UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) JOHN GAR

D, ) ) ) P laintif f, )

) v. ) Civil Action No. 07-2303 (R MC) ) UNITED STAT ES DEPARTMENT OF EDUCATION, et al. , ) ) ) Defendan ts. ) )
MEMORAN DUM OP INION J ohn Gar d, proce eding pro se , sues the United States Depa rtment of Educa tion a

nd its Secre tary , Arne Dunca n (“D efe ndants”), for allege d reta liation under the Rehabilitati o n Act of 1973, 29 U.S.C. § 701, et seq. Mr. Gar d filed a char g e in Marc h 2005 alleg ing that Def endants wer e violating the Reh ab i l i t ation Act by not continuing in-place rea sonable acc ommodations for his disabiliti es. T h at ch ar ge has been dismiss ed by the Court. At issue now is whether Def endants 1 reta l i at ed against Mr. Gar d beca use of that char g e by incre asing the di fficulties he experience d in

secur ing rea sonable acc ommodations. Having car efully revie wed the parties’ briefs, exhibi ts, and t he entire rec ord, the Court finds no evidentiar y support for Mr. Gar d’s arg ument that it wa s h i s filing a discrimin at i o n complaint, rathe r than his ref usal to provide curr ent medical rec ords, that

cause d Def

endants to deny

him a rea sonable a ccommodation. The ref ore, summar

y judgme nt will be g rante d to the Def

endants.

See Memorandum Opinion date d Marc h 5, 2010 [Dkt # 45]

. 1I. F ACTS Mr. Gar d has worke d for the Depa rtment of Educa tion since April of 1989. Second Am. Compl. [Dkt. # 29] ¶ 8. He alleg es that he suffe rs from chronic pain, narc o l ep s y , and Post Trauma tic Stress Disorder (“PTSD”) , all of which are “i n t er re l ated and what happens in one disability /impairment aff

ects t he condition and control of the other disabiliti es/impairments and Plaintiff’s major life activities.” Id. ¶ 58. He states that Def end an t s “w er e fu l ly awa

re” of these disabiliti es when they hired him, and that th ey “conside red Plaintiff to be handica pped, trea ted Plaintiff as being handica pped and provided Plaintiff with rea sonable accommodation from approximately

April 1, 1989 throug h November 22, 2004.” Id. ¶¶ 54- 55. At some point prior to October 1998, for re as o n s not specifie d in the Second Am en d ed C o m plaint, Mr. Gard appea rs t o have taken leave from his employ ment. He states that from Oc t o ber throug h Dec ember 1998, he was eng ag ed in “re turn-to-wor k” discussions with the Depa rtment, during whi ch t ime the Department had on file “a) P laintiff’s medical rec ords, and b) Def endants’ rea sonable acc omm o d at ion deter minations and the rea sonable acc ommodation authorized.” Id. ¶ 42. He returne d t o wo rk i n Dec ember 1998 pursuant to a Return-to-Work Ag ree ment dated Dec ember 1 4 , 1 9 9 8
. Id. ¶¶ 44-45. He states that he disclosed some internal employ ee fra

ud to J ack Martin, Chief Financ ial Offic e, and J ohn Hig g ins, I nspector Gene ral, in J uly and August of 2004. Id. ¶¶ 47-48. I n November 2004, Mr. Gard’s s u p er visor, Richard Mueller, notified Mr. Gar d that the rea sonable acc ommodation he had been provided as per the Return-toWork Ag ree m ent ( i.e. , ability to work from home on an unspecifie d “ca se”) would no longe r be provided. Id. ¶ 49. Mr. Gar d filed a “for mal [EEO] handica

p re fu s al to continue rea sonable

-2-acc ommodation complaint ag ainst Def endants on Marc h 14, 2005.” Id. ¶¶ 16 .C.; 50. There afte r, he alleg es his difficulties in secur ing a rea sonable acc ommodation for his disabiliti es incre ased. Id. ¶ 50. On September 5, 2006, Mr. Gar d sent an email to his super visor, L inda A. Strac ke, Direc tor of Financ ial I mprovement and Post Audit Oper ati o n s , t o reque st a rea sonable

acc ommodation, attaching what he descr ibed as m ed i ca l documentation and prior reque sts for

rea sonable acc ommodations which he had just located. See id. , Ex
. 1 (Pl.’s Ex
. 442: Sept. 5, 2006 2 email from Gar d to Stracke et al .). Among the documents he forwa rded was a series of letters sent to the Depa

rtment, including an October 13, 1989, letter, ref lecting a diag nosis of narc olepsy by the M ay o C l i n i c i n Rochester , Minnesota, id. , Ex
. 1 (Pl.’s Ex
. 436); a J uly 1992 letter confirming

narc olepsy , neck and back pain, and hear ing loss, Pl.’s Mem. in Opp’n to Mot. for Summ. J
. (“Pl.’s Mem. in Opp’n” ) [Dkt. # 59], Ex
. 5 (Pl.’s Ex
. 344-6); as well as a J une 1997 reque st from Mr. Gar d for a rea sonable acc ommodation of working at home three day s per wee k, acc ompanied by a doctor’s presc ription for the same. Am. Compl

. , Ex
. 1 (Pl.’s Ex
. 441). Two wee ks later, Ms. Stracke replied t hat she was unable to locate a “re cord of any written approva l for a rea sonable acc omm o d at i o n reque st from [Mr. Gar d].” Id. , Ex
. 1 (Pl.’s Ex
. 443-1) (Sept. 20, 2006 email from Stracke to Gar d). She added that the Depa

rtment would consider his reque st for a rea sonable acc ommodation upon the

rec eipt of updated, “i.e., last three months,” medical documentation. Id. Mr. Gar d responde d that prior ag ency officia ls had deter mined he require d a rea sonable acc ommodation, that Ms. Stracke had
These additional exhibi t numbers refer t o ex h i b i t numbers used by Mr. Gar d in prior 2 complaints and occa sionally ref ere nced in the curr ent Second Amended Complaint. The documents ref ere nced in this opinion are all attache d to the Second Amended Complaint as one exhibi t, but the orig inal n umbers are often found in the bottom rig ht hand corne r of the specific documents in question. -3-no rig ht to revoke that acc ommodation, and that he had previously responde d to reque sts for medical

rec ords. Id. , Ex
. 1 (Pl.’s Ex
. 444-1) (Oc t. 3, 2006 email from Gar d to Stracke ). He char g ed that the reque st for fur

ther documentation was proof that the Depa rtment had violated the Privacy Act and Rehabilitation Act by

destroy ing or

failing to maintain his recor ds. Id. 3 Ms. Stracke ag ain stated that she had “no rec ord of an ag ency deter mination that” Mr. Gar d wa s “a q u ali fied individual with a disability or of any decision to provide [hi m] with any
rea sonable acc ommodatio n o f a d i s ab ility .” Id. , Ex
. 1 (Pl.’s Ex
. 445) (Nov. 24, 2006 email from Stracke to Gar d). Wit hout up-to-dat e m ed i cal information, Ms. Stracke ref used to provide a
rea sonable acc ommodation to Mr. Gar d. Id. Mr. Gar d rea ds this email as a denial t h at h e ev er submitt ed medical rec ords to the Depa rtment, ever reque sted a rea sonable acc ommodation, or was
ever provided with a rea sonable acc ommodation. Id. ¶¶ 34-36. He never submitt ed curr ent medical documentation as reque sted by Ms. Stracke , and as of the time briefs we re fi led, he had not submitt ed curr ent medical documentat ion. Def ’s’ Statement of Materia l Fa ct [Dkt. # 56] at 3 (De f’s’ F acts ¶ 8); Def

.’s M ot. for Sum m. J . [Dkt. # 56] Attach. 1 a t 3 (Stracke Dec l.¶ 7). Dur ing Ms. Stracke ’s tenure with the office from 2005 until 2010, no other employ ee under her supervision was g rante d a re asonable acc ommodation without m edica l documentation. Stracke Dec l.¶ 9.

Despite Ms. Stracke ’s demands for curr ent medical support, she “author ized reque sted adjustments to [Mr. Gar d’s] working conditions

. . . as a m at t er of administrative discretion. Such appr oved adjustments i ncluded assignment to a pr ivate off ice a nd being allowed to work at ho m e o n an ‘a s n eede d’ flex schedule .” Def ’s’ Fa cts ¶ 11. I n September 2006, Ms.

T h ese claims wer e broug ht befor e the Court in the Amended Complaint, but wer e 3 dismiss ed by

the Court. See Memo. Op. [Dkt. # 45]

. -4-Stracke was “somewha t perple x ed that acc ommodation rema ins an issue, since the Depa rtment has gi v en y o u a private office and allows y ou to work at home most day s on an ‘as neede d’ flex schedule .” Pl.’s Mem. in Opp’n, Ex. 8 (Pl.’s Ex . 443-1) ( Stracke email to Gar d of 9/20/06).

Be fore the Court is Mr. Gar d’s claim of reta liation under the Rehabilitation Act. See Am. Compl., Count VI
. II. LEGAL STANDARDS

A. Summ ary Judgm ent Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt must be g rante d when “the pleading s, the discovery and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue as to any materia l fac t and that the movant is entitled to a judgme nt as
a matter of law.” Fe d. R. Civ. P. 56(c) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986);

see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Diamond v. Atwood , 4 3 F.3d 1538, 1540 (D.C. Cir. 1995). Moreove r, summary judgme nt is proper ly g rante d ag ainst a party who “af ter adequate time for discovery and upon motion

. . . fails to make a showing sufficie nt to establish the exis tence of an e lement essential to that par ty ’s ca se, and on which that par ty will bear the burden of proof at trial.” Celotex Corp. , 477 U.S. at 322. To deter mine which fac ts are “mater ial,” a court must look to the substantive law on which eac h claim rests. Anderson , 477 U.S. at 248. A “g enuine issue” is one whose resolution could establish an element of a claim or defe nse and, there fore , aff ect the outcome of

the ac tion. Id. , Celotex , 477 U.S. at 322. I n ruling on a motion for summary judgme nt, the court must draw all justifiable infere nces in the nonmoving party ’s favor and acc ept the nonmov i n g p ar t y ’s evidenc e as true. Anderson , 477 U.S. at 255. A nonmoving p ar t y , h o we v er, must establish more than “the mere
-5-exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. To preva il on a motion for

summary judgme nt, t h e m o v i n g party must show that the nonmoving party “fa il[ ed] to make a sho wi n g sufficie nt to establish the exis tence of an element essential to that party ’s case , and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the absenc e of evidenc e proffer ed by the nonm oving party , a m o v i n g party may succe ed on summary judgme nt. Id. at 325. I n addit ion, the nonmoving party may not rely solely on alleg ations or conclusory statements. Gree ne v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray , 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must prese nt specific fac ts that would enable a rea sonable jury to find in its favor

. Gree ne , 164 F.3d at 675-76. I f the evidenc e “is mere ly colora ble, or is not signific antly probative, summary judgme nt may be g rante d.” Anderson , 477 U.S. at 249-50 (inter

nal citations omitted). B. Retaliation Claim The Rehabilitation Act provides that “[n] o other wi s e qualified individual with a disability ” may “be subje cted to discrimination” by any fede ral a g ency

“solely by rea son of her or his disability .” 29 U.S.C. § 794(a)

. The Act further provides that “[t] he standards used to deter mine whether this section has been violated in a complaint alleg ing employ ment discrimination under this section shall be the s t an d ar ds applied under

. . . the Americ ans with Disabilities Act of 1990, (42 U.S.C. § 12111 et seq. ). Id. § 794(d); see Mogenhan v. Napolit ano , 613 F.3d 1162, 1165 (D.C. Cir. 2010) (a pply ing the ADA’ s anti-re taliation pr ovision to the Rehabilitation A ct). The ADA’ s antireta liation provision forbids “discrimina[tion] ag ainst any individual beca use such individual

. . . made a char g e . . . under this chapte r.” 42 U.S.C. § 12203(a)

. The D.C. C i rc u i t h as h el d that the framework for analy

zing anti-re taliation suits unde r th e A D A /R e h a b il ita tion Act mirrors that applied
-6-for reta liation suits under Title VI I of the Civil Rights Act. See Smith v

. District of Columbia , 430

F.3d 450, 455 (D.C. Cir. 2005) (“A lthough the [retaliation] fra mework was develope d for Title VI I

case s, our sister circuits have all acc epted its application to ADA retaliation suits under 12203(a ),

as we do now.”) (ca ses cited)

.

Howeve r, Gross v. FBL Financial Servic es Inc. , 129 S. Ct. 2343 (2009), has altere d the easy interplay betwee n Title VI I case s and case s arising under other fede ral anti-discrimination statutes. Gross v. FBL Financial Servic es was a case involving alleg ed ag e discrimination under the Ag e Discrimination in Employ ment Act of 1967 (ADEA ), Pub. L
. No
. 90-202, 81 Stat. 602 (codifie d, as amende d at 29 U.S.C. § 621 et seq (1996))

. I n addre ssing whether Mr. Gross had proved that his employ er discriminated ag ainst him based on his ag e, the Supreme Court specific ally noted the 1991 amendments to Title VI I , by which Congr ess established a statutory basis for “mix ed motive” case s. Congr ess amende d Title VI I to “ex plicitly authoriz[ e] discrimination claims in 4 which an improper c onsideration wa s ‘a motivating fac tor’ for an adver se employ ment decision.” Gross , 129 S. Ct . at 2349; see also 42 U.S.C. § 2000e -2(m) (“a n unlawful employ

ment prac tice is established when the complaining party demonstrates that rac e, colo r , r e li g io n , sex, or national orig in

was a motivating fac tor for any employ ment prac tice, even though other fac tors also motivated the prac tice”)

. I n a 5-4 opinion authore d by J ustice Thomas, the Supreme Court could not “ign o re Congr ess’ decision to amend Title VI I ’s rele vant provisions but not make simil ar ch an ges t o the
A “mix ed motive” case is one in which an employ er has a leg itimate rea son for its action, 4 such as wea

k job perf ormanc e, and an illegitimate rea son, such as rac e, cre ed, national orig in, color, or g ender

. I f a jury believes t h at t h e em p l o y er would have taken the same action beca use of the leg itimate rea son, without reg ard to the illegitimate rea son, the employ ee’ s rec overy is limit ed to a decla ratory judgme nt that the employ er violated the law and attorney ’s fee s but not backpa y , compensa tory damag es, reinstateme nt or other potential reme dies. See 42 U.S.C. § 2000e-2( m), 42 U.S.C. § 2000e-5(g )(2) (B ); see also Price W aterhouse v. H

opkins , 490 U.S. 228, 240-41 (1989). -7-ADEA.” Id

. at 2349. Be cause of these new “textual differ ence s betwee n Title VI I and the ADEA,”

the Court found itself preve nted from reme dy ing ADEA claims when an employ ee proves only that his ag e was a “motivating fac tor.” Id

. at 2349, n.2. “The ADEA provides, in rele vant part, that ‘[i] t shall be unlawful for an employ er . . . to fail or ref use to hire or to discharg e any individual or otherwise discriminate ag ainst any individual with re spect to his compensa tion, ter ms, c onditions,

or privileg es of employ

ment, because of such individual’s a g e.’” Id

. at 2350 (quoting 29 U.S.C. § 623(a) (1)) (emp h as i s i n o rig inal). “[T] he ordinary meaning of the ADEA’ s require ment that an employ er took adver se action ‘bec ause of’ ag e is that ag e was the ‘re ason’ that the employ er decide d to act.” Id

. Thus, the Supreme Court conclude d that to “esta blish a disparate -treatment claim under the plain lang uag e of the ADEA
. . . a plaintiff must prove that ag e was the ‘but-for ’ cause of the employ er ’s ad v erse decision.” Id

. I n the end, “the burden of persua sion nece ssary to establish employ er liability is the same in alleg ed mix ed-motives case s as in any other AD E A d i spara tetrea tment a ction. A plaintiff must prove by a preponde ranc e of the evidenc e (which ma y be direc t
or circ umstantial), that ag e was the ‘but-for ’ cause of the challeng ed employ er decision.” Id

. at 2351.

The Rehabilitation Act itself say s that “[n] o otherwise qualified individual

. . . shall, solely by rea son of her or his disability

. . . be subjected to discrimination” in any fede ral prog ram. 29 U.S.C. § 794(a)

. “[S] olely by rea son of” is equivalent to the “but-for ” analy sis adopted in Gross. Prior to 2008, the ADA provided: “No cover ed entity sha ll d is c r im inate ag ainst a qualified individual with a disability because of the disability of such individual,” 42 U.S.C. § 12112(a) (empha sis added) , which would also be cover ed by the Gross analy sis. The ADA Amendments Act of 2008, Pub. L
. 110-325, 122 Stat. 3553 (2008)) , howeve r, chang ed the rele vant lang u ag e and the statute now
rea ds: “No cover ed entity shall discriminate ag ainst a qualified individual on the basis of disabili ty
-8-. . . .” 42 U.S.C. § 12112(a) (as amende d by Pub. L
. 110-325, § 5(a) (1) (2008)) (empha sis added)

.

The ADA was amende d to r ejec t Supre me Court decisions in Sutton v

. United Air Lines, Inc. , 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky , Inc. v. W illiams , 534 U.S. 184 (2002), and to broade n the rea ch of the statute. Pub. L
. 110-324 §§ 2(b)( 2), (3), (4) and (5). The ADA now define s “disability ” to mean:

with respec t to an individual (A) a phy sical or mental i mpairment t hat s ubstantially limi t s one or more major life activities of such individual; (B ) a r ecor d of such a

n impairment; or (C) being reg arde d as having such an impairment (as descr ibed in para g raph ( 3)). 42 U.S.C. § 12102 (as amende d by Pub. L
. 110-325, § 3 (2008))

. Avoiding prior languag e that a person cover ed by the ADA was “a qualified person with a disability ,” Congr ess chang ed the lang uag e in 42 U.S.C. § 12112(a) and modified the Rehabilitation Act to insert the same definition for “disability .” See Pub. L
. 110-325 § 7. Notably , C o n gre s s d i d not modify the provisi on in the Rehabilitation Act requiring a plaintiff to prove that s/he was subjected to discrimination “solely by

rea son of his or her

disability .” Gr o s s emphasized that words have meaning and that words in a statute should be g iven t heir customary meanin g unless something specific is otherwise indicated. 129 S. Ct. 2343 (2009). Whil e the lang uag e differ ence s betwee n the Rehabilitation Act and the ADA may (or may not) be signific ant in an ADA case , the lang uag e used in the former must control the outcome in this

ca s e. The Court conclude s that a plaintiff seeking vindication under the Rehabilitation Act must prove that his disability was the “ sole” or “ but-for” rea son for the employ er’ s actions or inactions,
-9-reg ardle ss of whether the plaintiff advanc es a claim of discrimination based on disparate trea tment,

mix ed-motive, or r etaliation. III. ANALYSIS

Mr. Gard alleg es t hat because he filed an EEO discrimination complaint on Marc h 14, 2005, “re asonable acc ommodation problems incre ased further .” Am. Compl. [Dkt. # 29] ¶ 50. Ms. Stracke require d curr ent medical documentation as a prec ondition to proce ssing his

acc ommodation reque st, ultimately resulting in a denial of any acc ommodation when Mr. Gar d did not produce the reque sted information. To avoid summary judgme nt in Def endants’ favor , Mr. Gar d must pre sent fac ts from which a rea sonable jury

could conc lude that “but for ” his Marc h 14, 2005 discrimination complaint, Def endants would not have made it more difficult to obtain a rea sonable

acc ommodation.

I t is undisputed that Mr. Gard eng ag ed in protec ted ac tivity when he filed a formal complaint on Marc h 14, 2005, alleg i n g d i s ability discrimination arising from the Depa rtment’s ref usal to continue exist ing a ccommodations for his disabilit ies. Am. Compl. ¶ 50; D ef.’ s Memo. at 4. I t is also undisput ed that during Ms. Stracke’ s tenure, f rom 2005 to 2010, Defe ndants: (a) did not provide acc ommodation alleg ed by [M r. Ga rd ] to have been a uthorized by

a pre vious supervisor; (b) on September 20, 2006 and November 24, 2006, asked [ Mr. Gar d] to submit curr ent medi ca l d ocumentation of his alleg ed disability and need for acc ommodation as a prec ondition to proce ssing a

new a ccommodation re quest; and (c) declined to proce ss or approve [Mr. Gar d’s ] accommodation reque st in absence of such infor mation. Def ’s’ Mem. in Support of Mot. for Summ. J
. (“D ef’ s’ Mem.”) [Dkt. # 56] at 5. Whil e Def endants

-10-char acte rize the dispute as conce rning the denial of a “new ” reque st for an acc ommodation, id. , Mr.

Gar d challeng es the Depa rtment’s discontinuation of acc ommo dations previously g rante d, Pl.’s Mem. in Opp’n at 27 -28. Reg ardle ss, despite her demands for curr ent medical support for his alleg ed disabiliti es befor e considering any acc ommodation, Ms. Stracke “a u t horized reque sted adjustments to [Mr. Gar d’s] working conditions .

. . as a matter of administrative discretion. Such approve d adjustments included a s s i gnment to a private office and being allowed t o work at home

on an ‘as neede d’ flex schedule .” De f’s’ F act ¶ 11. I n fac t, in September 2006, Ms. Stracke was “somewha t perple x ed that acc ommodation rema ins an issue, since the Depa rtment has g iven y ou a private office an d allows y ou to work at home most day s on an ‘as neede d’ flex schedule .” Pl.’s Mem. in Opp’n, Ex. 8 (Pl.’s Ex . 443-1) ( Stracke email to Gar d of 9/20/06).

I n sum: Mr. Gar d had informal approva l for many y ear s to work approximately three day s a wee k from home; Ms. Stra cke could find no written rec ord of such approva l a nd demande d

curr ent medical documentation to g rant him a formal acc ommodation under the Rehabilitation Act; Mr. Gar d rese nted the demand and ref used to comply , but did submit medical rec ords from the past; Ms. Stracke ref

used to countena

nce a formal acc ommodation based on deca des-old doctors’ letters; and, nonetheless, Ms. Stracke essentially allowed Mr. Gar d to continue working at home, as neede d,

on a flex-work schedule , and provided him privac y in the office , there by silently acknow ledg ing his need f or an a ccommodation. The pending question is whether the Depa rtment made it more difficult for Mr. Gar d to obtain a rea sonable acc ommodation of his disability solely beca use he filed a discrimination char g e in Marc h 2005, befor e Ms. Stracke beca me his supervisor. T h e evidenc e is lacking from which a jury could conclude that his EEO char g e, and not his ref usal to submit curr ent medical
-11-information, ca used Ms. Stracke to refuse to gr ant him a forma l acc ommodation. The “anti-r etaliat io n p r o v is io n p r o te c ts an individual not from all reta liation, but from reta liation that produce s an injury or harm.” Burlington N. & Santa Fe Rw. Co. v. W hite , 548 U.S. 53, 57 (2006). Such injury or harm must be sufficie nt to dissuade a rea sonable worke r from making

or suppo rt ing a char g e of discrimination. Id. at 68. The employ er’ s action must be “mater ially ” adver se because the statute protec ts an employ ee from s ignif icant harms and d o es not protec t one from “those petty slights or minor annoy ance s that often take place at work and that all employ ees experience .” Id. Thus, an objective “re asonable person” standard a pplies and not an a

naly sis of a plaintiff’s subjec tive fee lings. Id. at 68-69.

Under an objective rea sonable person standard, it does not appea r that the reque st for

curr ent medical information wo u l d b e materia lly adver se. Providing an employ er with updated medical doc umentation as a prer equisite for continued acc ommodation is a minor inconve nience

. See Dage v. Johnson , 537 F. Supp. 2d 43, 63-64 (D.D.C. 2008). I n Dage , Mr. Dag e participa ted in

an “a l t er n ati ve work space prog ram” at the Environmental Protection Ag ency (“EPA” ), which allowed EPA employ ees the ability “to perfo rm wo rk from either their hom e usi ng telephone and computer equipment or from a specia lly equipped EPA office space desig ned to minimi ze potential exposure to chemica ls, allerg ens, and indoor air pollution.” Id

. at 46. I n that prog ram, participa nts
wer e require d to submit a rene wal application ever y two y ear s, including updated medical documentation. Id

. at 47. Mr. Dag e challeng ed the re- cer t i fi cation require ment as an adver se employ ment action. J udg e Ba tes, of this Court, disag ree d, finding that “[t] he require ment that Dag e submit a rene wal application ever y two y ear s d[i d] not constitu t e an action that a rea sonable employ ee would find materia lly adver se,” even if a nuisance

. Id

. at 63. The Depa rtment expli citly
-12-arg ues that there was no materia l harm or injury t o Mr. Gar d in providing updated medical

information, and his opposition is silent on the point. The Court de ems it c oncede d. See Buggs v. P o w el l , 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (“I t is understood in this Circuit that when a plaintiff files an opposition to a dispositi ve motion and addre sses only cer tain arg uments raised by the def endant, a court may trea t those arg uments that the plaintiff fa iled to addre ss as conc eded.” ) (citing FDIC v. Be nder , 127 F.3d 58, 67- 68 (D.C. Cir. 1997); Stephenson v. Cox , 223 F. Supp. 2d 119 (D.D.C. 2002))

.

Mr. Gar d acknow ledg es that his prior acc ommodation reque sts wer e approve d orally and not in writing , Pl.’s Opp’n at 32; that he has not submitt ed medical documentation more curr ent t h an 1990-1992, id. at 26; and that he has not complied with Ms. Stracke ’s reque sts for updated medical documentation beca use he believes the reque sts themselves violate his “re asonable

acc ommodati o n ri g hts.” Id. at 22, 27. This Court has already dismiss ed his discrimination claim under the Rehabilitation Act, finding that the reque sts for curr ent medical rec ords did not violate the

s t atut e or Mr. Gar d’s rig hts. The rec ord is otherwise barr en of evidenc e that would connec t t h e 5 M ar ch 2005 discrimination char g e to Ms. Stracke ’s insistence on formality , not informali t y , i n handling Mr. Gar d’s re quests for a n acc ommodation. Mr. Gar d arg ues: The hear t, meat and bones of the surviving repr isal claim is Def endants’, i.e., L inda Stracke [’s] , continuous ref usal to acknow ledg e that: a) Plaintiff had submitt ed reque sts for rea sonable ac commodation to
See , e.g., Carroll v. England , 321 F. Supp. 2d 58, 69-70 (D.D.C. 2004) (dema nding up-to- 5 date medical rec ords, i.e. , within six months, rea sonable). Be cause Mr. Gar d d i d n o t submit the updated medical information as reque sted, the Court previously dismiss ed his discrimination claim. See Memo. Op. [Dkt. # 45] at 13. -13-Plaintiff’s former supervisors prior to Marc h 14, 2005 (Ac co mmodation Fa ct X); b) Plaintiff had submitt ed medical docum entation to Plaintiff’s former s u p er visors prior to Marc h 14, 2005, pursuant to Plaintiff’s reque sts fo r rea sonable a ccommodation (A ccommodation F act Y) ; and c) Plaintiff’s former supervisors had 1) made the require d rea sonable a c c o mm o d a

ti o n deter mination, 2) authorized, and 3) provided Plaintiff w it h the re quested re asonable acc ommodation. (Acc ommodation Fac t Z ). . . .

. . . The only rea son Acc ommodation Fa cts X, Y and Z are in dispute is becaus e P l aintiff dare d to file a handica p discrimination ref

usal to continue rea sonable acc ommodation complaint ag ainst Def endants [on] Marc h 14, 2005. Pl.’s Opp’n at 4-5. Acc ommodation Fa cts X, Y and Z are demonstrated by the rec ord befor e the Court and are not contested by Def endants. (As to Acc ommodation Fa ct Z , all parties now ag ree that any prior acc ommodation was authorized orally and not i n wr i t i ng , which would appea r to be inconsistent with Depa

rtment policies.) These fac ts are rele vant, howeve r, only if Ms. Stracke denied a rea sonable acc ommodation in reta liation for his Marc h 2005 char g e, and not beca use she soug ht curre nt medical docume ntation of Mr. Ga rd’s disability

. I nstead of demonstrating a connec tion betwee n Def endants’ denial and his protec ted activity , Mr. Gar d offe rs alleg ations without evidentiar y support. Mr. Gar d alleg es the following in support of his reta liation claim — (1) that Ms. Stracke verba lly acc used M r. Gar d of being a liar, Pl.’s Opp’n at 23; (2) that Ms. Stracke ’s objective was to deny Mr. Gar d rea sonable acc ommodation

as it was obvious from her conver sations with him that the medical documents that he submitt ed to her (fr om 1989 to 1992) would never be adequate, id

. at 27; (3) that former supervisor Chuck Miller told Mr. Gar d that Ms. Stracke and senior ag ency officia ls would not allow him to authorize Mr. Gar d’s acc ommodations, id

. at 31; (4) that Def endants want Mr. Gar d out of the ag ency beca use of
-14-Mr. Gar d’s succe ss in cer tain whistleblower claims befor e the Merit Sy stems Protection Boa rd, id. at 41; and (5) that people in mana g ement wa nted Mr. Ga

rd to retire , id. at 43. 6 None of these subjective specula tions s u ff i ce s to connec t the Marc h 2005 discrimination char g e to Ms. S t ra ck e’ s reque st for curr ent medical documentation. Ms. Stracke wanted to forma l i z e M r. Gar d’s situation: obtain up-to-date medical information, consider

acc ommodations, and put it all in writing

. As to points two and three , it is clea r, as Mr. Gar d arg ues, that Ms. Stracke did not think that the medical documents from 1989 to 1992 wer e sufficie nt and she did not want any one g ranting an informal authorization of an acc ommodation. Points four and five

are irrele vant: that Mr. Gar d succe eded on whistleblower claims has no bearing on this retaliation claim and the same is t rue f or the g ener ic ac cusation that mana g ement wa nted Mr. Ga

rd to retire

. Thus, the slim ree d of evidenc e offe red by Mr. Gar d diminis hes to a single alleg ed incident of Ms. Stracke calling him a liar. To defe at a summary judgme nt motion, howeve r, a plaintiff may not rest
on mere alleg ations, but mu s t p roff er specific fac ts showing that a g enuine issue exis ts for trial. Gree ne , 164 F.3d at 675

. Mr. Gar d offe rs no specific fac ts to support his burden of persua sion that his eng ag ement in protec ted activity was t h e “b u t -f or” rea son that Def

endants ref

used an officia l accommodation, rathe r than his own failure to provide curr ent medical documentation as a prec ondition to a reasona ble ac commodation.

IV. CONCLUSION The Court w ill g rant Def

endants’ Motion for Summary J udg ment [Dkt. # 56]. The

This Court has previously ruled that Mr. Gar d’s claims of whistleblower repr isal may not 6 be considere d as part of his Rehabilitation Act reta liation claim. See Memo. Op. [Dkt. # 45] at 13, n.4. -15-reta liation claim fails for lack of evidenc e. A memorializing Orde r acc ompanies this Memorandum

Opinion.
Date: Nove mber 23, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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