, is GRANTED IN PART and DENIED IN PART.


         The following facts are presented in the light most favorable to Plummer, the nonmoving party:

         I. Requests for Reasonable Accommodations

         Jo'el Plummer is a 52-year-old African American woman currently employed as a GS-11 Program Specialist in the FDA Office of Surveillance and Epidemiology ("OSE"). Since 2001, Plummer has suffered from chronic rhinitis, a medical condition that causes severe inflammation of the mucous membranes in her nose when exposed to fumes, smoke, chemicals, or similar airborne irritants. When symptomatic, Plummer experiences difficulty breathing, talking, and thinking, which limits her ability effectively to perform her job. In 2006, Plummer's negative reaction to the cleaning agents at the FDA's Rockville, Maryland office prompted Plummer to transfer to the FDA office in Silver Spring, Maryland.

         This transfer did not alleviate Plummer's condition, and in 2009 she filed an equal employment opportunity ("EEO") complaint with the FDA seeking reasonable accommodations for her rhinitis. As a result, the FDA provided Plummer with her own office and a High Efficiency Particulate Arrestance ("HEPA") filter. Plummer's symptoms persisted. Over time, Plummer took various other measures to avoid airborne irritants, such as closing the door to her office and designating it as a fragrance-free zone. FDA management, however, permitted Plummer's door to remain open at times and did not prevent co-workers wearing fragrances from entering her office. Plummer also began to wear a surgical mask to meetings but stopped doing so after she was ridiculed by managers and co-workers. In 2010, shortly after being promoted to GS-11, Plummer's supervisor told her that "she never would receive another promotion." Am. Compl. ¶ 35, ECF No. 12.

         On June 27, 2013, Plummer provided her supervisor with a doctor's note recommending that she be allowed to telework. Although initially reluctant, her supervisor allowed her one day of telework per week and told her that she would need to submit another formal request for any additional accommodations. Plummer filed that request and also submitted, on July 31, 2013 and September 19, 2013, two more doctor's notes advising that her health remained at risk from the presence of chemicals and irritants at the office. Among the accommodations she sought but did not receive were additional days of telework, a transfer to another building at the FDA Silver Spring campus or to a different FDA complex, moving Plummer's work station to a different location on the same floor where there is better air flow, and barring fragrances from the OSE office. By October 2013, Plummer developed a rash on her arms, legs, and torso and was advised by her doctor not to return to work. Although the FDA issued Plummer a temporary reasonable accommodation letter in November 2013, according to Plummer, FDA has not approved her requests or taken any remedial action other than testing the air quality in her office. During 2013, Plummer used 543 hours of sick and annual leave because of her condition.

         II. Procedural History

         On December 2, 2013, Plummer filed an informal discrimination complaint with the FDA Office of Civil Rights, Employment Complaints Division. In that complaint, Plummer alleged that she had been subjected to discrimination based on her age and disability, as well as retaliation for earlier protected activity.

         On April 18, 2014, Plummer filed an "Individual Formal Complaint of Employment Discrimination" ("EEO Complaint") with the FDA Office of Equal Employment Opportunity ("OEEO") alleging age, race, and disability discrimination based on a failure to provide reasonable accommodations and on harassment in the workplace. EEO Complaint at 1, Mot. Dismiss Ex. 27, ECF No. 15-29.[2] In the EEO Complaint, Plummer included three notes from her doctor describing her "chemical sensitivities" and recommending a change in office space, a reduction in her amount of work, and two to three days of telework per week. Id. at 4. In an attachment to her EEO Complaint consisting of a letter drafted by Plummer's attorney, Plummer summarized her medical diagnosis and symptoms and alleged that the FDA "insisted that [she] remain in an environment that is toxic for her disability." Id. at 17. Plummer further charged that the limited accommodations approved by the FDA had "no practical effect, " and that her supervisors "seemed unconcerned about remedying [Plummer's] complaints about air quality and the toxicity to which [she] is exposed." Id. She also asserted that she "has been treated disparately because of her disability, race, and age compared to others similarly situated to her and not in her protected classifications." Id. In the letter, Plummer sought: (1) an isolated workplace at another location other than the FDA's Silver Spring office; (2) telework every Wednesday and Friday; (3) permission to call in to conferences and meetings; (4) discretion to use rest periods and leave when medically necessary; (5) the reinstatement of 60 hours of personal leave and 40 hours of sick leave; (6) a review of her negative leave balances; and (7) $35, 000 in monetary damages.

         On May 7, 2014, OEEO responded with a letter accepting and acknowledging receipt of the EEO Complaint ("the Acceptance Letter"). In the Acceptance Letter, OEEO identified the claims in Plummer's complaint as: (1) "Whether you were subjected to disparate treatment when on November 19, 2013, you were only issued a temporary approval of your request for a Reasonable Accommodation"; and (2) "Whether you were discriminated against when from February 2013, you were required to return to work in an office environment where the air quality and toxicity is intolerable." Acceptance Letter at 1, Mot. Dismiss Ex. 28, ECF No. 15-30. The letter required that Plummer notify OEEO within seven days if its characterization of her claims was incorrect.

         After OEEO completed its investigation, Plummer opted to proceed to the EEOC for review of her complaint by an administrative judge ("AJ"). See 29 C.F.R. § 1614.108(f) (2017). Before the case proceeded to a hearing, however, Plummer withdrew her request for AJ review. See U.S. Equal Emp. Opportunity Comm'n, EEO-MD-110, Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, As Revised, Ch 7, § I (2015). The case was then returned to HHS, and the agency issued a final order dismissing her complaint. See 29 C.F.R. § 1614.110(a).

         On September 1, 2016, Plummer filed her Complaint in this Court. In her Amended Complaint, filed on January 17, 2017, Plummer alleges four counts: (I) disability discrimination in violation of the Rehabilitation Act, including a failure to accommodate Plummer's disability and the denial of promotion opportunities; (II) retaliation in violation of the Rehabilitation Act, consisting of the failure to accommodate and the denial of promotion opportunities following the filing of her 2009 EEO complaint; (III) race discrimination in violation of Title VII, based on the denial of reasonable accommodations and promotion opportunities; and (IV) age discrimination in violation of the ADEA, based on the denial of reasonable accommodations and promotion opportunities.


         In its Motion to Dismiss or, in the Alternative, for Summary Judgment, HHS asserted four grounds for dismissal: (1) all of Plummer's claims are barred because she failed to file her civil action within 90 days of the final agency decision on her EEO Complaint; (2) Plummer failed to exhaust administrative remedies for her claims relating to non-promotion and retaliation; (3) Plummer has not shown a failure to grant reasonable accommodations in violation of the Rehabilitation Act; and (4) Plummer has failed to state a plausible claim for, or to establish a genuine issue of material fact on, her remaining claims of age, race, and disability discrimination and of retaliation. Having reviewed Plummer's assertion that the 90-day deadline ...

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