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Spida v. BAE Systems Information Solutions, Inc.

United States District Court, E.D. Virginia, Alexandria Division

December 13, 2016

MARIA SPIDA, Plaintiff,


          Liam O'Grady United States District Judge.

         Maria 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.

         In its 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.

         I. BACKGROUND

         Ms. 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.

         Plaintiff 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. Id.

         On two 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.

         Following 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.

         Plaintiff 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.

         Shortly 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.

         Plaintiff 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.

         The 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.

         Plaintiff 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.

         Beginning 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. ¶¶ 49-50.

         In 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. ΒΆ 56. After this meeting, she did not hear ...

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