Willar v. Esper, Secretary

Filing 18

MEMORANDUM OPINION Signed by Judge George Levi Russell, III on 11/18/2020. (cags, Deputy Clerk)

Case 1:19-cv-02785-GLR Document 18 Filed 11/18/20 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARK WILLAR,
Plaintiff,
v.

Civil Action No.: GLR-19-2785

MARK T. ESPER, Ph.D., in his official
capacity as Secretary, Department of
Defense,
Defendant.
MEMORANDUM OPINION
THIS MATTER is before the Court on the Motion to Dismiss, or in the Alternative,
for Summary Judgment by Defendant Mark T. Esper, Ph.D., in his official capacity as
Secretary, Department of Defense (“DoD”) (ECF No. 11). 1 The Motion is ripe for
disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the
reasons set forth below, the Court will deny the Motion.
I.
A.

BACKGROUND 2

Factual Background
In November 2016, Plaintiff Mark Willar accepted a job offer from the Missile

Defense Agency (“MDA”), a research, development, and acquisition agency within the

1

For reasons set forth below, the Court will construe the Motion as a motion to
dismiss. For the same reasons, the Court will grant Plaintiff Mark Willar’s pending Motion
for Discovery (ECF No. 15).
2
Unless otherwise noted, the Court takes the following facts from Willar’s
Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations omitted).

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DoD, to work at an Elkton, Maryland manufacturing facility as an MDA Assurance
Representative (“MAR”). (Compl. ¶¶ 6, 20, 23, ECF No. 1). At the time, the Elkton facility
was owned and operated by a company known as Orbital ATK. (Id. ¶ 20). In the role for
which Willar was hired, he expected to “oversee the quality assurance of the missile
defense system hardware components that Orbital ATK developed, tested, and
manufactured for MDA under contract with the Department of Defense.” (Id. ¶ 21). Willar
initially reported to Kevin Sheahan, MDA’s Quality Safety Integration Chief, and his
second-line supervisor was Michael Wadzinski, MDA’s Director of Quality and Safety.
(Id. ¶¶ 22, 25).
Willar suffers from Reactive Airway Dysfunction Syndrome (“RADS”), a lung
disease that impairs his breathing. (Id. ¶ 8). RADS “substantially limits Willar’s lung
capacity and pulmonary function, and as a result, his breathing, in all areas of his life.” (Id.
¶ 10). RADS impairs Willar’s ability to take stairs, carry heavy objects, exercise, or play
sports. (Id. ¶¶ 11–13). Willar relies on an inhaler and a respirator to mitigate the effects of
RADS. (Id. ¶¶ 14–15). In particular, “Willar must use a respirator to protect his lungs from
airborne irritants in certain settings, including in the manufacturing plants in which he has
worked.” (Id. ¶ 15).
Willar’s employment with MDA began on February 19, 2017. (Id. ¶ 24). Five days
beforehand, Willar requested and Sheahan approved a compressed work schedule, under
which Willar would work nine-hour shifts Monday through Thursday and take off every
other Friday. (Id. ¶ 26). Three days before beginning employment, Willar notified Sheahan
that he suffers from RADS and requested to use a respirator at work as an accommodation
2

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for his disability. (Id. ¶ 27). Willar also requested the material safety data sheets (“MSDS”)
for the Elkton facility—documents that “list the respiratory irritants, chemical
compositions, and safety requirements”—which would enable him to ensure he used the
correct filter in his respirator. (Id. ¶ 29).
Sheahan responded by emailing MDA’s Equal Opportunity Assistant, copying
Wadzinski and Thomas Fisher, MDA’s Deputy for Quality Safety Inspection, 3 stating that
“Willar just disclosed to MDA today (see below) that he has a medical condition. He did
not disclose this prior to today. . . . I personally believe this candidate was not up-front with
MDA.” (Id. ¶ 30). In response, Fisher wrote: “?????????????????? - how could he apply
for a position at Orbital ATK, a site that manufactures freaken [sic] solid rocket motors
with a lung condition? . . . ahhhhhhhhhhhhhhhhhhhhhhhhhhhh!!!!!!!!!!!!” (Id. ¶ 32).
On February 17, 2017, Sheahan asked Willar to provide information about the
respirator he owned so that MDA could “check with Orbital-ATK to see if it is permitted
in their Elkton MD manufacturing spaces.” (Id. ¶ 33). Willar provided the information. (Id.
¶ 34). In response to Willar’s request for MSDS files, Sheahan wrote that Orbital ATK
uses “100’s of different chemical[s]” and that the quantity of corresponding MSDS files
would be “several inches thick.” (Id. ¶ 36). Later that day, Sheahan again wrote to Fisher,
asserting that he was “amazed he [Willar] even applied for this position. It’s only the worst
case manuf [sic] plant wrt [sic] chemicals, in the world, that MDA does business in.” (Id.
¶ 38).

3

Fisher previously served as the MAR at the Elkton facility.
3

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Fisher then wrote to Jim Tedesco, Orbital ATK’s Director of Safety and Security
for Missile Defense and Controls at the Elkton facility, and asked leading questions about
the ability to accommodate Willar’s need for a respirator, including:
1. Will OA [Orbital ATK] not allow Willar to use his personal
respirator during manufacturing surveillance of MDA product
due to liability concerns in OA manufacturing and test areas?
...
2. Will OA not allow Mr Willar to use his personal respirator
due to product risks at the OA site? For example, is respirator
use a product contamination hazard? 3. Will OA Elkton, MD
not allow Mr Willar to wear this personal respirator due to
safety concerns at the OA site? . . .
(Id. ¶ 42) (emphasis added in Complaint). In response, Tedesco adopted the language used
by Fisher in his email, stating that “Orbital ATK would not allow Willar to wear his
personal respirator, brand and model number 3M 7502/37082 . . . due to ‘product safety’
and ‘personnel safety’ concerns.” (Id. ¶ 43). Willar notes in his Complaint that he never
insisted on using any particular respirator. (Id. ¶ 44).
Tedesco further asserted that a silicone respirator like Willar used was unacceptable
“‘due to the risk of product contamination from the silicone material’ and because of the
‘replaceable piece parts on the mask.’” (Id. ¶ 46). Willar notes, however, that “Orbital ATK
allows its own employees to use silicone respirators with replaceable parts throughout the
Elkton facility.” (Id.). Regardless, on February 28, 2017, Fisher wrote to Sheahan and
stated in unambiguous terms that “Willar is (now) not a [Quality Safety Inspection]
employee due to his latent medical disclosure.” (Id. ¶ 49). The following day, Sheahan
emailed Willar and told him that MDA was requiring him to undergo a medical evaluation

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by the U.S. Department of Health and Human Services’ Federal Occupational Health
(“FOH”) Program to assess his disability. (Id. ¶ 55). Willar authorized his physician to
provide information to the FOH Program. (Id. ¶ 56).
On March 6, 2017, Wadzinksi placed Willar on what he described as a “temporary”
detail to an office in Dahlgren, Virginia, approximately 150 miles from Willar’s home,
pending resolution of Willar’s request for an accommodation. (Id. ¶¶ 57–58). “Sheahan
described the detail as an ‘estimated 2-week trip to our offices in Dahlgren VA[.]’” (Id.
¶ 59). The following day, Willar emailed Sheahan to request additional information about
other options for his temporary detail, the duration of the temporary assignment, and the
FOH assessment, but did not receive a response. (Id. ¶ 63). Due to the distance between
his home and Dahlgren, Willar was forced to make arrangements to stay in a hotel in
Dahlgren during the week. (Id. ¶ 66). According to Willar, “[t]his arrangement disrupted
all aspects of [his] personal life and prevented him from attending worship services,
maintaining personal relationships, and participating in social and recreational activities
during the week” and “negatively impacted his diet and sleep patterns.” (Id. ¶ 67). Willar
was also “forced to drive for hours to attend necessary medical appointments during the
work week in Dahlgren.” (Id. ¶ 68). Shortly thereafter, MDA revoked Willar’s compressed
work schedule. (Id. ¶ 64).
Later that month, Willar wrote to Sheahan to again request the MSDS files and other
information about the chemicals present in the Elkton facility so that he could discuss the
issue with his doctor. (Id. ¶ 69). Sheahan referred him to Anita Boush, MDA’s Director of
Equal Opportunity and Diversity Management, who did not offer a substantive response
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and instead requested that Willar “allow the process to run its course.” (Id. ¶ 72). When
Willar followed up, she refused to provide any additional information. (Id. ¶ 73).
On April 4, 2017, Willar submitted a pre-complaint Equal Employment Opportunity
(“EEO”) intake form to MDA. (Id. ¶ 95). Three days later, Sheahan emailed Fisher and
Kendall Miller, Willar’s manager in Dahlgren, and notified them of Willar’s complaint.
(Id. ¶ 97). Later that month, Kelly Whatley, Affirmative Employment Specialist at MDA’s
Office of Equal Opportunity, emailed the FOH office stating, “[W]e are in a bad position
with this employee [Willar]. He was hired for a certain position and we have not given him
a valid reason for not letting him enter the building. The medical evaluation is the only way
we will be able to validate our position.” (Id. ¶ 76).
Willar did not meet with an FOH physician to conduct his evaluation until May 15,
2017, roughly three months after his initial request for an accommodation and roughly two
months into his temporary detail to Dahlgren. (Id. ¶ 77). One week later, Willar submitted
a formal EEO complaint alleging disability discrimination and retaliation. (Id. ¶ 96). On
June 20, 2017, still having received no word regarding the status of his request for an
accommodation, Willar requested a separate accommodation—that MDA permit him to
perform his Dahlgren work from the Elkton facility, which was much closer to his home.
(Id. ¶ 82). Sheahan denied the request on July 27, 2017, asserting that “MDA cannot allow
an MDA employee to reside in a commercial company facility and perform daily duties
not associated with the work performed at that site.” (Id. ¶ 83). Willar, however, identified
two other employees—Fisher and Ray Chowdhury—who performed non-Elkton work at
the Elkton facility. (Id. ¶¶ 84–86). Regardless, still awaiting a response to his initial
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accommodation request, Willar submitted yet another request for an accommodation on
August 9, 2017, this time seeking permission to work “at any ‘government owned location’
closer to his residence.” (Id. ¶ 88). Almost one month later, Sheahan denied the request.
(Id. ¶ 89).
Beginning in August 2017, Miller began to pressure Willar to accept a permanent
job offer in Dahlgren. (Id. ¶ 90). Willar found the Dahlgren position less attractive than the
MAR position for several reasons, including that the Dahlgren position was a supervisory
role and that it would require international travel. (Id. ¶¶ 91–92). On November 14, 2017,
however, Sheahan “formally denied in writing Willar’s request to wear a respirator at the
Elkton facility while performing the duties of an MAR.” (Id. ¶ 93). This decision “forced
Willar to accept the permanent position in Dahlgren.” (Id. ¶ 94).
B.

Procedural Background
Willar submitted his initial pre-complaint EEO intake form on April 4, 2017. (Id.

¶ 95). He then submitted his formal EEO complaint on May 22, 2017. (Id. ¶ 96). Willar
filed his Complaint in this Court on September 20, 2019. (ECF No. 1). The two-count
Complaint alleges: disability discrimination in violation of the Rehabilitation Act of 1973
(Count I); and retaliation in violation of the Rehabilitation Act of 1973 (Count II). (Id.
¶¶ 99–121). Willar seeks compensatory and consequential damages, attorneys’ fees and
costs, and a declaratory judgment affirming DoD’s unlawful actions. (Id. at 19).
On March 11, 2020, DoD filed a Motion to Dismiss. (ECF No. 11). Willar filed an
Opposition on June 17, 2020. (ECF No. 14). That same day, Willar filed a Motion for
Discovery and attached an affidavit from counsel setting forth specific relevant information
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he could obtain through discovery. (ECF No. 15). DoD filed a joint Reply and Opposition
to Willar’s Motion for Discovery on July 1, 2020. (ECF No. 16). Willar filed a Reply in
Support of his Motion for Discovery on July 15, 2020. (ECF No. 17).
II.
A.

STANDARD OF REVIEW

Conversion
DoD styles its Motion as a Motion to Dismiss, or in the Alternative, for Summary

Judgment. A motion styled in this manner implicates the Court’s discretion under Rule
12(d). See Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cnty., 788 F.Supp.2d
431, 436–37 (D.Md. 2011), aff’d, 684 F.3d 462 (4th Cir. 2012). This Rule provides that
when “matters outside the pleadings are presented to and not excluded by the court, the
[Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.”
Fed.R.Civ.P. 12(d). The Court “has ‘complete discretion to determine whether or not to
accept the submission of any material beyond the pleadings that is offered in conjunction
with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or
simply not consider it.’” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5
(D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366,
at 159 (3d ed. 2004, 2012 Supp.)).
The United States Court of Appeals for the Fourth Circuit has articulated two
requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice
and a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns,
Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013). When the movant expressly
captions its motion “in the alternative” as one for summary judgment and submits matters
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outside the pleadings for the court’s consideration, the parties are deemed to be on notice
that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464
(D.Md. 2005).
Ordinarily, summary judgment is inappropriate when “the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the party opposing summary judgment
‘cannot complain that summary judgment was granted without discovery unless that party
had made an attempt to oppose the motion on the grounds that more time was needed for
discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.
2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
1996)). To raise sufficiently the issue that more discovery is needed, the non-movant must
typically file an affidavit or declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P.
56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of
discovery.” Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011) (citation
omitted). A Rule 56(d) request for discovery is properly denied when “the additional
evidence sought for discovery would not have by itself created a genuine issue of material
fact sufficient to defeat summary judgment.” Ingle ex rel. Estate of Ingle v. Yelton, 439
F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d
943, 954 (4th Cir. 1995)).
Willar argues that it would be premature to construe DoD’s Motion as one for
summary judgment because he has not had a reasonable opportunity for discovery. In
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addition, counsel for Willar has submitted an affidavit, in accordance with Rule 56(d),
setting forth several detailed categories of discovery that could establish a genuine issue of
material fact in this dispute.
Through his Motion for Discovery and the attached affidavit, Willar identifies an
array of information that could prove essential to his claims of retaliation and
discrimination. For instance, although Willar was able to engage in some limited discovery
during the federal EEO investigative process, he was not able to gather documentary and
testimonial evidence from third parties like Orbital ATK, which could potentially provide
relevant information about the use of respirators in its facilities. This information could
prove particularly salient because there is a dispute of fact about whether Orbital ATK
permits the use of respirators, and because Willar asserts that MDA pressured Orbital ATK
into making its determination regarding the safety of his respirator. (See Sinisi Aff. ¶¶ 9–
11, 15–23, ECF No. 15-1). 4 Willar also notes that he has not been provided the Orbital
ATK policies on which it purportedly based its determination regarding his respirator. (Id.
¶¶ 12–14). Willar further states that due to DoD’s dilatory tactics, he did not have the
opportunity to depose key witnesses, including MDA management employees, concerning
Orbital ATK policies and other relevant information. (Id. ¶¶ 63–67). In light of email
correspondence quoted in the Complaint that could suggest animus toward Willar’s
disclosure of his disability and requests for accommodation, the testimony of management

4

Willar appears to have mistakenly failed to file the Sinisi Affidavit as a separate
attachment to his filing. The affidavit begins on page eighteen of Willar’s Memorandum
in Support of his Motion for Discovery.
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officials involved in assessing Willar’s requested accommodation—and, indeed, the
reasons behind the delay in making that determination—could prove highly relevant in
proving or disproving Willar’s claims or DoD’s defenses.
DoD asserts that its Motion can be granted “on grounds otherwise unrelated to” the
information sought by Willar in his Motion for Discovery. (Def.’s Reply Mem. Law Supp.
Def.’s Mot. Dismiss Compl. Alt. Summ. J. & Opp’n Pl.’s Reqs. Disc. [“Def.’s Reply”] at
7, ECF No. 16). For example, DoD specifies that “the issue of whether Willar is
substantially limited in a major life activity . . . ha[s] nothing to do with Orbital ATK or its
policies.” (Id.). But Willar’s Complaint articulated many ways in which his RADS
substantially limits major life activities, including the major life activity of breathing. (See
Compl. ¶¶ 10–19). DoD, in turn, relies on an evaluation conducted by a pulmonologist
retained by FOH for its conclusion that Willar’s Complaint misrepresents the extent of the
limitations caused by his RADS. (See Mem. Law Supp. Def.’s Mot. Dismiss Alt. Summ.
J. [“Def.’s Mot.”] Ex. E [“Tauber Letter”], ECF No. 11-6). The Court declines at this stage
to find that Tauber’s letter is dispositive regarding the extent of Willar’s limitations. In
particular, the Tauber letter does not appear to conclusively disprove Willar’s allegation
that his RADS substantially limits his ability to breathe.
In addition, DoD claims that evidence arising from third parties cannot establish
that “Willar could perform the essential functions of the MAR position while wearing a
respirator mask” and that Willar’s claims of retaliation do not relate to Orbital ATK. (Def.’s
Reply at 7). The Court disagrees. Evidence from Orbital ATK regarding the use of
respirators at the Elkton facility goes to both Willar’s ability to perform the essential
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functions of the job and to establishing that DoD’s reasons for relocating Willar and
otherwise denying his requests for accommodation were pretextual.
Thus, the Court is satisfied that the evidence sought by Willar could establish a
genuine dispute of material fact sufficient to defeat summary judgment. Accordingly, the
Court will construe DoD’s Motion as a motion to dismiss and will grant Willar’s Motion
for Discovery (ECF No. 15). Despite this, the Court “may consider documents . . . attached
to the motion to dismiss, if they are integral to the complaint and their authenticity is not
disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2
(D.Md. Mar. 28, 2013); see CACI Int’l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d
150, 154 (4th Cir. 2009). Courts in the Fourth Circuit have routinely determined that EEO
documents like the ones attached to DoD’s Motion are integral documents in employment
discrimination actions. See, e.g., Britt v. Brennan, No. RDB-19-0401, 2020 WL 1701711,
at *2 (D.Md. Apr. 8, 2020); Battle v. Burwell, No. PWG-14-2250, 2016 WL 4993294, at
*9 n.8 (D.Md. Sept. 19, 2016); Mustafa v. Iancu, 313 F.Supp.3d 684, 687 (E.D.Va. 2018);
Lee v. Esper, No. 18-3606-TLW-KFM, 2019 WL 7403969, at *3 (D.S.C. Aug. 13,
2019), report and recommendation adopted, 2020 WL 32526 (D.S.C. Jan. 2, 2020). As
such, the Court will consider the EEO documents attached to the Motion to Dismiss as
integral documents. Federal employees, however, have “the same right [of action] as
‘private sector’ employees enjoy” and a federal employee is entitled to a “trial de novo” on
his claims of discrimination and retaliation. Chandler v. Roudebush, 425 U.S. 840, 841,
844–45 (1976). Accordingly, the Court will disregard any disputed findings of fact or law

12

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set forth in the documents attached to DoD’s Motion as Exhibits A and B (ECF Nos. 11-2,
11-3).
B.

Rule 12(b)(6) Standard
The purpose of a Rule 12(b)(6) motion is to “test[ ] the sufficiency of a complaint,”

not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible
on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is
not required to forecast evidence to prove the elements of the claim, the complaint must
allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)),
aff’d, 546 F.App’x 165 (4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268
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(1994); Lambeth v. Bd. of Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005)
(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept
unsupported or conclusory factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at 678.
III.
A.

ANALYSIS

Disability Discrimination (Count I)
Willar alleges that DoD denied him a reasonable accommodation in violation of the

Rehabilitation Act. To establish a prima facie claim for failure to accommodate under the
Rehabilitation Act of 1973, Willar must demonstrate that: (1) he was a qualified individual
with a disability; (2) DoD had notice of the disability; (3) Willar could perform the essential
functions of the position with a reasonable accommodation; and (4) DoD nonetheless
refused to make the accommodation. See Hannah P. v. Coats, 916 F.3d 327, 337 (4th Cir.
2019).
Thus, Willar’s claim requires that he first adequately allege that he is a “qualified
individual with a disability.” See, e.g., Shin v. Univ. of Md. Med. Sys. Corp., 369 F.App’x
472, 479 (4th Cir. 2010) (“For both wrongful termination and the failure to provide
reasonable accommodation, a plaintiff must first establish that he is a ‘qualified individual
with a disability’ under the ADA.”). The Rehabilitation Act adopts the Americans with
Disabilities Act’s (“ADA”) definition of “disability,” see 29 U.S.C § 705(9)(B), including
the amendments to the definition in the ADA Amendments Act of 2008
(“ADAAA”), Brady v. Bd. of Educ. of Prince George’s Cnty., 222 F.Supp.3d 459, 468
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(D.Md. 2016), aff’d, 707 F.App’x 780 (4th Cir. 2018). The ADAAA defines a disability
as: “(1) ‘a physical or mental impairment that substantially limits one or more major life
activities’ (the ‘actual-disability’ prong); (2) ‘a record of such an impairment’ (the ‘recordof’ prong); or (3) ‘being regarded as having such an impairment’ (the ‘regarded-as’
prong).” Summers v. Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014) (citing 42
U.S.C. § 12102(1)).
Major life activities include “caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
Major life activities also include “the operation of a major bodily function, including but
not limited to . . . respiratory . . . functions.” Id. § 12102(2)(B). A major life activity is
“substantially limit[ed]” if the impairment “substantially limits the ability of an individual
to perform a major life activity as compared to most people in the general population. An
impairment need not prevent, or significantly or severely restrict, the individual from
performing a major life activity in order to be considered substantially limiting.” 29 C.F.R.
§ 1630.2(j)(1)(ii). Determining whether an activity is substantially limited “usually will not
require scientific, medical, or statistical analysis.” Id. § 1630.2(j)(1)(v). Finally, the
ADAAA provides that “[t]he definition of disability in this chapter shall be construed in
favor of broad coverage of individuals under this chapter, to the maximum extent permitted
by the terms of this chapter.” 42 U.S.C. § 12102(4)(A).
In this case, Willar alleges that RADS impairs his ability to breathe, take stairs, carry
heavy objects, exercise, or play sports, and that he is forced to use a respirator to protect
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his lungs from airborne irritants. (Compl. ¶¶ 10–15). The Court is satisfied that Willar
adequately alleges that his RADS substantially limits one or more major life activities.
Moreover, there is no question that DoD was on notice of his disabilities.
Willar must next plausibly allege that he could perform the essential functions of
the position with a reasonable accommodation. “An employer is not required to grant even
a reasonable accommodation unless it would enable the employee to perform all of the
essential functions of her position.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562,
581 (4th Cir. 2015) (emphasis in original). DoD asserts that Willar’s claim must fail
because “even if it were reasonable to permit Willar to wear a respirator in the facility, he
could not perform all the essential functions of the MAR job duties because wearing a
respirator would interfere with inspection duties.” (Def.’s Mot. at 21). In support of this
position, DoD relies on a report authored by Sheahan in which he asserts that “[a] respirator
extends approximately 3 inches from the user’s face. A MAR must be able to put his/her
face into very close proximity to critical hardware to inspect the hardware.” (Def’s Mot.
Ex. B [“EEO Investigative File”] at 39, ECF No. 11-3). 5 DoD further asserts that Willar’s
respirator could create a dangerous condition for Willar and his colleagues due to a physical
reaction that could arise from the interaction between certain parts of the respirator and
chemicals and/or electrostatic conditions present in the facility. (Id. at 39–40).
Willar alleges in his Complaint, however, that he had previously used a respirator
during employment in similar jobs, including “as a Quality Manager at a BAE Systems

5

Citations to exhibit page numbers refer to the pagination assigned by the Court’s
Case Management/Electronic Case Files (“CM/ECF”) system.
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manufacturing plant, and as a Process Quality Engineer at Naval Air Station Patuxent River
(‘NAVAIR’) Defense.” (Compl. ¶ 17). Willar also alleges that other employees in the
Elkton facility routinely use silicone respirators and that “disposable respirators are used
throughout the Elkton facility” for several different processes. (Id. ¶¶ 46–48). Accordingly,
Willar plausibly alleges that he “could perform the essential functions of his job as an MAR
at the Elkton facility while using a respirator.” (Id. ¶ 104).
Relying on Sheahan’s report, DoD disputes this fact, correctly noting that the Court
“may consider defendant’s exhibits when analyzing whether plaintiff has stated a claim
under Rule 12(b)(6).” (Def.’s Reply at 3). But the Court need not take disputed facts set
forth in those exhibits as gospel, particularly before Willar has had the opportunity to
conduct meaningful discovery. Moreover, Willar has identified evidence suggesting that
“MDA predetermined that Willar would never work for MDA in the Elkton plant, with or
without accommodations, then spent the ensuing months building a written record to
support the decision not to accommodate him.” (Pl.’s Opp’n Mot. Dismiss [“Pl.’s Opp’n”]
at 11–12, ECF No. 14; see also Compl. ¶¶ 30–49, 76). To the extent the Sheahan report is
tainted by bias, as Willar has alleged, the conclusions contained therein cannot disprove
Willar’s allegations at the motion-to-dismiss stage of the proceedings. The Court is thus
satisfied at this stage that Willar has sufficiently alleged that he could perform the essential
functions of the MAR position with a reasonable accommodation.
Finally, Willar must establish that DoD refused to make a reasonable
accommodation. DoD asserts that it did accommodate Willar’s disability—albeit not in the
way that Willar requested—by relocating Willar to the Dahlgren office. As DoD correctly
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notes, the Rehabilitation Act does not require an employer to provide the accommodation
of the employee’s choice. Hannah P., 916 F.3d at 338. Rather, “the employer ‘has the
ultimate discretion to choose between effective accommodations.’” Id. at 337 (quoting
Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 415–16 (4th Cir. 2015)). However,
“reassignment should be considered only when accommodation within the individual’s
current position would pose an undue hardship.” 29 C.F.R. § Pt. 1630, App. at 1630.2(o).
Willar has alleged that DoD’s accommodation was not reasonable, both because the
conclusions that his respirator was unsafe and rendered him unable to perform his duties
were biased and inaccurate, and because the burden placed on him to commute to a job site
150 miles from his home was unreasonable. Willar emphasizes this point by stating that he
could have performed the duties of his Dahlgren position remotely from the Elkton facility
or some other location—an additional accommodation he later requested and DoD denied.
Relying on Sheahan’s statements to investigators, DoD responds that “MDA could not
have federal employees working in a commercial facility doing work not associated with
work being conducted at that facility.” (Def.’s Reply at 17). Willar responds that this is not
true, and identifies two employees, Chowdhury and Fisher, who were permitted to work in
Elkton while doing non-Elkton work. (See Compl. at ¶¶ 85–86). Relying on statements
Sheahan provided to EEO investigators, DoD asserts that this is false, and that those two
individuals performed MAR work while at the Elkton facility. (EEO Investigative File at
100). DoD states that Willar “offers no evidence or argument to demonstrate that [the
statement regarding the nature of Chowdhury and Fisher’s work at the Elkton facility] is

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incorrect.” (Def.’s Reply at 18). This argument misapprehends Willar’s burden. This case
is before the Court on DoD’s Motion to Dismiss; Willar’s plausible allegation is sufficient.
At bottom, the Court finds that for the purposes of surviving a motion to dismiss,
Willar has adequately alleged that he was denied the accommodation he sought and that
the alternative accommodation DoD provided was not reasonable. Accordingly, Willar has
articulated a prima facie case for failure to accommodate in violation of the Rehabilitation
Act, and DoD’s Motion to Dismiss will be denied as to Count I.
B.

Retaliation (Count II)
“Although the Rehabilitation Act does not have a specific retaliation provision, it

incorporates the remedies applicable under the Americans with Disabilities Act
including 42 U.S.C. § 12203(a), which makes it unlawful to retaliate against individuals
for making a charge, testifying, assisting, or participating in an investigation, proceeding
or hearing regarding charges of disability discrimination.” Dones v. Donahoe, 987
F.Supp.2d 659, 671 n.4 (D.Md. 2013) (citing 29 U.S.C. § 794a). To establish a prima facie
case of retaliation under the Rehabilitation Act, the plaintiff must allege that: (1) “he
engaged in a protected activity”; (2) “his employer acted adversely against him”; and (3)
“the protected activity was causally connected to the adverse action.” Id. at 671.
DoD does not dispute that Willar’s requests for accommodation are a protected
activity. Instead, DoD contends that Willar fails to adequately allege that he suffered an
adverse action. The Court disagrees.
To allege an adverse action for the purposes of a Rehabilitation Act retaliation claim,
“a plaintiff must show that a reasonable employee would have found the challenged action
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materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and citation omitted);
see also Williams v. Balt. City Cmty. Coll., No. GLR-12-238, 2014 WL 4784320, at *5
(D.Md. Sept. 23, 2014) (quoting Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th
Cir.

2007))

(applying

the

Title

VII retaliation factors

from Holland to

the

plaintiff’s ADA claims). Thus, the burden of establishing an adverse action in a retaliation
claim is lower than that of discrimination. See White, 548 U.S. at 64–67 (“[T]he
antiretaliation provision, unlike the substantive [discrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.”). Indeed, “‘the
antiretaliation provision extends beyond workplace-related or employment-related
retaliatory acts and harm’ because ‘[a]n employer can effectively retaliate against an
employee by taking actions not directly related to his [or her] employment or by causing
him [or her] harm outside the workplace.’” Strothers v. City of Laurel, 895 F.3d 317, 327
(4th Cir. 2018) (alteration in original) (quoting White, 548 U.S. at 63, 67).
Here, Willar alleges that DoD retaliated against him by, inter alia, “detailing [him]
to the ABQ office in Dahlgren, Virginia for a ‘temporary’ assignment, effective March 13,
2017; . . . revoking approval for Plaintiff’s [compressed work schedule] on March 14,
2017; . . . [and] denying [Willar’s] request to perform his Dahlgren or any MDA duties
from the Elkton facility” or other facilities closer to Willar’s home. (Compl. ¶ 118). DoD
counters that “much of what Willar complains of are part of the process the agency utilized
in assessing and providing a reasonable accommodation to him. As such, these cannot
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constitute an adverse action.” (Def.’s Mot. at 28). However, DoD provides no authority to
support this contention, and the inaccuracy of its blanket assertion is made plain by a simple
hypothetical: if a plaintiff alleged that in response to his request for an accommodation, his
employer provided an alternative accommodation by transferring him to work in a mine in
Siberia, a court could reasonably find that the employer’s actions might have dissuaded a
reasonable worker from requesting an accommodation.
In this case, Willar alleges that in response to his request for an accommodation,
DoD assigned him to a “temporary” detail in the Dahlgren office, 150 miles from his home.
Willar alleges that the assignment forced him to stay in a hotel in Dahlgren during the
week, an arrangement that “disrupted all aspects of Willar’s personal life” and “negatively
impacted his diet and sleep patterns.” (Compl. ¶ 67). Moreover, while Sheahan described
the reassignment as an “estimated 2-week trip to our offices in Dahlgren VA,” (Compl. ¶
59), Willar spent approximately eight months in Dahlgren before MDA finally concluded
that it could not accommodate his request to work in the Elkton facility. The Court finds
that causing that level of disruption to an employee’s personal life for an indeterminate
and, ultimately, very lengthy period of time could have dissuaded a reasonable worker from
requesting an accommodation.
This is not to say that every failure to accommodate necessarily constitutes unlawful
retaliation. For instance, if, while evaluating Willar’s request for an accommodation, DoD
allowed him to work in some other capacity at the Elkton facility while promptly reviewing
the safety and viability of his request, the Court would be hard-pressed to find that such an
action would dissuade a reasonable worker from seeking an accommodation. But uprooting
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an individual against his will for the better part of a year is materially adverse and, if the
individual can establish that the stated reason for his reassignment was pretextual and was
instead motivated by discriminatory animus, is retaliatory.
DoD has not made an argument as to causation, likely because there is little question
that Willar has sufficiently alleged that his request for an accommodation caused DoD’s
decision to reassign him to Dahlgren. Thus, Willar has adequately alleged a prima facie
case of unlawful retaliation in violation of the Rehabilitation Act. Accordingly, the Court
will deny DoD’s Motion to Dismiss Willar’s retaliation claim.
IV.

CONCLUSION

For the foregoing reasons, the Court will deny DoD’s Motion to Dismiss, or in the
Alternative, for Summary Judgment (ECF No. 11). The Court will grant Willar’s Motion
for Discovery (ECF No. 15). A separate Order follows.
Entered this 18th day of November, 2020.

/s/
George L. Russell, III
United States District Judge

22

.