United States District Court, E.D. Virginia, Alexandria Division
For Marina Vanyan, Plaintiff: Larry Jan Stein, LEAD ATTORNEY, Law Office of Larry J. Stein, Fairfax, VA.
For Chuck Hagel, Defendant: R. Joseph Sher, LEAD ATTORNEY, United States Attorney's Office, Alexandria, VA, NA; Anil Suresh Murjani, Ayana Niambi Free, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA, NA.
Leonie M. Brinkema, United States District Judge.
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.
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 Treaty (" START" ). Am. Compl. ¶ 13. 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. in Supp. of Def.'s Mot. for Summ. J. (" Def.'s Mem." ), Ex. 1 (" Vanyan Dep." ), at 10. 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., Ex. 2 (" Position Description" ), at 2-6. Although travel was not a significant portion of her job, it was disclosed as a requirement at the time of her interview, see Def.'s Mem., Ex. 1, at 32, 41, a fact
reflected in her Position Description, 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 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, in October 2003, she was supervised by Richard Gibby, the Branch Chief, 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. Def.'s Mem., Ex. 3, at 13. Gibby was eventually replaced as Branch Chief by Yuri Boguslavsky, who in turn reported to Victoria Krikorian, the new Division Chief. Around this time, Ellis received a promotion to Deputy Branch Chief, and she became plaintiff's first-line supervisor as a result. See Am. Compl. ¶ 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, including Ellis and Krikorian, see Def.'s Mem., Ex. 1, at 51, 53, 55, and it became clear over time 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. 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] war" on her. Id.
On October 22, 2007, Ellis informed plaintiff that she would need to make arrangements to support a three-day recruiting trip to Texas. See Def.'s Mem., Ex. 1, at 49, 51; Def.'s Mem., Ex. 6 (" Email Chain" ). 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 travel by airplane for any other mission. See Def.'s Mem., Ex. 1, at 61.
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. See Def.'s Mem., Ex. 1, at 65. The note led to another meeting between plaintiff, Boguslavsky, Ellis, and a representative from Human Resources. Id.
During this period, plaintiff's uneven attendance caught the attention of her supervisors. Plaintiff herself testified that it was not uncommon for her to arrive late for work once or twice per week. See Def.'s Mem., Ex. 1, at 89. 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 unresponsiveness to informal warnings. See Def.'s Mem., Ex. 11 (" Email Chain" ). When confronted individually about her tardiness, plaintiff told Ellis that being fifteen minutes late to government work was hardly a big deal. Def.'s Mem., Ex. 1, at 87-90 (" And I remember saying to [Ellis] that even - since I was a court interpreter in the past, I said to her that even in courts, if a person is 15 minutes late, judges sometimes would wait. 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." Def.'s Mem., Ex. 12 (" Krikorian Memorandum" ). 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. 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" ). Id. at 137-38. On April 18, 2008, plaintiff submitted her first RAR to DTRA, 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. Def.'s Mem., Ex. 10 (" Reasonable Accommodation Request" ). Plaintiff followed with a supporting letter from Dr. Virginia Revere, a clinical psychologist, who diagnosed plaintiff's medical condition as panic disorder with agoraphobia. See Def.'s Mem., Ex. 1, at 123-25. DTRA took plaintiff's RAR under consideration.
Plaintiff's attendance issues resurfaced in December 2008. Def.'s Mem., Ex. 1, at 150-53. 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." Id. at 153. Plaintiff compounded her mistakes by signing inaccurate timesheets and submitting them for payment. See id. at 151-52. When Ellis returned the next month, 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, and concerns with the hours worked documented by [plaintiff] on [her] timecards." Def.'s Mem., Ex. 16 (" Letter of Requirement" ). The Letter advised plaintiff of her duty-hours, reminded her of proper procedures for requesting leave, and reiterated that she was 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, including a position description. See Def.'s Mem., Ex. 1, at 170-71. Dr. 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, ...