United States District Court, E.D. Virginia, Alexandria Division
O'Grady United States District Judge.
Spida is a 68-year old woman who was terminated from her
employment at BAE Systems Information Solutions, Inc.
("BAE") on November 20, 2014. Her amended complaint
alleges counts of: (1) Discrimination, Retaliation, and
Hostile Work Environment under the Americans with
Disabilities Act ("ADA"); (2) Discrimination,
Retaliation, and Hostile Work Environment in violation of the
Age Discrimination in Employment Act ("ADEA"); and
(3) Interference with Rights and Retaliation under the Family
and Medical Leave Act ("FMLA"). Defendant has moved
to dismiss some claims in their entirety and partially
dismiss others. (Dkt. No. 17). The Court heard oral argument
on November 10, 2016.
motion, Defendant does not challenge Count I (ADA
Discrimination) or Count IV (FMLA Interference with Exercise
of Rights); however, it has moved to dismiss Count III and
Count VIII (ADA and ADEA Hostile Work Environment claims) in
their entirety. It has further moved to dismiss Count II (ADA
Retaliation), Count V (FMLA Discrimination/Retaliation),
Count VI (ADEA Discrimination), and Count VII (ADEA
Retaliation) to the extent they seek recovery relating to a
July 2013 decision by BAE to not promote/hire Ms. Spida to a
new position. For the reasons that follow, Defendant's
motion is GRANTED in full.
Spida began working with BAE on July 30, 2001 as an executive
assistant. Compl. ¶ 10. From that time until 2008, she
was promoted to senior executive assistant, executive
assistant for business development capture, project
administrator, and business development representative.
Id. at ¶ 13. In her position as BD
representative, Plaintiff worked implementing GovWin software
for her assigned business area and processing IDIQ task
orders. Id. Her supervisor was Richard Zelkowitz,
the director of BD operations. Id.
suffers from osteoarthritis and polymyalgia rheumatic, an
autoimmune disease. Id. at ¶ 14. As a result,
beginning in August 2007, Plaintiff took twelve weeks of
pre-approved FMLA leave to have her right knee replaced.
Id. at ¶ 15. In August 2008, she took another
twelve weeks of pre-approved time for a left knee
replacement. Id. at ¶ 16. On account of her
conditions and the resulting knee procedures, and in order to
reduce the possibility of further knee complications,
Plaintiffs doctor instructed that she not drive for more than
30 minutes at a time. Id. at ¶ 18. This driving
restriction limited the offices at which she could work.
occasions, Defendant attempted to transfer Plaintiff to a
different office. First, in May 2010, the sector headquarters
were moved from Reston to Arlington, VA, and Plaintiff was
notified that she would have to move. Id. ¶ 20.
In response, Plaintiff told Mr. Zelkowitz that this commute
would violate her medical restrictions. Id. She
further reminded him that she could perform her duties
"fully and effectively from the Reston office."
Id. Mr. Zelkowitz told Plaintiff that she would be
fired if she did not move with the office to Arlington.
Id. ¶ 21.
this "ultimatum, " Plaintiff submitted a request
for accommodation under the ADA on the basis of the driving
restriction. Id. ¶ 22. Defendant granted this
request three months later, in August 2010. Id.
¶ 23. Next, in April 2012, Plaintiff was advised that
her office location would be moved to Herndon, VA.
Id. ¶ 24. During rush hour, this commute was
longer than 30 minutes, so Plaintiff applied for, and
received, an ADA accommodation to commute to the office after
rush hour. Id. ¶ 26.
continued to perform her job in a satisfactory manner. In
December 2012, Plaintiff was given IDIQ monitoring
responsibilities in addition to her previous job of
disseminating IDIQ task orders. Id. ¶¶
27-28. In January 2013, she received a promotion and a salary
increase. Id. ¶ 28. She alleges, however, that
this raise was less than that of two of her younger peers in
the BD department received. Id.
thereafter, in May 2013, Mr. Zelkowitz announced that the BD
department, consisting of Plaintiff and three others, was
being dissolved and restructured and that each employee would
each have to apply for new positions in the department.
Id. ¶ 29. All of these positions would be moved
to Defendant's office in McLean, VA, which would have
required Plaintiff to commute more than 30 minutes.
Id. Mr. Zelkowitz again stated that if Plaintiff was
unwilling to work from McLean, she would not be selected for
one of the available positions. Id. ¶ 30. The
four new positions were officially posted in July 2013.
Id. ¶ 31.
applied for three of the four positions but did not receive
any of them. One of the positions, a Document Specialist
post, was given to a 22-year old woman named Kaitlyn Rackens,
who had recently graduated from college. Id. ¶
33. According to the complaint, the position's
requirements and salary had been specifically tailored to Ms.
Rackens. Id. ¶ 33. Despite the fact that
Plaintiff had trained Ms. Rackens on the necessary software
and had previously performed the responsibilities of this
position, Mr. Zelkowitz claimed that the interview panel
thought Ms. Rackens was more qualified for the position.
Id. Plaintiff was also passed over for a Research
position, which was given to Julia Perez-Melendez, who is in
her late-thirties. Id. ¶ 34.
final position to which Plaintiff applied was an IDIQ
monitoring position. Id. ¶ 35. This job was
substantially the same as the position that Plaintiff held
before the restructuring except that it now required travel
to customer sites in Washington, D.C. Id. Plaintiff
alleges that this requirement was specifically intended to
disqualify her from consideration. Id. In late July
2013, Mr. Zelkowitz informed Plaintiff that she had not been
selected for the IDIQ Monitoring position even though
Defendant had not made any other selection for that position.
Id. ¶ 36. Indeed, even at the time this suit
was filed, the position remained vacant. Id. Despite
her non-selection for the position, Plaintiff continued to
perform IDIQ monitoring duties until September 2014, one
month before her termination. Id.
complained about the dissolution of her division and her
non-selection for the new positions. First, after learning
that the division was being dissolved, she met with her
designated HR representative, LaVerne Bonelli to discuss her
concern that the move was a precursor to her termination.
Id. ¶ 36. After her non-selection, Plaintiff
gave notice of a complaint for discrimination and retaliation
against Mr. Zelkowitz. Id. The complaint ultimately
included allegations of "discrimination based on her
disability and retaliation based on requesting accommodation
under the ADA, retaliation for having taken FMLA leave,
" and age discrimination. Id. ¶ 38. She
discussed this complaint with Ms. Bonelli on August 21, 2013,
and further discussed it in a meeting with Mr. Zelkowitz and
Jeanie Hill, Ms. Bonelli's supervisor, on August 29,
2013. Id. ¶¶ 38-39.
on September 11, 2013, Plaintiff again took seven days of
pre-approved FMLA leave to take care of her husband after
surgery. Id. ¶¶ 41-42. Then, from
September 19, 2013 to May 21, 2014, Plaintiff took three
hours of pre-approved FMLA leave per day at the instruction
of her orthopedic surgeon. Id. ¶ 43. When this
federally-mandated leave expired, Plaintiff transitioned to
receiving leave under Defendant's supplemental FMLA
policy, managed by Cigna. Id. ¶ 45. The same
day that Plaintiff transferred to the supplemental policy,
Michelle Vaz, the new HR representative, informed her that
she was being transitioned to part-time employment.
Id. ¶ 47. According to Plaintiff, this violated
the company's internal policy. Id. ¶¶
46-48. Thereafter, Plaintiff met with Ms. Vaz to discuss her
reclassification and her job protection. Id. ¶
48. At that time, Plaintiff also renewed her previous
discrimination complaint and provided Ms. Vaz with
documentation of her medical condition. Id.
September 2014, Mr. Zelkowitz notified Plaintiff that she was
no longer to perform the IDIQ monitoring. Id. ¶
52. As a result, Plaintiff requested new work or a new
position "as an accommodation" but Mr. Zelkowitz
did not respond to this request. Id. ¶ 53. In
October 2014, Joseph Chioda took over as Vice President of BD
operations (Plaintiffs division), but Mr. Zelkowitz remained
as Plaintiffs boss. Id. ¶ 55. On October 14,
Plaintiff met with Ms. Vaz and another HR representative to
discuss her concerns about Mr. Zelkowitz's alleged
discrimination. Id. ¶ 56. After this meeting,
she did not hear ...