UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) ORMA BUIE, ) ) Plaintiff, ) ) v. ) Civil Action No. 13-1181 (ABJ) ) JACQUELINE A. BERRIEN, et al. , ) ) Defendants. ) ____________________________________)
MEMORANDUM OPINION Plaintiff Orma Buie has brought an action against her employer, the Equal Employment Opportunity Commission (“EEOC”), alleging that the agency 1 discriminated against her in violation of the Rehabilitati on Act of 1973, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”) by failing to offer her a reasonable accommodation for her disabili ty, retaliating against her for requesting reasonable accommodati ons, and subjecting her to a h ostile work environment. Defendant has moved to dismiss or, in the alternative, for summary judgment. Def.’s Mot. to Dismiss or for Summ. J. [Dkt. # 15] (“Def.’s Mot.”); Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 15] (“Def.’s Mem.”). Because the Court finds that p laintiff has failed to state a plausible claim that defendant r etaliated against her or that d efendant subjected her to a hostile work environment, the Court w ill grant defendant’s motion in partand dismiss those claims. The Court also finds that defendant is entitled to partial summary ju dgment on plaintiff’s failure to

1 Plaintiff named six individuals in her complaint: Jacqueline A. Berrien, the former Chair of the EEOC, and EEOC employees Nicholas M. Inzeo, Michael J. D ougherty, Kendra Duckworth, Reuben Daniels, and Mary Burks. As discussed below, none of th ese individuals is an appropriate defendant in this action. Accord ingly, the Court will dismiss each of these defendants and replace them with the only proper party: J enny R. Yang, the current Ch air of the EEOC. For that reason, the Court will refer to “defendant” in the singular form throug hout this memorandum opinion.accommodate claim, except to the extent that the claim is based o n the denial of plaintiff’s request that she be permitted to telework, because a genuine dispute of material fact exists as to whether that accommodation was reasonable or would impose an undue hard ship on defendant. So that portion of plaintiff’s claim survi ves defendant’s motion and wi ll move forward.
BACKGROUND I. Factual Background The following facts are taken from the amended complaint, excep t where noted. 2 Plaintiff suffers from lung disease and chronic asthma. Am. Compl. [Dkt. # 7] at 2. Her condition makes her highly sensitive to air quality issues. See generally id. Plaintiff was employed as a GS-12 level Senior Investigator in th e EEOC’s Charlotte, North Carolin a District Office. Id. at 2, 5. In December 2010, plaintiff was promoted to a GS-13 level Program Analyst position in the Washington, D.C. Field Office, and she relocated to Washington with her disabled mother. Id. at 2. However, shortly thereafter, plaintiff had to return her mothe r to Charlotte because the care

2 In ruling on a Rule 12(b)(6) motion to dismiss, the court “may consider only the facts alleged in the complaint, any documents either attached to or i ncorporated in the complaint and matters of which [the court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). That final category encomp asses “public records,” Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004), including an EEOC decision. See, e.g. , Williams v. Chu , 641 F. Supp. 2d 31, 34–35 (D.D.C. 2009) (taking judicial noti ce of the dates established in EEOC decision for purposes of ruling on motion to dismiss). Def endant attached the underlying EEOC decision in this case as an exhibit to its motion. See Ex. 9 to Def.’s Mot. [Dkt. # 15-9] (“EEOC Decision”). The Court take s notice of that decision for the limited purpose of verifying the dates in plaintiff’s amended complaint, which appear to be off by one year. For example, the amended complaint states that plaintiff was promoted to the Washi ngton office in December 2011 and began work there in January 2012, Am. Compl. [Dkt. # 7] at 2 , but plaintiff’s opposition and the EEOC Decision place these events in December 2010 and Januar y 2011, respectively. Pl.’s Opp. to Def.’s Mot. [Dkt. # 29] at 7; EEOC Decision at 3. Becau se plaintiff’s opposition was drafted with the assistance of counsel, and because the EEOC De cision is an official administrative record, the Court will rely on t hose documents for the dates of the relevant incidents in recounting the facts of this case. 2center in Washington was unable to accommodate her mother’s medi cal needs. Id. at 3. Plaintiff visited her mother on most weekends and worked four ten-hour da ys at the Washington office. Id. A. Plaintiff’s Accommodation Requests When plaintiff began work at the W ashington office in January 201 1, she contacted her direct supervisor, Mary Burks, to request that defendant accomm odate her disability by either providing her with a private offi ce equipped with an air purifi er or offering her the option to work remotely from her home (telework). Id. at 2. Michael Dougherty, the office’s Director of Field Operations, informed Burks that plaintiff would not be permitted to telework and that there were no private offices immediately available for her use. Id. at 2–3. Plaintiff was assigned to sit in an open-floor cubicle, and she found the uncovered space to be too large to permit her air purifier to be effective in allevi ating her symptoms. Id. at 3. In February 2011, plaintiff contacted Kendra Duckworth, the offic e’s Disability Coordinator, and presented her accommodation needs. Id. Plaintiff underwent surgery related to her condition in April, and afterw ards, she contacted Duckworth via email, phone, and in person to inquire about the status of the accommodation requests. Id. at 3. Upon her return to work in May, plaintiff provided medical i nformation to Duckworth regard ing her condition. Id. at 4. According to plaintiff, Duckworth continued to tell her that “M r. Dougherty was still looking for an office.” Id. Nevertheless, by June, plaintiff had concluded that she would n ot receive an accommodation in Washington. Id. B. Plaintiff’s Harassment and Retaliation Allegations Plaintiff claims that, upon her a rrival in Washington, her superv isor Mary Burks “began to retaliate” against her because pl aintiff went home on weekends to see her mother and because she needed accommodations. Id. at 3. Plaintiff states that by March 2011:

3Mary Burks had stop [sic] communicating with me. She would yell at me when I asked her questions or needed job related assistance. Sh e told employees that she was not my supervisor and did want to train me. She said she was not a supervisor and did not want the job. She had become rude. She informed others that it was a shame that my family wo uld not help with my mother. Ms[.] Burks was upset because I chose to go see my mother instead of tour Washi ngton with her on the weekends.
Id. Plaintiff alleges that when she r eturned from her surgery in May, “ [t]he harassment escalated.” Id. at 4. She states that Burks woul d walk away if plaintiff tried to approach her, and that Burks slammed her office door in plaintiff’s face. Id. Plaintiff also alleges that after she became aware that she would react to the moth balls that Burks u sed to store her clothing, Burks “purposely came into [plaintiff’s] cubical [sic] to force [her] lungs to shut down.” Id. Plaintiff maintains that she informed Dougherty and Duckworth of Burks’s b ehavior, but that no effective action was taken. Id.
C. Plaintiff’s Transfer Back to Charlotte In June 2011, six months after her arrival in Washington, plain tiff requested a transfer back to the Charlotte office. Id. She states that she told her supervisors that she felt “forced” to do so in order to obtain a private office with an air purifier and so that she could telework as needed. Id. She also informed them that he r mother had been placed in hospi ce care. Id. Although plaintiff is a certifie d mediator and there was a GS-1 3 Mediator position open in the Charlotte office, plaintiff was not transferred to that posi tion. Id. at 5. Plaintiff claims that Duckworth and the Director of the Charlotte office, Reuben Dani els, decided not to place her in that position because of her disability. Id. In August 2011, plaintiff was transferred instead to a GS-12 Investigator position in the Charlotte office. Id. Plaintiff claims that she was assigned more duties than her predecessor, that she was held to higher produc tion standards, and that the

4appointment was in fact a demotion. Id. Plaintiff continued to work as an Investigator until March 2012, when her disability retirement was approved, and she retire d. Id. Plaintiff filed a formal EEOC co mplaint in September 2011, claim ing that defendant subjected her to discriminati on, retaliation, and a hostile wor k environment based on her disability. EEOC Decision at 1. An administr ative judge denied her claim on J anuary 7, 2013. Id. at 14. II. Procedural History Plaintiff, proceeding pro se, filed a complaint in August 2013 alleging that defendant had discriminated against her and failed to accommodate her disabil ity in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). 3 Compl. [Dkt. # 1]. In December 2013, plaintiff filed an amended compl aint asserting claims under the Rehabilitation Act for failure to accommodate, retaliation, and hostile work environment. Am. Comp l. at 2. She seeks $312,000 in back pay for the three years plaintiff claims that she would have worked beyond her retirement date, and she asks that her retirement annuity be adjusted to re flect that change. Id. at 5. She also seeks $20,000 in damages for her suffering caused by defendant’s alleged discrimination. Id. On July 2, 2014, defendant filed the present motion to dismiss, or in the alternative, for summary judgment. Def.’s Mot.; Def.’s Mem. As plaintiff was still proceeding pro se at that time, the Court entered a Fox/Neal Order advising plaintiff that h er failure to respond to the mot ion

3 After noting that the ADA does not apply to the United States or to its agencies, and that plaintiff’s claims therefore must be dismissed, Judge Hogan “af ford[ed] plaintiff an opportunity to file an amended complaint” withinthirty days. Mem. Op. and Or der (Aug. 1, 2013) [Dkt. # 3]. After more than three months, when plaintiff failed to file an amended complaint or to request an extension, Judge Kollar-Kotelly dismissed the case without prej udice. Mem. Op. (Nov. 15, 2013) [Dkt. # 4]; Order (Nov. 15, 2013) [Dkt. # 5]. Plaintiff moved t o reopen the case on December 27, 2013, claiming that she had mailed an amended complaint to the Clerk of Court in compliance with the August 2013 order, but that it was not docketed. Mot. to Reopen Case [Dkt. # 6]. On February 7, 2014, Judge Walton granted plaintiff’s motion and o rdered the Clerk to docket the amended complaint, which plaintiff had attached to her motion. Order (Feb. 7, 2014) [Dkt. # 8]; Am. Compl. 5could result in the dismissal of her case. Fox/Neal Order [Dkt. # 18]. On September 1, 2014, plaintiff, who was represented by counsel by that time, filed he r opposition to defendant’s motion. Pl.’s Opp. to Def.’s Mot. [Dkt . # 23], reformatted at [Dkt. # 29] at 15 (“Pl.’s Opp.”). 4
STANDARD OF REVIEW
I. Motion to Dismiss In evaluating a Rule 12(b)(6) motion to dismiss, the Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the ben efit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal c itations omitted), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011). This is especially true for a pro se complaint, which “is to be liberally construed in favor of the plaintiff.” Jackson v. Fed. Bureau of Prisons , 657 F. Supp. 2d 176, 178 (D.D.C. 2009), citing Haines v.
Kerner , 404 U.S. 519, 520 (1972). But the Court need not accept inferen ces drawn by the plaintiff if those inferences are unsupporte d by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint mu st contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is p lausible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleg ed.” Id. at 678. “The plausibility

4 When the Court cites to “Pl.’ s Opp.,” it will be referring to plaintiff’s properly formatted opposition [Dkt. # 29]. However, the Court will cite to the exh ibits attached to plaintiff’s firstfiled opposition [Dkt. # 23], as th ey were not refiled with the reformatted opposition.

6standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. , quoting Twombly , 550 U.S. at 566. A pleading must offer more than “‘labels and conclusions’” or a “‘formulaic recitatio n of the elements of a cause of action,’” id. , quoting Twombly , 550 U.S. at 555, and “[t]hreadbare recitals of the elements o f a cause of action, supported by mere conclusory statements, do no t suffice.” Id. II. Summary Judgment Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant “bears the i nitial responsibility of informin g the district court of the basis for its motion, and identifying those portions of the pleadings, de positions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (internal quotation marks omitted) . To defeat summary judgment , the non-moving party must “designate specific facts showi ng that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). But the mere existence of a factual d ispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable f act-finder could find for the n on-moving party; a fact is “material” only if it is capable of affec ting the outcome of the litigatio n. Id. at 248. In assessing a party’s motion, the court must “view the facts a nd draw reasonable inferences ‘in the light most favorable to the party opposing t he summary judgment motion.’”
Scott v. Harris , 550 U.S. 372, 378 (2007) (a lterations omitted), quoting United States v. Diebold,
Inc. , 369 U.S. 654, 655 (1962) (per curiam). The non-movant may not, however, rest upon the allegations or denials in its pleadings, but must instead estab lish more than “[t]he mere existence

7of a scintilla of evidence” to support its position. Anderson , 477 U.S. at 252. A court will “not accept bare conclusory allegations as fact.” Taylor v. FDIC , 132 F.3d 753, 762 (D.C. Cir. 1997); see also District Intown Props Lt d. P’ship v. District of Columbia , 198 F.3d 874, 878 (D.C. Cir. 1999) (“[T]he court must assume the truth of all statements pro ffered by the non-movant except for conclusory statements lackin g any factual basis in the reco rd.”).
ANALYSIS The amended complaint does not s et out discrete counts, but a r eview of the complaint in light of the arguments plaintiff raises in her opposition to de fendant’s motion indicates that plaintiff is seeking to assert three causes of action against th e EEOC and a series of individuals: that defendant failed to accommodate her disability in violatio n of the Rehabilitation Act, Am. Compl. at 2; Pl.’s Opp. at 17–26; th at defendant retaliated again st for her accommodation requests, Am. Compl. at 2; Pl.’s Opp. at 26–29; and that plaintiff’s imme diate supervisor s ubjected her to a hostile work environment based on her disability. 5 Am. Compl. at 2; Pl.’s Opp. at 29–31; see also

5 Plaintiff claims for the first time in her opposition that def endant repeatedly requested unnecessary medical information from plaintiff and that defenda nt intentionally delayed plaintiff’s accommodation requests, both in v iolation of the RehabilitationAct. See Pl.’s Opp. at 23–26. Even if the amended complaint is construed broadly, it is devoi d of any allegation that defendant requested medical information fro m plaintiff, let alone that it did so repeatedly and with the intent to delay or deny her an accommodation. “[S]ubsequent written sub missions do not afford the plaintiff the opportunity to ‘alle ge additional facts’ necessar y to defeat a motion to dismiss.” Acosta Orellana v. CropLife Int’l , 711 F. Supp. 2d 81, 106 n.30 (D.D.C. 2010), quoting Henthorn v. Dep’t of Navy , 29 F.3d 682, 687–88 (D.C. Cir. 1994). So the Court will not co nsider the factual allegations in the opposition conc erning unlawful requests for medical information when assessing the sufficiency of the complaint. As for the claim that defendant intentionally and unreasonably d elayed fulfilling plaintiff’s accommodation requests, the amended complaint contains some fact s that could be construed to support such an allegation. See Am. Compl. at 2–4 (stating that plaintiff first requested an accommodation in January 2011 and had not yet received any acco mmodation by the time she requested the transfer back to Charlotte in June 2011). The Co urt will address these allegations as part and parcel of plaintiff’s failure to accommodate claim, as plaintiff has provided no authority that would permit a separate cause of action on that basis. 8Pl.’s Opp. at 15 (“Ms. Buie file d an Amended Compl aint assertin g that Defendants’ [sic] violated the Rehabilitation Act, Retaliation, and Hostile Work Environme nt.”). As a preliminary matter, defendant is correct that the individua ls named in the amended complaint – Jacqueline A. Berrien, Nicholas M. Inzeo, Michael J. Dougherty, Kendra Duckworth, Reuben Daniels, and Mary Burks – are not proper subjects of this action. See Def.’s Mot. at 1 n.1;
see also Def.’s Reply to Pl.’s Opp. [Dkt. # 26] (“Def.’s Reply”) at 1 nn.1–2. In her opposition, plaintiff did not address defendant ’s argument on this point and sh e therefore has conceded the issue. See, e.g. , Hopkins v. Women’s Div., Gen. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that whena plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plain tiff failed to address as concede d.”), aff’d , 98 F. App’x 8 (D.C. Cir. 2004); see also Tax Analysts v. IRS , 117 F.3d 607, 610 (D.C. Cir. 1997) (treating argument as conceded where the plaintiff failed to oppose argument raised b y the defendant). And even if plaintiff ha d addressed defendant’s argument, “[t]he only proper defendant in a Title VII suit . . . is the head of the department, agency, or unit in which the allegedly discriminatory acts transpired.” Hackley v. Roudebush , 520 F.2d 108, 115 n.17 (D.C. Cir. 1975) (internal quotation mark s and citations omitted); see also 42 U.S.C. § 2000e-16(c) (in a civil action under Title VII, “the head of the department, agency, or unit, as appropriate, shall be the defendant”). Similarly, “[s]ince the Rehabilitation Act draws from the procedures of Title VII, the only proper defendant [in a Rehabilitation Act suit] is the hea d of the department, agency or unit.” Paegle v. Dep’t of Interio r, 813 F. Supp. 61, 64 n.2 (D.D.C. 1993) (internal quotation marks and citations omitted); accord Norris v. Salazar , 885 F. Supp. 2d 402, 413 (D.D.C. 2012). For that reason, defendants Inzeo, Dougherty , Duckworth, Daniels, and Burks will be dismissed.

9In addition, the Court takes judicial notice of the fact that Ja cqueline A. Berrien is no longer the Chair of the EEOC, and that she has been replaced by Jenny R. Yang. See Covad Commc’ns Co. v. Bell Atl. Corp. , 407 F.3d 1220, 1222 (D.C. Cir. 2005) (stating that a court may take “judicial notice of facts on the public record” in deciding a motion to d ismiss) (internal quotation marks omitted). Therefore, the Court will dismiss Ms. Berrien from th is case and substitute Ms. Yang, in her official capacity as Chair of the EEOC, as the proper de fendant. See Cheney v. U.S. Dist. Court for D.C. , 541 U.S. 913, 917 (2004) (“[F]ederal law provides for automat ic substitution of the new officer when the originally named officer has been repl aced.”), citing Fed. R. Civ. P. 25(d) (providing for automatic subs titution of officer’s successor as a party when “a public officer who is a party in an official cap acity . . . ceases to hold office whil e the action is pending.”). I. Plaintiff’s failure to accommodate claim partially survives def endant’s motion. Plaintiff first alleges that defendant violated the Rehabilitat ion Act when it failed to offer her a reasonable accommodation for her disability while she was working in the Washington office. Am. Compl. at 2; Pl’ s Opp. at 17–26. Specifically, pl aintiff claims that defendant refused to permit her to telework several days per week, or to provide h er with a private office and air purifier, despite the fact that both options had previously been available to her in the Charlotte office. Am. Compl. at 2–4; Pl.’s Opp. at 19–21. Additionally, p laintiff argues that the accommodation that was eventually provided – the transfer back t o Charlotte, where she could once again have a private office and the option to telework – was not reasonable because it involved a demotion to a GS-12 position, when there was a vacant GS -13 Mediator position open in Charlotte for which plaintiff was qualified. Am. Compl. at 5; Pl.’s Opp. at 21–23. “The Rehabilitation Act of 1973 g overns employee claims of hand icap discrimination against the Federal Government. Its basic tenet is that the Gov ernment must take reasonable

10affirmative steps to accommodate the handicapped, except where undue hardship would result.” 6
Barth v. Gelb , 2 F.3d 1180, 1183 (D.C. Cir. 1993). To establish a prima facie case of failure to accommodate, a plaintiff must show (1) that he or she was an indi vidual who had a disability within the meaning of the statute; (2) that the employer had no tice of the disability; (3) that with reasonable accommodation the empl oyee could perform the essentia l functions of the position; and (4) that the employer refused to make such accommodations. Brown v. Snow , 407 F. Supp. 2d 61, 67 (D.D.C. 2005), citing Scarborough v. Natsios , 190 F. Supp. 2d 5, 19 (D.D.C. 2002); see also Woodruff v. Peters , 482 F.3d 521, 527 (D.C. Cir. 2007). If a plaintiff establishes a prima facie case of failure to accommodate, then it is up to the employer to demonstrate that the requested accommodation would ha ve imposed an undue burden on its business; “the ultimate burden however, remains with the plaintiff.” Faison v. Vance-Cooks , 896 F. Supp. 2d 37, 49 (D.D.C. 2012), citing Barth , 2 F.3d at 1185–86 (explaining that the three part burden-shifting fr amework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), does not apply to reasonable accommodation claims; such claims should be tested through the “application of traditional burdens of proof”). To survive s ummary judgment, then, a plaintiff must show that the accommodation he requested was reasonable and that the defendant failed to provide it. An accommodation is “reasonable” if it enables the employee to fulfill all essential functions of his job. See Woodruff , 482 F.3d at 527. “In this context, ‘consideration shall be g iven to the employer’s judgment as to what functions of a job are es sential.’” Id. , quoting 42 U.S.C. § 12111(8). “The employee has the burden of identifying reasonab le accommodations, and the

6 “‘Because of the similarities between the Rehabilitation Act and the ADA, cases interpreting either are applicable or interchangeable.’” Alston v. Washington Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 81 (D.D.C. 2008), quoting Scarborough v. Natsios , 190 F. Supp. 2d 5, 19 n.10 (D.D.C. 2002). For that r eason, the Court cites to Reha bilitation Act and ADA cases interchangeably throughout this opinion. 11agency has the burden of showing undue hardship.” Graffius v. Shinseki , 672 F. Supp. 2d 119, 126 (D.D.C. 2009), citing Chinchillo v. Powell , 236 F. Supp. 2d 18, 23–24 (D.D.C. 2003). A. Plaintiff has alleged sufficie nt facts to state a claim that d efendant failed to provide her with a reasonable accommodation for her disability. The Court finds that, while it is a close call, plaintiff has d one just enough to state a plausible claim that defendant failed to accommodate her disabi lity. In the amended complaint, plaintiff alleges that she asked to telework or to be placed in a private office with an air purifier in January 2011, but that she was told that she could not telework and that no office was available. Am. Compl. at 2–3. She also states that she continued to reque st updated information on the status of her accommodation requests throughout the spring of 2011 but that she “was never given an accommodation in Washington.” Id. at 3–5. Finally, she argues that, when she was transferred back to the Charlotte office, s he should have received the GS-1 3 Mediator position. Id. at 5. Defendant maintains that plaintiff fails to state a plausible cla im because defendant accommodated plaintiff’s disability wh en it facilitated her retur n back to the Charlotte office, where telework and a private space were available, and because p laintiff’s other desired accommodations were either not reasonable or not feasible. Def .’s Mem. at 10–12. But the reasonableness of plaintiff’s re quests and of the solution she was eventually offered are questions of fact that are inappropriate f or resolution on a motion to dis miss. See, e.g. , Hodges v. District of
Columbia , 959 F. Supp. 2d 148, 155 (D.D.C. 2013) (finding that the plain tiff stated a claim for failure to accommodate where the defendant offered the plaintif f an accommodation but “the parties dispute[d] the reasonableness of the accommodation offer ed”). Construing plaintiff’s pro

se complaint broadly and granting her all the reasonable inferences to which she is entitled, then, the Court finds that the claim survives the motion to dismiss under Rule 12(b)(6) and it must be assessed under Rule 56.

12B. Defendant is entitled to summary judgment on plaintiff’s fail ure to accommodate claim, except insofar as that claim is based on the denial of plaintiff’s reque st to telework. After reviewing the record evide nce, the Court finds that plaint iff has not put forth sufficient facts to overcome defendant’s motion for summary judgment on her failure to accommodate claim, except with regard to her request to telewor k. So the case will proceed, but it will be narrowed significantly. Plaintiff argues that she requested three reasonable accommodatio ns which defendant denied: (1) the option to telework several days a week; (2) a private office with an air purifier; and (3) a transfer to the vacant GS -13 Mediator position in the Ch arlotte office. Pl.’s Opp. at 19– 23. For plaintiff’s claim to survive summary judgment, plaintiff must demonstrate that these accommodations were reasonable – that is, that they would have e nabled her to perform her essential employment functions – and that defendant failed to prov ide them. It is then up to defendant to show that the accommodations would have caused an u ndue burden. See Graffius , 672 F. Supp. 2d at 126. Because plaintiff’s claim is base d on these three separate accommodation requests, which raise distinct legal and factual issues, the Court will analyze each request separately. See, e.g. , id.
at 127–31.
1. Telework Plaintiff first claims that she was denied a reasonable accommo dation when defendant refused to permit her to telework while in Washington. Pl.’s Opp. at 19–20. The D.C. Circuit has recognized that the Rehabilitation Act “demands a great deal fr om federal employers in the way of accommodation. Indeed, in appropriate cases, [it] requires anagency to consider work at home” as a potential accommodation. Carr v. Reno , 23 F.3d 525, 530 (D.C. Cir. 1994), citing Langon v.

13HHS , 959 F.2d 1053 (D.C. Cir. 1992) (holding that an agency must con sider accommodating a computer programmer with multiple sclerosis by allowing her to work at home). Defendant argues that telework was not a reasonable accommodati on because plaintiff could not complete her job duties remotely: as a newly-hired Prog ram Analyst, plaintiff had to be present in the office to receive assignments and on-the-job tra ining, and her position required her to review onsite files that coul d not be accessed remotely. Def. ’s Mem. at 11–12; Def.’s Reply at 13–14. Defendant has offered sworn testimony from plaintiff’s su pervisors stating that plaintiff was needed at the office “to receive assignments and on-the-job training from Agency managers.” Decl. of Kendra Duckworth, Ex. 4 to Def.’s Mot. [Dkt. # 15-4] (“ Duckworth Decl.”) ¶ 7; see also Decl. of Mary Burks, Ex. 3 to Def.’s Mot. [Dkt. # 15-3] ¶¶ 7–9, 1 4–17 (describing the essential functions of plaintiff’s position and the on-the-job training that required her presence in the office). Plaintiff disputes those assertions. She maintains that there was no formal training for her position, and that she received all of the necessary on-the-job training from Burks in January 2011. Pl.’s Opp. at 19–20. While plainti ff acknowledges that she could not access the onsite files from home, Dep. of Orma Buie, Aug. 8, 2012, Ex. 1 to Def.’s Mot [Dkt. # 15-1] (“Buie Dep.”) 36:6– 19, she takes the position that her w ork could have been completed remotely by computer and with the assistance of other employees who were present in the offic e. Pl.’s Opp. at 19–20 (claiming that plaintiff could have obtai ned any onsite materials or financial documents remotely by “contact[ing] the field office, p rovid[ing] the file number, an d get[ing] the information needed to complete the task”); Buie De p. 33:12–20; 36:6–19. According to pl aintiff, she could have called Burks in the Washington office and had her pull the relevant fil es and transmit the information they contained to her by telephone. Buie Dep. 36:6–19.

14It may be that plaintiff’s solution will ultimately be found to be unworkable, disruptive, or otherwise unreasonable, but given the factual nature of the inq uiry and the limited record before the Court, the question is not ripe for resolution as a matter of law at this time. The parties disagree about whether plaintiff needed to be physically present at the W ashington office to receive training and to perform her job responsibilities fully, and whether a tele work accommodation would have imposed an undue hardship on defend ant. And defendant has not yet demonstrated that there is no genuine dispute of material f act concerning the reasonablene ss of the telework option. See Woodruff , 482 F.3d at 528 (reversing district court’s grant of summary jud gment on the plaintiff’s failure to accommodate claim based on the defendant’s termination of the plaintiff’s telecommute agreement when evidence “suggest [ed]” that the plaintiff] “did not have to be physically present in the office”); see also Langon , 959 F.2d at 1060 (finding that a ge nuine dispute of material fa ct existed sufficient to preclude summary judgment on the plaintif f’s failure to accommodate claim based on the denial of her telework r equest where the plaintiff disagreed with employer regarding her position’s “length of the deadlines and the need for frequent face-to-face contacts”). Thus, defendant’s motion for summary j udgment is denied without preju dice as to plaintiff’s failure to accommodate claim, insofar as th at claim is based on the denial o f her telework request.
2. Private Office and Air Purifier Plaintiff also claims that defendant failed to accommodate her disability when it refused to provide her with a private office and an air purifier in Washin gton. Am. Compl. at 2–3; Pl.’s Opp. at 20–21. Plaintiff insists that def endant “fail[ed] to provide any legitimate reason(s) why [her] request for a private office with an air purifier was denied an d delayed,” especially in light of the fact that plaintiff was previous ly provided with a private offi ce in Charlotte. Pl.’s Opp. at 21. But the facts related to this asp ect of her claim are not in disput e.

15The Court concludes that no reas onable juror could find that pl aintiff’s request for a private office was actually denied. The undisputed evidence reveals def endant’s on-going attempts to locate a private office for plai ntiff, and it shows that those e fforts were cut short by plaintiff’s own request in June to be transferred back to the Charlotte office. The reasonable accommodation selection process “is ‘a flexible give-and-take’ between employer and employee ‘so that together they can determine what accommodation would enable the employee to continue working.’” Ward v. McDonald , 762 F.3d 24, 32 (D.C. Cir. 2014), quoting EEOC v. Sears, Roebuck & Co. , 417 F.3d 789, 805 (7th Cir. 2005). “‘[N]either party should be able to cause a breakdown in the process for the purpo se of either avoidi ng or inflicting liability.’” Id. , quoting Sears , 417 F.3d at 805. Therefore, “to establish that her request w as ‘denied,’ [plaintiff] must show either that [defendant] in fact en ded the interactive process or that it participated in the process in bad faith.” Id. Plaintiff contends that defendant “failed to take any action onany requests” for a reasonable accommodation. Pl.’s Opp. at 25. But with regard to plaintiff’ s request for a private office, that assertion is contradicted by the record. Plaintiff first contact ed Kendra Duckworth, the Washington office’s Disability C oordinator, in February 2011 with her accommodation requests. Duckworth Decl. ¶ 4; Email from OrmaBuie to Kendra Duckworth, Fe b. 16, 2011, Ex. R to Pl.’s Opp. [Dkt. # 23-18]. Duckworth passed this request on to Doughert y in March 2011, and because there were no offices immediately available, the two attempted to locate a vacant office for plaintiff in other agency departments. Duc kworth Decl. ¶ 8; Aff. of Nichola s Inzeo, Ex. 6 to Def.’s Mot. [Dkt. # 15-6] 3:111–126; see also Buie Dep. 32:3–7 (acknowledging that plaintiff was told in March that “Mike is looking for y ou an office [sic]”). Defendant continued to attempt to locate an office for plaintiff throughout the spring and early summer of 2011. See Duckworth Decl. ¶ 8;

16Reasonable Accommodation Notes Summary, Ex. S to Pl.’s Opp. [Dkt . # 23-19] (“Accommodation Notes”) at 1; Email from Kendra Duckworth to Or ma Buie, May 31, 2011, Ex. BB to Pl.’s Opp. [Dkt. # 23-28]. The record indicates that at so me point, Burks even offered plaintiff her own office, but that plaintiff turned down the of fer because plaintiff’s condition was worse when she was in that office. Buie Dep. 56:1–11; Aff. of Mary Burks, Ex. 7 to Def.’s Mot. [Dkt. # 15-7] 2:45–58. Defendant c ontinued to search for an offic e for plaintiff in Washington even after plaintiff requested the transfer to Charlotte, and it u ltimately located potential offices in mid-July 2011. Duckworth Decl. ¶ 8. But before plaintiff could be placed in a vacant office, she returned to Charlotte. Id. As was true of the defendant in Ward , defendant’s participa tion in the interactive accommodation process relating to plaintiff’s request for a pri vate office “bore all the hallmarks of good faith.” 762 F.3d at 34. Plaintiff has done nothing to c ontrovert that evidence or to show that defendant participated in the process in bad faith. To cha llenge the proposition that defendant was actively searching for a private office for her throughout the spring and summer of 2011, plaintiff offers only her own unsupported assertion that “offic es [we]re all over the place,” and defendant arbitrarily denied them to her because “they just didn ’t want to accommodate [her].” Buie Dep. 56:12–13, 58:6–19. Without more, no reasonable juror could find that defendant’s good faith efforts to locate an office for plaintiff constituted a d enial of plaintiff’s reasonable accommodation request sufficient for liability under the Rehabi litation Act. Plaintiff points out that even if her request for a private offi ce was not formally denied, defendant did not locate a suitabl e office in the six or seven months that elapse d between the time the request was made and when plaintiff sought a transfer inste ad. Pl.’s Opp. at 21. She contends that the delay itself constitutes a denial of a reasonable accomm odation. Id. at 21, 23–25.

17“[T]here are certainly circumstances in which a ‘long-delayed a ccommodation could be considered’ unreasonable and hence ‘actionable.’” Mogenhan v. Napolitano , 613 F.3d 1162, 1168 (D.C. Cir. 2010), quoting Mayers v. Laborers’ Health & Safety Fund of N. Am. , 478 F.3d 364, 368 (D.C. Cir. 2007). But the delay here is far shorter than the p eriods that courts in this Circuit and elsewhere have found to be so unreasonable as to constitute a fai lure to accommodate as a matter of law. See, e.g. , Mayers , 478 F.3d at 368 (three-year delay); Faison , 896 F. Supp. 2d at 62 (more than three-year delay); see also Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1262–64 (10th Cir. 2001) (finding that less than six-month delay in accommodat ing the plaintiff’s sinus problems did not amount to a failure to acco mmodate where the defendant took steps to assess and carry out the accommodation request and ultimately made the changes the e mployee requested). 7 For these reasons, the Court finds that there is no genuine disp ute of material fact with regard to plaintiff’s failure to accommodate claim based on her request for a private office, and it will grant defendant’s motion for summary judgment on that aspe ct of plaintiff’s claim.
3. Transfer to GS-13 Mediator Position Finally, plaintiff contends that she was denied a reasonable ac commodation when defendant declined to transfer he r to a vacant GS-13 Mediator p osition in the Charlotte office and instead offered her the GS-12 Investigator job. Pl.’s Opp. at 21–23. It is well recognized that “‘[a]n employer is not required to provide an employee that acc ommodation he requests or prefers, the employer need only provide s ome reasonable accommodation.’” Aka v. Wash. Hosp. Ctr. , 156

7 The cases upon which plaintiff relies in support of her unreas onable delay argument are non-precedential and not binding on this Court. And in any eve nt, they are distinguishable since they involved longer delays than the one at issue here, and the y were decided at the motion to dismiss stage. See Pl.’s Opp. at 24, citing Krocka v. Riegler , 958 F. Supp. 1333, 1342 (N. D. Ill. 1997) (eight-month delay); Cohen v. Montgomery Cnty. Dep’ t of Health & Human Servs. , 817 A.2d 915, 922 (Md. 2003) (seventeen-month delay). 18F.3d 1284, 1305 (D.C. Cir. 1998), quoting Gile v. United Airlines, Inc. , 95 F.3d 492, 499 (7th Cir. 1996). Defendant’s decision not to transfer plaintiff to the Medi ator position, and its decision to offer her the GS-12 Investigator position instead – a position w hich plaintiff accepted – cannot constitute a denial of a reasonable accommodation simply becauseplaintiff would have preferred a different or superior assignment. And in any event, “[t]o survive s ummary judgment, a plaintiff mu st proffer evidence from which a reasonable fact finder could determine . . . that with reas onable accommodation the disabled employee could performthe essential functions of her position.” Porter v. Jackson , 410 F. App’x 348, 349 (D.C. Cir. 2010), citing Barth , 2 F.3d at 1186–87; Flemmings v. Howard Univ. , 198 F.3d 857, 861 (D.C. Cir. 1999). Defendant has put forth evid ence indicating that plaintiff could not perform the essential functions of the GS-13 Mediator position because that position required her presence in the offi ce, and it involved constant interaction with the public, which would have exacerbated plaintiff’s breathing problems. Duckworth Decl. ¶¶ 19–23, 25, 27; Accommodation Notes at 1 (“[Duckworth] discussed [her] concerns that [plaintiff] can not [sic] perform the essential functions of a mediator b/c it requires d irect and immediate contact with the public in a confined space.”). Plaintiff has offered no evidence to show that she could perform the essential elements of the Mediator position, even with an accommodation. See Pl.’s Opp. at 21– 23. And her own self-serving and sp eculative assertion that she c ould have performed the job “as long as her environment is controlled” by prescreening applicants, id. at 12, is insufficient to satisfy her burden on this issue. See, e.g. , Bonieskie v. Mukasey , 540 F. Supp. 2d 190, 195 (D.D.C. 2008) (“Summary judgment for a defendant is most likely when a plaint iff’s claim is supported solely by the plaintiff’s own self-serving, conclusory statements.”); Fields v. Office of Johnson , 520 F. Supp. 2d 101, 105 (D.D.C. 2007) (noting that “[s]elf-serving testimony does not create genuine issues of

19material fact” at summary judgment). Plaintiff has therefore fail ed to show that a transfer to the GS-13 Mediator position in partic ular was a reasonable accommod ation, and the Court will also grant defendant’s motion for summary judgment on that aspect of pla intiff’s failure to accommodate claim.
II. Plaintiff has failed to sta te a claim for retaliation. Plaintiff’s second ground for relie f is that defendant retaliat ed against her in response to her requests for a reasonable accommodation for her disability. Am. Compl. at 2; Pl.’s Opp. at 26–29. The Court finds that plaintiff has failed to allege fac ts sufficient to state a plausible claim of retaliation, and it will grant de fendant’s motion dismiss thi s count pursuant to Rule 12(b)(6). Claims of retaliation under the Rehabilitation Act are analyzed under the burden-shifting framework announced in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Woodruff , 482 F.3d at 528–29; Kersey v. Wash. Metro. Area Transit Auth. , 586 F.3d 13, 16 (D.C. Cir. 2009). Under this framework, the plaintiff has the initial burden of e stablishing a prima facie case of retaliation. Taylor v. Small , 350 F.3d 1286, 1292 (D.C. Cir. 2003), citing Stella v. Mineta , 284 F.3d 135, 144 (D.C. Cir. 2002). “To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must show that (1) he engaged i n statutorily protected activity, (2) the employer was aware of the activity; (3) the plaintiff suffe red an adverse employment action; and (4) there was a causal conn ection between the protected act ivity and the adverse employment action.” Duncan v. Washington Metro. Area Transit Auth. , 214 F.R.D. 43, 50 (D.D.C. 2003), citing McDonnell Douglas , 411 U.S. at 802; McGill v. Munoz , 203 F.3d 843, 845 (D.C. Cir. 2000). Defendant does not contest thatplaintiff engaged in protected activity when she asked her employer to accommodate her disability. But it argues that plaintif f did not suffer an adverse

20employment action, and that she has not alleged facts sufficien t to imply a causal connection between any purported adverse ac tion and her protected status. Def.’s Mem. at 12–14. A materially adverse action is one that results in significant harm or hardship, such as affecting the plaintiff’s “positi on, grade level, salary, or pr omotion opportunities,” Taylor v. Solis , 571 F.3d 1313, 1321 (D.C. Cir. 2009), quoting Baloch v. Kempthorne , 550 F.3d 1191, 1199 (D.C. Cir. 2008), and that “might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006), quoting Rochon v. Gonzales , 438 F.3d 1211, 1219 (D.C. Cir. 2006). Pla intiff’s allegations do not meet this standard, because the actions she relies upon are not s ufficiently adverse to support her retaliation claim. Plaintiff identifies two categories of events that she alleges we re retaliatory: the harassment she experienced at the hands of her supervisor, Mary Burks, and the circumstances surrounding her requests for reasonable accommodations and her transfer back to the Charlotte office. Am. Compl. at 3–5; Pl.’s Opp. at 27–29. With respect to Burks, plaintiff complains that she excluded he r from assignments, slammed a door in her face, told others that she did not want t o train or supervise her, told plaintiff that “a fifth grader could do [h er] job,” and both yelled at an d ignored her. Am. Compl. at 3–4; Pl.’s Opp. at 28. These allegations do not constitute materiall y adverse employment actions. The law is clear that “[p]urely subjective injuries, such as dissati sfaction with a reassignment, or public humiliation or loss of reputation, are not adverse actions.” Forkkio v. Powell , 306 F.3d 1127, 1130–31 (D.C. Cir. 2002) (internal citations omitted). Rather, “the threshold is met when an employee ‘experiences materially adverse consequences affectingthe terms, conditions, or privileges of employment or fut ure employment opportunities suc h that a reasonable trier of fact

21could find objectively tangible harm.’” Holcomb v. Powell , 433 F.3d 889, 902 (D.C. Cir. 2006), quoting Forkkio , 306 F.3d at 1131. Applying that st andard, the Court finds that plaintiff has simply recounted purely subjective injuries or disagreements with no con sequences that cannot qualify as adverse employment actions. See, e.g. , Baloch , 550 F.3d at 1199 (noting that “sporadic verbal altercations or disagreements do not qualify as adverse actions for purposes of retaliation claims”), citing Burlington , 548 U.S. at 68. The remainder of the employment actions upon which plaintiff rel ies also cannot be classified as materially adverse. First, plaintiff cites to def endant’s delay in granting plaintiff’s telework or private office accommodation requests. Am. Compl. at 3–5; Pl.’s Opp. at 28–29. But this was the subject of plaintiff’s failure to accommodate claim, and so it does not supply grounds for a separate retaliation claim. See, e.g. , Floyd v. Lee , 968 F. Supp. 2d 308, 334 (D.D.C. 2013) (dismissing the plaintiff’s retaliation claim for failure to al lege any materially adverse employment action and noting that “if the den ial of a request for accommod ation could itself support a claim of retaliation based on the r equest, then every f ailure-to-accommo date claim w ould be doubled”). Further, defendant’s decision notto offer plaintiff the GS-13 Mediator position – a position for which defendant claims plaintiff was not qualified, Def.’s M em. at 5 – does not constitute a materially adverse employment action. “[G]enerally lateral transfers, or the denial of them, could not be considered adverse employment actions,” except where a l ateral transfer is not “truly lateral” because it involves gr eater benefits or responsibiliti es. Stewart v. Ashcroft , 352 F.3d 422, 427 (D.C. Cir. 2003), citing Brown v. Brody , 199 F.3d 446, 457 (D.C. Cir. 1999). The amended complaint offers no facts that would permit the inference that a transfer from GS-13 Program Analyst to the GS-13 Mediator position was anything but a latera l move.

22And in any event, plaintiff has not alleged facts sufficient to s how that she was qualified for that position, with or without a reasonable accommodation, a s is required to state a claim of retaliation for failure to promote. See, e.g. , Nails v. England , 311 F. Supp. 2d 116, 123–24 (D.D.C. 2004) (finding that the plaintiff failed to make out a prima facie case of retaliation where she offered no evidence that she was qualified for positions she sou ght); see also Aka , 156 F.3d at 1305 (“[T]he ADA does not require that a disabled employee be re assigned to a position for which he is not otherwise qualified.”). Thus, plaintiff has failed t o allege facts sufficient to show that defendant’s decision not to grant her the Mediator position const ituted a materially adverse action. Finally, plaintiff’s transfer back to the Charlotte office and he r reassignment to the GS-12 Investigator position with “additional duties” and “higher produ ction standards,” Am. Compl. at 4–5, is also not an adverse employment action. It is true that “‘ reassignment with significantly different responsibilities’ . . . generally indicates an adverse action.” Forkkio, 306 F.3d at 1131, quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998). However, plaintiff herself requested the transfer to Charl otte in June 2011 and she accepte d the position change – including the demotion from GS-13 to GS-12 – in August. Am. Compl. at 4–5. Plaintiff’s application for and acceptance of the transfer and the new position cast doubt onwhether this change qualifies as an adverse employment action, and certainly undermine her claim that the transfer was somehow caused by defendant in retaliation for her protected activity. See, e.g. , Simpson v. Borg-Warner Auto., Inc. , 196 F.3d 873, 876–78 (7th Cir. 1999) (holding that employee’s v oluntary position downgrade was not adverse employme nt action where she requested reassignment and there was no evidence that her work conditions were so intolerable as to constitute a constructive demotion). Even if plaintiff’s willing transfer to Charlotte and voluntary demotion to the GS-12 position could be considered mater ially adverse employment acti ons, plaintiff has failed to allege

23facts sufficient to show a causal connection between those events and her protected activity. In assessing causation in the reta liation context, courts must ask whether there was “‘an unbroken connection between the wrongful act and the injury,’” or whethe r there was “‘some new and independent cause intervening between the wrong and the injury. ’” Breeden v. Novartis Pharm. Corp. , 646 F.3d 43, 53 (D.C. Cir. 2011), quoting Hicks v. United States , 511 F.2d 407, 420 (D.C. Cir. 1975). Here, plaintiff cannot escape the fact that she in itiated the transfer back to Charlotte and willingly accepted the GS-12 Investigator position, and she has failed to allege any facts that would show that the transfer was somehow motivated by retaliatory animus. See Pl.’s Opp. at 29. Indeed, the complaint tends to show that the transfer provided a means to supply plaintiff with the private office and telework days that she had requested. Am. Compl. at 4. Because the Court finds that plaintiff has failed to allege that she suffered a materially adverse employment action as a result of her protected activity , or that a causal connection exists between any alleged adverse action and her disability, her reta liation claim fails and the Court will grant defendant’s motion to dismiss that count.
III. Plaintiff has failed to state hostile work environment claim
. Plaintiff’s third theory is that the behavior by Mary Burks that formed the basis of the retaliation claim also created a hostile work environment. 8 See Am. Compl. at 2–4; Pl.’s Opp. at 30 (describing plaintiff’s claim as “a claim for a hostile work environment created by Ms. Burks”). The Court finds that plaintiff has failed to allege facts suffi cient to state a claim for hostile work environment, and it will grant defendant’s motion to dismiss th is count.

8 The D.C. Circuit has “assume[d], without deciding, that the Re habilitation Act creates a cause of action for hostile work environment.” Kuraner v. Mineta , No. 00-5416, 2001 WL 936369, at *1 (D.C. Cir. July 10, 2001). Following that precedent, the Court will assume that such a claim exists and will proceed to address the sufficiency of the amend ed complaint’s allegations. 24To state a hostile work environment claim, a plaintiff must alle ge facts sufficient to show that the “workplace is permeated with discriminatory intimidati on, ridicule, and insult” that is “sufficiently severe or pervasive [as] to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys. , 510 U.S. 17, 21 (1993) (internal citation and quotation marks omitted). “ In determining whether an actio nable hostile work environment claim exists, [courts] look to ‘all the circumstances,’ includin g ‘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 emplo yee’s work performance.’” Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 116 (2002), quoting Harris , 510 U.S. at 23. As another court in this District put it, in assessing such a claim, “[t]he key terms . . . are ‘severe,’ ‘pervasive,’ and ‘abusive.’” Lester v. Natsios , 290 F. Supp. 2d 11, 22 (D.D.C. 2003). A. The conduct of which plaintiff complains was not sufficientlysevere or pervasive to create a hos tile work environment. Even granting plaintiff the benefit of all inferences to which she is entitled, the Court cannot find, based on the frequency, severity, and pervasiveness of Bur ks’s actions, that plaintiff’s allegations overcome the “demanding” legal standard for hostile wo rk environment claims. Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998). The incide nts plaintiff describes are more akin to “the ordinary tribul ations of the workplace” than t o conduct that is so extreme or abusive as to cause “a change in the terms and conditions of emp loyment.” Id. (internal quotation marks omitted). Regarding her allegations that Burks yelled at plaintiff, told o thers that she did not want to supervise plaintiff, or commentedthat a fifth grader could do the job, plaintiff does not allege that these incidents were physically threatening or humiliating, and she gives the Court no basis for inferring that Burks’s behavior wa s anything more than offensive to plaintiff. See Harris , 510

25U.S. at 21 (“[M]ere utterance of an . . . epithet which engenders of fensive feelings in a[n] employee does not sufficiently affect the conditions of employment . . . .”) (internal quotation marks and citations omitted); see also Richard v. Bell Atl. Corp. , 209 F. Supp. 2d 23, 35 (D.D.C. 2002) (“[R]ude comments, unjust criticism, and stressful working cond itions[] amount to ordinary tribulations of the workplace that [are] insufficient as a matt er of law for a hostile environment case.”) (internal quotation marks omitted). And as for the claim th at Burks excluded plaintiff from assignments, courts generally reject hostile work environment cl aims based on such work-related actions by supervisors. Wade v. District of Columbia , 780 F. Supp. 2d 1, 19 (D.D.C. 2011); see also Nurriddin v. Bolden , 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of import ant assignments . . . [cannot] be characterized as sufficiently intimid ating or offensive in an ordinary workplace context.”). As for plaintiff’s allegation that Burks, whose clothing had been preserved with moth balls, “purposely” came into plaintiff’s cubicle “to force [her] lungs to shut down,” Am. Compl. at 4, this event, standing alone, is not sufficient to state a hostile work environment claim. “Except in extreme circumstances, courts hav e refused to hold that one inc ident is so severe to constitute a hostile work environment.” Stewart v. Evans , 275 F.3d 1126, 1134 (D.C. Cir. 2002). The amended complaint does not allege that Burks approached plaintiff’s cub icle frequently or regularly, or even more than once. See Am. Compl. at 4. And plaintiff does nothing to explain this al legation further in her opposition to defendant’s motion. See generally Pl.’s Opp. at 29–31. 9 Because the “very nature” of a hostile work environment claim “involves repeated conduct,” Morgan , 536 U.S. at

9 Plaintiff does mention the moth ball incident in her statement of material facts, see Pl.’s Resp. to Def.’s Statement of Material Facts [Dkt. # 25-1] ¶ 18, bu t because the Court reaches this particular allegation at the motion to dismiss stage, it does no t consider materials related to defendant’s motion for summary j udgment, including plaintiff’s statement of disputed facts, in resolving the motion to dismiss this claim. 26115, without any allegation that Burks approached plaintiff’s cu bicle on multiple occasions with the intent to exacerbate her symp toms, the Court cannot find that this one incident constitutes conduct that is sufficiently seve re or pervasive so as to cause a hostile work environment. Even if the Court were to infer from a generous reading of the a mended complaint that Burks did approach plaintiff’s cubicle on more than one occasio n, plaintiff still has not provided facts sufficient to permit an inf erence that this conduct “alter[ ed] the conditions of [plaintiff’s] employment and create[d] an abusive working environment.” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 78 (1998) (internal quotation marks and citations omitted). The amended complaint is devoid of any allegations that Burks meant to cause plaintiff harm, that her conduct was “physically threatening or humiliating,” or that it “unreaso nably interfere[d] with [plaintiff’s] work performance.” Morgan , 536 U.S. at 116. Without more, the Court cannot find that the amended complaint plausibly alleges facts sufficient to show that Burks’s conduct satisfies the severe or pervasive threshold. 10

10 While few courts have addressed similar factual circumstances at the motion to dismiss stage, at least two courts on a motion for summary judgment have found comparable conduct to be insufficiently severe and pervasive to meet the demanding ho stile work environment threshold. In Hizer v. South Bend Tribune , for example, the plaintiff claimed that she was subjected to a hostile work environment on the basis of her asthma when “three times, a scented product was ‘poured’ on the hallway carpet outside her door, an d . . . the scent made her ill.” 31 F. Supp. 3d 986, 1002 (N.D. Ind. 2014). The court granted summary judgment on the claim because, among other reasons, “[t]here was no physical threat or humiliation” to the plaintiff, and while the plaintiff claimed that the scent made her ill, she did not “indicate that she was unable to perform her job because of it.” Id. And in Hawkins v. Counseling Associates , the plaintiff alleged that “other employees would deliberately wear stronger scents, spray substances within close proximity to [the plaintiff’s] work area, burn multiple scented candles, and use hairspray in the closest women’s restroom available to her” to exacerbate her allergies. 504 F. Supp. 2d 419, 429–30 (E.D. Ark. 2007). Again, the court found that the conduct was not suffici ently severe or pervasive to support a hostile work envir onment claim. Id. at 432. 27B. Plaintiff has not alleged facts sufficient to support a reaso nable inference that the allegedly harassing behavior was related to her disability. Plaintiff has also failed to allege facts sufficient to demonstr ate a causal connection between the hostile behavior and her disability. “While a plaint iff is not required to plead a prima facie case of hostile work environment in the complaint, the alleged facts must be able to support such a claim.” Rattigan v. Gonzales , 503 F. Supp. 2d 56, 78 (D.D.C. 2007), citing Sparrow , 216 F.3d at 1114. Where the evidence offered by a plaintiff “bears n o connection” to her protected class, it “cannot support of a hostile work environment claim.” Harris v. Wackenhut Servs., Inc. , 419 F. App’x 1, 2 (D.C. Cir. 2011); see also Williams v. Dodaro , 576 F. Supp. 2d 72, 92 (D.D.C. 2008) (“[W]orkplace harassment must be related t o . . . disab ility to arise to an unlawful hostile work environment.”). In her opposition, plaintiff does not respond to defendant’s ar gument that she has failed to put forth any evidence linking the allegedly hostile behavior t o her disability, other than to recognize that defendant raised that point in its motion to dismi ss. See Pl.’s Opp. at 29–31. On that ground alone, the Court could find that plaintiff has conce ded the causation issue and that her hostile work environment claim fails. See Hopkins , 284 F. Supp. 2d at 25; see also Tax Analysts , 117 F.3d at 610. But even if plaintiff had not conceded this point, she has faile d to allege any facts to connect Burks’s conduct to her protected status. Plaintiff claims that “Burks began to retaliate because . . . [plaintiff] needed and [sic] accommodation,” Am. Compl. at 3 , but offers no facts or other allegations whatsoever insupport of that conclusory asse rtion. Such “[t]hreadbare recitals” fail to meet the plausibility standard set forth in Iqbal . 556 U.S. at 678 (“The plausibility standard . . . asks for more than a sheer possib ility that a defendant has acted unlawfully.”); see also Mitchell v. Fed. Bureau of Prisons , 587 F.3d 415, 420 (D.C. Cir. 2009) (plausibility standard

28requires that “‘a complaint must contain sufficient factual matt er,’ alleged in non-conclusory terms, ‘to state a claim to relie f that is plausible on its face .’”), quoting Iqbal , 556 U.S. at 678. And plaintiff’s claim that Burks harassed her because of her di sability or her accommodation requests is belied by facts offered in the amended complaint and in plaintiff’s opposition. Plaintiff acknowledges that she and Burks “have kn own each other for over twenty (20) years,” Pl.’s Opp. at 7, and that “Burks was aware of [her] disability prior to [plaintiff’s] coming to the Washington office.” Am. Compl. at 2. And plaintif f admits that Burks was the one who “encourage[d]” her to apply to the position in Washington and that Burks even went so far as to write a recommendation letter on plaintiff’s behalf. Pl.’s Opp. at 7. Finally, as plaintiff herself puts it, she believed that “Burks began to retaliate because [p laintiff] went home on the weekends to see [her] mother,” and that “Burks was upset because [plaint iff] chose to go see [her] mother instead of tour Washington with h er on the weekends.” Am. Comp l. at 3. These facts do not in any way tend to show that the supposed harassment occurred due to plaintiff’s disability, and rather, imply that the incident s were part of a personal disput e between the two women – the type of “ordinary tribulations of the workplace” that cannot form the basis an actionable hostile work environment. Faragher , 524 U.S. 775, 788 (1998) (internal quotation marks omitted). The only conduct set forth in the complaint that could possibly be construed as connected to plaintiff’s disability is the claim that Burks “purposely cam e into [plaintiff’s] cubical [sic] to force [her] lungs to shut down,” in reaction to the scent of mo th balls. Am. Compl. at 4. But as discussed above, this single stat ement in the amended complaint , without more, is insufficient to state a plausible hostile work environment claim. And plaintif f has not alleged any facts to connect this conduct to any other discriminatory actions that were rela ted to her disability in any event. See, e.g. , Nurriddin , 674 F. Supp. 2d at 94 (dismissing the plaintiff’s hostile work environment

29claim because the plaintiff only sought “to transform his chall enges to discrete acts of alleged discrimination or retaliatio n . . . into a hos tile work environment claim by combining those events with a series of ordinary workplace difficulties”). Because the Court finds that plaintiff has failed to set forth f acts sufficient to allege that defendant subjected her to a hostile work environment on the ba sis of her disability, the Court will grant defendant’s motion to dismiss that claim.
CONCLUSION The Court finds that plaintiff has failed to allege facts suffi cient to show that defendant retaliated against her for requesting reasonable accommodations for her disability, or that defendant subjected plaintiff to ahostile work environment, and it will therefore grant defendant’s motion to dismiss those claims. Further, the Court finds that defendant is entitled to judgment as a matter of law on plaintiff’s failure to accommodate claim base d on her requests that she be provided with a private office with an air purifier or that she b e transferred specifically to the vacant Mediator position. Howev er, the Court will deny defendant’s motion without prejudice as to plaintiff’s failure to accommodate claim related to the denial of her request for telework, because a genuine dispute of material fact exists as to whether that ac commodation was reasonable or would have imposed an u ndue hardship on defendant. A separate order will issue.

AMY BERMAN JACKSON United States District Judge DATE: March 27, 2015

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