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Stewart v. Lee

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

March 17, 2017

MICHELLE K. LEE, Director, United States Patent and Trademark Office Defendant.


          Leonie M. Brinkema, United States District Judge

         Before the Court is defendant Michelle K. Lee's Motion to Dismiss [Dkt. No. 30]. Plaintiff Fenyang Ajamu Stewart ("plaintiff' or "Stewart") has filed an opposition, [Dkt. No. 36] ("PI. Opp."), to which defendant has responded, [Dkt. No. 39] ("Reply"). Although plaintiff has also improperly filed a surreply without first seeking leave of court, [Dkt. No. 40] ("Surreply"), the Court has considered it out of deference to plaintiffs prose status. For the reasons that follow, defendant's Motion to Dismiss will be granted.

         I. BACKGROUND

         On February 29, 2016, plaintiff, a patent examiner, filed his initial complaint, raising seven counts primarily under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.« against Michelle K. Lee ("defendant") in her official capacity as Director of the United States Patent and Trademark Office ("USPTO"). Compl. ¶¶ 2-3 [Dkt. No. 1]. On April 11, 2016, after the Court advised him during a hearing to consider filing an amended complaint that limited the number of issues and claims presented in this action, plaintiff filed his Amended Complaint, which added two counts. Am. Compl. [Dkt. No. 15]. In the Amended Complaint, plaintiff, who began work for the USPTO in September 2013, alleges in Counts I through V various failures by defendant to accommodate his disabilities in violation of the Rehabilitation Act; Count VI alleges a hostile work environment in violation of the Rehabilitation Act; Count VII alleges reprisal for participating in Equal Employment Opportunity ("EEO") activity in violation of Title VII of the Civil Rights Act of 1964; Count VIII alleges disparate treatment discrimination on the basis of disability and failure to accommodate in violation of the Rehabilitation Act; and Count IX alleges retaliation for requesting reasonable accommodation in violation of the Rehabilitation Act.

         Plaintiff seeks compensatory damages of $300, 000 for "humiliation, pain and suffering, emotional distress, loss of enjoyment of work, loss of reputation, nightmares, increased blood pressure, panic attacks, and other anxiety and [Post Traumatic Stress Disorder] related symptoms which prevented [] Stewart from working and fully enjoying his life." Am. Compl. at 37. In addition, he seeks injunctive relief and writs of mandamus ordering his transfer to another supervisor; removal of his "Safety Zone warning, Letter of Reprimand, Oral Warning, and 3-Day Suspension" from his employment record; lost wages for his three-day suspension; a change of one of his docket management scores to 95%; a change in his FY2015 end of year rating to "commendable;" production bonuses associated with the newly-elevated production score; approval of his request to come into work at certain times and maintain "an unorthodox schedule outside" of the Increased Flexitime Program ("IFP") schedule; training for all USPTO staff regarding sensitivity to disabilities; and his reinstatement to any position he would have had if the discrimination had not occurred. Id. at 37-38.

         Plaintiff filed motions for a temporary restraining order and a preliminary injunction to stay proceedings related to his proposed removal from federal service, both of which were denied. June 2, 2016 Order [Dkt. No. 29]; June 15, 2016 Order [Dkt. No. 35]. Plaintiff appealed the denial to the preliminary injunction to the Fourth Circuit which "affirm[ed] for the reasons stated by the district court." Stewart v. Lee. No. 16-1816 (4th Cir. Nov. 21, 2016). The Motion to Dismiss is now ripe for resolution.

         A. Stewart's Employment History and Reasonable Accommodation Requests

         Stewart alleges that he suffers from radiculopathy, which causes him back pain, and post-and continuous-traumatic stress disorder. Id. ¶¶ 18, 41. As a result of these disabilities, in April 2014, Stewart requested a flexible work schedule because the medications he took incapacitated him during the morning hours; specifically, he requested that he not be required to come into work at a mandated time, that he not be required to report his upcoming work schedule to his supervisor, and that all meetings, interviews, and mentoring sessions for which his attendance was required be scheduled after 12:00 p.m. Am. Compl., Ex. 1 at 3. In addition, plaintiff requested an ergonomic chair and keyboard, a standing desk, and a foot stool. Am. Compl., Ex. 5 atl.

         On September 19, 2014, Nancy Le, the Director of the Technology Center 2400 issued a determination granting Stewart's requests for the keyboard, chair, standing desk, and foot stool along with the flexible schedule insofar that plaintiffs supervisor agreed to schedule meetings "designed specifically for [plaintiff] for times after 12:00 P.M." "when possible." Id. That decision explicitly denied Stewart's other requests for scheduling accommodations, stating that he "is currently on an IFP schedule, which should allow him sufficient flexibility in his schedule to work around any difficulties he encounters when adhering to his typical work schedule." Id. Furthermore, that decision stressed that Stewart must work with his supervisor to establish a schedule "that allows him to maximize interaction, training and mentoring with his supervisor, " and explicitly rejected plaintiffs request not to have to report his upcoming weekly work schedule to his supervisor. Id.

         In addition, the reasonable accommodation determination mentioned that Stewart had already received the ergonomic chair, but that he "should contact the USPTO helpdesk to arrange for his request for an ergonomic keyboard." Id. With respect to the standing desk and foot stool, plaintiff received an email from USPTO Financial Management Office employee Shirlena Morgan on October 7, 2014 with the subject line "Stewart, F. RA Decision- 14-RA-107-CONFIDENTIAL, " which included as an attachment the USPTO's reasonable accommodation decision and asked plaintiff to contact her "to coordinate [his] accommodation." Def Mem., Ex. 1 [Dkt. No. 31].[1] Apparently, plaintiff never responded to this email. Plaintiff attempts to excuse this failure to follow up by stating that because the email began with the salutation "Good afternoon, " and not his name, he misunderstood the email. PI Reply [Dkt. No. 11] at 6.

         As a result of Stewart's inaction, he did not receive the standing desk until March 19, 2015 and did not receive the foot stool until June 2, 2015. Am. Compl. ¶¶ 27, 28. Indeed, in November 2015, Stewart challenged his end of year rating, arguing that his docket management score would have been 95% instead of 92% had he promptly received the foot stool and desk. Am. Compl., Ex. 6. That challenge was denied by Wendy Garber ("Garber"), Director of Technology Center 2100, who found that "there [was] no clear nexus between [him] receiving [his] requested accommodation and [his] docket management scores." Id.

         On June 4, 2015, Supervisory Patent Examiner ("SPE") Robert Fennema issued Stewart a letter of reprimand charging him with improper conduct in relation to the reporting of his time and attendance that began at least as early as February 2014. Def. Mem., Ex. 3 at 1. Specifically, the letter detailed five separate instances in March 2015 on which plaintiff was paid for hours he falsely documented having worked. Id., In addition, Fennema raised concerns that plaintiff was working outside the 5:30 a.m. and 10:00 p.m. hours permitted under the IFP policies, taking leave without first requesting it or obtaining supervisory approval and had been charged with approximately three hours of being absent without official leave. Id. at 1-2.

         On November 17, 2015, plaintiff submitted a new request for a reasonable accommodation to Garber, seeking an immediate transfer from his then-supervisor SPE Kenneth Lo to SPE Kakali Chaki. Am. Compl. ¶ 39. Garber denied this request on December 7, 2015, stating in the written determination that "[t]he request to be reassigned to a different supervisor is not considered to be a form of reasonable accommodation." Def. Mem., Ex. 2 at 1. The determination also explained that even if Stewart had requested a cognizable reasonable accommodation, he had not provided sufficient medical documentation to support the request. Id. It also advised Stewart that he could submit a request for transfer through the Patent Office Professional Association ("POPA") transfer program. Id. There is no evidence in the record that Stewart attempted to obtain a transfer through POPA. Stewart alleges that the denial of his transfer request was motivated by discriminatory animus because Garber had allowed him to transfer supervisors from SPE Fennema to SPE Lo the previous month. Am. Compl. ¶ 39.

         On December 17, 2015, plaintiff submitted to the USPTO Equal Employment Opportunity and Diversity Office ("OEEOD") a request for reconsideration of the transfer denial, attaching a physician's statement that Stewart was suffering from work-related stressors. Id. ¶¶ 41, 42. After Stewart repeatedly requested that the OEEOD expedite processing his reconsideration request and demanded explanations for the perceived delay in how the OEEOD was handling his claim, the OEEOD denied Stewart's request for reconsideration on February 3, 2016. Id. ¶¶ 43, 45. In its decision, the OEEOD found that "the Agency does not have an obligation to reassign an employee to a different, specific supervisor and such a reassignment is not considered to be a form of reasonable accommodation." PI Reply, Ex. 10 at 2. The decision also opined that even if the USPTO were to grant Stewart's request, 'there is no indication that the requested accommodation would be effective, " pointing out that Stewart had never extensively worked for SPE Chaki and that she examines patent applications involving different subject matter than Stewart. Id. at 3.

         On January 14, 2016, plaintiff was given both an oral and written warning by SPE Fennema that his production performance was at an "unacceptable" level in that he met only 16% of his assigned goal "under the new count system." Am. Compl., Ex. 9. This warning cautioned that during his "evaluation period" from January 10, 2016 to April 2, 2016, he was required to achieve at least the "[m]arginal level of performance" as defined in his performance plan, which was 88% of his assigned goal. Id.

         Plaintiff was suspended for three days on February 23, 2016 based on unprofessional interactions with SPE Lo. Am. Compl. ¶ 51. The basis for this suspension was that Stewart was "rude and unprofessional" to SPE Lo during a pre-interview phone discussion on December 3, 2015, in which he "willfully refused to discuss the merits of the [patent] Applicant's arguments." Def. Mem., Ex. 4 at 1. The suspension was also attributed to plaintiff's "fail[ure] ...

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