UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

DEIRDRE DUFFY,

Plaintiff,

v.

EUGENE LOUIS DODARO, Comptroller 

General of the United States,1

Defendant.

Civil Action No. 16-1178 (RDM)

MEMORANDUM OPINION AND ORDER

Deirdre Duffy is a disabled veteran who was employed as a Band IIA Communications 

Analyst at the Government Accountability Office (“GAO”) from July 2013 until December 

2016. Dkt. 31 at 2–3. Proceeding pro se, Duffy asserts fifteen claims against her former

employer, including claims under several federal employment discrimination statutes, the 

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, the due process clause of 

the Fifth Amendment, and a claim for breach of contract. Dkt. 31 at 87–102. The GAO, in turn,

moves to dismiss all of her claims or, in the alternative, for summary judgment with respect to 

her Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq., claim for failure to 

accommodate. Dkt. 33 at 1; Dkt. 33-1 at 13.

For the reasons explained below, the Court will GRANT in part and will DENY in part

the GAO’s motion. 

 1

 Comptroller General Dodaro is automatically substituted Reginald E. Jones as the Defendant 

pursuant to Fed. R. Civ. Pro. 25(d).
2

I. BACKGROUND

A. Factual Background

The following facts are taken from Duffy’s second amended complaint, Dkt. 31, which 

the Court must accept as true for purposes of the GAO’s motion to dismiss, see Klayman v. 

Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). Duffy suffers from chronic Post Traumatic 

Stress Disorder (“PTSD”) related to her military service. Dkt. 31 at 3 (Second Am. Compl. 

¶¶ 1–2). Her PTSD symptoms include “hyperarousal,” which causes her nervous system to 

“operate on full alert” and “impair[s] her ability to sleep, learn, and remember.” Id. at 3–4

(Second Am. Compl. ¶¶ 3–4). Unless properly managed, this can cause her physical harm, such 

as “damage [to her] endocrine system, reduce[d] immunity, [and] . . . autoimmune issues.” Id.

at 4 (Second Am. Compl. ¶ 4). To minimize the physical and psychological effects of her PTSD, 

Duffy “must meticulously manage all facets of her immediate environment . . . as well as her 

diet, exercise, social activities, sleep hygiene, and thought processes.” Id. at 5 (Second Am. 

Compl. ¶ 6).

Duffy applied for a position as a Band I Communications Analyst at the GAO in 

September 2009. Dkt. 31 at 35 (Second Am. Compl. ¶ 71). In order to receive a veteran’s 

preference in the GAO’s consideration of her application, Duffy submitted her discharge 

paperwork from U.S. military, which states that she has a “Disability – Permanent.” Id. She was 

notified that she was among the “most qualified” for the position and that “an interview would be 

scheduled.” Id. (Second Am. Compl. ¶ 72). “No interview was scheduled,” and Duffy “never

received any written notice of a hiring decision” with respect to that position. Id. 

In February 2013, Duffy once again applied for position at the GAO, this time for a job 

as a Band II Communications Analyst. Id. (Second Am. Compl. ¶ 74). As with her first 
3

application, Duffy submitted her military discharge paperwork to the GAO, which again

reflected her permanent disability. Id.; see also Dkt. 38-1 at 2–4, 57–60. Duffy was invited to 

interview for a position working with the GAO’s Strategic Issues (“SI”) mission team, and, 

during the interview process, she was told that the position “would be located in . . . the San 

Francisco, Boston, or Atlanta field offices based upon [the] selectee[’s] preference.” Dkt. 31 at 

35 (Second. Am. Compl. ¶ 75). She “was also invited to interview for a Band II 

Communications Analyst position within [the] GAO’s Strategic Planning and External Liaison 

(‘SPEL’) office” and was told “by the Hiring Manager for this position that it was located [at 

the] GAO[’s] Headquarters in Washington[,] D.C.” Id. at 36 (Second Am. Compl. ¶ 76).

In May 2013, the GAO offered Duffy a position working with either the SI mission team 

or the SPEL office. Id. at 37 (Second Am. Compl. ¶ 79). After she called to accept the position 

with the SI mission team and elected to work in San Francisco in order to be closer to her home 

in Seattle, the GAO informed Duffy that, despite what she had had previously been told, the SI 

position was available only in Washington, D.C. Id. (Second Am. Compl. ¶¶ 81–82). Duffy 

then asked if the SPEL position was still available and was told that the position had been filled. 

Id. (Second Am. Compl. ¶ 83). As a result, Duffy accepted the position with the SI mission team 

in Washington, D.C. Id. (Second Am. Compl. ¶ 84). She began work at the GAO as a Band IIA 

Communications Analyst on July 1, 2013. Id. at 38 (Second Am. Comp. ¶¶ 85–86). 

In September 2013, several months after starting work, Duffy “met with a member of 

the” GAO’s human resources office “to discuss concerns that she had [about] sirens that went off 

continuously outside the office” and “the intensity of the work culture in the [D.C.] GAO office” 

and how these “conditions” might negatively affect “her PTSD.” Id. at 44 (Second Am. Compl. 

¶ 115). The human resources office referred her to a website and to other information regarding 
4

reasonable accommodations and, about a month later, Duffy requested “episodic telework 

arrangements so she could travel back and forth to her home” in the Seattle area in order “to 

manage her PTSD symptoms and obtain respite from the urban stressors.” Id. (Second Am.

Compl. ¶ 117). Duffy made this request to her supervisor, Brian James, and it was approved by 

the SI mission team’s Managing Director, Chris Mihm. Id. at 35, 44 (Second Am. Compl. ¶¶

75,118).

This “episodic telework arrangement[]” continued until at least October 2014, and,

during that time, Duffy “made key contributions” to the SI mission team’s work, including 

training other staff members, id. at 44, 47 (Second Am. Compl. ¶¶ 117, 128–29), helping the 

“Assistant Director during a staffing shortfall,” id. at 47 (Second Am. Compl. ¶ 129), and aiding 

in the production of at least three different GAO reports that received “significant media 

attention,” id. In recognition of her work, Duffy received time off awards, praise from her team 

and supervisors, as well as additional work due to increased demand for her skills. Id. (Second 

Am. Compl. ¶¶ 129–30). 

In October 2014, Duffy developed a “severe dental abscess” while visiting Seattle,

“which required an emergency root canal” and a month-long recovery there. Id. at 53 (Second 

Am. Compl. ¶ 151). James approved Duffy’s request to telework from Seattle during this period. 

Id. Upon returning to Washington, D.C. at the end of that month, however, Duffy began to 

experience “a systemic breakdown of her health as a result of stimuli overload and/or chronic 

hyperarousal of her nervous system.” Id. at 53 (Second Am. Compl. ¶¶ 151–52). As a result, in 

November 2014, she “submitted a formal Reasonable Accommodation request to GAO’s 

Reasonable Accommodations Coordinator, Colleen Marks . . . , seeking to work full time from 

her home in the Seattle area” or, in the alternative, “reassignment to the San Francisco field 
5

office or to a mission team with a presence in the Seattle office.” Id. at 54 (Second Am. Compl. 

¶ 155). After Duffy notified James of her “formal accommodation [r]equest,” he told her “don’t 

do that” and said that she “should instead request accommodation [through] the short term 

telework program” so her supervisors could “approve [it] internally.” Id. (Second Am. Compl. 

¶ 156). Based on that advice, Duffy withdrew her formal accommodation request. Id. (Second

Am. Compl. ¶ 157). Duffy then requested a six-month short-term telework arrangement, which 

was approved. Id. at 54–55 (Second Am. Compl. ¶ 158). Duffy began working full-time from 

home near Seattle on December 1, 2014. Id. at 55 (Second Am. Compl. ¶ 159). 

Between March 2015 and May 2015, Duffy “developed serious complications related to 

an improperly treated dental condition” that prevented her from returning to Washington, D.C. 

by May 30, 2015, when her six-month telework arrangement was scheduled to conclude. Id. at 

59–60 (Second Am. Compl. ¶¶ 167, 174). At James’s suggestion, Duffy requested and was 

granted a second short-term telework arrangement allowing her to continue to work from the 

Seattle area from June 2015 through November 2015. Id. at 60 (Second Am. Compl. ¶¶ 170–

71). After Duffy expressed concerns to James about her ability to return to Washington, D.C. in 

December 2015, James recommended she “apply for a formal reasonable accommodation 

[through] Colleen Marks’s [disability program] office.” Id. at 60–61 (Second Am. Compl. ¶¶

173–74). When Duffy asked Marks for “information about what she needed to submit with her 

formal Reasonable Accommodations . . . request,” “Marks stated that [Duffy] needed to have her 

doctor provide the answers to a ‘six-point questionnaire’” but “did not mention or provide any 

internal guidance on additional criteria related to granting [the] request.” Id. at 61 (Second Am. 

Compl. ¶ 175). Duffy submitted her formal request in early October 2015, which included the 

completed six-point questionnaire along with additional medical documentation from two other 
6

doctors and a medical release permitting GAO staff to speak directly with Duffy’s treating 

clinician. Id. at 64 (Second Am. Compl. ¶ 187).

On October 22, 2015, Duffy met with Marks and Lisa Briscoe, a Reasonable 

Accommodations Specialist, to discuss her formal accommodation request. Id. at 63, 65 (Second

Am. Compl. ¶¶ 184, 190). Duffy alleges that, at this meeting, Marks “verbally denied” her 

request and “insisted” that Duffy had “not established (1) the presence of a disability under the 

ADA or (2) that functional limitations of that disability exist.” Id. at 65 (Second Am. Compl. 

¶ 190). When Duffy sought additional information, including the written policies supporting the 

denial of her request, Marks refused to furnish it and stated that, if Plaintiff disagreed with the 

decision, Marks “could convene the Accommodation Committee.” Id. at 66 (Second Am. 

Compl. ¶ 190). Marks cautioned Duffy, however, that if she convened the Accommodation 

Committee, “[t]he Comptroller of the United States—and several members of the Executive 

Committee—are going to learn all about your ‘mental disorder’” and asked, “Would you like me 

to do that?” Id. Duffy responded “that under no circumstances would she permit Marks to ‘out’ 

her to the” Accommodations Committee “until Marks provided written proof that the denial was 

legitimate policy,” and Duffy again “requested to see the written policy and the criteria list for 

the kinds of doctors, letters, etc. that [the] GAO required.” Id. According to Duffy, “Marks 

repeatedly ignored her request for policy documentation.” Id.

Duffy alleges that Marks did inform her that the medical documentation she submitted in 

support of the request was “invalid,” id. at 65, 67 (Second Am. Compl. ¶ 190), and that “she 

needed a full medical evaluation and a report of all [of Duffy’s] symptoms so Marks could ‘see 

just how disabled you really are,’” id. at 67 (Second Am. Compl. ¶ 190) (emphasis in original). 

According to the second amended complaint, Marks told Duffy that the letter she had submitted 
7

from her physician “was invalid because Marks ‘didn’t know who this person is’” and that she 

“asked [Duffy] if she would be willing to submit to a medical examination by a clinician chosen 

by Marks.” Id. at 67–68 (Second Am. Compl. ¶ 190). Duffy refused and asserted that she had 

already been found to have a permanent disability by the Veterans Administration (“VA”) and 

had already established an “existing disability.” Id. at 68 (Second Am. Compl. ¶ 190). Briscoe 

then stated that “PTSD . . . changes over time[] and [that Duffy] might not even have it 

anymore.” Id. at 68 (Second Am. Compl. ¶ 190). Duffy further claims that Marks stated, “[j]ust 

because the VA says you have a permanent disability doesn’t mean you do. The fact that you 

work full-time for [the] GAO proves that you are not 100% disabled.” Id. (emphasis omitted).

Duffy accused Briscoe and Marks of “harassment” and indicated that she “intended to 

report them for it.” Id. at 69 (Second Am. Compl. ¶ 191). After the meeting, Duffy informed 

Marks “in writing that all further determinations on her Reasonable Accommodations request 

would require [Equal Employment Opportunity (‘EEO’)] involvement and assurances that the 

process was fair.” Id. (Second Am. Compl. ¶ 194). The day after the meeting, Duffy contacted 

the GAO’s Office of Opportunity and Inclusiveness (“O&I”), to initiate the EEO counseling

process. Id. at 70 (Second Am. Compl. ¶ 196).

In mid-November 2015, Duffy submitted a request for accommodation that would permit 

her to telework just from December 1, 2015 until the end of January 2016. Id. at 72 (Second

Am. Compl. ¶ 204). Marks sought additional information from one of Duffy’s doctors before 

she would consider the request, notwithstanding the fact that Marks already had a letter from that 

doctor and the doctor was out of the country. Id. (Second Am. Compl. ¶ 205). Duffy’s request 

“was not granted.” Id. (Second Am. Compl. ¶ 206). Around the same time, Duffy underwent 

surgery to remove an infected bone from her upper jaw. Id. at 73 (Second Am. Compl. ¶ 209). 
8

She “requested and was approved for sick leave to recover.” Id. At the end of November 2015, 

Duffy’s short-term telework arrangement expired, and she thus requested unpaid Family and 

Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., leave “to avoid being marked AWOL 

from her position.” Id. at 73–74 (Second Am. Compl. ¶¶ 210–11). Her FMLA request was 

approved through March 2016. Id. at 74 (Second Am. Compl. ¶ 213).

Meanwhile, the EEO process was ongoing. On February 4, 2016, Duffy filed a formal 

EEO complaint with O&I, “requesting . . . that the hostile workplace cease and that her

reasonable accommodation of ongoing telework be reinstated/continued.” Id. at 76 (Second Am. 

Compl. ¶ 223). Duffy “was never contacted by anyone from O&I regarding her formal EEO 

complaint,” and the complaint was dismissed on March 21, 2016. Id. (Second Am. Compl. 

¶¶ 224, 226)

Upon the expiration of her FMLA leave, Duffy requested further FMLA leave through 

July 31, 2016, and that request was granted. Id. at 77 (Second Am. Compl. ¶ 229). On May 25, 

2016, Duffy “again requested that Marks grant her [a] reasonable accommodation,” and she 

submitted “the medical documentation submitted previously,” “an analysis of her prior 

submissions” explaining why she “had met and exceeded [the] GAO’s requirements,” and “a 

letter dated April 19, 2016, from her treating” physician. Dkt. 31 at 78 (Second Am. Compl. 

¶¶ 233–234). Marks again “denied [Duffy’s] request for [a] reasonable accommodation,” 

concluding that the medical documentation Duffy submitted was insufficient to support the 

accommodation she requested because it failed to “provide information concerning the nature 

and severity of the medical conditions and current functional limitations imposed by those 

conditions.” Id. at 78–79 (Second Am. Compl. ¶ 236). Duffy requested information from Marks 
9

about the possibility of personally appearing before the Accommodations Committee but did not 

receive any response. Id. at 79 (Second Am. Compl. ¶¶ 238–39).

On June 3, 2016, Duffy “applied for a no-cost transfer” to the GAO’s Seattle field office 

but alleges that this request was never addressed. Id. at 80 (Second Am. Compl. ¶¶ 243–44).

Duffy also made “a transfer request via the Employee Preference Survey.” Id. at 81 (Second

Am. Compl. ¶ 247). The GAO did not grant either request. Id. at 80 (Second Am. Compl. 

¶ 244) (no-cost transfer request); id. at 82 (Second Am. Compl. ¶ 251) (Employee Preference 

Survey request). On July 31, 2016, Duffy requested leave without pay through October 31, 

2016, which the GAO granted. Id. at 81 (Second Am. Compl. ¶ 248). In September 2016, she 

asked for an extension of that leave beyond October 31, 2016, and the GAO approved that 

request as well but informed Duffy that her unpaid leave could not be extended “indefinitely.” 

Id. at 82–83 (Second Am. Compl. ¶ 255). On December 1, 2016, Duffy formally resigned from 

her position. Id. at 83 (Second Am. Compl. ¶ 259).

B. Procedural Background

Duffy filed this action on June 20, 2016, while still an employee of the GAO. See Dkt. 1. 

Her initial complaint, which was prepared by counsel, included a single claim: that the GAO 

violated the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq., when it 

denied Duffy’s reasonable accommodation requests. Id. at 8–9. Duffy’s counsel subsequently 

withdrew, Dkt. 17; Minute Order (Nov. 30, 2016), and Duffy, proceeding pro se, filed her first 

amended complaint, which still advanced a single claim under the Rehabilitation Act, see Dkt. 

19 at 20. With leave of Court, Duffy later filed her second amended complaint, which asserts 

fifteen claims, including claims under the Rehabilitation Act, the ADA, and Title VII of the Civil 

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, and claims for breach of contract, 
10

defamation, intentional infliction of emotional distress, and civil conspiracy. Dkt. 31 at 87–104. 

Duffy also alleges that the GAO constructively discharged her without due process, in violation 

of the Fifth Amendment. Id. at 102. The GAO now moves to dismiss all of Duffy’s claims for 

lack of subject-matter jurisdiction and for failure to state a claim upon which relief may be 

granted, and moves, in the alternative, for summary judgment with respect to Duffy’s failure-toaccommodate claims on the ground that she affirmatively abandoned her request for an 

accommodation. Dkt. 33 at 1; Dkt. 33-1 at 13. 

II. LEGAL STANDARD

The GAO moves to dismiss under both Federal Rule of Civil Procedure 12(b)(1) and 

12(b)(6) and moves, in the alternative, for partial summary judgment under Federal Rule of Civil 

Procedure 56.

A motion to dismiss under Rule 12(b)(1) challenges the Court’s jurisdiction to hear a

claim and may raise a “facial” or a “factual” challenge to the Court’s jurisdiction. A facial 

challenge asks whether the plaintiff has alleged facts sufficient to establish the Court’s 

jurisdiction, while a factual challenge asks whether “the complaint [as] supplemented by 

undisputed facts evidenced in the record, or the complaint [as] supplemented by undisputed facts 

plus the [C]ourt’s resolution of disputed facts,” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 

197 (D.C. Cir. 1992), establish that the Court has jurisdiction. The plaintiff bears the burden of 

establishing that the Court has subject matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 

U.S. 555, 561 (1992). Courts must construe pro se pleadings “liberally” and must hold pro se

pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 

(1976)). 
11

A motion to dismiss for failure to statute a claim under Rule 12(b)(6), in contrast, tests 

the legal sufficiency of the allegations contained in the complaint. A complaint must contain “‘a 

short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to 

‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 

(1957)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) 

motion to dismiss, a plaintiff must furnish “more than labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action.” Id. Instead, the complaint’s “[f]actual allegations 

must be enough to raise a right to relief above the speculative level, on the assumption that all 

the allegations in the complaint are true (even if doubtful in fact).” Id. (citations omitted). 

Finally, a court’s adjudication of a motion for summary judgment under Rule 56 asks 

whether the moving party is legally entitled to prevail based on the undisputed facts. The Court 

will grant summary judgment if the movant shows “that there is no genuine dispute as to any 

material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is “material” if it is 

capable of affecting the outcome of the litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. 

Cir. 2006). A dispute is “‘genuine’ if ‘the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 248) “A party asserting 

that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular 

parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

III. ANALYSIS

Duffy’s second amended complaint asserts fifteen different claims, including claims 

under the ADA, the Rehabilitation Act, and Title VII and claims for breach of contract, 
12

defamation, intentional infliction of emotional distress, civil conspiracy, and a violation of her 

right to due process. Dkt. 31 at 87–104. Several of the GAO’s challenges to Duffy’s claims are 

easily resolved and thus the Court begins with those.

A. Title VII of Civil Rights Act 

The GAO argues that Duffy’s Title VII claims (Counts VII, IX, and X) must be 

dismissed because the second amended complaint does not contain any allegations of 

discrimination on the basis of any of the characteristics protected by that statute. Dkt. 33-1 at 

14–15. Title VII prohibits discrimination on the grounds of “race, color, religion, sex, or 

national origin,” 42 U.S.C. § 2000e-2(a), but not disability, see Sledge v. District of Columbia, 

63 F. Supp. 3d 1, 19 (D.D.C. 2014). Because the second amended complaint says nothing about 

discrimination based on Duffy’s race, color, religion, sex, or national origin, the Court must 

dismiss Duffy’s Title VII claims for failure to state a claim upon which relief can be granted. 

See Fed. R. Civ. P. 12(b)(6).

B. Breach of Contract Claim

The GAO also moves to dismiss Duffy’s breach of contract claim (Count XIV) arguing 

that the Court lacks jurisdiction over it. Dkt. 33-1 at 15–16. The Court agrees. “In suits against 

the government, subject-matter jurisdiction turns on at least ‘two different jurisdictional 

questions.’” Yee v. Jewell, 228 F. Supp.3d 48, 58 (D.D.C. 2017) (quoting Trudeau v. FTC, 456 

F.3d 178, 183 (D.C. Cir. 2006)). “First, has Congress provided an affirmative grant of subjectmatter jurisdiction? And, second, has Congress waived the United States’s immunity to suit?” 

Id. 

The Tucker Act, 28 U.S.C. § 1346 et seq., provides the exclusive waiver of sovereign 

immunity for cases against the United States based on contracts. Spectrum Leasing Corp. v. 
13

United States, 764 F.2d 891, 895 & n.8 (D.C. Cir. 1985). Although district courts have

concurrent jurisdiction over Tucker Act claims for “damages” of no more than $10,000, the 

United States Court of Federal Claims has exclusive jurisdiction under the Tucker Act of claims

for “damages” in excess of $10,000. See 28 U.S.C. § 1346(a)(2). Because Duffy seeks damages 

in excess of $10,000, see Dkt. 31 at 103 (seeking “full backpay and front pay” as well as “l[o]st 

wage increases, promotions, and fringe benefits” and “losses to pension, social security, and 

other retirement accounts,” among other forms of monetary relief), the Court lacks jurisdiction 

over her claim for breach of contract. 

C. Tort Claims 

The GAO further moves to dismiss Duffy’s D.C. law tort claims (Counts XI, XII, XIII)

for lack of subject-matter jurisdiction. Dkt. 33-1 at 17. Although the second amended complaint 

lists several defendants including Marks and Briscoe, among others, Dkt 31 at 3, Duffy has 

served only the GAO, Dkt. 8 at 2 (summons accepted by employee authorized to receive service 

on behalf of the agency); see also Fed. R. Civ. P. 4, and counsel has appeared only on behalf of 

Reginald Jones, see Dkt. 9, who served as the Managing Director of the GAO’s Office of 

Opportunity & Inclusiveness at the relevant time, and the GAO itself, Dkt. 33. The United 

States—and “public officials sued in their official capacities,” Wilson v. Dep’t of Transp., 759 F. 

Supp. 2d 55, 64 (D.D.C. 2011), are subject to suit for damages only if Congress has waived the 

sovereign immunity of the United States. The Federal Tort Claims Act provides a “limited 

waiver of sovereign immunity” and governs what tort claims can be brought against the United 

States. Wilson, 759 F. Supp. 2d at 64; Sloan v. Dep’t of Housing and Urban Dev., 236 F.3d 756, 

759 (D.C. Cir. 2001). Given this background, the Court now addresses each of Plaintiff’s 

common law tort claims in turn.
14

Duffy’s claim for defamation must be dismissed because claims for “libel” and “slander” 

are specifically excluded from the FTCA’s waiver of sovereign immunity. 28 U.S.C. § 2680(h). 

Courts have interpreted this exclusion to generally bar defamation claims. See Gardner v. 

United States, 213 F.3d 735, 737 n.1 (D.C. Cir. 2000) (“[Plaintiff’s] defamation claim against the 

United States is barred, because suits for libel or slander are prohibited under the Federal Tort 

Claims Act.”). Because “the FTCA does not waive immunity for claims of defamation,” Wilson, 

759 F. Supp. 2d at 64, Duffy’s defamation claim must be dismissed for lack of subject-matter 

jurisdiction. 

As Defendant points out, Dkt. 33-1 at 18, Duffy’s claims for intentional infliction of 

emotional distress and civil conspiracy lie beyond the Court’s jurisdiction for a different reason: 

Duffy failed to exhaust her administrative remedies with respect to those claims, as required by 

the FTCA. An FTCA claimant may not bring suit until she has first presented her claim to the 

agency, and the agency has finally denied it. See 28 U.S.C. § 2675(a). To satisfy this 

requirement, “a claimant [must] file (1) a written statement sufficiently describing the injury to 

enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF 

Corp. v. United States, 818 F.2d 901, 920 (D.C. Cir. 1987). 

According to the unrebutted declaration of Joan M. Hollenbach, the Managing Associate 

General Counsel of the GAO and the head of the GAO’s Legal Services group, Duffy has not 

filed any administrative FTCA claims with the GAO. See Dkt. 33-11 at 2. (Hollenbach Decl. 

¶ 2); see also Herbert, 974 F.2d at 197 (permitting courts to consider outside evidence in 

evaluating a motion to dismiss under Rule 12(b)(1)). Duffy did file an EEO complaint with 

GAO, see Dkt. 33-7, but that complaint does not assert a tort claim and does not include a sumcertain claim of damages, id. Because Duffy failed to make a “presentment” as required by
15

§ 2675(a), the Court lacks jurisdiction to consider Duffy’s remaining tort claims. See GAF 

Corp., 818 F.2d at 918 (“Presentment is mandatory” under the FTCA “to 

determine . . . jurisdiction”).

The Court will, accordingly, dismiss all of Duffy’s common law tort claims for lack of 

jurisdiction. See Fed. R. Civ. P. 12(b)(1).

D. Constitutional Claim 

The GAO moves to dismiss Duffy’s Fifth Amendment due process claim (Count XV) on 

the ground that the ADA “is the exclusive remedy” for claims alleging disability discrimination 

or failure to accommodate a disability. Dkt. 33-1 at 19–20. Federal employees may not recast 

Title VII claims as constitutional claims for employment discrimination. Ethnic Emps. of 

Library of Congress v. Boorstin, 751 F.2d 1405, 1414–15 (D.C. Cir. 1985) (applying Brown v. 

GSA, 425 U.S. 820, 832–33 (1976)). At the same time, however, the existence of a statutory 

cause of action does not typically preclude claims that are not cognizable under the statute. In 

Ethnic Employees of Library of Congress, for example, the D.C. Circuit dismissed constitutional 

claims that merely restated claims that were cognizable under Title VII, but it allowed other 

constitutional claims–including a due process claim—to proceed because Title VII did not 

provide a remedy for those claims. Id. at 1415 (“Nothing in [Title VII’s] history even remotely 

suggests that Congress intended to prevent federal employees from suing their employers for 

constitutional violations against which Title VII provides no protection at all.”). 

As drafted, Duffy’s second amended complaint does not clearly state a cognizable due 

process claim. It is possible that Duffy could assert a due process claim that does not merely 

replicate her ADA claims. But the problem is that she merely alleges that the GAO “deliberately 

and without due process deprive[d] [her] of her property interest in her position as a 
16

Communications Analyst Band II” and that it “did so with the intention to so harm [her] that 

should would have no resources with which to pursue a fair and just resolution of her 

complaint.” Dkt. 31 at 102 (Second Am. Compl.). Because the Court cannot discern from these 

bare allegations whether Duffy intends to allege a claim that differs from her ADA claims and, if 

so, in what way the claims differ, the Court will dismiss Count XV pursuant to Federal Rule of 

Civil Procedure 8. Rule 8 requires a plaintiff to plead facts sufficient to “give the defendant fair 

notice of what that . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 

(quoting Conley, 355 U.S. at 47). As drafted, Count XV fails to provide the GAO or the Court 

with sufficient notice of the grounds upon which the claim rests; the GAO cannot meaningfully 

respond to it and the Court cannot determine whether it states a claim.

The Court will, accordingly, dismiss Count XV without prejudice.

E. Americans with Disabilities Act 

Duffy asserts seven claims under the ADA, see Dkt. 31 at 87–95, which applies to the

GAO by virtue of 42 U.S.C. § 12209(1). Specifically, she brings ADA claims for disability 

discrimination (Count I), hostile work environment (Count II), denial of a reasonable 

accommodation (Count III), disability discrimination on the basis of mental illness (Count IV), 

disability harassment (Count V), disparate treatment (Count VI), and retaliation (Count VII). See

Dkt. 31 at 87–95. The GAO moves to dismiss each of these claims on the basis that Duffy did 

not exhaust her administrative remedies and also moves to dismiss Duffy’s hostile work 

environment claim for failure to state a claim. Dkt. 33-1 at 20–23. In the alternative, the GAO 

seeks partial summary judgment on Duffy’s reasonable-accommodation claim. Id. at 23–26. 
17

1. Exhaustion

“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must 

exhaust their administrative remedies.”2 Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 

(D.C. Cir. 1997) (citing 42 U.S.C. § 12117(a); Park v. Howard Univ., 71 F.3d 904, 907–09 (D.C. 

Cir. 1995)). But because the GAO is an agency of the legislative branch of the U.S. government, 

see Bowsher v. Synar, 478 U.S. 714, 731–32 (1986), the usual procedures for exhausting 

administrative remedies for ADA claims against private employers do not apply, see 42 U.S.C. 

§ 12111(5)(B) (“The term ‘employer’ does not include . . . the United States.”). Congress, 

instead, provided that employees of the GAO may invoke the enforcement mechanisms typically 

available for ADA cases, “except that the authorities of the Equal Employment Opportunity 

Commission shall be exercised by the chief official of the” GAO. 42 U.S.C. § 12209(5); see 

 2

 Lack of exhaustion under the ADA is an affirmative defense, which the defendant has the 

burden of proving. Adams v. District of Columbia, 740 F. Supp. 2d 173, 185 (D.D.C. 2010) 

(citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)). Ordinarily, a party seeking to assert 

an affirmative defense must wait to do so until a motion for summary judgment; plaintiffs are not 

required to anticipate affirmative defenses and to plead facts sufficient to avoid those defenses, 

and thus a defendant cannot move to dismiss under Rule 12(b)(6) on the mere ground that the 

complaint fails to allege facts that, if taken as true, would overcome the affirmative defense. See

Wright & Miller, Federal Practice and Procedure § 1277; see also Jones v. Bock, 549 U.S. 199, 

216 (2007) (clarifying that where exhaustion is non-jurisdictional, plaintiffs “are not required to 

specially plead or demonstrate exhaustion in their complaints”). But if the complaint itself 

alleges facts that establish the affirmative defense, the defendant may rely on those factual 

allegations to support a motion to dismiss under Rule 12(b)(6). See Calderon v. Berryhill, No. 

17-cv-494, 2019 WL 4575605, at *4 (D.D.C. Sept. 20, 2019). The defendant prevails, however, 

only if the validity of the affirmative defense is evident on the face of the complaint. See Smith–

Haynie v. District of Columbia, 155 F.3d 575, 578–79 (D.C. Cir. 1998). Here, because the GAO 

moves in the alternative for summary judgment, the Court may consider the administrative 

materials attached to its motion. But, because the GAO does not include assertions of fact 

relating to exhaustion in its statement of undisputed material facts, Dkt. 33-2, the Court limits its 

analysis to the allegations contained in the second amended complaint. 
18

also 31 U.S.C. § 732(a). Under GAO regulations, a “charge alleging prohibited discrimination” 

in violation of the ADA is subject to “GAO Order 2713.2.” 4 C.F.R. § 28.98(a). Under that 

Order, in turn, “[a]n aggrieved person must contact an O&I counselor within 45 days of the date 

of the matter alleged to be discriminatory.” Dkt. 33-6 at 9. Subject to certain exceptions, the 

O&I counselor then has 30 days to conduct a final interview with the aggrieved person, and, “[i]f 

the matter has not been resolved to the satisfaction of the aggrieved person, that person [must] be 

informed . . . of the right to file [an administrative] discrimination complaint” within fifteen 

“days of receipt of the notice.” Id. at 10–11. “[T]he procedural requirements of . . . the ADA

. . . must be assessed on a claim-by-claim basis and . . . satisfaction of the procedural 

requirements for a ‘relate[d]’ act of discrimination is insufficient, except in those cases in which 

the ‘very nature’ of the claim ‘involves repeated conduct.’” Hargrove v. AARP, 205 F. Supp. 3d 

96, 119 (D.D.C. 2016) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–15

(2002)). 

Here, Duffy alleges that she first sought EEO counseling on October 23, 2015, Dkt. 31 at 

70 (Second Am. Compl. ¶ 196), and that she filed her formal EEO complaint through O&I on 

February 4, 2016, asserting a hostile work environment claim and a failure to accommodate 

claim, id. at 76 (Second Am. Compl. ¶ 223). As explained below, these steps were sufficient to 

preserve Duffy’s hostile work environment claim and at least a portion of her failure to 

accommodate claim. They were not sufficient, however, to preserve her ADA retaliation claim.

Counts II and V of the second amended complaint both allege that Duffy was subjected 

to a hostile work environment because of her disability. Dkt. 31 at 88–89, 91–92. As the 

Supreme Court has explained, the “very nature” of a hostile work environment claim “involves 

repeated conduct.” Morgan, 536 U.S. at 115. As a result, as long as one “act contributing to the 
19

claim” took place within the statutory period—here, within 45 days of Duffy seeking EEO 

counseling—“the entire period of the hostile environment may be considered for the purposes of 

determining liability.” Id. at 117. And, here, Duffy’s O&I complaint contains allegations that 

Marks made derogatory comments about her disability during a meeting on October 22, 2015—

the day before she first contacted the O&I counselor. See Dkt. 31 at 65–70 (2d Am. Compl. ¶ 

190–96). Accordingly, the Court rejects the GAO’s argument that “Plaintiff has . . . failed to 

exhaust her administrative remedies for any action that occurred prior to September 8, 2015, 

which was 45 days before Plaintiff initiated her EEO claim.” Dkt. 33-1 at 21. Under settled law, 

the Court must consider events that occurred outside the 45-day window for initiating the O&I 

counseling process, so long as those events are “part of the same actionable hostile work 

environment” as Marks’s conduct in the October 22, 2015 meeting. Morgan, 536 U.S. at 120. 

Because the GAO has made no argument about which allegations or actions predating September 

8, 2015 it seeks to preclude the Court from considering, the Court will deny the GAO’s motion 

to dismiss any portion of Duffy’s hostile work environment claims for failure to exhaust 

administrative remedies.

Plaintiff’s denial of reasonable accommodation (Count III) and disparate treatment 

(Count VI) claims, Dkt. 31 at 89–90, 92–94, in contrast, are not the type of claims that by their 

“very nature” “involve[] repeated conduct.” Morgan, 536 U.S. at 115; see Owens-Hart v. 

Howard Univ., 220 F. Supp. 3d 81, 93 (D.D.C. 2016) (explaining that each denial of an 

accommodation is a separate “discrete act”); Panarello v. Zinke, 254 F. Supp. 3d 85, 102–03 

(D.D.C. 2017) (describing incidents of disparate treatment as discrete acts). The GAO argues 

that at least some conduct that might be relevant to those claims occurred either before 

September 8, 2015 or after Duffy submitted her O&I complaint in February 2016. See Dkt. 33-1 
20

at 20–23. Accordingly, if Duffy’s claims depended on that conduct, the Court would be required 

to dismiss those claims for failure to exhaust. But Duffy’s claims do not depend on conduct 

occurring outside the exhaustion window. She alleges, for example, that she submitted requests 

for accommodation in both October and November 2015 and that both requests were denied.

Dkt. 31 at 64–65 (Second Am. Compl. ¶¶ 187, 190) (October 2015 request); id. at 72 (Second

Am. Compl. ¶¶ 204–06) (November 2015 request). She also alleges that, during that period,

non-disabled employees were permitted to work from an alternate location eight out of every ten

workdays but that she was not. Id. at 94 (Second Am. Compl.) And, she alleges that she 

complained of those denials in her EEO counseling and formal complaint. Id. at 70, 76 (Second

Am. Compl. ¶¶ 196, 223). The Court, accordingly, cannot dismiss Duffy’s failure to 

accommodate or disparate treatment claims because she has alleged at least one theory 

supporting relief for each claim that is premised on conduct that she timely raised in the 

administrative EEO process.

The Court agrees with the GAO, however, that Duffy failed to exhaust her administrative 

remedies with respect to her retaliation claim (Count VII). Id. at 94 (Second Am. Compl.). Even 

as described by Duffy herself in the second amended complaint, Duffy’s O&I complaint did not 

include allegations of unlawful retaliation. Nor can the Court conclude that Duffy’s 

administrative allegations of harassment and failure to accommodate were sufficient to 

encompass her claim for retaliation. As this Court has previously explained in Hargrove v. 

AARP, 205 F. Supp. 3d 96 (D.D.C. 2016), prior to the Supreme Court’s decision in National 

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the D.C. Circuit “permitted a Title 

VII plaintiff—and by implication, and an ADA plaintiff to bring a lawsuit asserting claims that 

were administratively exhausted or that were ‘like or reasonably related to the allegations’
21

contained in the administrative complaint or ‘growing out of such allegations.’” Hargrove, 205 

F. Supp. 3d at 118 (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)) (other 

internal citations omitted). Morgan, however, put an end to the “reasonably related” rule, and an 

ADA plaintiff must now timely exhaust administrative remedies with respect to claims—unlike 

hostile workplace claims—premised on “discrete acts of discrimination.” Id. at 119 (citing 

Morgan, 536 U.S. at 113). Here, because Duffy’s O&I complaint was limited to hostile 

workplace and failure to accommodate claims, she cannot now assert a separate—and 

unexhausted—claim for retaliation.3

The Court will, accordingly, dismiss Duffy’s retaliation claim (Count VII) for failure to 

exhaust her administrative remedies.

2. Hostile Workplace Claim

The GAO also moves to dismiss Duffy’s ADA hostile workplace claims (Counts II and 

V), Dkt. 31 at 88–89, 91–92 (Second Am. Compl.), for failure to state a claim. Dkt. 33-1 at 26–

29. Although the D.C. Circuit has yet to decide the question, several other circuits and numerous 

decisions from this Court have held that hostile workplace claims are cognizable under the ADA. 

See Lanman v. Johnson Cnty., Kansas, 393 F.3d 1151, 1155–56 (10th Cir. 2004); Shaver v. 

Indep. Stave Co., 350 F.3d 716, 719–20 (8th Cir. 2003); Flowers v. S. Reg’l Physician Servs., 

Inc., 247 F.3d 229, 232–35 (5th Cir. 2001); Webster v. U.S. Dep’t of Energy, 267 F. Supp. 3d 

246, 260 (D.D.C. 2017); Ham v. Ayers, No. 15-1390, 2019 WL 1202453, at *5 (D.D.C. Mar. 14, 

2019); Aldrich v. Burwell, 197 F. Supp. 3d 124, 135 (D.D.C. 2016). Because the GAO does not 

 3

 The Court also notes that Duffy was represented by counsel at the time she filed her 

administrative complaint and that, as a result, her failure to include a claim for retaliation was not 

merely a mistake of nomenclature by someone untrained in the law. Dkt. 33-8 at 5–13.
22

dispute this premise, the Court will proceed on the assumption that the ADA authorizes recovery

for hostile workplace claims.

To state a hostile workplace claim, an ADA plaintiff must allege that “(1) she is disabled 

or is perceived as disabled; (2) she was subjected to unwelcome harassment; (3) the harassment 

occurred because of her disability or the perception that she was disabled; (4) the harassment 

affected a term, condition, or privilege of employment; and (5) there is a basis for holding the 

employer liable for the creation of the hostile work environment.” Floyd v. Lee, 968 F. Supp. 2d 

308, 328 (D.D.C. 2013). In evaluating this type of claim, the Court “looks to the totality of the 

circumstances, including the frequency of the discriminatory conduct, its severity, its 

offensiveness, and whether it interferes with an employee’s work performance.” Id. (quoting 

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam)). 

The GAO contends that the only factual allegations that even arguably support Duffy’s 

hostile workplace claim are those involving the comments that Marks and Briscoe purportedly 

made during the October 2015 meeting. Dkt. 33-1 at 28. As Duffy describes those remarks, 

they were at times mocking and snide, suggested that Duffy was lying about her disability, and, 

more significantly, conveyed a threat that Duffy would risk revealing her “mental disorder” to 

the Comptroller of the United States and other senior officials if she insisted on pursuing her 

request for an accommodation. Dkt. 31 at 65–68 (Second Am. Compl. ¶ 190). Even assuming 

that Marks and Briscoe made these comments, the GAO maintains, Duffy’s claim fails because a 

single conversation “fails to show the requisite ‘cumulative effect’ necessary to state a claim for 

a hostile work environment.” Dkt. 33-1 at 28 (quoting Baird v. Gotbaum, 792 F.3d 166, 168 

(D.C. Cir. 2015)). 
23

According to Duffy, this allegedly caustic conversation forms only a part of her 

harassment claim. Rather, in her view, her hostile workplace claim (Count II) Dkt. 31 at 88–89 

(Second Am. Compl.), is predicated on a broader array of events. She argues: 

[T]he totality of circumstances show that GAO Management hired [her] for an 

ad-hoc Communications “analyst-in-name-only” position in which she was 

subjected to pervasive ridicule, insult, and intimidation that was frequent, 

offensive, interfered with [her] work performance, altered the conditions of her 

employment, was connected to her membership in a protected class, and 

ultimately, damaged her health, interfered with her career, and resulted in her 

resignation.

* * *

[She was] [s]ubjected to chaotic, dysfunctional working conditions where her 

work product could be rejected or appropriated at the convenience of others; 

routinely denied development and promotion opportunities commensurate with 

her professional attainments while being encouraged not to quit her job; 

passively denied the opportunity to engage in assignments more appropriate to 

her abilities due to an imbalance of entry level work which could have been 

equitably and easily reassigned; denied the tools to adequately perform her 

duties at the standard her training and expertise warranted, and—once she was 

known to have useful skills—subjected to extreme overwork that, in spite of 

her best efforts to manage it, eventually contributed to a serious breakdown of 

her physical health.

Dkt. 37 at 30. Duffy further alleges that, during the Alternative Dispute Resolution (“ADR”) 

process that was initiated after she filed her O&I complaint, “Marks . . . expressed contempt 

toward [Duffy], and continued to make . . . false statements about her [Reasonable 

Accommodation] request and her disability.” Dkt. 31 at 74 (Second Am. Compl. ¶ 216). Even 

after the ADR process, Duffy contends that Marks continued to harass her, id. at 75 (Second Am. 

Compl. ¶ 218), and that “she had no choice but to submit to further harassment by Marks if she 

wished to be accommodated for her disability,” id. (Second Am. Compl. ¶ 221). In sum, her 

claims turn on the October 2015 meeting and on a pattern of contemptuous treatment and 
24

failures to grant her reasonable accommodations, which ultimately led to her constructive 

discharge.

Duffy’s allegations that she was subjected to “ridicule, insult, and intimidation that was 

frequent, offensive, interfered with [her] work performance, id. at 91 (Second Am. Compl.),” and 

that Marks “expressed contempt toward” her during the ADR process and continued to “harass” 

her after it concluded, id. at 74–75 (Second Am. Compl. ¶¶ 216–18), are conclusory and 

unsupported by the type of concrete factual allegations necessary to state a claim under Federal 

Rules of Civil Procedure 8 and 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); 

Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 71 (D.D.C. 2011) (“Plaintiff’s statement 

that she was ‘mistreated, harassed, intimidated[,] and disrespected’ by her supervisor and coworkers . . . is nothing more than a legal conclusion.”); Aldrich v. Burwell, 197 F. Supp. 3d 124, 

137–38 (D.D.C. 2016) (finding allegations of “‘rude, hostile, and otherwise demeaning 

treatment’ . . . too vague and conclusory to meaningfully contribute to” the plaintiff’s hostile 

work environment claim). For purposes of determining whether the second amended complaint 

states a claim of workplace harassment, the Court must, instead, focus on Duffy’s factual 

allegations of specific, offensive workplace conduct.

Putting Duffy’s conclusory allegations aside, she fails to allege facts sufficient to state a 

hostile workplace claim. To state a claim based on a hostile workplace, the plaintiff must allege 

facts that, if accepted as true, would show that her employer subjected her to discriminatory 

harassment that was “sufficiently severe or pervasive to alter the conductions of the victim’s 

employment and create an abusive working environment.” Baloch v. Kempthorne, 550 F.3d 

1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This 

is not a “mathematically precise test,” Harris, 510 U.S. at 22, but, rather, requires courts to 
25

consider factors such as “the frequency of the discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 

interferes with an employee’s work performance,” id. at 23. The standard is a “demanding” one, 

however, in order to avoid turning federal antidiscrimination statutes into codes of “general 

civility.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (second quote quoting 

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

It follows that “isolated incidents (unless extremely serious) will not amount to” a hostile 

work environment, id., and that “the more severe the harassment, the less pervasive it needs to 

be, and vice versa,” Jimenez v. McAleenan, No. 17-cv-2731, 2019 WL 3935182, at *7 (D.D.C. 

Aug. 20, 2019) (quoting Ayissi-Etoh, 712 F.3d at 579)). It is extremely rare that a single incident 

is sufficiently severe to rise to the level of a hostile work environment, Stewart v. Evans, 275 

F.3d 1126, 1134 (D.C. Cir. 2002), although even a single, extraordinarily offensive or demeaning 

assertion might suffice, see, e.g., Ayissi-Etoh, 712 F.3d at 580 (Kavanaugh, J., concurring) 

(“[B]eing called the n-word by a supervisor [on one occasion] . . . suffices by itself to establish a 

racially hostile work environment”).

Duffy has failed to allege facts sufficient to meet this “demanding” test. To be sure, 

Marks’s disparaging comments were not words alone, without tangible consequence—they were 

accompanied by alleged denials of Duffy’s requests for reasonable accommodation. But Courts 

in this district “frown[] on plaintiffs who attempt to bootstrap their alleged discrete acts of 

retaliation” or other employment discrimination “into a broader hostile work environment 

claim.” Thomas v. Securiguard Inc., No. 18-0125, 412 F. Supp. 3d 62, 91 (D.D.C. 2019) 

(quoting Mason v. Geithner, 811 F. Supp. 2d 128, 177 (D.D.C. 2011)). To be sure, “[t]he

prolonged denial of a reasonable accommodation can underlie a hostile work environment claim 
26

when ‘all the circumstances’ would support such a claim.” Floyd v. Lee, 85 F. Supp. 3d 482, 518

(D.D.C. 2015) (emphasis added) (quoting Oncale, 523 U.S. at 81). But, here, Duffy’s own 

allegations show that the GAO allowed her to telework for extended periods of time, see, e.g., 

Dkt. 31 at 54–55 (Second Am. Compl. ¶ 158), and the overall “circumstances” alleged in the 

second amended complaint do not meet the standard for either severity or pervasiveness 

necessary to state a claim based on a hostile workplace. Although the Court does not doubt that 

Duffy’s interactions with Marks and Briscoe were both objectively and subjectively upsetting, 

the second amended complaint fails to identify the type of “severe or pervasive” hostility or 

abuse necessary to state this type of claim. See Achagzai v. Broadcasting Bd. of Governors, 170 

F. Supp. 3d 164, 184 (D.D.C. 2016) (quoting Harris, 510 U.S. at 21).

Accordingly, the Court will dismiss Duffy’s hostile workplace environment claim for 

failure to state a claim.

3. The GAO’s Motion for Summary Judgment

Finally, GAO moves for summary judgment with respect to Duffy’s ADA claims (Counts 

I–VII), Dkt. 31 at 87–95 (Second Am. Compl.), on the ground that she abandoned each of her 

requests for a reasonable accommodation. Dkt. 33-1 at 13, 23–26. When considering a motion 

for summary judgment, unlike a motion to dismiss, the Court may consult evidence outside the 

pleadings to determine whether a genuine issue of material fact exists. See Fed. R. Civ. P. 56(a), 

(c). Because the Court has already concluded that Duffy has exhausted her administrative 

remedies only with respect to her October 2015 and November 2015 requests for a reasonable 

accommodation, the Court considers the GAO’s motion for summary judgment with respect to 

only those requests. Moreover, because Duffy brings just one claim for failure to accommodate 

(Count III) relying on both requests, Dkt. 31 at 89–90 (Second Am. Compl.), the GAO must 
27

show that both requests were abandoned to obtain summary judgment on that claim. After 

reviewing the still-developing record, the Court concludes that the “issues need further 

development” and thus exercises its “discretion to deny [the] motion for summary judgment 

without prejudice.” 10A Wright & Miller, Federal Practice and Procedure § 2718 (4th ed. 2019).

The GAO argues that Duffy abandoned her request for a reasonable accommodation

because she refused to engage in the “interactive process” contemplated by the ADA. See Ward 

v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (describing the “interactive process” as “‘a

flexible give-and-take’ between employer and employee ‘so that together they can determine 

what accommodation would enable the employee to continue working’” (quoting EEOC v. 

Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)). With respect to Duffy’s October 

2015 request, the GAO contends that Duffy stopped participating in the interactive process when 

she requested that “all further action on [her] [Reasonable Accommodation] request be stopped, 

pending an EEO complaint.” Dkt. 33-1 at 23–26; Dkt. 33-2 at 1 (Def.’s SUMF ¶ 4); Dkt. 33-5 at 

2; 

But, Duffy claims that it takes two to tango and the GAO was an unwilling dance partner. 

She alleges that, during the October 22, 2015 meeting, Marks verbally denied Duffy’s October 

2015 request; refused to provide her with “[a]gency guidance related to . . . standards for 

administering” reasonable accommodation requests; and made statements designed to intimidate 

and to discourage Duffy from seeking review of Marks’s decision. Dkt. 31 at 65–69 (Second 

Am. Compl. ¶ 190). Duffy alleges, for example, that when she inquired about the basis for 

Marks’s denial of her request, Marks said the request could go to the Accommodations 

Committee but then admonished Duffy: “let me tell you what is going to happen if I do that. The 

Comptroller of the United States—and several members of the Executive Committee—are going 
28

to learn all about your ‘mental disorder.’ Would you like me to do that?” Id. at 66 (Second Am. 

Compl. ¶ 190). Duffy further alleges that, at various points, Marks refused to explain why she 

was not crediting the medical evidence and other documentation that Duffy had provided in 

support of her request. See id. at 65–68 (Second Am. Compl. ¶ 190). 

The “interactive process” used to determine whether an accommodation is necessary and 

appropriate depends on the good faith participation of both the employer and employee; “neither 

party should be able to cause a breakdown in the process for the purpose of either avoiding or 

inflicting liability.” Sears, Roebuck & Co., 417 F.3d at 805 (quoting Beck. v. Univ. of Wisconsin 

Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). It follows that, if an employer participates 

in the “interactive process” in “bad faith,” the employer may be deemed to have denied the 

accommodations request. Ward, 762 F.3d at 32. That bad faith may take the form of 

“obstruct[ion] or delays [in] the interactive process” or “fail[ure]s to communicate” with the 

other party, because such actions are the “cause of the breakdown” in the process. Id. (quoting 

Sears, Roebuck & Co., 417 F.3d at 805). By that same logic, bad faith may also take the form of 

threats or other actions taken solely for the purpose of discouraging an employee from pursuing a 

request for an accommodation.

The GAO may be right that Duffy is to blame for the breakdown in the interactive 

process; the record contains evidence that she expressly abandoned her request for an 

accommodation. See, e.g., Dkt. 33-5 at 2 (“At this time . . . I have asked that all further action on 

my RA request be stopped, pending an EEO complaint”). But it is also possible that Marks 

erected insuperable hurdles to the process or otherwise obstructed Duffy’s efforts to seek an 

accommodation. As Duffy explained in a memorandum to Marks, she “believe[d] that the 

communication dynamics within the GAO’s [Reasonable Accommodation] office [were] 
29

sufficiently dysfunctional as to make GAO’s [Reasonable Accommodation] process 

administratively ineffective and medically unsafe for [her] to participate in.” Id. Duffy further 

posited that she had already submitted documentation sufficient to support her request and that 

Marks and Briscoe responded in a manner that left her convinced that the process was 

“hopelessly tainted with bias and discrimination against [her] based on the nature of [her] 

disability.” Id. at 8.

On the present record, the Court cannot decide who is right—and certainly cannot do so

with the certainty required to resolve a claim on summary judgment before potentially relevant 

discovery is complete. The Court will, accordingly, deny the GAO’s motion for summary 

judgment without prejudice and will allow the parties to take additional discovery regarding the 

“interactive process.”

F. Rehabilitation Act 

The Court turns finally to the GAO’s challenge to Duffy’s sole claim for relief under the 

Rehabilitation Act (Count VIII), which alleges that Duffy was denied a reasonable 

accommodation and was constructively discharged as a result of the GAO’s unlawful disability 

discrimination. Dkt. 31 at 95–96. The GAO contends that this claim should be dismissed 

because the Rehabilitation Act does not apply to the GAO, Dkt. 33-1 at 14, or, in the alternative, 

because Duffy failed to exhaust her administrative remedies, id. at 20–23. Because the Court 

agrees with the first of these contentions, it does not reach the second.

The Court begins its interpretation of the Rehabilitation Act with the text of the statue. 

See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). The Rehabilitation Act 

provides, in relevant part, that otherwise qualified individuals with disabilities, may not “be 

excluded from the participation in, be denied the benefits of, or be subjected to discrimination 
30

under any program or activity receiving Federal financial assistance or under any program or 

activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. 

§ 794(a). The GAO is not an “Executive agency,” see Chennareddy v. Bowsher, 935 F.2d 315, 

319 (D.C. Cir. 1991); see also 31 U.S.C. § 702(a) (the GOA is an “instrumentality of the United 

States Government independent of the executive departments”), nor is it a “program or activity 

conducted by an Executive agency” or a “program or activity receiving Federal financial 

assistance,” 29 U.S.C. § 794(a). Although the GAO, like all government offices, operates 

pursuant to a congressional appropriation of funds, that does not mean that it is a “program or 

activity receiving Federal financial assistance” or else there would be little reason to specify 

separately that “programs or activities conducted by” the Executive branch are covered by the 

Rehabilitation Act. See Corley v. United States, 556 U.S. 303, 314 (2009) (rejecting an 

interpretation that was “at odds with one of the most basic interpretive canons, that ‘[a] statute 

should be construed so that effect is given to all its provisions, so that no part will be inoperative 

or superfluous, void or insignificant’” (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)

(alternation in original)). The text of the Rehabilitation Act itself, therefore, does not reach the

GAO.

To be sure, Congress did extend the Rehabilitation Act to apply “to the legislative branch 

of the Federal Government” when it enacted the Congressional Accountability Act (“CAA”). 

See 2 U.S.C. §1302(a). But, in so doing, Congress provided the protections of the Rehabilitation 

Act and other statutes only to “covered employee[s],” which the CAA defines as “any employee 

of” eleven different enumerated government entities. 2 U.S.C. § 1301(a)(3). The GAO does not 

appear on that list. Id. The Court recognizes that other provisions of the U.S. Code treat the 

GAO as an “instrumentality of Congress.” 42 U.S.C. § 12209(4); see also Chennareddy, 935 
31

F.3d at 319 (“GAO is a legislative branch agency . . . .”). Had Congress incorporated that 

definition in the CAA, or had it merely directed that the CAA would apply to the “legislative 

branch” of the government, the GAO’s status as a legislative branch agency might have been 

enough to extend the Rehabilitation Act to the GAO. See Ethyl Corp. v. EPA, 51 F.3d 1053, 

1061 (D.C. Cir. 1995) (“[M]ention of one thing implies the exclusion of another” (quoting Am. 

Methyl Corp. v. EPA, 749 F.2d 826, 835–36 (D.C. Cir. 1984)). 

Finally, the Court notes that the statute creating the GAO provides that “all laws 

generally related to administering an agency apply to the Comptroller General.” 31 U.S.C. 

§ 704(a). Similarly, the GAO’s personnel statute provides that its provisions “do not affect a 

right or remedy of an officer, employee, or applicant for employment under a law prohibiting 

discrimination in employment in the Government on the basis of . . . [a] handicapping 

condition.” 31 U.S.C. § 732(f)(2). Those general provisions, however, cannot override 

Congress’s exclusion of the GAO from its extension of the Rehabilitation Act to specific 

instrumentalities of Congress. “Where there is no clear intention otherwise, a specific statute 

will not be controlled or nullified by a general one, regardless of the priority of enactment.” 

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (quoting Radzanower v. 

Touche Ross & Co., 426 U.S. 148, 153 (1976)). Nothing in the laws that, in general, govern the 

administration of the GAO conveys a “clear intention” to override either the Rehabilitation Act 

or the CAA. 

The Court will, according, dismiss Duffy’s Rehabilitation Act claim pursuant to Rule 

12(b)(6).
32

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss for lack of subject-matter 

jurisdiction and failure to state a claim, and in the alternative, motion for summary judgment, 

Dkt. 33, is hereby GRANTED in part and DENIED in part. 

SO ORDERED.

 /s/ Randolph D. Moss 

 RANDOLPH D. MOSS 

 United States District Judge

Date: March 21, 2020