Vanyan v. Panetta

Filing 67

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 4/1/14. (gwalk, )

IN THE

UNITED

STATES

EASTERN

DISTRICT

DISTRICT

Alexandria

OF

COURT

FOR THE

VIRGINIA

Division

MARINA VANYAN,

Plaintiff,

I:13cvl71

v.

CHUCK HAGEL,

(LMB/IDD)

in his official

capacity as Secretary of
Defense,
Defendant.

MEMORANDUM

OPINION

This action arose after Marina Vanyan ("Vanyan" or
"plaintiff") was removed from her position as an employee of the
Department of Defense

("defendant").

Plaintiff claims that her

removal was the result of disability discrimination and
retaliation,

in violation of the Rehabilitation Act of 1973

("RA" or "the Act"),

29 U.S.C.

§ 701 et seq.

Defendant moved

for summary judgment on both counts, arguing that plaintiff's
removal was the result of her failure to maintain a regular work
schedule.

For the reasons that follow,

defendant's Motion for

Summary Judgment will be granted.
I.

BACKGROUND

In October 2003, the Defense Threat Reduction Agency
("DTRA" or "the Agency"), a branch of the Department of Defense,

hired plaintiff as a Training Instructor — occasionally referred
to in the record as a Language Instructor or Language Specialist

— to provide Russian language instruction and mission support to
military linguists assigned to the Strategic Arms Reduction

Am. Compl. % 13.

Treaty ("START").

Her core objective was to

master the specialized vocabulary of START in both English and
Russian,

and then to pass that knowledge to military linguists

and Foreign Area Officers tasked with conducting START-related
inspections and communicating with their Russian counterparts.
See Mem.
Ex.

in Supp. of Def.'s Mot.

1 ("Vanyan Dep."),

at 10.

for Summ. J.

("Def.'s Mem."),

To accomplish this objective,

plaintiff taught classes and sometimes provided ad hoc mission
support, particularly for missions to recruit new linguists.

Id. at 10-13; Def.'s Mem.,

6.

Ex. 2 ("Position Description"), at 2-

Although travel was not a significant portion of her job, it

was disclosed as a requirement at the time of her interview,
Def.'s Mem.,

Ex.

1,

at 32,

41,

a

see

fact reflected in her Position

Description,1 see Def.'s Mem., Ex. 2, at 2-6.

When asked about

the travel requirement, plaintiff indicated that she would have
no problem fulfilling it.

See Def.'s Mem.,

Ex.

3

("Ellis

1 The Position Description was divided into four sections, one of
which ("Factors") noted that the Instructor position included
temporary duty (TDY), travel by airplane, and travel to distant
locations.
See Def.'s Mem., Ex. 2.
Factor 9, in particular,
reads: "For TDY instruction and linguist performance
evaluations,

the work will involve some travel.

The incumbent's

work may involve moderate risks such as travel by airliner or
vehicle to various remote sites; as well as transportation by
military aircraft." (Emphasis added.)
2

Dep."), at 38.

The record confirms that plaintiff had been able

to travel extensively in her previous position with the
Department of State,

which she left when the travel component

began to conflict with her ability to care for her two young
children.

See Def.'s Mem.,

Ex.

1,

at 30.

When plaintiff began working for DTRA,
was supervised by Richard Gibby,

in October 2003,

the Branch Chief,

she

and Irina

"Sheree" Ellis, a senior linguist who served as the team leader

for the Russian linguists.

See id. at 24, 83.

The team

consisted of plaintiff and two other Training Instructors,

Andrei Anzimirov and Ramaz Kvavilashvili.2
at 13.

Def.'s Mem., Ex. 3,

Gibby was eventually replaced as Branch Chief by Yuri

Boguslavsky, who in turn reported to Victoria Krikorian,
Division Chief.

Around this time,

Deputy Branch Chief,

the new

Ellis received a promotion to

and she became plaintiff's first-line

supervisor as a result.

See Am. Compl. t 13.

This series of

managerial changes seems to have precipitated many of the issues
giving rise to the instant action.
In 2006, plaintiff began to openly discuss her fear of
flying with others at DTRA,
Def.'s Mem.,

Ex.

1,

at 51,

including Ellis and Krikorian,
53,

55,

see

and it became clear over time

: The record is clear that both of plaintiff's colleagues
traveled domestically and internationally for mission training
and recruitment purposes during the period that she was
employed.
See Def.'s Mem., Ex. 4 ("Training Travel Order Log").
3

that plaintiff's fear would interfere with her job functions.

On August 29, 2007, plaintiff met with Boguslavsky in his office
to inform him that certain health issues precluded her from

flying,

though she expressed some measure of willingness to

accept assignments involving land travel only.3

Id. at 73-74.

She recalls that Boguslavsky's reaction was to become "very,
very angry," even threatening to seek out assignments for her
that required flying as a means of retaliating.

Id. at 74-75.

Plaintiff describes the acrimonious meeting as "a crucial point
in changing everything that ruined [her] career . . . and [her]

health."

Id. at 83.

From that point forward, plaintiff

believes Boguslavksy "declar[ed]

On October 22, 2007,

war" on her.

Id.

Ellis informed plaintiff that she

would need to make arrangements to support a three-day
recruiting trip to Texas.

See Def.'s Mem.,

Def.'s Mem., Ex. 6 ("Email Chain").

Ex. 1, at 49, 51;

When Ellis followed up a

few weeks later, plaintiff responded that she would not be able

to go because of her fear of flying, which she attributed to
entering a "very painful perimenopausal stage," nor would she

Plaintiff seems to suggest that a number of other topics were
discussed in the meeting with Boguslavsky, but she struggled to
identify exactly which ones (and their relative significance).
See Def.'s Mem.,

Ex.

1,

at 82.
4

travel by airplane for any other mission.4
1, at 61.

See Def.'s Mem., Ex.

On November 13, 2007, plaintiff produced a

physician's note,

recommending "no flights for three months

until [plaintiff could be] evaluated and treated for flight
anxiety and phobia."

Def.'s Mem.,

Ex.

7 ("Physician's Note").

The physician strongly encouraged plaintiff to see a
psychiatrist because he lacked the necessary expertise as a

general practitioner.5

See Def.'s Mem., Ex. 1, at 65.

led to another meeting between plaintiff, Boguslavsky,
and a representative from Human Resources.

The note
Ellis,

Id.

During this period, plaintiff's uneven attendance caught
the attention of her supervisors.
that

it was

Plaintiff herself testified

not uncommon for her to arrive

twice per week.

See Def.'s Mem.,

late

Ex. 1, at 89.

for work once or

Plaintiff also

testified that her penchant for tardiness was never a problem
under Gibby and in fact was common practice among the other
Instructors.

On August 30, 2007,

after a change in management,

Ellis sent Boguslavsky an email detailing office-wide attendance
issues but singled out plaintiff for her tardiness and

Plaintiff did indicate that she was
[she could]

"prepared to discuss how

contribute in lieu of travel."

Def.'s Mem.,

Ex.

6.

' By her own admission, plaintiff did not act on her physician's
advice for approximately six months.
Def.'s Mem., Ex. 1, at 6768.
Instead, she attempted to self-medicate using certain
traditional and holistic

remedies.
5

unresponsiveness to informal warnings.
("Email Chain").

See Def.'s Mem.,

Ex. 11

When confronted individually about her

tardiness, plaintiff told Ellis that being fifteen minutes late
to government work was hardly a big deal.
at 87-90

("And I remember saying to

was a court interpreter in the past,
courts,

wait.

[Ellis]

Def.'s Mem.,

Ex. 1,

that even — since I

I said to her that even in

if a person is 15 minutes late,

judges sometimes would

So to me, 15 minutes was not a big deal as long as I can

make it up.").

Plaintiff's tardiness continued and caused each

of her first-line, second-line, and third-line supervisors to
warn her that she held a full-time position requiring regular
attendance.

See Def.'s Mem.,

Ex.

13

("Reinhart Dep."), at 78.

Plaintiff especially chafed at the newly imposed condition that
she send emails documenting her arrival and departure times, and
she expressed her contempt in a number of ways,

including in an

email to Ellis on October 27, 2007, which stated,

"I'm going to

pee and then leave. Depending on how long that process might
take, you could consider that I've worked overtime today."
Def.'s Mem.,

Ex.

15

("Email Chain").

This email, and other instances like it, led to a meeting
with Krikorian regarding plaintiff's "unprofessional conduct
towards her supervisors."

Memorandum").

Def.'s Mem.,

Ex.

12

("Krikorian

Plaintiff disputes Krikorian's characterization

of the meeting,

suggesting instead that it was held to scold her

for lodging an unrelated EEO complaint directed at Boguslavsky.
See Def.'s Mem.,

Ex.

1,

at

98.

On March 25, 2008, more than three months after plaintiff
submitted the physician's note,

Boguslavsky sent plaintiff an

email requesting "an official doctor's evaluation" per the

contents of the note.6

Def.'s Mem., Ex. 1, at 115-16.

Spurred

by this request and Ellis's encouragement, plaintiff met with
Aaron Hamilton, an employee in the EEO office,

to discuss how to

formally make a reasonable accommodation request ("RAR").
at 137-38.
to DTRA,

Id.

On April 18, 2008, plaintiff submitted her first RAR

in which she requested that she be allowed to fulfill

her job duties by use of ground transportation until her fear of
flying could be properly evaluated and treated.
Ex.

10

("Reasonable Accommodation Request").

Def.'s Mem.,

Plaintiff followed

with a supporting letter from Dr. Virginia Revere,

a clinical

psychologist, who diagnosed plaintiff's medical condition as

6 Such concerns about the severity of plaintiff's fear of flying
were not unfounded.

Clear evidence in the record shows

that

plaintiff was able to fly with her family to Florida for
vacation on several occasions, including as late as 2008.
Def.'s Mem., Ex. 1, at 56-57.
In the past, plaintiff had also
made statements to Ellis about how easy it is to fake a mental
illness.
Def.'s Mem., Ex. 3, at 24.
Defendant, however, has
not at any point disputed that plaintiff suffers from a
disability within the meaning of the Rehabilitation Act.
7

panic disorder with agoraphobia.
123-25.

See Def.'s Mem.,

Ex.

1, at

DTRA took plaintiff's RAR under consideration.

Plaintiff's

Def.'s Mem.,

Ex.

attendance

issues

1, at 150-53.

resurfaced in December 2008.

Specifically, while Ellis was

out of the office for several weeks, plaintiff left work early
multiple times without first requesting leave through the
appropriate channels.

See id.

Plaintiff explains that her

daughter was home sick with pneumonia at the time,

but admits

that she "ended up taking much more leave than [she] probably
should have."

Id.

Plaintiff

also admits

that

she

failed to

request leave and subsequently "forgot to record it."
153.

Id. at

Plaintiff compounded her mistakes by signing inaccurate

timesheets and submitting them for payment.
When Ellis returned the next month,

See id. at 151-52.

she discovered the

inaccuracies and instructed plaintiff to correct her time and
attendance records.

Id.

Ellis followed up this incident by

sending plaintiff a Letter of Requirement on February 27, 2009,
regarding her "failure to report for duty at the established
time,

excessive unscheduled leave use,

hours worked documented by [plaintiff]
Def.'s Mem.,

Ex. 16

and concerns with the

on [her]

("Letter of Requirement").

timecards."
The Letter

advised plaintiff of her duty-hours, reminded her of proper
procedures for requesting leave,

and reiterated that she was

8

required to send emails to Ellis at the beginning and end of the
work day to verify her attendance.

See id.

Plaintiff viewed

the Letter as reprisal for her involvement in ongoing, largely
unrelated EEO activity directed at Krikorian and Boguslavsky.
On April 28, 2009,

at the direction of someone in the EEO

office, plaintiff submitted her second RAR to DTRA,

in which she

renewed her request for an accommodation that would allow her to
fulfill the duties of her position "without being required to
fly."

Def.'s Mem.,

Ex. 17 ("Reasonable Accommodation Request").

After receiving notice that additional supporting documentation

was needed, plaintiff returned to Dr. Revere with a package of
agency documents,
Mem.,

Ex.

including a position description.

1, at 170-71.

Dr.

See Def.'s

Revere thereafter produced a letter

concluding that "[r]easonable accommodations would include
travel by land transportation only" but otherwise " [plaintiff]
continues to be able to function without problems in teaching,
and is able to fulfill her job requirements,

[air travel]."

Am. Compl. 1 22.

except for Factor 9

DTRA again took plaintiff's

RAR under consideration.

In the meantime,

things went downhill for plaintiff.

She

received a reprimand for insolence and poor attendance, and she
was denied permission to attend a physical training session.

August 21, 2009, DTRA denied plaintiff's pending RAR on the

9

On

grounds that "travel by airplane
[her] position."

Def.'s Mem.,

[was]

Ex.

18

an essential function of
("Denial Letter").

Plaintiff received the news upon returning from a family
vacation a few days later.

Def.'s Mem.,

Ex.

1, at 182.

Although there is some dispute as to how many days plaintiff
worked after her RAR was denied,

plaintiff concedes that she

stopped reporting to work entirely by the end of the month.
at 183.

Id_

She identifies the tipping point as another assignment

requiring air travel

(to San Francisco)

coupled with Dr.

Revere's suggestion that her work environment was aggravating
her condition.

Id.

at 183,

186.

Plaintiff never returned to work at DTRA.
2, 2009, until September 29, 2009,
annual,

sick,

Decision").
exhausted,

and donated leave.

From September

she relied on approved
Def.'s Mem.,

Ex.

19

("Removal

When DTRA advised plaintiff that such leave was
she followed a suggestion to request leave without

pay under the Family and Medical Leave Act
avoid a designation as absent without leave

("FMLA")

in order to

("AWOL").

On

November 10, 2009, plaintiff submitted an FMLA request for 4 80
hours of leave without pay covering the period from September
25, 2009,

through December 18, 2009.

accompanied by documentation from Dr.

Id.

Her request was

Sarah Iannucci,

certified psychiatrist, noting that "the intensity of

10

a

[plaintiff's]

symptoms preclude[d]

her from being able to safely

perform any of her job functions" and estimating that plaintiff
could return to work within "three to six months
2,

2009."

Def.'s Mem.,

Ex.

1,

at 191-93.

[of] September

On December 9,

2009,

Ellis sent a letter informing plaintiff that her three-month
entitlement to leave without pay under FMLA would expire on

December 22, 2009.

Def.'s Mem.,

Ex. 19.

Accordingly,

Ellis

requested that plaintiff return to duty on December 23, 2009,
explaining that she "occup[ied]
services

[were]

required."

Id.

a fulltime position and [her]
Plaintiff was asked to do so

without accommodation in light of the Reasonable Accommodation

Request Board's denial of her appeal of the decision that the
requirement to travel by airplane was an essential function of
the Instructor position.

See Def.'s Mem.,

Ex.

20

("Appeal

Letter").
Plaintiff

[her]

recalls

that

condition so much."

result,

on December 23,

Ex.

1,

letter

at 194.

"worsened

As a

2009, plaintiff submitted a request for

Id. at 195.

through January 8, 2010,

return-to-work

Def.'s Mem.,

further leave without pay,

Dr. Iannucci.

the

again accompanied by a letter from

DTRA granted plaintiff's request

after which plaintiff received donated

sick leave through the voluntary leave transfer program that

extended her approved leave to January 25, 2 010.

11

Three days

before her donated leave was to expire,

plaintiff submitted a

final letter from Dr. Iannucci indicating that plaintiff's
medical condition was improving and that she could return to
work "by the end of February 2010" with several accommodations,

including "limited work hours and flexibility in scheduling,
transfer to a different department or designation to a new

supervisor, and ... no mandatory travel."
33.

Am. Compl. fH 32-

DTRA sent another notice advising plaintiff that a failure

to return to duty would result in being carried in AWOL status
as of January 26, 2010.

Plaintiff claims that DTRA never

responded directly to her final request for reasonable
accommodations;

defendant claims that the letter from Dr.

Iannucci was not a formal request.
When plaintiff again failed to return to duty,

a Notice of Proposed Removal on March 12, 2010.7
Ex. 22 ("Notice of Proposed Removal").

she received

Def.'s Mem.,

Plaintiff objected to

the Notice, arguing that she was a qualified individual with a

disability whose extended absence was the result of the Agency's
failure to provide the requested accommodation.

Mem., Ex. 19.

See Def.'s

Plaintiff further argued that the proposed

The Notice read in pertinent part:

"If you return to duty

during the notice period, you will be carried in a regular duty
status.
If you do not return to duty during the notice period,
you will be carried in an absent without leave status until such
time as a decision concerning this matter is rendered."
12

removal was retaliatory.
the deciding official,

Neither argument gained traction with

Kenneth Keating.

On June 11, 2 010,

plaintiff was finally removed from her

position for failing to maintain a regular work schedule, having
remained AWOL for a total of 792 duty-hours.
on Proposed Removal cited a series of factors,

Id.

The Decision

including

plaintiff's length of service, prior job performance, AWOL
status,

and the effect of her lengthy and continued absence on

her ability to perform the duties of her position.

Id.

On July 10, 2010, plaintiff appealed her removal to the
Merit Systems Protection Board ("MSPB").

The MSPB affirmed the

agency action removing plaintiff from her position based on her
failure to maintain a regular work schedule.
23

("MSPB Decision").

Administrative Judge

Def.'s Mem.,

In reaching its decision,

("AJ")

Ex.

the

concluded that plaintiff could not

have performed the essential functions of her position,
regardless of whether DTRA accommodated her request to be
excused from flying.

Id.

at 5.

The AJ further concluded that

plaintiff had not established a nexus between her protected EEO
activity and her removal.

Id. at 11.

On February 6, 2012, plaintiff filed a petition with the
Equal Employment Opportunity Commission ("EEOC"), seeking review

of the MSPB's decision.

The EEOC affirmed the decision, finding

13

that travel abroad by airplane was an essential function of
plaintiff's position; that she did not identify a vacant,

funded

position for which she could have performed the essential
functions,

with or without reasonable accommodation;

and that

she could not rebut the DTRA's "legitimate, nondiscriminatory
reason"

for her removal —

regular work schedule.
Opinion").

that is,

her failure to maintain a

See Def.'s Mem.,

Ex.

24

("EEOC

The EEOC opinion marked the conclusion of the

administrative process.8
On March,
action,

20, 2013, plaintiff timely filed the instant

challenging only the decision to remove her from

employment at DTRA,

which plaintiff alleges was the result of

discrimination on the basis of her disability,

see Am.

Compl.

H 38, and retaliation for requesting and pursuing a reasonable
accommodation of her disability, see id. 1J 41, both in violation
of the Rehabilitation Act.

Among other relief,

plaintiff seeks

back pay and front pay, compensatory damages in the amount of

8 Plaintiff is still actively involved in a parallel
administrative proceeding, in which she is pursuing claims of
unlawful harassment based on gender and disability as well as
retaliation for engaging in protected EEO activity.
That
proceeding involves a different set of underlying adverse
employment actions — that is, plaintiff is not challenging her
removal in that proceeding.
For this reason, any administrative
documents or evidence relating to that proceeding are not
directly relevant to the issues presented in the instant action.
14

$300,000,

attorneys'

removal decision.

fees and costs,

and "revers [al]" of DTRA's

Id. Hi, 43.
II.

DISCUSSION

Defendant has moved for summary judgment on both counts.

Because the scope of this action is limited to plaintiff's
removal from her employment,
attendance-based reasons

and defendant has advanced

for the

removal decision that are

strongly supported in the record and not rebutted by plaintiff's
evidence,

the Court concludes that defendant is entitled to

summary judgment on both counts.
A. Standard of

Review

Summary judgment is appropriate where the record
demonstrates "that there is no genuine dispute as to any
material fact and the
a matter of law."

[moving party]

Fed.

R. Civ.

Catrett, 477 U.S. 317, 322

is entitled to judgment as

P. 56(a);

(1986).

see Celotex Corp. v.

Accordingly,

the question on

summary judgment is "whether a reasonable jury could find in
favor of the non-moving party, taking all inferences to be drawn
from the underlying facts in the light most favorable to the
non-movant[.]"

1999).

In re Apex Express,

190 F.3d 624,

To survive a summary judgment motion,

633

(4th Cir.

"[t]he disputed

facts must be material to an issue necessary for the proper

resolution of the case,

and the quality and quantity of the

evidence offered to create a question of fact must be adequate
15

to support a jury verdict."
Cable Adver.,

omitted).

L.P.,

Thompson Everett,

57 F.3d 1317,

1323

Inc. v. Nat'l

(4th Cir.

1995)

(citation

That means the non-moving party may not rest upon a

"mere scintilla" of evidence, but must instead offer specific
facts showing that there is a genuine issue for trial.
Celotex,
Inc.,

477 U.S.

477 U.S.

See

at 324; accord Anderson v. Liberty Lobby,

242,

252

(1986).

B. Rehabilitation Act

Claims

The Rehabilitation Act prohibits federal agencies from
discriminating against qualified employees based on a disability
and provides the exclusive avenue for remedying such
discrimination.

See 29 U.S.C.

§§

791,

794a(a)(l).

When there

is no direct evidence of discrimination or retaliation,

the

familiar burden-shifting analysis applies to actions brought
under the Act.

To survive a motion for summary judgment, a

plaintiff must first establish a prima facie case of

discrimination or retaliation.
Green,

411 U.S.

F. Supp. 2d 483

792,

802 n.13

(E.D. Va.

See McDonnell Douglas Corp. v.
(1973); Luther v. Gutierrez,

2009)

Rehabilitation Act claim).

618

(applying McDonnell Douglas to a

The burden then shifts to the

defendant to proffer a legitimate, non-discriminatory or nonretaliatory reason for the challenged employment action.
McDonnell Douglas,

411 U.S.

Sanderson Plumbing Prods.,

at 802 n.13;

Inc.,

530 U.S.
16

See

see also Reeves v.

133

(2000).

This

burden is one of production, not persuasion,

"involve[s] no credibility assessment."
Affairs v.

Burdine,

450 U.S.

step in the analysis,

248,

253,

and therefore

See Tex. Dep't of Cmty.
256

(1981).

At the final

the plaintiff must produce some evidence

showing that the defendant's proffered reason is pretextual.
See Reeves,

1.

530 U.S.

at 142.

Disability Discrimination

In Count I of the Amended Complaint,

plaintiff claims that

her removal violated the Rehabilitation Act's prohibition

against disability discrimination.

The Act provides that "[n]o

otherwise qualified individual with a disability" may "be

subjected to discrimination" by any federal agency "solely by
reason of her or his disability."

Accordingly,

29 U.S.C.

§ 794(a).

to make a prima facie showing of discrimination,

plaintiff must establish (1) that she has a qualifying
disability,

(2) that she is otherwise qualified for the position

in question, and (3) that she was excluded from the position

solely by reason of her disability.9

See Doe v. Univ. of Md.

Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995)
Gates v. Rowland,

39 F.3d 1439,

1445 (9th Cir. 1994)).

(citing
A person

who is "otherwise qualified" is one who could perform the

The Act specifies that the substantive standards used to
determine whether a violation has occurred under the
Rehabilitation Act are the same as the standards used under the

Americans with Disabilities Act of 1990.
17

29 U.S.C.

§ 794(d).

essential functions of her position with or without reasonable
accommodations from her employer.

Here,

See 42 U.S.C.

§ 12111(8).

defendant does not dispute that plaintiff's diagnosis

of panic disorder with agoraphobia constitutes a disability
within the meaning of the Act.

See Def.'s Mem.

21.

Plaintiff's

prima facie case instead hinges on whether she has made a
sufficient showing that she could have performed the essential
functions of her job had reasonable accommodations been made and
whether her disability was the sole reason for which she was
removed.

A careful review of the record compels the conclusion

that plaintiff has done neither.
Plaintiff has failed to produce sufficient evidence that
she could perform perhaps the most essential function of all —

regularly showing up to work — with or without reasonable
accommodations from defendant.

See Doe,

50 F.3d at 1264-65.

It

is hardly controversial that attendance is an essential function

of most employment positions.

See Tyndall v. Nat'1 Educ. Ctrs.,

31 F.3d 209, 213 (4th Cir. 1994)

(concluding that "a regular and

reliable level of attendance is a necessary element of most
jobs" and that "[a]n employee who cannot meet the attendance
requirements of the job at issue cannot be considered a
'qualified'

individual for purposes of the Americans with

Disabilities Act");

Carr v. Reno,

23 F.3d 525,

529 (D.C. Cir.

1994)

(recognizing that "coming to work regularly" is "an

essential function" of any job); Law v. U.S.

Postal Serv.,

852

F.2d 1278, 1279-80 (Fed. Cir. 1988)

(concluding that attendance

is a minimum function of any job).

The record reflects that

plaintiff's attendance suffered significantly before her
employment at DTRA was terminated.

Plaintiff admits that she

did not come to work at all after her generous approved leave
expired,

choosing to remain AWOL for the four months preceding

her removal.

See Def.'s Mem.,

Ex. 22.

The evidence clearly

shows that plaintiff made a conscious decision not to return, as

defendant sent her numerous notices and requests to return to
duty, one of which warned her that failure to comply would lead
to placement in AWOL status.
202.

Plaintiff also admits

See Def.'s Mem.,
that

she did not

Ex.

1, at 194-

heed these notices

and requests even after responding to treatment for her
condition and experiencing physical improvements.

This series

of events is documented in a comprehensive Notice of Proposed
Removal,

which gave plaintiff more than three months to alter

course before any final action was taken.

Id.

Nor has plaintiff produced evidence that approval of her

requested accommodation — assignments involving land travel only
— would have mitigated her serious attendance issues.

Numerous

instances in the record confirm that her attendance issues pre-

19

dated the worsening of her medical condition in 2007.
example,

For

plaintiff concedes that she often came to work late

when Gibby was her supervisor and that Ellis would cover for her
by turning on her office light at 8:00 a.m.

Ex. 1, at 91-92.

See Def.'s Mem.,

Plaintiff also concedes that she never thought

to seek her supervisor's permission before arriving late.
Moreover,

Id.

even after notifying others at DTRA of her condition,

plaintiff's attendance issues persisted independently of any
particular instances of impending travel.

She acknowledges that

her failure to keep proper time and attendance records and

excessive use of unscheduled leave in December 2008 had nothing
to do with her fear of flying.

See id. at 151-52.

Accordingly,

plaintiff cannot convincingly show that her attendance issues,

even in the period immediately preceding her removal, were
intertwined with her disability.

In other words, had the

requested travel accommodation been made,

it is clear that

plaintiff would still have been unable to perform an essential

function of her job.

See Tyndall, 31 F.3d at 213 (holding that

a plaintiff must be able to "meet all of [her] program's
requirements in spite of [her] handicap").

Plaintiff offers a few explanations for her poor
attendance,

none of which are consistent with the record.

Plaintiff suggests that her absence starting September 2, 2009,

20

and continuing until her removal,

was attributable only to

DTRA's failure to guarantee that she would not be required to

fly,

PL's Opp.

to Def.'s Mot.

for Summ. J.

("Opp.")

18, but her

long history of attendance issues in conjunction with the letter

from Dr. Iannucci establish that plaintiff was not ready and
able to return to work right away.

Plaintiff also suggests that

her attendance issues were overblown by hostile supervisors, but

her only supporting evidence derives from an unrelated

intraoffice dispute,

involving several parties, which is already

the subject of a parallel administrative proceeding.

In the

end, plaintiff has not produced sufficient evidence that she was
otherwise qualified for her position,
prima facie case.

as she must to state a

See Doe,

Plaintiff has

50 F.3d at 1264-65.

likewise

failed to show that

solely on the basis of her disability.

See id.

she was removed

The record

instead contains multiple official communications indicating
that she was removed for legitimate attendance-based reasons.

On August 20, 2007, Ellis first sent Boguslavsky an email on the
subject of plaintiff's tardiness.

Chain").

Def.'s Mem.,

Ex.

11

("Email

Plaintiff was subsequently required to document her

arrival and departure time by sending emails to a supervisor.
See Def.'s Mem.,

Ex.

1, at 104.

On February 27, 2009, plaintiff

received a Letter of Requirement regarding her chronic tardiness

21

and shoddy timekeeping practices.

Def.'s Mem.,

Ex. 16.

Then,

near the end of August 2009, plaintiff left work and never came
back.

This last event led to an exhaustive Notice of Proposed

Removal on March 12, 2010, which explicitly cited plaintiff's
failure to appear for duty following the expiration of her
generous approved leave.

Def.'s Mem.,

Decision on Proposed Removal,

Ex.

22.

The final

issued on June 11, 2010,

is

equally clear and supported by numerous detailed factual
findings.

Def.'s Mem.,

Ex.

19.

In all,

plaintiff was carried

in AWOL status for 792 duty-hours before her removal.

Luther,

618 F. Supp.

2d at 493

Cf.

(" [T]he Rehabilitation Act does

not serve to immunize a disabled employee from discipline in the

workplace based on a violation of a valid work rule applied to
all employees."

(citation omitted)).

If anything,

the record

proves that defendant went to great lengths to give plaintiff
ample time to seek treatment for her condition.

Plaintiff is

therefore unable to show that she was removed solely because of
her disability.

Even if she could make out a prima facie case,

plaintiff's

claim would nonetheless fail because she is unable to rebut

defendant's legitimate,
removal — namely,

non-discriminatory reasons for her

failing to maintain a regular work schedule

after her leave expired.

See Reeves,

22

53 0 U.S.

at 142.

There is

no clear evidence of pretext in the record.

To the contrary,

the government has made a strong showing that continuing to
operate with only two-thirds of its Russian Language Instructors
seriously hampered its ability to perform a critical mission.
Moreover, plaintiff's colleagues clearly understood her removal
to be the result of her refusal to report for duty as opposed to
defendant's hostile attitude toward her disability.
Mem.,

Ex. 5 ("Kvavilashvili Dep."),

what happened,

at 30

Def.'s

("And when I asked

I was told that she stopped coming to work.

when a person doesn't show up for work,

hard to get fired in the government,
you don't show up for work.").

And

even though it's very

that's what happens when

Plaintiff responds that her

fellow Instructors had similar attendance problems but were not

punished in kind,

Opp.

9,

17, calling herself a victim of "post

hoc application of neutral rules (regarding tardiness and

absenteeism)," id. 18-19.

It is true that her colleagues,

especially Anzimirov, were not models of punctuality.

Still,

the record gives no indication that their problems were of the

same magnitude as hers, nor do they stand accused of submitting
inaccurate timesheets and being insolent with supervisors who
enforced attendance rules.

See Def.'s Mem.,

Ex.

15.

Significantly, none of plaintiff's co-workers kept their
positions after remaining AWOL for any length of time.

23

As a final matter, plaintiff uses her Opposition to restyle
Count I as a claim for failure to accommodate,
turn the focus to DTRA's denial of her RARs

decision to remove her.

See Opp.

16-20.

such claim in her Amended Complaint,

and attempts to

rather than its

Yet,

plaintiff made no

which specifically alleges

that defendant discriminated against her "[b]y removing" her.

Am. Compl. H 38; see also id. H 1 ("[Plaintiff] focuses this
case on her removal from employment ....").
not an appropriate ground for relief.

It is therefore

Moreover,

although

plaintiff was ostensibly proceeding pro se when she drafted the
Amended Complaint,

current counsel could have requested leave to

amend a second time upon entering an appearance.

In any event, plaintiff could not succeed on the merits of
a failure-to-accommodate claim.

See 42 U.S.C.

(requiring federal employers to "mak[e]

§ 12112(b)(5)(A)

reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability"); see also 29
U.S.C.

§ 791(g)

(incorporating that standard in the

Rehabilitation Act).

The elements of a prima facie case for

failure to accommodate require a plaintiff to show,
things,

among other

that she could perform the essential functions of her

position with reasonable accommodations and that her employer
denied her request for such accommodations.

24

See Wilson v.

Dollar Gen.

Corp.,

717 F.3d 337,

345

(4th Cir.

2013).

Plaintiff's inability to show that she was otherwise qualified
is therefore a barrier to success under this theory as well.
Plaintiff also cannot show that defendant was unreasonable to

conclude that her request to travel by land only could not be
accommodated because

position.

air travel

See Def.'s Mem.,

was

an essential

Ex. 5, at 30

function of

her

(explaining the

importance of professional development trips to Russia).
Defendant even engaged with plaintiff in an interactive process
to identify a vacant position to which she could be reassigned,
but found nothing suitable.

See Def.'s Mem.,

Plaintiff repeatedly returns to Dr.

dated January 22, 2010,
[plaintiff]

Ex.

19.

Iannucci's letter,

in which she "estimate[d]

that

would be mentally and physically capable of

returning to work with some restrictions and reasonable
accommodations," including "limited work hours and flexibility
in scheduling,

transfer to a different department or designation

to a new supervisor, and
of the following month.

... no mandatory travel," by the end
Opp.

13, 24.

Plaintiff construes this

letter as a third RAR and argues that had these additional

accommodations been made,
work;

however,

she was ready and willing to return to

plaintiff never submitted a formal RAR based on

Dr. lanucci's letter,

even though she was very familiar with the

25

process.

Moreover,

defendant's concession that it did not

construe the letter as a formal RAR and therefore did not engage
in the usual interactive process is not sufficient evidence,

standing alone, to support a viable claim.
Sys.
2007)

Norfolk Ship Repair,
aff'd,

483 F. Supp.

250 F. App'x 552

citations omitted)

(4th Cir.

See Wells v. BAE

2d 497,
2007)

511 (E.D. Va.
(internal

(holding that an employee must demonstrate

that the employer's failure to engage in the interactive process
resulted in the failure to identify an appropriate accommodation
for the qualified employee).

Nor is it presumptively

discriminatory for an employer in defendant's position to refuse

a plaintiff's request for an accommodation that it correctly
deems unreasonable.
(4th Cir.
4 92, 4 99

2010)

See Fink v. Richmond,

4 05 F. App'x 719, 723

(citing Gile v. United Airlines,

(7th Cir.

1996)

("Importantly, however,

Inc.,

95 F.3d

the ADA and the

Rehabilitation Act do not require that an employer provide a
disabled employee with a perfect accommodation or an
accommodation most preferable to the employee.")).

There can be

little doubt that accommodating "limited work hours, flexibility

in scheduling,

. . . and no mandatory travel" would have proved

unduly burdensome in light of DTRA's specific charge and the
classroom and mission-support duties assigned to its
Instructors.

26

For these reasons, plaintiff has not created an issue for
the jury with respect to any element of her disability
discrimination claim and defendant

is

therefore entitled to

summary judgment.
2.

Retaliation

In Count II of the Amended Complaint,

plaintiff claims that

her removal also violated the Rehabilitation Act's prohibition

against retaliation.10

To establish a prima facie case of

retaliation, plaintiff must show (1)
protected activity,
manner,

and (3)

(2) that her employer acted in an adverse

that the protected activity was causally

connected to the adverse action.

Inc.,

that she engaged in a

487 F.3d 208, 218

See Holland v. Wash.

(4th Cir. 2007) .

Homes,

To satisfy the last

element plaintiff must show that defendant would not have
removed her but for a desire to retaliate against her for
engaging in a protected activity.
Ctr. v. Nassar,

133 S. Ct. 2517,

See Univ. of Tex. Sw. Med.
2528,

2533

(2013)

(declining to

adopt the less-stringent "motivating factor" standard used in
other contexts).

10 Although the Rehabilitation Act does not have a specific
antiretaliation 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.
§

794a.
27

29 U.S.C.

Plaintiff identifies a number of protected activities,

including disclosure of her disability to Boguslavsky (and other
supervisors) and submitting two RARs to DTRA.
Plaintiff also alludes

staff,

to several additional

Opp. 26.
contacts

with EEO

the bulk of which seem to have stemmed from an

intraoffice conflict between lower-level employees
plaintiff)

and Krikorian,

Boguslavsky,

(like

and Ellis, who were

accused of using oppressive management tactics.
Plaintiff's claim fails for two reasons.

Id. at 27.
First,

most of

the protected activities she relies upon have little to do with
the two RARs that are at the core of this action.

Although

plaintiff made or joined in several EEO complaints regarding her

supervisors' management style, which she alleges aggravated her
condition,

such activities are the subject of a parallel

administrative proceeding; they are not before this Court.
Second, plaintiff does not directly allege — much less offer

proof of — a causal connection between either the disclosure of
her disability or her submission of two RARs and her removal.

In fact,

the record clearly shows that more than a year passed

between any of her protected activities and her removal.
Without a temporal inference, plaintiff must offer direct

evidence of causation, but she has offered none.
defendant is entitled to summary judgment.

28

Accordingly,

C. Request for Reinstatement

In the Amended Complaint, plaintiff asks the Court "to

reverse [her] removal from the employment."

Am. Compl. K 1.

This is in effect a request for reinstatement.

Although

plaintiff does not invoke this request in her Opposition, the
Court will address it to ensure that the record is complete.
Plaintiff's request for reinstatement requires review of
the MSPB's decision,

which upheld her removal notwithstanding

her claims of discrimination.

The usual rule

is

that

the

Federal Circuit has exclusive jurisdiction to review MSPB
decisions concerning claims of adverse federal personnel
actions; however,

a federal district court may review MSPB

decisions in actions where, as here,
raised a

the plaintiff has also

claim of discrimination or retaliation.

U.S. Dep't of Interior,

924 F.2d 61,

62-63

See Afifi v.

(4th Cir.

1991).

In

such actions, a district court's review of any discrimination
claims presented before the MSPB is limited to the

administrative record and is thus subject to a more deferential
standard established by statute.

See 5 U.S.C.

§ 7703(c).

The

MSPB's decision will only be overturned if it was arbitrary,
capricious, obtained without procedures required by law, or
unsupported by substantial evidence.
The record reflects

arbitrary,

capricious,

that

Id.

the MSPB's

decision was neither

nor unsupported by the evidence,
29

nor did

the MSPB violate any procedures required by law.

plaintiff had counsel throughout the process.

Moreover,

Ultimately, the

MSPB's dual conclusions that plaintiff could not have performed
the essential functions of her position,

regardless of whether

DTRA accommodated her request to be excused from flying,
Def.'s Mem.,

see

Ex. 23, at 5, and that plaintiff had not

established a nexus between her protected EEO activity and her
removal,
Court

id. at 11,

therefore

are well supported in the record.

finds no basis

III.

This

to overturn those conclusions.

CONCLUSION

For the reasons stated above,

defendant's Motion for

Summary Judgment will be granted by an appropriate Order to be
issued with this Memorandum Opinion.

Entered this _[

day of April, 2014.

Alexandria, Virginia

/s/__
Leonie M. Erinkema

United States District Judge

30