Von Drasek v. Burwell

Von Drasek v. Burwell

Opinion

 [*146]  MEMORANDUM OPINION AND ORDER

The United States Food and Drug Administration ("FDA") fired Plaintiff Susan Von Drasek from her job as an FDA chemist, after repeated warnings about her unsatisfactory performance. Von Drasek has bipolar disorder, and she has brought the instant action against the FDA under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794f, claiming that her discharge violates that statute. Von Drasek's complaint makes three specific claims: (1) that the FDA failed to accommodate her disability; (2) that the FDA intentionally discriminated against her by terminating her employment because of her disability; and (3) that the FDA discharged her in retaliation for her request for accommodations.

Before this Court at present are the FDA's motion to dismiss, or in the alternative, motion for summary judgment (Mot. [**2]  to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mot."), ECF No. 7), and Von Drasek's cross-motion for summary judgment (Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Mot."), ECF No. 10).¹ The FDA argues that Von Drasek did not timely inform the agency of her need for any accommodations, and that, in any event, she has not established a prima facie case to support her failure-to-accommodate claim. (See Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 7, at 14-17.)² Moreover, the FDA argues that Von Drasek has failed to raise any genuine issue of fact regarding the intentional discrimination and retaliation claims, because the evidence demonstrates that her termination was the result of non-discriminatory and non-retaliatory factors. (Id. at 17-18.) For her part, Von Drasek argues that she is entitled to summary judgment on the failure-to-accommodate claim because her request for accommodations was timely and it is undisputed that the FDA failed to reassign her as requested, in violation of its obligations under the Rehabilitation Act. (See Pl.'s Opp'n to Def.'s Mot. & in Supp. of Pl.'s Mot. ("Pl.'s Mem."), ECF No. 10-1, at 10-11, 21-22.) Von Drasek also argues that she is entitled to summary [**3]  judgment on her intentional discrimination and retaliation claims because she has direct evidence of the FDA's discriminatory and retaliatory animus. (Id. at 35-39.)

As explained fully below, this Court finds that Von Drasek's request for accommodations  [*147]  was quite late, and perhaps irresponsibly so, but was timely nevertheless because the FDA had not yet terminated Von Drasek's employment when it received her request, and thus the agency was still in a position to respond to it. However, because genuine issues of material fact remain regarding whether or not Von Drasek could have performed the essential functions of her job if she was reassigned as requested, entry of summary judgment in either party's favor is [**4]  unwarranted. With respect to Von Drasek's intentional discrimination and retaliation claims, this Court will enter judgment in favor of the FDA because the Rehabilitation Act requires that the alleged discrimination or retaliation be the sole reason for the adverse employment action, and given the record here, no reasonable jury could conclude that animus regarding Von Drasek's request for accommodation and/or her underlying disability were the but-for cause of her final removal.

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