United States District Court, D. Maryland
JANET L. VALLUZZI, et al., Plaintiffs,
ALEX M. AZAR, II, Defendant.
Xinis, United States District Judge
in this employment discrimination case is Defendant Secretary
of the U.S. Department of Health and Human Services
(“HHS”) Alex M. Azar, II's motion to dismiss,
or alternatively, for summary judgment. ECF No. 20. The
motion is fully briefed, and no hearing is necessary. Loc. R.
105.6. For the reasons that follow, the Court grants
following facts are undisputed. On January 11, 2015, at age
59, Plaintiff Janet Valluzzi was hired as a GS-14 Social
Scientist at HHS's National Center for Health Workforce
Analysis (“NCHWA”). ECF No. 1 ¶ 8; ECF No.
20 at 6. She arrived with years of federal service under her
belt. ECF No. 1 ¶ 6. George Zangaro, Ph.D. (age 55)
hired Valluzzi based on the recommendation of hiring panel
members Michelle Washko, Ph.D. (age 42) and Hayden Kepley,
Ph.D. (age 45). ECF No. 1 ¶ 11; ECF No. 20 at 6.
was assigned to NCHWA's Performance Metrics and
Evaluations (“PME”) Branch. ECF No. 1 ¶ 13;
ECF No. 20 at 6. Among other responsibilities, Valluzzi led
the development of two annual program evaluation reports. ECF
No. 1 ¶ 14; ECF No. 20 at 6. Development of the reports
included reviewing and analyzing the existing programs,
providing recommendations for improvement of the programs to
HHS executives, and assisting staff in crafting and executing
improvement plans. See ECF No. 27-1 at 62.
five months after Valluzzi started working for NCHWA, she
began breaking out in hives on her face and body. ECF No. 1
¶ 17; ECF No. 27-1 at 2-33 (hereinafter “Valluzzi
Dec.”) ¶ 8. This condition occurred when Valluzzi
worked in the 5600 Fishers Lane building, which at the time
was undergoing asbestos removal and other construction.
Id. Valluzzi discussed her condition with Dr.
Zangaro, who advised her to report her illness to the
agency's reviewing authorities. ECF No. 29-3 at 10. Dr.
Zangaro also offered to refer her to an allergist.
Id. at 12.
the renovations were completed, Valluzzi's office was
relocated to renovated space within the same building. ECF
No. 1 ¶ 18; Valluzzi Dec. ¶ 8. Still, she continued
to experience hives on parts of her body visible to others.
ECF No. 1 ¶ 21; Valluzzi Dec. ¶ 8. Valluzzi was
later diagnosed with Chronic Idiopathic Urticaria, or chronic
hives. ECF No. 20 at 20; ECF No. 1 ¶ 19; Valluzzi Dec.
November 8, 2016, NCHWA and Valluzzi formally sought a
reasonable accommodation for her illness. ECF No. 20-8 at
1-3. A physician consultant with the building's Federal
Occupational Health Clinic (FOHC), Dr. Papiya Ray, reviewed
Valluzzi's medical records (including several letters
from Valluzzi's doctor) and on January 25, 2017 concluded
that Valluzzi suffered from an “immunological condition
which intermittently affects the skin, ” that the
“physical condition[ ], without treatment or
accommodation, [ ] substantially affects one or more major
body systems, ” and that the condition was
“permanent” although variable in severity. ECF
No. 27-1 at 45-48. Dr. Ray could not determine what triggered
Valluzzi's symptoms but did note that Valluzzi's skin
condition flared up at work, and thus, the workplace was the
likely source of her symptoms. Id. at 46. Dr. Ray
concluded that relocating Valluzzi to another building may
“reduce or eliminate her exposure” to whatever
triggers her hives, but that the “only way to determine
the effectiveness of the [relocation] is to try it.”
Id. “Since an exacerbating factor has not been
identified, ” wrote Dr. Ray, “it is possible that
[Valluzzi] may be able to work in a different location within
5600 Fishers Lane” and that a combination of
accommodations in the workspace, including providing an air
filter, may reduce the symptoms. Id. at 47-48.
wished to be moved to another building altogether. ECF No. 1
¶ 59. Ultimately, Defendant did not agree to
Valluzzi's desired accommodation. ECF No. 1 ¶ 60.
ECF No. 20-8 at 16-21. Instead, by April of 2016, the parties
settled on providing Valluzzi an air purifier for her office
and a fixed work schedule of 7:30 a.m. to 4 p.m. Id.
at 33, 51-57. This accommodation, according to Valluzzi, did
little to alleviate her symptoms. ECF No. 1 ¶ 60;
Valluzzi Dec. ¶ 63. However, after these accommodations
were implemented, no evidence in the record reflects that her
skin condition affected her ability to perform her essential
Valluzzi's first year at NCHWA, Valluzzi was directly
supervised by Dr. Kepley with Dr. Washko and Dr. Zangaro
serving as Valluzzi's second- and third-level
supervisors, respectively. ECF No. 1 ¶ 13; ECF No. 20 at
6. According to Dr. Kepley, Valluzzi completed two
substantive program reports well and on-time. ECF No. 27-1 at
51 (Kepley deposition). Valluzzi's first evaluation
reflects that she received an average score of 3.4 out of 5,
which translated to “achieved expected results.”
ECF No. 27-1 at 61. Of five different “critical
elements, ” the only element in which she received
below “achieved expected results” was for the
Customer Service/Teamwork element, where she was rated as
having “Partially Achieved Expected Results.” ECF
No. 27-1 at 57. To support the low rating, the evaluation
states specifically that “[o]n several occasions, Jan
was unwilling to work with her evaluation colleagues within
the PME Branch. Her lack of willingness to work with others
and actively participate in meetings and discussions around
evaluation caused delays in final products and a less than
positive tone in the Branch.” ECF No. 27-1 at 62. The
evaluation continues that “during the evaluation
meeting on December 1, Jan had nothing to contribute to the
discussion and merely took notes during the entire discussion
even though she had expertise in the subject matter. On
several other occasions Jan had refused to review an
evaluation colleague's work which caused delays in
completing the product and a negative tone in the
December 23, 2015, Valluzzi received a non-disciplinary
Memorandum of Counseling (MOC) from Dr. Washko who was
Valluzzi's temporary supervisor at the time. The MOC
concerned, among other incidents, an unpleasant exchange
between Valluzzi and a younger colleague, Dr. Jamie Doyle.
ECF No. 1 ¶¶ 34, 35; ECF No. 20 at 6. According to
Valluzzi, Dr. Doyle demanded that Valluzzi review Doyle's
work while Valluzzi was out of town caring for her mother.
This review was not, according to Valluzzi, within
Valluzzi's job description. ECF No. 1 ¶ 26; Valluzzi
Decl. ¶¶ 12-14. Dr. Doyle did not receive a similar
memorandum for the incident. ECF No. 1 ¶¶ 26; 29.
beginning of 2016, Dr. Katherine Morasch became
Valluzzi's first-line supervisor and replaced Dr. Washko
as Branch Chief for four months, after which Dr. Washko
reclaimed the role. See ECF No. 1 ¶¶ 38,
52. On January 20, 2016, Valluzzi and Dr. Washko met to
discuss the MOC regarding Dr. Doyle. ECF No. 1 ¶ 36;
Valluzzi Dec. ¶ 17. Valluzzi maintains that Dr. Washko
reacted angrily to Valluzzi, a characterization Dr. Washko
disputes. Id.; ECF No. 27-1 at 73. Valluzzi not only
complained about Dr. Washko's behavior but also filed a
grievance related to the underlying MOC. ECF No. 27-1 at
74-81; ECF No. 1 ¶ 37. Both complaints were essentially
deemed unfounded by Drs. Zangaro and Washko respectively.
February 2, 2016, Valluzzi filed a formal equal employment
opportunity (“EEO”) complaint, alleging
“discrimination on the basis of her age, gender,
disability, association with person(s) with disabilities
and/or programs for persons with disabilities.” ECF No.
1 ¶ 41; Valluzzi Dec. ¶ 21. Both Dr. Washko and Dr.
Zangaro were aware of the complaint. ECF No. 27-1 at 87, 140.
Shortly thereafter, Valluzzi and the agency settled the
claim. Pursuant to a written settlement agreement executed in
April 2016, Dr. Zangaro agreed to remove the MOC from
Valluzzi's file after six months. ECF No. 1 ¶ 37;
ECF No. 20-2 at 104-09. He also raised Valluzzi's 2015
evaluation score to “Achieved Expected Results, ”
and noted some “improvement and collaboration” on
Valluzzi's part. ECF No. 20-2 at 104-09; id. at
31-33. The narrative supporting Valluzzi's score for the
Customer Service/Teamwork element remained the same.
Id. at 105. The Settlement Agreement also obligated
Valluzzi's supervisors to assign her work in a timely
manner and support her career development endeavors.
Id. at 104-09. Drs. Morasch or Washko never learned
of the settlement terms in a timely manner or at all. ECF No.
27-1 at 142 (Dr. Washko testifying to learning of the
settlement “many, many, many months later”); ECF
No. 27-1 at 38-39 (Dr. Morasch testifying to having never
been aware of the agreement).
March 2016 and again in June 2016, Valluzzi formally alleged
various breaches of the settlement agreement. ECF No. 1
¶ 43; Valluzzi Dec. ¶ 24; ECF No. 27-1 at 147-54.
Within this period, on May 3, 2016, Dr. Morasch issued
Valluzzi a Letter of Reprimand for “failure to follow
supervisor instructions” and “inappropriate
conduct” arising from Valluzzi's working outside of
her scheduled days and times. ECF No. 20-2 at 34-38.
Specifically, Valluzzi came to work to attend a meeting on
her scheduled day off, and when confronted by Dr. Zangaro
about her misconduct, purportedly shut her office door in his
face. Id. at 34. Valluzzi filed a separate grievance
related to this Letter of Reprimand, which was denied. ECF
No. 27-1 at 179-92; ECF No. 1 ¶ 50.
August 15, 2016, Dr. Washko notified Valluzzi that because
Valluzzi became a non-exempt employee covered under the
National Treasury Employees Union, Valluzzi's alternative
work schedule had been terminated, pursuant to the applicable
collective bargaining agreement between HHS and the Union.
See ECF No. 20 at 9; ECF No. 20-2 at 38-40; ECF No.
1 ¶ 53. Specifically, the collective bargaining
agreement barred a covered employee from participating in an
alternative work schedule program if the employee had been
disciplined within the last six months for a violation
related to scheduling. See ECF No. 20-2 at 39.
According to Dr. Washko, Valluzzi's May 2016 Letter of
Reprimand rendered Valluzzi ineligible for an alternative
work schedule. Id.
August 23, 2016, Dr. Washko proposed to suspend Valluzzi for
five days, which Dr. Zangaro affirmed. ECF No. 20-2 at 42-44,
50-56. According to contemporaneous memoranda and documentary
evidence, Valluzzi had been reprimanded for refusing to
follow her supervisors' directives in her work
assignments, speaking “about her supervisor in an
inappropriate manner, ” using “accusatory
language and [a] demeaning tone, ” sending disruptive
emails, rudely requesting another staff member's manager
to review the staff member's work, working past her tour
of duty, and failing to follow instructions. Id. at
50-53. In addition to the five-day suspension, Dr. Zangaro
directed Valluzzi to attend three training courses:
Interpersonal Communication that Builds Trust; Being a
Receptive Communication Partner; and Team and Customer
Relations. Id. at 54.
November 29, 2016, Dr. Washko again proposed to suspend
Valluzzi, this time for ten days. ECF No. 20-2 at 57-62. The
detailed memorandum recites a litany of misconduct, including
failure to follow instructions, lack of candor, and refusal
to follow supervisor directives. Id. On February 2,
2017, Dr. Zangaro affirmed the suspension. Id. at
64-69. In the interim, on December 16, 2016, Valluzzi filed
her second formal EEO complaint.
work year 2016, Valluzzi received an average score of 2.8 out
of 5 on her performance evaluation, putting her in the
category of “Partially Achieved Expected
Results.” ECF No. 20-2 at 94. As in 2015,
Valluzzi's lowest rating was for Customer
Service/Teamwork. See Id. at 94-103. The evaluation
in part reads:
The ANE/ANEW evaluation was conducted with minimal
interaction with both NCHWA and program staff. Jan also
missed the report deadline, and because of the late
submission, as well as her lack of building effective working
relationships with other team members during the evaluation
process (the Program Division as well as NCHWA management),
BHW was unable to integrate the findings into the FOA
redesign of the new program.
Id. at 101.
December 2016, Valluzzi submitted a draft for one of two
reports she had been assigned to complete that year. ECF No.
1 ¶ 66. On January 12, 2017, Dr. Washko sent Valluzzi
written comments, instructions, and edits to the report, and
asked Valluzzi to amend the report accordingly. See
ECF No. 20-3 at 9-10. Dr. Washko noted that the “report
lacks structure and clear recommendations” and provided
examples of how to better format the report. Id. at
9. Valluzzi responded to Dr. Washko in writing, outlining her
concerns. Id. at 11-14. Valluzzi also exchanged
correspondence with her new first-line supervisor, Isaac
Worede, about the report. Id. at 15-18. Valluzzi
then submitted an edited report as directed. Id. at
19. Dr. Mary Beth Bigley, Senior Advisor for NCHWA, ...