UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) SANDRA RAGSDALE, ) ) Plaintiff, ) ) Civil Action No. 07-1256 (RBW) v. ) ) ERIC HOLDER, ) UNITED STATES ATTORNEY GENERAL, 1 ) ) Defendant. ) __________________________________________) MEMORANDUM OPINION The plaintiff, Sandra Ragsda le, an employee of the Federa l Bureau of Investigation (“FBI”), brings this action agains t the defendant Eric Holder, in hi s official capacity as Attorney General of the United States, asserting claims of disparat e treatment and harassment under Section 501 of the Rehabilitation Act of 1973, c odified at 29 U.S.C. § 794 (2006). Amended Complaint (“Am. Compl.”) ¶¶ 1, 10-17. Specifically, the plaintiff alleges that because of her disability and in contrast to how “similarly situated non-disabled employees” have been treated, her supervisors have denied her the use of annua l leave, instead placing her on leave without pay,

id. ¶¶ 10-14 (“Count I”), and have harassed and treated her differ ently than “similarly situated non-disabled employees” causing her “s evere and emotional distress,” id. ¶¶ 15-17 (“Count II”). Currently before the Court is the Defendant’s Motion to Dismiss the Complaint or, in the Alternative, for Summary Judgment (“Def.’s Mo t.”), which the plain tiff opposes, Plaintiff’s

1 Pursuant to Fed. R. Civ. P. 25(d), Attorney Genera l Eric Holder has been automatically substituted as the defendant for former Attorney General Alberto Gonzales.Opposition to Defendant’s Motion to Dismiss, or for Summary Judgment (“Pl.’s Mot.”). 2 For the reasons set forth below, the Cour t must grant the defendant’s motion.

I. BACKGROUND The following are the facts viewed from the perspective most favorable to the plaintiff. The plaintiff is employed as a GS-12 Personnel Security Specialist with the Security Reinvestigations Unit, Personnel Security Sectio n, Security Division, of the FBI. Defendant’s Memorandum in Support of Motion to Dismiss (“ Def.’s Mem.”), Exhibit (“Ex.”) 1 (Feb. 6, 2006 Affidavit of Sandra Ragsdale (“Ragsdale Aff.” )) at 1. She has been employed by the FBI since 1973, and has occupied her current position since 2005. Id. The plaintiff’s primary supervisors are Section Chief Sharon Durkin (“Ms. Durkin”) , Unit Chief Wyelene Haase (“Ms. Haase”) and Supervisory Personnel Security Specia list Winifred Huger (“Ms. Huger”). 3 Def.’s Mem. at 2.

Due to a fall suffered in 1986 that occurred at her workplace, which required surgery on both of her knees, the plaintiff has a 30% disability in one knee and a 40% disability in the other, resulting in “chronic pain and di fficulty walking, and also pain and swelling and other symptoms (fatigue).” Def.’s Mem., Ex. 1 (Ragsdale Aff. ) at 2, 5. Complicating this condition are the plaintiff’s other “major medical conditions,” which include “Asthma, Systemic Lupus Erythematosus [(“Lupus”)], Hiatal Hernia, Gastro esophageal Reflux Disease, Arthritis, Bilateral

2 Also considered in rendering this opinion was the Defendant’s Memorandum in Support of Motion to Dismiss (“Def.’s Mem.”); the Defendant’s Statement of Mate rial Facts Not in Dispute; the Plaintiff’s Memorandum of Points and Authorities in Support of Her Opposition to Defendant’s Motion to Dismiss, or for Summary Judgment (“Pl.’s Mem.”); the Plaintiff’s Statement of Ma terial Facts Not in Dispute; the defendant’s Reply to Plaintiff’s Opposition to Defendant’s Mo tion to Dismiss, or in the Alternative, for Summ ary Judgment (“Def.’s Reply”); and the Defendant’s Response to Plaintiff’s Statement of Material Facts Not in Dispute.

3 The plaintiff previously worked briefly under Ms. Huger “during the period of 1995-1996.” Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 3. According to the plaintiff, during that time she lodged a complaint against Ms. Huger with the FBI’s Office of Professional Responsibility in response to Ms. Huger allegedly improperly altering the plaintiff’s employment performance ratings and falsely accusing the plaintiff of not completing a large amount of her assignments. Id. at 2. Although the dispute was resolved, the plai ntiff claims that Ms. Hu ger “has held a grudge against me about this incident. She would pass me in the ha llway and not speak at all. I spoke to her and she barely spoke back. Her attitude was hostile.” Id. at 3.

2Patellar Chrondromalacia, Irritable Bowel Syndrome, Multiple Chronic Allergies and Fibromyalgia.” Id. at 2. The plaintiff requi res a cane to assist with walking, and “[d]ue to the pain and swelling, from [her] disability and Lupus symptoms[,] which at times make it impossible for [her] to be mobile,” the plaintiff has “had to take considerable time off from

work.” Id. at 2-3. 4 However, “[w]hen [she is] able to [go] to work, [she has] no problem performing [her] job[,]” and has “received exceptional performance ratings.” Id. at 3. “Due to her longevity as a federal employee, [the] plaintiff accrues annual leave . . . at a rate of eight hours per pay period,” and “[s]he also accrues sick leav e . . . at a rate of four hours per pay period.” Def.’s Mem. at 2. Each pay period is two weeks, and under FBI policy “an employee must successfully complete a full pay peri od in order to accrued [sic] leave.” Def.’s Mem., Ex. 4 (Feb. 9, 2006 Affidavit of FBI Huma n Resources Specialist Maureen A. DeLoach (“DeLoach Aff.”)) at 4; see also Def.’s Mem., Ex. 8 (FBI Leav e Policy Manual) at 1 (“Leave does not accrue for partial pay periods . . . .” ). However, although “[l]eave accruals are not officially earned or applied to an employees [sic] totals until the end of the pay period,” “the system will allow leave to be advanced from the projected end of [the pay period.]” Pl.’s Mem., Ex. 1 (June 1, 2005 Email from Selina Jameson to Winifred E. Huger, Wyelene C. Haase, Lynn M. Poindexter, and Brian T. Kelly (“Jameson Letter”)). Thus, an employee may be granted advance annual leave, but the decision to do so “is purely a manager’s prerogative.” Def.’s Mem., Ex. 4 (DeLoach Aff.) at 4. Indeed, as the FBI Leave Policy Manual states, advance

annual leave “is not a vested ri ght of the employee.” Def.’s Mem., Ex. 8 (FBI Leave Policy Manual) at 3; see also Def.’s Mem., Ex. 12 (U.S. Office of Personnel Management Leave Policy

4 The plaintiff also represents that she wa s unable to report to work due to her need to attend appointments related to her medical problems. Def.’s Me m., Ex. 1 (Ragsdale Aff.) at 3.

3Manual (“OPM Manual”)) at 2-3 (“An employee has a ri ght to take annual le ave, . . . [however,] [e]mployees do not have an entitleme nt to advance annual leave.”). The plaintiff’s cause of action stems from th e denial of her annual leave request and placement on leave without pay “during May and June 2005, pay periods 13 and 15, respectively.” 5 Pl.’s Mem. at 1. On May 31, 2005, duri ng pay period 13, the plaintiff requested annual leave for that day. Def.’s Mem., Ex. 1 (R agsdale Aff.) at 9. However, when she returned to work the next day, she was informed by Ms. Huger that because she “did not have [advance leave] on the books[,]” she would recei ve only leave without pay. Id. Although the plaintiff claims that “[she] did have [accrued annual leave] as [she] earned it for [pay period 13,]” id. , because pay period 13 had not yet ended, “the leave was not showing on 5/31/2005, within the system, [and thus] it technically could not have been earned[,] . . . [although] it would show up [at the end of the pay period,]” Pl.’s Mem., E x. D (Office of Equal Employment Opportunity Affairs Investigative Notes (“EEO Counselor’s Notes”), Statem ent of Management Assistant Selina Jameson (“Jameson Statement”)) at 3-4; see also Def.’s Mem., Ex. 7 (FBI Earnings and Leave Record for Sandra Ragsdale, Pay Period 13 (05/29/2005 – 06/11/2005) (“Ragsdale Leave Record, Pay Period 13”)) at 2 (noting that begi nning balance for annual leave was zero). The request for annual leave was officially denied the following day, June 2, 2005. Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 10; Pl.’s Mem., Ex. D (EEO Counselor’s No tes) at 1. Soon thereafter, during pay period 15, the plai ntiff requested advance annual leave for June 29, 2005. 6 Def.’s

5 Pay period 13 for calendar year 2005 ran from May 29, 2005 to June 11, 2005. Def.’s Mem., Ex. 7 (FBI Earnings and Leave Record for Sandra Ragsdale, Pay Pe riod 13 (May 29 – June 11, 2005) (“Ragsdale Leave Record, Pay Period 13”)) at 1. Pay period 15 ran from June 26, 2005 to July 9, 2005. Def.’s Reply at 9.

6 The filings contain contradictions as to when the second alleged discriminatory act occurred, however, since these contradictions are immaterial to the Court’s analysis of the plaintiff’s second claim, it will assume without deciding that the plaintiff was denied advance annual leave and charged with leave without pay on June 29, 2005. Compare Plaintiff’s Statement of Material Facts Not in Dispute ¶ 6 (alleging denial of advance annual leave (. . . continued)

4Reply at 2; id. , Ex. 5 (Approval for Leave for Sandra Ragsda le, Pay Period 15) at 2. Again, this request was denied by Ms. Haase because the “hours . . . are not accrued until the end of [the pay period].” Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 10-11. On June 21, 20005, the plaintiff contacted th e Office of Equal Employment Opportunity (the “EEO”) and met with an EEO Counselor, “all eg[ing] that she was discriminated against [in the denial of her March 31, 2005 a nnual leave request] based on repris al . . . [stemming from the] previous [Office of Professional Responsibility] investigation that was filed involving [Ms. Huger’s] actions against the [plaintiff].” Pl.’s Me m., Ex. D (EEO Counselor’s Notes) at 1. On August 24, 2005, the plaintiff then elected to file a formal administrativ e complaint with the United States Equal Employment Opportunity Commission (the “Commission”) Washington Field Office alleging discrimination on the basi s of her disability based on the June 2, 2005 denial of annual leave. Am. Compl. ¶ 7; Def. ’s Reply at 3 & Ex. 2 (“Agency’s Opposition to Complainant’s Motion to Add Re taliation”) ¶ 3. On February 13, 2007, the plaintiff moved to

add a claim for retaliation to he r administrative complaint base d on the June 29, 2005 denial of her request for annual leave, Def.’s Reply, Ex. 1 (Complainant’s Motion to Add Retaliation) ¶ 1, but this request was denied for unspecified reasons on February 28, 2007, Def.’s Reply, Ex. 3 (Order Denying Motion to Add Retaliation). Subsequently, on March 6, 2007, the plaintiff withdrew her administrative complaint, invoki ng her right to sue under 42 U.S.C. § 2000e-5(f) (2006) and 29 U.S.C. § 626, and filed this acti on with the Court, Am. Compl. ¶¶ 8-9, alleging that the denial of her requests for annual le ave was based on discrimination against her as a

(...continued) on June 25, 2005), and Pl.’s Mem. at 4 (alleging denial of advance annual leave on June 28, 2005), with Def.’s Reply at 2-3 (stating the plaintiff was charged with leave without pay instead of advance annual leave on June 29, 2005), and Def.’s Reply, Ex. 5 (Attendance Register for Sandra Ragsdale, Pay Period 15) at 2 (showing leave without pay charged on June 29, 2005), and Defendant’s Response to Plaintiff’s Statement of Material Facts Not in Dispute ¶ 6 (stating plaintiff was denied annual leave on June 29, 2005, not June 25, 2005).

5disabled person, in violation of section 501 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 791, id. ¶¶ 11-13, and that she was harassed by her supervisors because of her disability, in violation of the hostile work environment provisi ons of the same statute, id. ¶¶ 15-

17. II. STANDARDS OF REVIEW A. Rule 12(b)(1) Motion to Dismiss In deciding a motion to dismiss based upon lack of subject-ma tter jurisd iction under Federal Rule of Civil Procedure 12(b)(1), a Court is not limited to the allegations set forth in the complaint, but “may consider materials outside [of] the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[.]” Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). Under Rule 12(b)(1), “[ i]t is to be presum ed that a cause lies outside [the federal courts’] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994), unless the plaintiff establishes by a pre ponderance of the evidence that the Court has juri sdiction, see, e.g. , Hollington v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006). B. Rule 12(b)(6) Motion to Dismiss On the other hand, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the plaintiff has properly stat ed a claim upon which relief can be granted.

Woodruff v. DiMario , 197 F.R.D. 191, 193 (D.D.C. 2000). Fo r a complaint to survive a Rule 12(b)(6) motion, it need only provi de “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2 ), in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (alteration in original) (interna l quotation marks omitted) (quoting Conley v.

Gibson , 355 U.S. 41, 47 (1957)). “Although detailed f actual allegations are not necessary to

6withstand a Rule 12(b)(6) motion to dismiss, to provide the grounds of en titlement to relief, a plaintiff must furnish more than labels and conc lusions or a formulaic re citation of the elements

of a cause of action.” Hinson ex rel. N.H. v. Merritt Educ. Ctr. , 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (internal quotation marks omitted) (quoting Twombly , 550 U.S. at 555). Thus, “[t]he complaint's factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complain t are true (even if doubtful in fact).” Hinson , 521 F. Supp. 2d at 27 (alteration in original) (internal quotation marks omitted) (quoting Twombly , 550 U.S. at 555). In other words, the plaintiff's allegations are "entitled to the assumption of truth" only in so far as they comprise of more than "bare assertions . . . amount[ing] to nothing more than a 'formulaic recitation of the elemen ts' of a constitutional discrimination claim." Ashcroft v. Iqbal , __ U.S. __, __, 129 S. Ct. 1937, 1951 (2009) (indicating that bare allegations that the defendant knew of and condoned discriminatory behavior and that discrimination was part of the defendant's workplace policy did not "'nudge [the plaintiff's] claims' of invi dious discrimination 'across the line from conceivable to plausible'" (citing Twombly , 550 U.S. at 570)). Therefore, in ev aluating a Rule 12(b )(6) motion, “[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of

all inferences that can be derived from the facts alleged[,]” Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation ma rks omitted), except in the case of purely conclusory allegations, Iqbal , __ U.S. at __, 129 S. Ct. at 1951. Moreover, “[a] dismissal with prejudice is warranted only when a trial court dete rmines that the alle gation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Firestone v.

Firestone , 76 F.3d 1205, 1209 (D.C. Cir. 1996) (inter nal quotation marks omitted) (quoting

Jarrell v. U.S. Postal Serv. , 753 F.2d 1088, 1091 (D.C. Cir. 1985)). Finally, the Court “may

7consider only the facts alleged in the complaint, any documents either attach ed to or incorporated in the complaint and matters of which [the Court] may take judi cial notice[,]” Equal Employment Opportunity Comm’n v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997). C. Summary Judgment Courts will grant a motion for summary j udgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no ge nuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling on a Rule 56( c) motion, the Court must view the evidence in the light most favorable to the non-moving party, Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006), and draw “all justifiable inferen ces” in the non-moving party’s fa vor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby , 477 U.S. 242, 255 (1986). The nonmoving party, however, cannot rely on “mere allegations or denials,” Burke v. Gould , 286 F.3d 513, 517 (D.C. Cir. 2002) (internal quotation marks omitted) (quoting Anderson , 477 U.S. at 248), and “conclusory allegations unsupported by f actual data will not creat e a triable issue of fact,” Pub. Citizen Health Research Group v. FDA , 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks omitted) (quoting Exxon Corp.v. FTC , 663 F.2d 120, 127 (D.C. Cir. 1980)). Rather, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial [,]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) (internal quotation marks omitted), and a genui ne issue of material f act exists where “the evidence is such that a reasonable jury coul d return a verdict for the nonmoving party[,]”

Anderson , 477 U.S. at 248. If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its ] case with respect to which [it] has the burden

8of proof[,]” then the moving party is entitled to summary judgment. Ce lotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Federal Rule of Civil Procedure 56(e)(1 ) provides that “[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competen t to testify on the matters stated.” However, “[w]hile a nonmovant is not requ ired to produce evidence in a form that would be admissible at trial, the evidence must still be capable of bei ng converted into admissibl e evidence.” Gleklen v. Democratic Cong. Campaign Comm., Inc. , 199 F.3d 1365, 1369 (D.C. Cir. 2000). Thus, for example, hearsay cannot be considered in awarding or avoiding summary judgment. See id. Moreover, “[t]o be admissible at the summary judgment stage, doc uments must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).” Nnadili v. Chevron U.S.A., Inc. , 435 F. Supp. 2d 93, 105 (D.D.C. 2006) (quoting Carmona v. Toledo , 215 F.3d 124, 131 (1st Cir. 2000)) (declining to consider in motion for summary judgment maps lacking any authentication); see also Fed. R. Civ. P. 56(e)(1) (“If a paper or part of a pa per is referred to in an affidavit, a sworn or certified copy must be attach ed to or served with th e affidavit.”); Ashford v.

District of Columbia , Civil Action No. 02-1955 (RMC), 2006 WL 2711530, at *2 (D.D.C. Sept. 21, 2006) (“A failure to present a ny evidence of their au thentication in light of the defendants’ challenge would render the documents inadmissible at trial.” (citing Fed. R. Evid. 1003)); Wells v. Xpedx , No. 8:05-CV-2193-T-EAJ, 2007 WL 2696566, at *2 (M.D. Fla. Sept. 11, 2007) (“[T]o be considered for or against summary judgment, a document must be authenticated, either by an affidavit that meets the requirements of Rule 56(e) [of the] Federal Rules of Civil Procedure, or in accord with the Federal Rules of Evidence.”) . Indeed, for the Court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those

9cases insufficiently meritorious to warrant the expense of a jury trial.” Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999). Finally, it should be noted that because of the difficulty of establishing discriminatory intent, “an added measure of rigor, or caution, is a ppropriate in applying this standard to motions for summary judgment in employment discri mination cases.” Aka v. Wash. Hosp. Ctr. , 116 F.3d 876, 879-880 (D.C. Cir. 1997) (internal quotation marks omitted), rev’d on other grounds , 156 F.3d 1284 (D.C. Cir. 1998) (en banc). III. LEGAL ANALYSIS

A. The Defendants’ Failure to Exhaus t Administrative Remedies Challenge Section 501 of the Rehabilitation Act, codifi ed at 29 U.S.C. § 791, which provides “[t]he exclusive remedy for federal employees alleging that federal agencies engaged in disability discrimination,” Rand v. Geithner , 609 F. Supp 2d 97, 100 (D.D.C. 2009), limits judicial review “to any employee or applicant for employment aggrieved by the final disposition of [their administrative] complaint, or by the failure to take final action on [their administrative] complaint[,]” 29 U.S.C. § 794a(a)(1). 7 To properly exhaust one’s administrative remedies under the Rehabilitation Act, an aggrieve d individual must first file an administrative charge with an Equal Employment Opportunity C ounselor regarding the alleged vi olation within 45 days of its occurrence. 29 C.F.R. § 1614.105(a)(1) (2008). The District of Columbia Circuit has interpreted the exhaustion requirement of section 501 of the Rehabilitati on Act as presenting a strict jurisdictional barr ier to the filing of judicial complaints that fail to comply with that provision.

See Spinelli v. Goss , 446 F.3d 159, 162 (D.C. Cir. 2006) (no ting that the Rehabilitation Act

7 The Court will only consider whether the alleged discriminatory employment practices violated the Rehabilitation Act because while the plaintiff initially brought her claim as a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, Complaint (“Co mpl.”) ¶¶ 1, 10-17, her amended complaint only seeks relief for alleged violations of the Rehabilitation Act, Am. Compl. ¶¶ 1, 10-17.

10“mandat[es] administrative exhaustion[,]” and holding that “[t]he district court . . . should have dismissed [the plaintiff’s] Rehabilitation Act cl aim for lack of jurisdiction” because “[s]uch jurisdictional exhaustion , as we have called it, may not be excused ”) (emphasis added) (internal quotations omitted); Moore v. Schafer , 573 F. Supp. 2d 216, 219 (D.D.C. 2008) (“[U]nlike some exhaustion requirements, Secti on 501's is jurisdictional.”); Int'l Union v. Clark , Civil Action No. 02-1484 (GK), 2006 WL 2598046, at *9 (D.D.C. Sept. 11, 2006) (noting that “because a jurisdictional exhaustion requirement [like the one imposed by section 501] is a condition to the waiver of sovereign immunity it mu st be strictly construed” (citing Irwin v. Dep't of Veterans

Affairs , 498 U.S. 89, 94 (1990) (internal quotation marks omitted))). Thus, because the Rehabilitation Act’s exhaustion requirement is juri sdictional, the Court may “not read futility or other exceptions into [the] statutory e xhaustion requirements where Congress has provided otherwise.” Spinelli , 446 F.3d at 162 (emphasis added) (internal quotation marks omitted) (citing Booth v. Churner , 532 U.S. 731, 741 n.6 (2001)); see also Moore , 573 F. Supp. 2d. at 220 (rejecting application of “sufficient notice” a nd equitable estoppel excep tions to circumvent exhaustion requirement of the Reha bilitation Act) (citing Spinelli , 46 F.3d at 162); Int’l Union , 2006 WL 2598046, at *10 (discussin g the impact of Spinelli , and rejecting the application of the “vicarious exhaustion” theory in that Rehabilitation Act case). For the first time in its repl y filing, the defendant argues th at the plaintiff’s complaint

should be dismissed for failure to exhaust her administra tive remedies to the extent that it is based on the refusal of her supervisors to gr ant her advance annual le ave for pay period 15. Def.’s Reply at 2-3. 8 The defendant bases this argument on the failure of the plaintiff to

(. . . continued) 8 While a party ordinarily is not permitted to raise an argument for the first time in its reply filing, because the argument pertains to whether the Court has federal jurisdiction to entertain this challenge, the Court is obliged to

11specifically include an allegati on of discrimination or retalia tion during pay period 15 in her initial administrative charge, see Pl.’s Mem., Ex. D (EEO Couns elor’s Notes) at 1, and the

Commission’s denial of her motion to amend her administrative complaint to include the refusal of advance annual leave during pay period 15, see Def.’s Reply, Ex. 1 (Complainant’s Mot. To Add Retaliation); id. , Ex. 3 (Order Denying Motion to Add Re taliation); Def.’s Reply at 2-3. As the defendant correctly points out, see Def.’s Reply at 5, in National Railroad Passenger Corp. v. Morgan , 536 U.S. 101 (2002) , the Supreme Court held that each discrete adverse employment action triggers the statutory exhaustion requirement. Id. at 114. Although the plaintiff in Morgan alleged numerous acts of discrimi nation and retaliation, the Supreme Court held that only those act s occurring within the appli cable limitations period were actionable, regardless of any connection between the earlier acts and the ones about which the plaintiff had filed a timely complaint. See id. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are re lated to acts alleged in timely filed charges .”) (emphasis added). Thus, “[a]fter Morgan , to determine whether a claim must meet the procedural hurdles of the exhaustion requirement itself, or whether it can piggy-back on another claim that has satisfied those requirements . . . , the Court must decide whether the otherwise

barred claim is for a ‘discrete’ act of discrimination.” Rand , 609 F. Supp. 2d at 101 (quoting Coleman-Adebayo v. Leavitt , 326 F. Supp. 2d 132, 137-38 (D.D.C. 2004) ); accord, e.g. , Camp v.

District of Columbia , No. Civ.A. 04-234(CKK), 2006 WL 667956, at *7 (D.D.C. Mar. 14, 2006); Romero-Ostolaza v. Ridge , 370 F. Supp. 2d 139, 149 (D.D.C. 2005). Generally, hostile work environment claims which rely on allegedly discriminatory conduct falling outside the

(...continued) consider the question. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 278 (1977) (indicating that courts “are obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction.”).

12applicable time period for filing an administrative complaint are treated as an exception to the rule set forth in Morgan , “because a hostile work environmen t violation – unlike a discrete act such as firing or failing to promote an employ ee – ‘cannot be said to occur on any particular day.’” Coghlan v. Peters , 555 F. Supp. 2d 187, 203 (D.D.C. 2008) (quoting Morgan , 536 U.S. at 117). Unlike hostile work environment claims, each “[d]iscrete act[] such as termination, failure to promote, denial of transfer or refusal to hire” is “a separate actio nable ‘unlawful employment practice’” because each occurs at a fixed time. Morgan , 536 U.S. at 114 . Accordingly, the defendant argues that because each decision to deny the plaintiff advance annual leave is a discrete action, and because the plaintiff initi ated an EEO investigation on June 21, 2005, before

the second denial of advance annual leave on June 29, 2005 (thus limiting the investigation of her charge to the events of pay period 13), the pl aintiff’s claim should be dismissed for failure to

exhaust her administrative remedies to the extent it relies upon the even ts occurring during pay period 15. 9 See Def.’s Reply at 2-6.

The defendant concedes that th e plaintiff has exhausted her administrative remedies with regard to pay period 13. Def.’s Reply at 6 n.2. Clearly, then, as it pertai ns to her hostile work environment claim, the plaintiff has exhausted her administrative remedies and may rely on the events of pay period 15 to support her position. See Morgan , 536 U.S. at 115 (“Hostile work

environment claims are different in kind from disc rete acts. Because their very nature involves repeated conduct[.]”); Coleman-Adebayo , 326 F. Supp. 2d at 137 (“For hostile-workenvironment claims, then, discriminatory acts ma y be used by a plainti ff in proving the claim,

even if those actions occurred outside of the filing period.”) (citing Morgan , 536 U.S. at 115-21).

9 Although the defendant appears to treat this argument as one for dismissal for failure to state a claim upon which relief can be granted based on Federal Rule of Civil Procedure 12(b)(6), see Def.’s Reply at 2; Def.’s Mem. at 6, in reality it is one for dismissal for lack of jurisdictio n under Federal Rule of Civil Procedure 12(b)(1), and will be treated as such.

13However, regarding her di sparate treatment claim , the Court agrees that th e plaintiff has failed to exhaust her administrative remedies with respect to the events of pay period 15. The plaintiff lodged her preliminary EEO charge before the June 29, 2005 denial of her request for advance annual leave for pay period 15 even occurred, an d she failed to file another administrative complaint after that second denial even though it is se parately actionable. Cf. Morgan , 536 U.S. at 115 (“[I]n direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”). The decision to deny an employee advan ce annual leave, as it relates to the plaintiff’s disparate treatment claim, is more akin to a “[ d]iscrete act[] such as termination, failure to promote, denial of transfer or refusal to hire,” id. at 114, than to actions asserting hostile work environment claims, which by “[t]heir very nature involve[] repeat ed conduct[,]” id. at 115; see Ledbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618, 638 (rejecting plaintiff’s “hostile salary environment” theory that “a pay discrimination claim is like a hostile work environment claim” because, with the latter, “the actionable wrong is the environmen t, not the individual acts that, taken together, create the environment”). 10 Moreover, the plaintiff simply has not set forth facts

10 The Lilly Ledbetter Fair Pay Act of 2009 (“Fair Pay Act”), 42 U.S.C.A. § 2000e- 5(e) (West 2009), applies to discrimination claims brought under section 501 of the Rehabilitation Act that were pending or initiated after May 28, 2007, but it is not applicable to the present case beca use the Fair Pay Act only alters the remedy available to plaintiffs alleging discriminatory compensation decisions, not discrete discriminatory acts. Specifically, the Fair Pay Act states, “an unlawful employm ent practice occurs . . . when an individual becomes subject to a discriminatory compensation decision or other practice . . . including each time wages, benefits, or other compensation is paid,” and that a plaintiff can “recover[] . . . back pay for up to two y ears preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.” Id. § 2000e-5(e)(3). For instance, in Gentry v. Jackson State University , 610 F. Supp. 2d 564 (S.D. Miss. 2009), the district court held that the Supreme Court’s Ledbetter decision continues to control disparate treatment claims involving discrete discriminatory acts other than claims related to pay. Id. at 566 (finding plaintiff’s alleged denial of tenure was a discrete act w ith an available remedy under the Fair Pay Act because it involved a related salary increase that qua lified as a “compensation decision”); see also Johnson v. District of Columbia , 632 F. Supp. 2d 20, 21-22 (D.D.C. 2009) (reviving discriminatory compensation claims under the Fair Pay Act by a judge of this Court). Furthermore, another di strict court found that the Fair Pay Act does not apply to cases where the plaintiff has failed to exhaust available administrative remedies for “d iscrete discriminatory acts other than pay.” Speer v. Mountaineer Gas Co. , Civ. Action No. 5:06CV41 (STAMP), 2009 WL 2255512, at *7 n.6 (N.D.W. Va. July 28, 2009) (dismissing with prejudice a discrimination claim where the plaintiff was not permitted to work and failed to file a claim with the Equal Em ployment Opportunity Commission (the "EEOC") within the (. . . continued)

14tending to show – or that even a lleged – that the disparate treatment she alleges is “so pervasive and ongoing that the exception to exhaustion recognized in Morgan for hostile-work environment cases may be applied directly or extended by analogy.” Coleman-Adebayo , 326 F. Supp. 2d at 138 n.3 (discussing the implications of the Morgan holding, noting that in certain “circumstances in which multiple acts of discrimination or retaliation occur after the act giving

rise to the initial administra tive charge, each of which is tied to the same discriminatory decision[,] . . . [t]o require the employee to exhaust administrative remedies as to each [subsequent discriminatory decisi on] . . . would seem to put an excessive burden on plaintiffs”);

see also Shea v. Rice , 409 F.3d 448, 451-53 (D.C. Cir. 2005) (hol ding that the plaintiff’s claims for discriminatory treatment in pay level that occurred afterthe filing of his sole administrative charge were not barred, because each paycheck he received was a discrete, actionable act and he “allege[d] a persistent discri minatory salary structure ” rather than “isolated discriminatory acts that had continuing conseque nces under neutral salary systems” (citing Morgan , 536 U.S. at 111- 12 (emphasis added))). Thus, because the plainti ff failed to file a preliminary administrative charge with an EEO Counselor within 45 days of the denial of her pay period 15 request for advance annual leave, the Court ag rees that it is without jurisdicti on to adjudicate the plaintiff’s disparate treatment claim based that denial. 11

(...continued) applicable statute of limitations). Therefore, the Fair Pay Act does not eliminate the requirement that a plaintiff exhaust available administrative remedies when alleging di screte acts of discrimination. Consequently, it follows that the Supreme Court’s Ledbetter decision controls and, as applied to th e facts in this case, causes the Court to conclude that the alleged discriminatory practice concerning pay period 15 amounted to a denial of advance annual leave, a discrete act unrelated to compensation or pay. Accordingly, the plaintiff should have filed a new administrative grievance with the EEOC regarding pay period 15 because her previous grievance did not necessarily put the defendant on notice that she was seeking redress for that pay period, and the alleged discriminatory practice in pay period 15 was separately actionable.

11 EEOC regulations provide that “[a] complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint.” Weber v. Battista , 494 F.3d 179, 183 (D.C. Cir. 2007) (quoting 29 C.F.R. § 1614.106(d) (2006)); see also 29 C.F.R. § 1614.106(d) (. . . continued)

15B. The Plaintiff’s Disparate Treatment Claim Under the Rehabilitation Act, “the two essent ial elements of a discrimination claim are that (i) the plaintiff suffered an adve rse employment action (ii) because of the plaintiff’s . . . disability.” Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008) (emphasis added).

“Because the enforcement standards of the Rehab ilitation Act are the same as in the Americans with Disabilities Act (“ADA”), case law analyz ing disability benefits under the ADA applies with equal force to the Rehabilita tion Act.” Holmes-Martin v. Leavitt , 569 F. Supp. 2d 184, 194- 195 (D.D.C. 2008) (citing 29 U. S.C. § 791(g)); see also Aka , 156 F.3d at 1288 (holding that the McDonnell-Douglas framework applies equally to ADA and Rehabilitation Act cases). Thus, in Rehabilitation Act cases, “[when] an employer [h as] assert[ed] a legitimate, nondiscriminatory reason for an adverse employment action, the district court must conduct one central inquiry in considering an employer’s motion for summary j udgment[:] . . . whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory

reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on [the basis of her disability].” 12 Adeyemi v. District of Columbia , 525 F.3d 1222,

(...continued) (2009). In Weber , the Court determined that it did have jurisdiction over a plaintiff’s second claim that had not been filed with an EEO Counselor within 45 days of its occurrence, because sh e had successfully amended her formal EEOC complaint to include that claim, which was subsequently investigated, and thus “[the plaintiff there] gave the [defendant] an opportunity to resolve he r claim administratively before she filed her complaint in district court.” Id. at 183-84. Here, however, the FBI did not have the same degree of notice or opportunity to resolve the pay period 15 claim administratively, as the defendant did in Weber , because the plaintiff’s de layed attempt to amend her formal administrative complaint to include th e events of pay period 15 was denied, see Def.’s Reply, Ex. 3 (Order Denying Motion to Add Retaliation), and the investigation of her complaint was specifically limited to “whether [the plaintiff] was discriminated against based on [her] disab ility (physical) when” she was denied advance annual leave during pay period 13, Def.’s Mem., Ex. 1 (Ragdale Aff.) at 1. Thus, the EEOC’s “like or related” test does not save the plaintiff’s disparate treatment claim ba sed on the events of pay period 15.

12 Before turning to this inquiry, the Court must firs t address two of the defendant’s arguments concerning the plaintiff’s prima facie case und er the Rehabilitation Act. First, the de fendant argues that the placement of the plaintiff on leave without pay was not an adverse employment action, because at the time she requested advance annual leave on May 31, 2005 (during pa y period 13), the plaintiff had not accr ued any annual leave, and thus “she ‘suffered no objectively tangible harm.’” Def.’s Mem. at 17 (quoting Currier v. Postmaster Gen. , 304 F.3d 87, 89 (. . . continued)

161226 (D.C. Cir. 2008) (emphasis added) (citi ng Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 493-95 (D.C. Cir. 2008)); see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 153 (2000) (“The ultimate questi on in every employment discrimination case involving a claim of disparate treat ment is whether the plaintiff was the victim of intentional discrimination.”). In response to the plain tiff’s allegation of disparate treatment by the defendant’s refusal to grant her advance a nnual leave for her absence on May 31, 2005 (during pay period 13), the defendant asserts that “[t]he de nial of [the] plaintiff’ s request was consistent with a universally[-]applied policy within [her di vision] that requests for advance [annual leave] would not be approved.” Def.’s Mem. at 22; see also Def.’s Reply at 9 (“In accordance with FBI policy, an employee does not accrue leave from a pay period until the end of that pay period .” The “[p]laintiff did not, in fact, have a sufficient annual leave ba lance that would have enabled her to take [annual leave] on either May 31, 2005 [during pay period 13] or June 29, 2005 [during pay period 15].” Her “r equest[s] [were] denied becaus e she had a [zero annual leave balance entering those pay periods].”); see supra Part I (Background). In response, the plaintiff

(...continued) (D.C. Cir. 2002)). The plaintiff respon ds that by being placed on leave w ithout pay, instead of advance annual leave, she experienced a loss in compensation of $273.20 per day, Pl.’s Mem. at 8 n.4, and that she thus experienced an adverse employment action, id. at 8-9. The Court agrees that a dimi nution in pay, even where the plaintiff avoided a worse penalty (being placed on ‘absent with out leave’), see Def.’s Mem. at 17, constitutes a materially adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 71-73 (holding that a suspension without pay, even where an employer later provided back pay, could be “a serious hardship” to a reasonable employee, and thus “mater ially adverse”); Greer v. Paulson , 505 F.3d 1306, 1317-18 (D.C. Cir. 2007) (finding that placement on leave without pay, which entailed, inter alia , a loss of compensation and negative consequences for employee’s eligibility for benefits, was an adverse employment action). The defendant also argues that the plaintiff is not disabled within the meaning of the Rehabilitation Act, which defines a disability as “a physical or mental impairment that substantially limits one or more major life activities,” 29 U.S.C. § 705(9)(B) (2006), which includes “walking,” 29 C.F.R. § 1630. 2(i) (2008). The defendant claims that “[t]he record is devoid of specific information about the effects of the [plaintiff’s] condition[s] on [her] major life activities.” Def.’s Mem. at 19. However, the plaintiff’s affidavit closely deta ils the significant effects of her Bilateral Patellar Chrondromalacia on her ability to walk, and also discusses the additional effects of her other illnesses (e.g. Lupus). See Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 2-6 and supra Part I (Background). Indeed, the plaintiff’s supervisors admit to being aware of the plain tiff’s medical conditions and their effects on her ability to walk. See, e.g. , Def.’s Mem., Ex. 3 (Mar. 1, 2006 Affidavit of Wylene C. Haase (“Haase Aff.”)) at 2; Def.’s Mem., Ex. 5 (Jan. 25, 2006 Affidavit of Winifred Huger (“Huger Aff.”)) at 2. Thus, the Court concludes that the plaintiff is disabled within the meaning of the Rehabilitation Act.

17offers three categories of evidence in her attempt to establish that the defendant’s nondiscriminatory reason for not granting her requ est for annual leave is merely a pretext for

intentional discrimination on the basis of her disability. See Pl.’s Mem. at 6-8. Because the Court finds the plaintiff has failed to produce su fficient evidence from which a reasonable jury

could find intentional discriminati on by the defendant on the basis of her protected status, for the following reason it must grant the defendant’s motion for summary judgment on her disparate

treatment claim. 13 First, the plaintiff points out that although Ms. Huger stated in her affidavit that “I do not recall authorizing an employee under my superv ision to take leave when they did not have the leave accrued,” Def.’s Mem., Ex. 5 (Ja n. 25, 2006 Affidavit of Winifred Huger (“Huger Aff.”)) at 4; see also id. at Ex. 3 (Mar. 1, 2006 Affidavit of Wyelene C. Haase (“Haase Aff.”)) at 7 (“I have never approved the advancement of annual leave to an employee under a similar circumstance such as Ms. Ragsdale . . . .”), the plaintiff in fact was granted advance annual leave by Ms. Haase on May 15, 2005, during pay period 12, even though sh e entered that pay period

with a zero balance of accrued annual leave, Pl.’s Mem. at 6. Compare Pl.’s Mem., Ex. C (Leave Report for Sandra Ragdale, Pay Period 12) at 1 (granting eight hours annual leave on May 16, 2005), with Def.’s Mem., Ex. 6 (FBI Earnings an d Leave Record for Sandra Ragsdale, Pay Period 12 (05/15/2005 – 05/28/2005) (“ Ragsdale Leave Record, Pay Period 12”)) at 2 (noting that beginning balance of annual leave was zero hours). Although the plaintiff accordingly contends that the defendant’s apparently “incons istent explanation is not worthy of belief and

13 Although the Court has determined that it is without jurisdiction to adjudicate the plaintiff’s claim of disparate treatment based on the events of pay period 15, see supra Part III.A, the present analysis applies with equal force to that claim as well. Thus, even if the Court coul d exercise jurisdiction over the plaintiff’s second disparate treatment claim, it would be compelle d to grant summary judgment to the de fendant on that claim for the reasons stated in this section of this opinion.

18infers discrimination,” Pl.’s Mem. at 7, the Court disagrees. To be sure, as the plaintiff points out, “[i]n ‘appropriate circumstances , the trier of fact can reasonabl y infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.’” Pl.’s Mem. at 8 (emphasis added) (quoting Reeves , 530 U.S. at 147). However, as the Reeves Court goes on

to note, [s]uch a showing by the plaintiff will [not] always be adequate to sustain a jury's finding of liabi lity. Certainly there will be instances where, although the pl aintiff has established a prima facie case and set forth sufficient evidence to reject the [employer's] explanation, no rationa l factfinder could conclude that the action was discriminatory.

Reeves , 530 U.S. at 148 (emphasis in original). The simple fact that the plaintiff’s supervisor, Ms. Huger, 14 granted her advance annual leave during one pay period and then denied the same request during the next, see Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 10-11, does not give rise to an

inference of intentional discrimination on the basi s of the plaintiff’s protected status – indeed, that fact weighs against a finding of a discriminatory an imus in the decision to deny the plaintiff’s request for advance annual leave during pay period 13. See Czekalski v. Peters , 475 F.3d 360, 368-69 (D.C. Cir. 2007) (discussing what is known as the same-actor inference, noting that the fact that the same person who reassi gned the plaintiff for allegedly discriminatory

reasons also hired her and even had recommende d her for a promotion “is probative evidence against the claim that he harbored a general an imus against female employees[,]” but concluding that “in light of all [the] evidence, a reasonable trier of fact could conclude” that the defendant acted with discriminatory animus); Waterhouse v. District of Columbia , 298 F.3d 989, 996

14 The plaintiff identifies Ms. Huger as the supervisor who denied her advance annual leave in her affidavit, Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 9, however, the defe ndant states that Ms. Haase “advised Ms. Huger that she would not approve plaintiff’s request for advan ce [annual leave],” Def.’s Mem. at 5-6; id. , Ex. 5 (Huger Aff.) at 4. The apparent contradiction is immaterial to the Court’s analys is since the supervisor’s action does not give rise to an inference of intentional discrimination, regardless of which supervisor actually made the decision.

19(affirming the district court’s gr ant of summary judgment in favorof the defendant, noting that the probative value of a statement by the plaintiff’s supervisor c oncerning the racial makeup of the District’s managers “was se riously undercut by the undisputed f act that [the same supervisor] approved the decision to hire [the plaintiff] earlier that same year”); Isse v. Am. Univ. , 540 F. Supp. 2d 9, 38 n.29 (discussing the same actor inferen ce in the context of em ployee evaluations). Although the same actor inference “is just that , an inference, which ‘cannot immunize [the defendant] from liability for subsequent discrimination,’” Isse , 540 F. Supp. 2d at 38 n.29 (quoting Czekalski , 475 F.3d at 369), it does work here to re quire the plaintiff to present further

evidence to defeat the defendant’s motion for summary judgment. Next, the plaintiff points to what appear to be notes recorded by an EEO Counselor during the course of the invest igation of the plaintiff’s ini tial administrative charge. See Pl.’s Mem., Ex. D (EEO Counselor’s No tes). These notes contain reco rds of telephone conversations with the “[d]efendant’s Time and Attendance prof essionals, Germaine Bradshaw and Selena [sic] Jameson,” to an unidentified EEO Counselor, whic h purportedly “confirmed th at [the] [p]laintiff was ‘singled-out’ by her supervisors when she wa s” denied advance annual leave and placed on leave without pay. Pl.’s Mem. at 7; see id. , Ex. D (EEO Counselor’s Notes, Statement of Germaine Bradshaw (“Bradshaw Statement”)) at 3 (“Writer asked Brashaw 15 [sic] if she felt Ragsdale had been singled out by management to en force this policy . . . as [an] example to other employees. Brashaw [sic] stated she did feel Ra gsdale had been single d out, but she could not offer a reason why. . . . Brashaw [sic] stated sh e knew of no one else th at may have gone through this situation.”); Pl.’s Mem., E x. D (EEO Counselor’s Notes, Jameson Statement) at 4 (“Writer asked Jameson if management has instituted a policy across the board regarding leave. Brashaw

15 The plaintiff consistently refers to “Germaine Bradshaw” in her filin gs, so the reference to “Germaine Brashaw” in the EEO Counselor’s Notes is considered a typographical error.

20[sic] stated that this policy onl y seems to be ‘used towards Ragsdale.’”) In response, the defendant argues that not only are these statements “inadmissible hearsay which will not defeat a motion for summary judgment,” but that “even if admissible,” th ey do not establish that the

denial of advance annual leave wa s motivated by a discriminatory animus. Def.’s Reply at 13

n.6. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R. Evid. 801(c). As discussed above, inadmissibl e hearsay (hearsay not falling within a recognized exception) may not be considered when evaluating the merits of a motion for summary judgment, nor may any documents which are not (or cannot be) properly authenticated. See Gleklen , 199 F.3d at 1369; Nnadili , 435 F. Supp. 2d at 105; see supra Part II.C. Here, not on ly are the Bradshaw and

Jameson statements – which are be ing introduced to prove the matters they assert, i.e., that the plaintiff was singled out in be ing denied her request for advance annual leave – contained in what appear to be an EEO Counselor’s notes l acking any authentication or supporting affidavit, but they are also unsigned (much less sworn to) by the Counselor or I nvestigator (indeed, the Counselor or Investigator is noteven identified), not dated, a nd replete with typographical and what appear to be other significant errors, see, e.g. , Pl.’s Mem., Ex. D (EEO Counselor’s Notes) at 1 (“wish” rather than wishes); id. at 2 (“acrued” rather than accr ued; “call” rather than calls; “need” rather than needs); id. at 4 (documenting telephone co nversation with Selina Jameson, report states: “Writer asked Jameson if management had instituted a policy across the board regarding leave. Brashaw [sic] stated that this policy seems to be ‘used toward Ragsdale.’”) (emphasis added). Moreover, “[s]tatements made by third persons that are recorded in an investigative report are hearsay within hearsay. As such, they are inadmissible unless they

21qualify for their own exclusion from the hearsay ru le.” Barry v. Trustees of the Int’l Ass’n FullTime Salaried Officers & Employees of Outside Local Unions & Dist. Counsel’s (Iron Workers)

Pension Plan , 467 F. Supp. 2d 91, 102 (D.D.C. 2006) (quo ting Weinstein's Federal Evidence § 803.10[4][a] (LexisNexis 2006)); see also Crowley v. L.L. Bean, Inc. , 303 F.3d 387, 410 (1st Cir. 2002) (holding that various witness statements contained in an investigative report are hearsay within hearsay and are inadmissible at trial); Wells , 2007 WL 2696566 at *3 (declining to consider in evaluating a motion for summar y judgment an EEO Counselor’s notes, “[which were] unsigned, unsworn, and lacking [any] affirm ative indication of the document’s author” and other “unsworn statements . . . contain[ing] double hearsay”). Although an EEO Counselor’s notes may be admissible under the business r ecords exception to th e hearsay rule, see Smith v. Universal Servs., Inc. , 454 F.2d 154, 157 (5th Cir. 1972); Fed. R. Evid. 803(6), here the complete lack of any authentication of the notes submitted by the plaintiff makes the propriety of considering them under this excep tion extremely questionable. However, even if these notes were admissibl e, the statements of Bradshaw and Jameson

do not raise an inference of intentional discrimi nation against the plaint iff by her supervisors on the basis of her disability. The Bradshaw statement simply states that “in th e past [the denial of advance annual leave] was not done[, ]” and that Bradshaw “did feel [the plaintiff] had been singled out, but she could not offer a reason why. ” Pl.’s Mem., Ex D (EEO Counselor’s Notes, Bradshaw Statement) at 3 (emphasis added). And the Jameson statement notes only that “Brashaw [sic] state[s] that this policy only seems to be 'used towards [the plaintiff].'” Id. at 4 (emphasis added). Even if these statements could be construed in a manner that calls into question the accuracy of the claim that the FBI’s leave policy was “universally applied,” Def.’s Mem. at 22, they certainly do not permit an infe rence that the plaintiff was denied advance

22annual leave because of her disabl ed status; indeed, these statem ents amount to nothing more than rank “speculation, which is not the same as evidence showi ng” that the FBI’s leave policy was not universally applied, much less that disc riminatory animus motivated the actions of the plaintiff’s supervisors, Forman v. Small , 271 F.3d 285, 294 (D.C. Cir. 2001). Thus, the Bradshaw and Jameson statements add nothing to th e plaintiff’s effort to defeat the defendant’s motion for summary judgment. Finally, in order to establish an inference of intentional discri mination, the plaintiff attempts to “identify [a] similarly-situated pe rson[] outside of her protected class [who was] afforded leave during the relevant time period.” Pl.’s Mem. at 7. In her attempt to do this, the plaintiff has submitted the Leave Report of Joanne Calatayud, Pl.’s Mem., Ex. E (Leave Report for Joanne Calatayud) (filed under seal), who wa s at the time a Personnel Security Specialist

with the FBI. See also Pl.’s Mem., Ex. F (Attendance Register, Joanne Calatayud, Pay Period 7 (03/06/2005-03/19/2005) (“Attendance Regi ster for Joanne Calatayud”)); id. , Ex. G (Approval for Leave for Joanne Calatayud, Pay Period 7 (03/06/2005-03/19/2005) (“Approval for Leave for Joanne Calatayud”)). “In order to show that sh e was similarly situated to a fellow employee, [the] plaintiff must ‘demonstrate that all of the relevant aspects of their employment situation are nearly identical,’” including working under the same supervisor. Childs-Pierce v. Utility

Workers Union of Am. , 383 F. Supp 2d 60, 70 (D.D.C. 2005) (quoting Neuren v. Adduci, Mastriani, Meeks & Schill , 43 F.3d 1507, 1514 (D.C. Cir. 1995)). This the plaintiff has clearly failed to do with respect to Ms. Calatayud for seve ral reasons. As the defendant correctly points out, Ms. Huger and Ms. Haase were not Ms. Ca latayud’s supervisors a nd did not approve her requests for leave. See Childs-Pierce , 383 F Supp. 2d at 73 n.9 (“[T]he fact that [the] plaintiff and [the proffered compar ator] did not deal with the same supervisor with respect to their

23requests for . . . sick leave deems them not similarl y situated for purposes of this claim.”); Def.’s Reply at 7; see Pl.’s Mem., Ex. F (Attendance Register for Joanne Calatayud) at 1 (signed by Patricia Scherger). Even more significantly, th e Approval for Leave and the Attendance Register for Ms. Calatayud do not es tablish that Ms. Calatayud was granted advance annual leave, as was requested by the plaintiff during pay period 13 (and 15). On the contrary, Ms. Calatayud was granted sick leave and accrued annual leave during pay period 7. See Pl.’s Mem., Ex. G (Approval for Leave for Joanne Calatayud). In deed, unlike the plain tiff’s zero balance of accrued annual leave entering pay period 13 (and 15), Ms. Calatayud in fact entered pay period 7

with 120 hours of accrued annual leave, of which she used 24 during that pay period. Def.’s Reply, Ex. 9 (Leave Accounting List for Joanne Cala tayud) at 1. Thus, the plaintiff has failed to demonstrate that she and Ms. Calatayud are simila rly situated for the purposes of establishing her disparate treatment claim. 16 Because the plaintiff has failed to produce any evidence – either individually or cumulatively – sufficient to allow a jury to in fer intentional discrimi nation by the plaintiff’s supervisors on the basis of her protected status, the Court must grant the defendant’s motion for summary judgment with respect to her claim of disparate treatment.

C. The Plaintiff’s Hostil e Work Environment Claim To prevail on a hostile work environment claim, “a plaintiff must show that h[er] employer subjected h[er] to discriminatory intimid ation, ridicule, [or] insu lt that is sufficiently severe or pervasive to alter th e conditions of the victim’s employment and create an abusive

16 The plaintiff’s affidavit also note s that on at least one occasion a co mmendation concerning the quality of her work by a senior official with the Security Division was ignored by her immediate supervisors. Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 8-9. This allegation seems to be raised as support for her claim that other employees would have received recognition for their perf ormance from their supervisors based on the commendation. However, the plaintiff has presented nothing of substance that supports this proposition.

24working environment.” Baloch , 550 F.3d at 1201 (internal quotation marks omitted). 17 In determining whether a hostile work environment ex ists, the Court must look to “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it [reasonably] interfer es with an employee’s work performance.” Id. The standard for judging hostility is “sufficien tly demanding” so as to “filter out complaints attacking the ordinary tribulations of the workplace.” Childs-Pierce , 383 F. Supp 2d at 77 (internal quotation marks omitted) (citing Faragher v. Boca Raton , 524 U.S. 775, 788 (1998)). Thus, “the conduct complained of ‘must be extreme to amount to a cha nge in the terms and conditions of employment.’” Franklin v. Potter , 600 F. Supp. 2d 38, 76 (D.D.C. 2009) (quoting Faragher , 524 U.S. at 788). Moreover, “it must be clear that the hostile work environment was

the result of discrimination based on a protected status.” Childs-Pierce , 383 F. Supp. 2d at 77. Indeed, [e]veryone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosse s are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage of correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.

Id. at 77-78 (quoting Alfano v. Costello , 294 F.3d 365, 377 (2d Cir. 2002)). In support of her hostile work environment claim, the plaintiff relies only on her own

affidavit and the EEO Counselor’s Notes. Pl.’ s Mem. at 9-10. She claims that the following

events establish her hostile work environment clai m: repeated denials of her requests for sick leave and placement on leave without pay; a “fal se[] accus[ation]” in 1997 by Ms. Huger that the

17 “[T]his Circuit has not yet ruled that the Rehabilitation Act permits a hostile work environment claim . . . .” Pantazes v. Jackson , 366 F. Supp. 2d 57, 71 (D.D.C. 2005). In the present case, the C ourt will follow the precedent of “assum[ing], without deciding, that the Rehabilitati on Act creates a cause of action for [a] hostile work environment [claim].” Kuraner v. Mineta , No. 00-5416, 2001 WL 936369, at *1 (D.C. Cir. July 10, 2001).

25plaintiff failed to complete a significant amount of her work; an alleged threat by Ms. Haase to terminate the plaintiff's employment should her attendance not improve; and "an evil smirk" she received from Ms. Huger. Id. at 9; Def.’s Mem., Ex. 1 (Ragsd ale Aff.) at 3, 6, 10; Pl.’s Mem., Ex. D (EEO Counselor’s Notes) at 3-4. Yet ag ain, however, the plaintiff is relying on the unauthenticated EEO Counselor’s Notes as suppor t for her position that she was “singled-out by management in her use of accrued annual leave, ” in her attempt to ra ise an inference of

discrimination based on her disabili ty status. Pl.’s Mem. at 9. And as a result of the colletive impact of these actions, which she characterizes as “unprofessional and cruel[,]” Def.’s Mem., Ex. 1 (Ragsdale Aff.) at 9, the plaintiff clai ms to have been so “devastated[,]” id. at 10, and “stressed,” id. at 8, that she had to postpone her doctor’s appointments and come to work ill on one occasion with a painful infection, id. She also claims to have suffered “severe and emotional distress including, but not limited to, insomnia , loss of appetite, depression, anxiety, embarrassment, humiliation, symptoms of physical illn ess, despair, anger and loss of faith in her employer.” Am. Compl. ¶ 17. The defendant argues that the plaintiff’ s hostile work environment claim must be dismissed because “[e]ven if the plaintiff’s claims were true, the alleged conduct is not sufficiently severe or pervasive to alter the c onditions of [her] employme nt and does not create an abusive working environment.” Def.’s Repl y at 13 (internal quotatio n marks omitted); see

also Def.’s Mem. at 23-26. 18 The defendant further argues that the plaintiff’s affidavit and the

EEO Counselor’s Notes are “insu fficient to [establish] . . . th at the alleged harassment was

18 In the Defendant’s Memorandum in Support of Motion to Dismiss, he argues for di smissal of the plaintiff’s hostile work environment claim for failure to state a claim upon which relief can be granted. See Def’s. Mem. at 25- 26. However, the plaintiff relies on affidavits and exhibits to support her hostile work environment claim, and argues that summary judgment on this claim is improper. See Pl.’s Mem. at 9-10. Thus, because the Court has considered submissions outside the pleadings, and becaus e the plaintiff was on fair notice that the motion was alternatively seeking summary judgment, the defendant’s mo tion on this claim shall be treated as on e for summary judgment under Rule 56. See Fed. R. Civ. P. 12(b).

26[motivated by discriminatory animus].” Def.’s Reply at 13, n.6. In response, the plaintiff notes only that “whether the [alleged] conduct rises to the level of culpability against the [d]efendant. [sic] is a triable issue for the jury to determine. Accordingly, [the p]laintiff’s [hostile work environment claim] should survive [the d]efendant’s motion.” Pl.’s Mem. at 9-10 (citation omitted). Because the Court agrees that the alleged harassment doe s not rise to the level of a legally-cognizable hostile work environment cla im, the Court must grant the defendant summary judgment on the plaintiff’s hostile work environment claim. The actions described by the plaintiff – two discretionary denials of advance requests for annual leave and being designated on those occasions as having been on leave without pay rather than being absent without pay, a 1997 incidentinvolving an alleged “false[] accus[ation],” a “threat” concerning the plaintiff’ s attendance record, and an “evil sm irk” in an office hallway – simply do not present those types of extreme a nd pervasive circumstances required to prevail on a hostile work environment claim. Def.’s Mem. at 9; id. at Ex. 1 (Ragsdale Aff.) at 3, 6, 10;

compare Pantazes v. Jackson , 366 F. Supp. 2d 57, 71 (D.D.C. 2005) (denying summary judgment for defendant on hostile work environmen t claim based on disabi lity where plaintiff “offered evidence of alleged statements by various agency officials that s uggest a discriminatory purpose, unreasonably lengthy delays by [the agency ] in responding to his [repeated] requests for accommodations, and an inadequately explained refu sal to provide needed . . . training”), with

Vickers v. Powell , 493 F.3d 186, 198, 201 (D.C. Cir. 2007) (internal quotation marks and citation omitted) (noting that “the district court was correct that the three incidents within the [statute of limitations] period [(a supervisor’s “angry threats” and derogatory remarks about minorities, poor performance evaluations, and bei ng “singled out for a requirement to provide

inordinate amounts of medical info rmation to support requests for leave”)] were insufficient to

27support a hostile work environment claim”), and Franklin , 600 F. Supp. 2d at 77 (“[T]he fact that an employee and his immediate supervisor repeatedly butted heads, that the supervisor frequently yelled at [the plain tiff] during discussions about . . . work, and that the supervisor threatened him with job-related consequences fo r his refusals to meet workplace expectations

does not demonstrate a hostile work environment pervaded by disc rimination . . . .” (citing Smith

v. Jackson , 539 F. Supp. 2d 116, 138 (D.D.C. 2008) (internal quotation marks omitted))). Rather than presenting evidence of an atmo sphere of pervasive, extreme hostility and abuse, the plaintiff has presented accusations which amount at best to several isolated, “sporadic” incidents of office tens ion with little or no relationship to each other. Baloch , 550 F.3d at 1199, 1201 (affirming grant of summary judgment for defendants in hostile work environment action where a supervisor reassi gned the plaintiff’s duties and lessened his responsibilities, imposed sick leave restricti ons on the plaintiff, proposed two separate suspensions of the plaintiff, ga ve the plaintiff a poor performan ce review, and engaged in several

intense verbal altercatio ns with the plaintiff). Moreover, although the unsubstant iated allegations of emotional distress, humiliation, anxiety, depres sion, physical illness, etc., which the plaintiff

claims to have suffered as a result of the al leged actions by Ms. Huge r and Ms. Haase, are

“‘relevant to determining whether the plaintiff actua lly found the environment abusive,’ [these purported effects of their actions] are merely one factor to take into account when determining

whether the environm ent is ‘objectively hostile or abusive.’” Franklin , 600 F. Supp. 2d at 78 n.21 (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21-22). And without more, the Court finds that they are not. Furthe r, the plaintiff has failed to sh ow that the purported acts about which she complains were committed for discriminatory reasons because of her disability. See

Baloch , 550 F.3d at 1201 (affirming dismissal of hos tile environment clai m where none of the

28defendant’s alleged comments or actions were ex pressly focused on plaintiff’s disability); see

also Kline v. Springer , 602 F. Supp. 2d 234, 243 (D.D.C. 2009) (finding plaintiff’s hostile work environment claims unsubstantiated by the evidence in the record and that plaintiff’s allegations were not corroborated by any direct or circumst antial evidence that w ould show impermissible motive or discriminatory animus). Thus, because the plaintiff’s allegations and ev idence fail to rise to the level of a legallycognizable hostile work environment claim, th e Court will grant the defendant’s motion for summary judgment with respect to this claim. IV. CONCLUSION For the foregoing reasons, the Court must dism iss for lack of jurisdiction the plaintiff’s disparate treatment claim based on the events of pay period 15, and ente r summary judgment in favor the of the defendant on the plaintiff’s rema ining disparate treatmen t claim and her hostile

work environment claim. 19

_____/s/________________ Reggie B. Walton United States District Judge

19 An Order consistent with the Court’s ru ling accompanies this Me morandum Opinion.

29