MAVROGIANIS v. MCDONALD

Filing 22

MEMORANDUM OPINION re: 21 Order. Signed by Judge James E. Boasberg on 8/26/16. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LISA M. MAVROGIANIS,
Plaintiff,
v.

Civil Action No. 14-2077 (JEB)

ROBERT A. McDONALD, Secretary,
Department of Veterans Affairs,
Defendant.

MEMORANDUM OPINION
Plaintiff Lisa Mavrogianis, an employee at the Department of Veterans Affairs, has
brought this suit claiming discrimination under Title VII of the Civil Rights Act of 1964 and the
Rehabilitation Act. She now moves for partial summary judgment on her claim that the VA
failed to accommodate her physical injury by refusing to permit her three days of telework per
week. In support of her position that there are no genuine disputes of material fact, she points
solely to the conclusions in a Final Agency Decision (FAD) issued by the Department’s Office
of Employment Discrimination. Because the Department properly rescinded that FAD, however,
the Court finds that it has no evidentiary or legal effect. As such, Mavrogianis cannot prevail at
this stage, and the Court will deny her Motion.
I.

Background
At the time of the events underlying this case, Plaintiff served within the VA as a

Management Analyst in the Office of the Assistant Secretary for Policy and Planning in
Washington, D.C. See Pl. Exh. 2 (EEO Investigative Report) at 2. In November 2012, she was
diagnosed with a hip labral tear, the cause of which was unknown. See Pl. SOF (ECF No. 15,
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Attach. 1), ¶ 4; Def. SOF (ECF No. 18, Attach. 1), ¶ 4. This tear, along with other problems in
her musculoskeletal system, caused her to suffer “pain, inflammation, restricted movement, and
loss of flexibility while walking, bending, reaching, twisting, lifting, and pushing/pulling
weights.” Pl. SOF, ¶ 5; see also Def. SOF, ¶ 5. In December 2012, Mavrogianis’s orthopedist
recommended workplace accommodations that could help to stabilize and improve her condition.
These included medical leave and time off for recovery, a flexible work schedule, fixed working
conditions and duties, and telework. See Pl. SOF, ¶ 6; Def. SOF, ¶ 6.
In July 2013, after the VA moved her workspace to a new building, Plaintiff filed a
written request for various accommodations she believed to be reasonable, including three days
per week of telework. See Pl. SOF, ¶ 9; Def. SOF, ¶ 9. Her orthopedist supported this request in
a written letter, explaining that Mavrogianis’s new cubicle had different furniture and less space,
requiring her to move about in more painful ways than she had at her previous workstation. See
Pl. SOF, ¶ 10; Def. SOF, ¶ 10. In September 2013, the physician followed up with another letter,
noting that her medical condition had worsened and stressing the need for further
accommodations. See Pl. SOF, ¶ 11; Def. SOF, ¶ 11.
A couple months passed and in November 2013 the VA management granted some of
Plaintiff’s requested accommodations, permitting her, inter alia, to telework from home one day
per week as part of a compressed work schedule. See Pl. SOF, ¶ 12; Def. SOF, ¶ 12. The
Department’s Reasonable Accommodation Coordinator did not approve Plaintiff’s three-daytelework request, but later the VA requested updated medical documentation to support that
request. See Pl. SOF, ¶¶ 13-14; Def. SOF, ¶¶ 13-14. On February 12, 2014, Mavrogianis filed
an Equal Employment Opportunity (EEO) complaint alleging that the VA had failed to
accommodate her disability, subjected her to a hostile work environment based on disability

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discrimination, and retaliated against her for requesting reasonable accommodations. See EEO
Investigative Report at 62-65. The Department indicated that it would begin investigating her
complaint. See id. at 65-66.
By June 2014, the Department had decided to allow all employees on compressed work
schedules to take up to two days per week of telework, and Mavrogianis indicated via email to
the Accommodations Coordinator that she would “suffer and accept” the two-day-telework
option. See Pl. SOF, ¶ 16; Def. SOF, ¶ 16. Her physician nevertheless sent another letter that
month, again expressing the view that the best accommodation for Plaintiff would be “to permit
her to work from home as frequently as possible, but at least three days per week.” Pl. SOF,
¶ 18; see also Def. SOF, ¶ 18.
About six months later, on December 10, 2014, Mavrogianis filed the instant lawsuit in
this Court, naming Robert McDonald, Secretary of the Department of Veterans Affairs, as
Defendant. See ECF No. 1 (Complaint). In her Complaint, she described her request for
accommodation and the Department’s failure to acquiesce, as well as its “creation of a hostile
work environment for plaintiff, [by] having taken discriminatory and retaliatory adverse actions
against” her. See id., ¶ 19. Plaintiff argued that these actions on the part of the VA caused her to
suffer economic losses, lost career opportunities, and emotional distress. See id., ¶ 18. As such,
she claimed, the VA had violated Title VII of the Civil Rights Act of 1964, as amended by the
Equal Employment Opportunity Act, as well as the Rehabilitation Act of 1973. See id., ¶ 19.
She sought compensatory damages to the tune of $300,000 plus interest; an injunction requiring
the VA to permit her to telework three days per week and to provide her with various other
accommodations when at work; an order that the VA restore all the annual and sick leave she has
taken in connection with its failure to accommodate her and that it provide her with excellent

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performance ratings during the time at issue in the Complaint; and attorney fees and costs. See
id. at 9.
Three months after initiating this civil suit, Plaintiff filed a second EEO complaint with
the VA on March 4, 2015, raising a “single claim regarding a performance evaluation.” Pl. Exh.
1 (FAD) at 1, n.1. (That second complaint, although mentioned in the parties’ briefing, does not
appear to be in the record at present.)
On March 31, 2016, the VA’s Office of Employment Discrimination Complaints
Adjudication (OEDCA) issued what it labeled a “Final Agency Decision” disposing of both of
Mavrogianis’s consolidated EEO complaints. See FAD at 1. That FAD described at length the
investigation the EEO had conducted, and it concluded that Plaintiff “has established that the
agency discriminated against her on the basis of her disability when it failed to accommodate her
as repeatedly requested by her physician.” Id. at 29. It also concluded, however, that she had
“failed to prove by a preponderance of the evidence that the agency subjected her to unlawful
workplace harassment on the basis of disability or reprisal . . . [or] that the agency discriminated
against her on the basis of reprisal regarding her FY 14 performance evaluation.” Id. The
Decision stated that Mavrogianis was “entitled to full, make-whole relief” as a result of the
Department’s failure to accommodate, including provision of requested accommodations,
restoration of all leave taken as a result of the failure to accommodate, compensatory damages,
attorney fees and costs, and other miscellaneous relief. See id. at 29-36.
Shortly thereafter, on April 14, 2016, the OEDCA issued a “Rescission of Final Agency
Decision” rescinding the aforementioned FAD. See Pl. Exh. 3 (Rescission Order). The
Rescission Order explained that “[a]fter issuance of the FAD” adjudicating Mavrogianis’s EEO
complaints, “OEDCA received notice that [Plaintiff] had filed a civil action in the U.S. District

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Court for the District of Columbia on December 10, 2014.” Id. at 1. Because the claims
Mavrogianis raised in her EEO complaints “are identical to those raised in the Civil Action
pending adjudication before the U.S. District Court for the District of Columbia, as of December
10, 2014, OEDCA had no jurisdiction to render a FAD on this same complaint on March 31,
2016.” Id. It therefore “rescind[ed] in its entirety[] the March 31, 2016 FAD administratively
adjudicating [Plaintiff’s EEO] complaints.” Id. at 2.
On May 23, 2016, while the parties were in the middle of discovery, Plaintiff filed the
instant Motion for Partial Summary Judgment on her Rehabilitation Act (failure-toaccommodate) claim citing the factual findings contained in the March 31, 2016, FAD. See
Partial MSJ (ECF No. 15, Attach. 5) at 1. She requests that her remaining discrimination and
retaliation claims arising under Title VII be allowed to proceed separately to further discovery
and trial. See id. at 2 n.2. The Partial Motion is now ripe.
II.

Legal Standard
Summary judgment may 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,

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or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in his favor. See
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III.

Analysis
Plaintiff appears to concede that her Motion relies exclusively on the FAD issued by the

VA’s Office of Employment Discrimination Complaint Adjudication on March 31, 2016. See
Partial MSJ at 3 (“[O]ur motion is based on findings recently made by DVA’s Office of
Employment Discrimination Complaint Adjudication in a lengthy and definitive Final Agency
Decision dated March 31, 2016.”); see also Pl. SOF at 1 n.1 (“All facts set out herein are taken
from the Final Agency Decision[,] . . . which is, of course, as a final agency decision of [the
VA], also an admission of that Department and thus of the defendant Secretary.”). Her sole
contention, in moving for summary judgment on her failure-to-accommodate claim, is that “[n]o

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reasonable fact-finder, when confronted with DVA’s own EEO officers’ determination that
management lacked good faith . . . could conclude that the DVA did comply with the
Rehabilitation Act.” Reply at 5.
Defendant counters that, because the FAD was rescinded on April 14, 2016, the written
Decision – including the factual findings and conclusions of law contained therein – “does not
exist,” “should be stricken by this Court,” and cannot be considered as facts not in dispute or an
admission of the VA. See Opp. at 8. His Response to Plaintiff’s Statement of Material Facts
further asserts that, if the FAD is disregarded, certain material facts surrounding Plaintiff’s
disability and her employer’s accommodations remain in dispute, making any resolution of her
failure-to-accommodate claim premature. See, e.g., Def. SOF, ¶ 13 (disputing Plaintiff’s account
of the reason “why the DVA did not approve the three-day telework request”) (citing EEO
Investigative Report at 195-96). Indeed, Plaintiff never asserts that, absent the FAD, she may
prevail on her Motion. The central question for the Court, then, is what effect, if any, the FAD
has. If it is, as the Secretary claims, no longer valid, Plaintiff’s Motion has no undisputed-facts
leg on which to stand.
In arguing that the agency had no choice but to withdraw the FAD, Defendant relies
primarily on 29 C.F.R. § 1614.107, the regulation governing dismissal of EEO complaints, and
Johnson v. Gonzales, 418 F. Supp. 2d 1 (D.D.C. 2006), in which another court in this district
interpreted that regulation in a similar case. The regulation mandates that
the agency shall dismiss an entire complaint:
...
(3) That is the basis of a pending civil action in a United States
District Court in which the complainant is a party provided that at
least 180 days have passed since the filing of the administrative
complaint, or that was the basis of a civil action decided by a United
States District Court in which the complainant was a party.

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29 C.F.R. § 1614.107(a)(3). In keeping with this regulation, then, “[a] claimant’s filing of a civil
action generally terminates the agency’s processing of his complaint.” Johnson, 418 F. Supp. 2d
at 3; accord Robbins v. Bentsen, 41 F.3d 1195, 1198 (7th Cir. 1994) (“[S]ection 1614.107[(a)(3)]
requires that once an employee has filed a civil action, the agency shall dismiss the complaint
‘[t]hat is the basis of a pending civil action in a United States District Court in which the
complainant is a party provided that at least 180 days have passed since the filing of the
administrative complaint. . . .’”) (emphasis added); see also Dick v. Holder, 80 F. Supp. 3d 103,
117 (D.D.C. 2015) (“[A]fter 180 days following the filing of an administrative [EEO] charge, if
the agency has not taken final action and no [administrative] appeal has been filed, the
complainant can forgo a hearing and ‘is authorized under . . . the Rehabilitation Act to file a civil
action in an appropriate United States District Court[.]’”) (citing 29 C.F.R. § 1614.407(b)).
In Johnson, Judge Ricardo Urbina agreed that “[a]n agency must dismiss an EEO charge
when the complainant brings the charge before a federal court.” 418 F. Supp. 2d at 2 (citing 29
C.F.R. § 1614.107(a)(3)). In that case, the plaintiff filed an EEO complaint with the Federal
Bureau of Investigation, and that agency’s Complaint Adjudication Office issued a Final Agency
Decision in his favor on December 7, 2004. Id. at 1. On January 27, 2005, however, that Office
informed the plaintiff by letter that it was withdrawing its Decision. Id. “According to the letter,
the CAO withdrew its FAD ‘because at the time of its issuance, there was a pending civil
complaint in federal court, filed by the complainant [on July 9, 2004], which included all the
issues raised in his EEO complaint.’” Id. (citation omitted). Judge Urbina held that “under the
applicable EEO regulations, the [agency] was required to dismiss the EEO charge. . . . Because it
was improper for the CAO to have rendered a FAD in a matter that was terminated, the agency
withdrew its FAD.” Id. at 3. Relying on the plain language of the regulation, the plaintiff’s

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failure to “point to any authority stating that the CAO improperly withdrew the FAD,” and the
general practice of courts to “routinely withdraw orders and judgments mistakenly issued,”
Judge Urbina concluded that the FBI properly withdrew its erroneously issued FAD. Id. at 3. In
other words, the agency made a mistake, and it was entitled to correct it.
The same is true here. The OEDCA ought to have dismissed Mavrogianis’s EEO
complaints pursuant to 29 C.F.R. § 1614.107(a)(3) before the FAD was issued in March 2016, as
both components of that dismissal requirement were satisfied: First, there is no dispute that the
FAD was issued more than 180 days after she filed her administrative complaints in February
2014 and March 2015. Second, the Complaint in this civil action “specifies that the issues before
the Court are those raised in” Mavrogianis’s EEO complaints – “namely, [her] allegations that
she was denied a reasonable accommodation and subjected to harassment because of her
disabilities, and further subjected to reprisal when given an unfair performance appraisal for
fiscal years 2013 and 2014.” Rescission Order at 1. The Rescission Order plainly explains that
the Office failed to dismiss the EEO complaints pursuant to Section 1614.107(a)(3) merely
because it was not aware of this case, as it did not “receive[] notice” of the filing of this lawsuit
until after it issued the FAD. See id. at 1.
Put simply, the OEDCA made a mistake and, just as in Johnson, it is entitled to correct it.
The Court concludes, accordingly, that the VA’s withdrawal of the FAD was appropriate.
Accord Iskander v. Dep’t of Navy, 7 F. Supp. 3d 590, 594 (E.D.N.C. 2014) (“[O]nce the
employee files a federal lawsuit, neither she nor the agency have a duty to continue the
administrative investigation. In fact, the agency is required to dismiss the [EEO] complaint once
the employee has filed suit, just as the Navy dismissed Iskander’s complaint in this case.”)
(citing 29 C.F.R. § 1614.107(a)(3)); Laudadio v. Johanns, 677 F. Supp. 2d 590, 595 (E.D.N.Y.

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2010) (“The USDA did not issue its FAD with respect to Laudadio’s first EEO complaint until
August 21, 2007, almost six months after Laudadio commenced this action in federal court. . . .
The FAD dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(3) as a ‘compliant that is the
basis for a pending civil action in a United States District Court.’”).
As a fallback argument, Plaintiff contends that, regardless of the FAD’s administrative
viability, its findings of fact and conclusions of law should nonetheless be considered
“admissions” by Defendant for the purposes of this Motion. See Partial MSJ at 2, 29.
Defendant, for his part, points to Johnson’s statement that a rescinded FAD is “a non-existent
FAD,” and he urges the Court to conclude, as did that court, that it has no legal or other effect.
See 418 F. Supp. 2d at 3.
The VA and Judge Urbina clearly have the better argument here. Where, as here, the
agency had no jurisdiction to issue its initial decision, its subsequent withdrawal of the same
strips it of any significance whatsoever. Just as a court’s decisions, once vacated, are effectively
erased from any ongoing or future litigation, so, too, does OECDA’s rescinded decision cease to
exist for all intents and purposes.
Because, as Plaintiff acknowledges, her Motion relies entirely on the March 31, 2016,
FAD to establish the undisputed material facts that, she asserts, compel judgment in her favor,
the Court’s conclusion that the withdrawn FAD has no legal or factual effect dooms her position.
The Court, accordingly, will deny the Motion. Her Rehabilitation Act claim, along with her
others, may thus proceed to further discovery and, if necessary, trial.

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IV.

Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Partial Summary

Judgment without prejudice and permit discovery to resume. A contemporaneous Order will so
state.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 26, 2016

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