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Valluzzi v. Azar

United States District Court, D. Maryland

January 10, 2020

JANET L. VALLUZZI, et al., Plaintiffs,
ALEX M. AZAR, II, Defendant.


          Paula Xinis, United States District Judge

         Pending 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 Defendant's motion.

         I. Background

         The 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.

         Valluzzi 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.

         Approximately 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.

         Once 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. ¶ 10.

         On 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.

         Valluzzi 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 job functions.

         During 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 Branch.” Id.

         On 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.

         In the 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.

         On 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).

         In 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.

         On 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.

         On 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.

         On 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.

         For 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.

         In late 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, ...

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