PTO did not discriminate or retaliate against ex-employee

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The Merit Systems Protection Board, or MSPB, and the Equal Employment Opportunity Commission did not err in upholding the dismissal of plaintiff from the Patent and Trademark Office. The plaintiff failed to exhaust his administrative remedies or did not engage in the process in good faith, he did not suffer an adverse employment action, did not allege objectively severe or pervasive conduct and failed to allege that he engaged in protected activity.

Background

In these consolidated civil actions, Fenyang Stewart challenges multiple mixed case decisions of the MSPB and the EEOC, including the affirmance of his removal from employment with the U.S. Patent and Trademark Office.

Before the court are defendants’ motion to dismiss in part and motion for summary judgment in part, as well as plaintiff’s cross-motion for summary judgment.

Failure to accommodate

Plaintiff alleges seven counts of failure to accommodate under the Rehabilitation Act. Defendants argue that Counts One-Three should be dismissed because plaintiff failed to exhaust his administrative remedies by not timely consulting an EEO counselor, and that Counts One and Two should also be dismissed because plaintiff failed to allege his good faith participation in the interactive process by conceding that he did not respond to an email from defendants regarding his standing desk and footstool.

Plaintiff concedes that he did not timely consult an EEO counselor, but argues that the time limit should be equitably tolled based on unspecified misconduct by defendants. He also argues that he had good reasons for not responding to defendants’ email regarding his standing desk and footstool. Defendants have the better arguments.

Defendants argue that Count Four should be dismissed because plaintiff failed to allege that the accommodation he sought was reasonable. “[T]he great majority of courts … have held that employers are not required to provide an employee with a different supervisor as an accommodation” because a different supervisor does not constitute a reasonable accommodation “as a matter of law.” Courts in the Eastern District of Virginia adhere to this majority view. Accordingly, Count Four will be dismissed.

Defendants argue that Counts Five, 10 and 12, concerning defendants’ alleged failure in March 2016 to abide by the accommodation to have plaintiffs one-on-one meetings with his supervisor occur, when possible, in the afternoon, should be dismissed because plaintiff failed to allege that he engaged in good faith participation in the interactive process. The court agrees.

Disability discrimination

Defendants argue that Count Eight, alleging disability discrimination under the Rehabilitation Act, should be dismissed because plaintiff has not alleged that an adverse employment action was taken against him. Plaintiff offers no argument in response. Accordingly, Count Eight will be dismissed.

Hostile work environment

Defendants argue that Counts Six and 11, raising duplicative claims under the Rehabilitation Act that plaintiff was subjected to a hostile work environment, should be dismissed because plaintiff has not alleged objectively severe or pervasive conduct. Plaintiff offers no argument in response. Defendants’ argument is persuasive. Accordingly, Counts Six and 11 will be dismissed.

Retaliation

Plaintiff alleges 10 counts of retaliation under the Civil Rights Act, the Rehabilitation Act and the Whistleblower Protection Act, most of which focus on his request for a transfer to work under a different supervisor in March 2016.

The disposition of plaintiff’s retaliation claims under the Whistleblower Protection Act, or WPA, is particularly straightforward. “[T]he WPA does not provide a remedy for retaliation for the reporting of federal workplace discrimination.”

Turning to plaintiff’s remaining retaliation claims under the Civil Rights Act and the Rehabilitation Act, defendants argue they should be dismissed because plaintiff has failed to allege that he engaged in protected activity, and that Count Seven should be dismissed because plaintiff has failed to allege that there was a causal relationship between his protected activity and the adverse action. Plaintiff offers no argument in response. Defendants’ arguments are persuasive.

Cross motions for summary judgment

In Count 21, plaintiff alleges that the MSPB and the EEOC committed reversible error by affirming defendants’ decision to terminate his employment with the USPTO. The court disagrees. There is no genuine issue of material fact regarding whether the MSPB or the EEOC committed reversible error in affirming defendants’ decision to terminate plaintiff’s employment with the USPTO.

Plaintiff’s cross-motion for summary judgment denied; defendants’ motion to dismiss in part and motion for summary judgment in part granted.

Stewart v. Ross, Case Nos. 18-cv-1369, 16-cv-213, April 17, 2020. EDVA at Alexandria (Brinkema). VLW 020-3-227. 43 pp.