Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al, No. 2:2013cv00707 - Document 183 (E.D. Va. 2015)

Court Description: OPINION AND ORDER: granting in part and denying in part 82 Motion for Summary Judgment; denying 85 Motion for Summary Judgment; granting 135 Motion for Summary Judgment; denying in part and denying in part as moot 171 MOTION for Leave to File Additional Evidence in Support of Opposition to Defendant Navys Motion for Summary Judgment (ECF NO. 112) and Opposition to Defendants TCoombs & Associates, LLC and TCMP Health Services, LLCs Motion for Summary Judgment (ECF NO. 113). The Cou rt DENIES IN PART and DENIES IN PART AS MOOT Plaintiff's Motion for Leave to Submit Additional Evidence, ECF No. 171. The Court DENIES such motion as to the additional evidence Plaintiff sought to submit in opposition to TCA's moti on for summary judgment and the Court DENIES AS MOOT such motion as to the evidence Plaintiff sought to submit in opposition to the Navy's motion for summary judgment. The Court GRANTS Plaintiff's Motion for Summary Judgment, ECF No. 135 , regarding the Navy's status as Plaintiff's employer. For the purposes of Rehabilitation Act liability, the Navy was Plaintiff's employer under the joint employer doctrine.The Court GRANTS IN PART and DENIES IN PART the Navy's Mo tion for Summary Judgment, ECF No. 82. The Court DENIES such motion with respect to the joint employer doctrine and the defense of administrative exhaustion because the Court has determined that the Navy employed Plaintiff and that there is agenuine dispute of material fact as to whether Plaintiff timely initiated EEO counseling with the Navy. The Court GRANTS the Navy's motion with respect to Plaintiff's constructive discharge claim because no reasonable finder of fact could conclude that, if the Navy failed to accommodate Plaintiff, it did so with the intent to force Plaintiff to quit. The Court DENIES TCA's Motion for Summary Judgment, ECF No. 85. Plaintiff has adduced evidence creating genuine disputes of material fact as to both her failure-to-accommodate and constructive discharge claims against TCA. Copy of Order distributed as directed. Signed by District Judge Mark S. Davis on 9/22/2015. (bgra)

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Crump v. Tcoombs & Associates, LLC, trading as TCAssociates et al Doc. 183 FILED UNITED STATES DISTRICT EASTERN DISTRICT OF COURT VIRGINIA SEP 2 2 2015 Norfolk Division CLERK, US DiSTR:CT COURT SUMMER CRUMP, NO! FOLK, VA Plaintiff, v. Civil Action No. TCOOMBS & ASSOCIATES, 2:13cv707 LLC, TRADING AS TCASSOCIATES, TCMP HEALTH SERVICES, LLC, and UNITED STATES DEPT OF NAVY, BY AND THROUGH RAY MABUS, SECRETARY OF DEPT OF NAVY, Defendants. OPINION AND ORDER This matter is before the Court on a Motion for Summary Judgment, ECF No. 82, filed by the United States Department of the Navy, by and through Ray Mabus, Secretary of the Department of the Navy ("the Navy"), a Motion for Summary Judgment, ECF No. 85, filed by TCoombs Health Services, "TCA"), 135, to LLC a cross-motion & Associates, ("TCMP" LLC and, ("TCoombs") collectively for partial summary and TCMP with TCoombs, judgment, ECF No. filed by Summer Crump ("Plaintiff"), and a Motion for Leave Submit Plaintiff. parties' Additional Evidence, ECF No. 171, also filed by On August 31, 2015, the Court held a hearing on the summary judgment motions. With respect to Plaintiff's Dockets.Justia.com Motion for Leave to Submit briefs and the record, is unnecessary Additional Evidence, examining the Court determines that oral because the facts adequately presented and process. Fed. R. argument and legal contentions are argument oral decisional the would not the Civ. P. 78(b); aid E.D. in Va. Loc. R. 7 (J) . I. FACTUAL AND PROCEDURAL HISTORY1 A. The Navy's Contract with TCMP TCMP is contractor including office a that the provides Navy. support, employees operates United working Naval States medical Its Government personnel affiliate, human on TCMP's Government Center - to duty Branch military Medical Clinic personnel, their back services, for contracts. Portsmouth, ("BMC Government, provides resources and Branch Medical Clinics associated therewith, Point the TCoombs, including Medical ("Government") a number of including Sewells Sewells"), dependents, The Navy at and which active certain other eligible persons can receive medical treatment. On September 14, 2008, with TCMP ("the contract"). Ex. 4, Attachment A, the entered into a contract Navy's Mem. Supp. Mot. for Summ. J. ECF No. 1 As a general matter, Navy 83-5. Under the contract, TCMP the Court has described any genuinely disputed facts in a light most favorable to Plaintiff, the non-moving party. However, Plaintiff seeks partial summary judgment on whether the Navy qualifies as Plaintiff's employer and, therefore, the Court has considered the disputed facts with respect to Plaintiff's crossmotion in a light most favorable to the Navy. agreed to furnish ("HCW(s)"), certain including categories physician of healthcare assistants workers and nurse practitioners, to the Navy in accordance with task orders issued by the Navy. Id. § B.l. was capped at sixty twelve months. The framework Id. months; §§ B.8, contract through which HCWs, pursuant each task order HCWs the Navy from and TCMP limited to TCMP would created provide the medical The contract and subsequently issued task thereto established including physician assistants, the qualifications for the that TCMP would furnish to the Navy. See id_;_ §§ C.5-C.7; e.g. , id. § 8, ECF No. at 6, was B.10. between services to the Navy. orders The duration of the entire contract Ex. 83-6 (Task Order 25) .2 4, Attachment B, Under the contract, each HCW was assigned to a primary location; however, the Navy retained the authority to assign an HCW to another Naval Medical Center - Portsmouth facility within certain parameters. 4, Attachment A, § C.3.3.11. id. Ex. The contract provided that TCMP's HCWs would be "subject to day-to-day supervision and control by Government personnel" "the process guidance, by and defined which direction, the and "supervision and individual approval HCW with receives regard within the requirements of this contract." control" Id. to as technical a task(s) § C.2.3; see 2 For ease of reference, the Court relies on the pagination of the exhibits as entered on the Court's electronic docket, rather than the exhibits' original pagination. also id. § C.3.3.12. Furthermore, the contract directed that the Navy personnel supervising TCMP's HCWs were "best served by supervising manner as the contract personnel in the same supervise the government personnel on their staff." at 45. general And, although liability, the contract automobile required liability, TCMP id. § H.8, require malpractice to maintain § C.2.2. The continuing education, medical contract C.3.3.8-9, C.7.12. conducting their also included training, The own and contract private to workers' and employer's liability insurance, HCWs Id. compensation the Navy did not insurance, provisions not practice id. governing Id. prohibit or § 9.6, maintain orientation. did they HCWs engaging in §§ from other employment, and it forbade the use of non-compete agreements to prevent TCMP's employees from accepting the Government or another contractor. Under the contract, future employment with See id. §§ C.5.3, H.9. TCMP was required to provide HCWs that met the qualifications set forth by the Navy in the contract and task orders and to ensure that its employees underwent proper criminal history background checks. the award of a task order, package" containing qualifying and degrees performance, competency" for licenses, education each HCW. §§ C.6, H.7.2. TCMP agreed to submit a "specific and Id. and Id. information past health C.7.11. The "technical regard professional training, § with Upon to experience status, and Contracting Officer's the Representative Contracting Officer ("COR")-the appointed liaison between the Government 12 (Note 5)—then would Government to and the evaluate serve employee as a contractor, the package technical id. § C, to ensure satisfied the requirements in the statement of work. H 9, ECF No. 83-4 (Carpenter Declaration) . subset of positions—"coverage "physician extender" position task order. authorized cover each Id. TCMP it id. Ex. 4 positions" (which that Plaintiff included the eventually held)rather than to cover hours of service required by a Ex. to at Additionally, for a the contract only required TCMP to provide a person, any specific person, whom 4, use full-time Attachment A, up to coverage three § C.3.2. qualified position, The contract individuals subject only to to the requirement that each individual work a minimum of sixteen hours per month. Id. However, if an HCW in a coverage position missed more than two hours of a shift, the contract required TCMP to provide another qualified HCW to cover the remaining hours of the shift. Id. Regarding scheduling, unless otherwise ordered in the task order, the contract required TCMP to submit, six weeks in advance, a schedule including the names of the specific individuals providing the required coverage. managed leave for all coverage employees. Mem. Supp. Mot. for Summ. J. Ex. (Plaintiff's Admissions Responses). 1 Id. TCMP Id. ; see also Navy's at 11, ECF No. 83-1 As to firing and discipline, the Navy used the COR to relay major issues regarding HCWs to TCMP.3 that the Government could require meetings at the Government's § C.13.1. At "contract inform such status TCMP corrective "of action Moreover, under the to referred meetings," any on TCMP to the part of "Surveillance in face-to-face contract as was required to issues [TCMP]." Plan," that Id. the Id. the Navy employee-related the "attend facilities each 30-90 days." meetings, review The contract established § require C.13.1.1. contract mandated that the COR document significant HCW performance problems using contract such reports § 8.8, J. discrepancy reports at Ex. 44; Al However, to see, at the TCMP, rather e.g., 3-8, contract ("CDRs") ECF than PL's Mem. No. and the the individual require (February the 16, COR to for every "deviation from contract requirements." Supp. Mot. for Summ. J. Ex. 4, COR present HCW. Opp'n Navy's Mot. 112-1 did not that Attachment A, ECF No. to CDR) . submit a CDR Navy's Mem. § 8.8, at 44. Plaintiff dispute the Navy's factual contention that "[a]ny issues contract employee's status in the federal workplace were be relayed through and resolved between the [COR] and the agency." PL's Mem. Opp'n Navy's Mot. for Summ. J. at 2, 112. dispute for Summ. 2012 3 In her brief in opposition to the Navy's motion, purports to regarding a required to contracting Id. a However, statement the portions of the record Plaintiff relies on do not controvert it. That said, the Court does not infer that the Navy's statement of fact relates to issues regarding Plaintiff's alleged request for accommodation from the Navy because Plaintiff has devoted a large portion of her brief in opposition to the Navy's motion, and the entirety of her judgment motion, to whether the Navy was her employer, triggering the protections of the Rehabilitation Act. summary thereby Rather, the contract advised that it was best resolve performance problems "at the lowest in manner the least threatening cooperative resolution, via a CDR if § 9.8. Indeed, cannot be level possible" and then resort resolution to to attempt to possible and and "to seek formal documentation reached." Id.; see also id. the contract directed Navy personnel supervising HCWs to provide to such HCWs "the normal feedback that should be provided to any performance" employee and to regarding document the quality sessions "[c]ounseling of regarding both good performance and poor performance." (emphasis added). TCMP, If TCMP would act terminate the HCW. 8-9, ECF No. dispute the Plaintiff, Plaintiff (Navy's extent is Supp. at 45 Navy reported an HCW's misconduct to on such report to improve performance or (Robles Deposition). to which the undisputed Mot. Admissions for Summ. Responses).4 J. Although the parties Navy that from Government premises PL's Mem. § 9.7, Navy's Mem. Supp. Mot. for Summ. J. Ex. 7 at 83-10 it the Id. their itself the could Navy could terminate restrict for public safety reasons. Ex. 1 at 28, Additionally, ECF No. the 136-1 contract 4 The Navy has challenged much of Plaintiff's declaration as self-serving and based on inadmissible evidence. So long as Plaintiff's sworn statements indicate that she could competently testify to the facts asserted therein based on her personal knowledge, the mere fact that Plaintiff's statements are favorable to her case does not render them insufficient to support or contest a motion for summary judgment. That said, to the extent Plaintiff's declaration provides an insufficient foundation to demonstrate that Plaintiff has personal knowledge of the facts averred, the Court will not consider provided that "[i]f clinical summarily suspended pending privileges an investigation professional ethics or conduct, may be Navy's § suspended Mem. until Supp. Mot. a HCW have been into questions of performance under the Task Order clinical for of privileges Summ. J. Ex. are 4, reinstated." Attachment A, C.4.2. Pursuant to the contract, orders to TCMP. 30, the Navy awarded a number of task The Navy issued: Task Order 25 from September 2009 through September 15, such order four times, 2010 (although the Navy modified such modifications are immaterial to this matter); Task Order 68 from September 16, 2010 through September 15, 2011; and Task Order 81 from September 16, September 15, 2012. Attachment B, 2011 through Navy's Mem. Supp. Mot. for Summ. J. Ex. 4, ECF No. 83-6 (Task Order 25); id^ Attachment C, ECF No. 83-7 (Task Order 68); PL's Mem. Opp'n Navy's Mot. Summ. J. Ex. A2 at 70, 83, ECF No. 112-2 task order physician required assistants Sewells. TCMP or to provide nurse (Task Order 81) . physician practitioners-to for Each extendersstaff BMC The task orders also established the hours physician such declaration. See Fed. R. Civ. P. 56(c)(4). Plaintiff avers, in conclusory fashion, that "[t]he Navy reserved the right to terminate my placement under the contract." PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B U 65, ECF No. 112-3 (Plaintiff's Declaration). Plaintiff relies on such declaration to support her contention that the Navy reserved the right to terminate Plaintiff's placement under the contract. However, Plaintiff's declaration provides an insufficient foundation for the Court to conclude that she possessed personal knowledge of the fact averred declaration. 8 in paragraph 65 of such extenders would extenders work, were for each orientation required responsibilities qualifications the for to and training undergo, physician physician the extenders, clinical and minimum (in addition to those set forth in the contract) physician extender. The task orders further stated that "[e]ach HCW's productivity is expected to be comparable to that of other Navy's Mem. HCWs Supp. (Task Order 25); Mem. rate Mot. id. Opp'n Navy's 81) . authorized for Summ. the J. Attachment C, Mot. for Ex. J. scope 4, of hours practice." Attachment B, § 7.1 PL's Ex. A2 at 76 (Task Order the Navy would pay TCMP an hourly for each physician extender it provided, maximum number of (Task Order 68); § 7.1 Summ. Under the task orders, same over the course of up to a certain the one-year task order. B. Plaintiff's Background and Position at BMC Sewells Plaintiff is a physician assistant who suffers from bilateral profound sensorineural hearing loss. Pi's Mem. Opp'n Navy's ECF Mot. for Plaintiff states, Summ. J. in her Ex. May 29, B UK 1/ 2015 8, Affidavit, No. that 112-3. she was diagnosed at age five. Id. at 1 1. Plaintiff's "hearing loss was development," and prior to speaking until signing "During her language the age of Affidavit, [Plaintiff's] five." she was Id. 34 at years developmental she H 4. old. years, "did At not the Id. start time of at [she] 1 1. was academically delayed in reading, writing, and spelling, "During until college, [she] started [Plaintiff] American Sign Language was ("ASL") reading comprehension, college." able to Id. have "preferred language is ASL." Id. Id. at f 5. PC, Sorenson Video Video Relay Services. at % 6. Medical School (EVMS) Id. Assistant." at IP-Relay, Relay [she] in SIP Relay, Id. at f 3, NTouch Mobile, (SVRS), and Purple Plaintiff has "worked as a graduated from Eastern Virginia 2007 8. [her] Plaintiff received Services Id. at f 7, Physician Assistant since to Plaintiff's her first cochlear implant in approximately 2001. NTouch 5. access full 1 interpreters which allowed to excel in these areas of weakness." She has experience with TTY, at The with a Masters Commonwealth of of Physician Virginia licensed Plaintiff as a physician assistant since 2007. has Id. at \% 8-9. On November 2, 2009, Plaintiff assistant position at TCMP. Summ. J. Ex. l at TCA recruiter, 2. Cliff for See Navy's Mem. Initially, Murray. applied Plaintiff a Supp. physician Mot. for interviewed with a Mr. Murray then submitted to the Navy a technical package of privileging documents for Plaintiff. On February contract, the 2010, Marivic Williams, the COR reviewed Plaintiff's privileging documents. parties process 23, (and dispute the the extent nature to of which 10 the such Navy's process for the Although credentialing involved an interview with application), Andrew Plaintiff a physician Officer, conducted discussed Plaintiff's work experience, a id_;_ Navy and phone "education, Ex. 1 Supp. at on March 15, the Navy's 2010, Captain Senior with training, Plaintiff's Medical Plaintiff prior and current for Summ. J. Ex. 4 at 8, ECF No. ECF No. 136-1. Based on interview and his review of Plaintiff's documentation, Nelson believed that Plaintiff was "well trained suitable for the position of Physician Extender." 8-9. On Plaintiff March was 15, 2010, "technically physician extender. Id. Ex. informed the Navy's Medical Captain Nelson acceptable" 4 at 9. for 136-11. On May 6, 2010, skills Id. Ex. 1 at determined the such Captain with that position The next day, of the COR Staffing Services Department Plaintiff met all contracting requirements. No. and and adverse credentialing/legal Mot. 8-9, approving interview health status, PL's Mem. 136-10; the it is undisputed that, Nelson, action." and that Id. Ex. 5 at 1, ECF the Navy completed credentialing for Plaintiff and approved her to perform services for the Navy. Id. On May 14, 2010, physician assistant. at 3, ECF No. position. 83-1. TCMP offered Plaintiff employment as a Navy's Mem. Supp. Mot. Four days later, for Summ. J. Ex. 1 Plaintiff accepted the Id. Plaintiff negotiated her salary with TCMP and TCMP set her wages. IcL at 3-4. TCMP "paid Plaintiff's wages, 11 provided earning statements, withholdings social Mot. required security provided her (and and with for Summ. eligible withheld J. law, at 6, taxes tax pay the paid Medicare federal her employer's owed on 83. applicable share her behalf, Navy's form W-2s." ECF No. all Mem. In addition, of and Supp. "Plaintiff was for and enrolled in various employee benefits offered paid for) by insurance, dental group insurance life working by from at BMC TCMP, including insurance benefits, and short Sewells." Id. a 401(k) vision plan, care health benefits, term disability benefits Plaintiff accrued TCMP, but did not accrue leave from the Navy. leave while from Id. Ex. 1 at 10- 11. In her capacity as a physician extender, Plaintiff's place of employment-BMC equipment (aside from her stethoscope). the Navy provided Sewells—as well as her The Navy also provided Plaintiff with a CAC identification card to permit Plaintiff to access the Navy's facilities and computer networks and with parking tags to allow Plaintiff to access the employee parking lot. The Navy also assigned Plaintiff an email account specific to its domain. While Sewells, Plaintiff worked as a physician extender at the Navy established the core medical privileges defined the scope of her practice. Plaintiff's patients, that Although the Navy scheduled the parties dispute 12 BMC the extent to which the Navy controlled Plaintiff's schedule. However, the Navy did monitor Plaintiff's attendance, and it is clear that physician assistant services are an provided at BMC Sewells. 1 at 2, ECF No. integral part of the PL's Mem. Supp. Mot. 136-1. Plaintiff's conducted periodic Information performance, reviews from the of and chart reviews the privileging process." Ex. 1 at 23. The PL's Mem. Navy also Practice Evaluation (FPPE)" supervisors patients' "supplied (PAR) Supp. conducted a of Navy physicians such Plaintiff's Plaintiff's Performance Appraisal Report Plaintiff, As part competence in Plaintiff's of the stated and individuals involved the privileges; and discussed with Navy: her Mot. for Summ. "Focused as patient Plaintiff's and and performance care. Id. (OPPE)" care, improvement, professionalism, of medical Plaintiff that knowledge, interpersonal practice-based and systems-based 13 included an and evaluated treatment with at other 24. In Practice "evaluation of learning communication practice for any Id. at 23- assessed monitored J. Professional required diagnostic Plaintiff's for which is used in the Navy conducted an "Ongoing Professional Evaluation patient core performance techniques; addition, FPPE, charts. data new provider at Naval Medical Center - Portsmouth. 24. care for Summ. J. Ex. Throughout Plaintiff's time at BMC Sewells, supervised medical and skills, patient/staff compliments and complaints." one occasion, BMC Sewells, Id. at Commander Sarah Neill, counseled Plaintiff 24-25. the about Additionally, officer in a charge patient's on at complaint. PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B U 46. The parties dispute the amount of received from the Navy. It is training that undisputed that Plaintiff Plaintiff received CHCS/AHLTA, HIPAA, FEMA, OSHA, and CBRNE training from the the Navy at Naval Navy and that radiology conference required Medical September 29 to October 1, 2010. that two Plaintiff orientation. received However, [Plaintiff's] "TCA Plaintiff attend a Center - Portsmouth from Likewise, days was to of the parties agree command responsible Continuing Medical Education for (CME)," and unit providing id. U 213, and "Plaintiff received monetary assistance from TCMP to offset costs Mem. for continuing Supp. Mot. medical education for Summ. J. Ex. requirements," Navy's 1 at 10. C. Plaintiff's Request for Accommodation On April 26, 2011, Plaintiff underwent a "right cochlear implant revision due to an internal device failure." Opp'n Navy's Thereafter, Mot. for Plaintiff Summ. sought, J. Ex. B U 12, and TCA provided, ECF Pi's Mem. No. 112-3. medical leave for Plaintiff to recover from her surgery. At the August 31, 2015 hearing in this matter, Plaintiff's attorney explained that prior to this cochlear implant revision 14 surgery Plaintiff accommodation. so without that was However, able significantly right with perform after the surgery, accommodation. "[a]fter my to Plaintiff job in her revision, without without she was unable to do stated cochlear implant communicating her visual Affidavit I struggled cues, such lip reading, making it difficult to communicate via phone." at 67. return Therefore, on June 17, to work, would allow her with patients she requested colleagues, accommodations form of other than a from informed Plaintiff indicated that necessitating a member of TCA's telephone, leave instructed Plaintiff return to work. to On June 20, of like all persons with absence," could not to have he Id. her physician concluded that In response, "impairments return to work PL's Mem. Opp'n TCA's Mot. for Summ. J. Ex. Bl at 21, ECF No. 113-2. once and human resources staff, until she was "able to return at full duty." certification" that that the Navy's COR and Nurse Manager had Plaintiff, a TCMP telecommunication work in an environment free from excessive noise. 2011, Jessica George, Id. 2011, when Plaintiff attempted to to use an alternative and as Ms. George complete Plaintiff Plaintiff was an "RTW able to requested the opportunity to reach out to the Navy to discuss her abilities and the issues once she was cleared by her physician. 19-20. id. at Ms. George instructed Plaintiff not to contact the Navy 15 and directed Plaintiff Angela Green. to first speak with TCMP Site Leader Id. at 18-19. On June 23, 2011, Ms. Green contacted someone with the Navy named "Jackie." Id. at 17. accommodation, Sewells had "Jackie" not Thus, of someone that, in for contract workers "Jackie" suggested that, accommodation contact indicated been involved before ADA accommodations Id. Regarding Plaintiff's request for Plaintiff higher was in at time, in a clinical setting. to determine whether any ADA chain TCMP of would command contracting officer for TMCP's BMC Sewells contract. On June 27, 2011, BMC a situation requiring feasible, the that Plaintiff met with Ms. Green need than to the Id. (TCMP's Site Leader) and requested a number of accommodations for her hearing impairment. 9-10, PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. Al at ECF No. 112-1. Plaintiff requested: patients without children in the room; the ability to see the ability to see only adult patients until she acclimated to her new cochlear implant; a video relay service ("VRS") phone attachment that would permit her to use an interpreter attending physician who questions; and to would interpret be available that nurses assist with necessary phone calls." Id. her at 9-10. to phone calls; assist making "some an her with of More specifically, the with respect to the VRS system, Plaintiff indicated that the company Sorenson could provide a camera device and install a VRS system 16 for free, and that television and a such system cable connection. would Id. require at only a basic 9. On July 28, 2011, Lieutenant Commander Robert Propes asked Marivic Williams, accommodations the COR, Plaintiff to contact sought. Summ. J. Ex. 18 at 3, ECF No. TCMP Navy's 83-21. to Mem. determine Supp. On August 1, Mot. 2011, day, Commander Neill responded to the Id. at 2-3. for the COR informed Lieutenant Commander Propes and Commander Neill of accommodations that Plaintiff requested. what the That same COR and stated that the Navy could meet the following requests for accommodation: 1) Preference to treat adult patients with no children in the exam room in order to minimize excessive noise[;] 2) An attending physician available to assist her with questions and a supportive nursing staff[;] 3) Requirement for VRS connectivity/phone attachment free for the hearing impaired and installed at no cost to the government. Id. at 1. Commander office/telephone connectivity." On August will Neill be made stated that available to "[a] clinic establish VRS Id. 8, 2011, TCA, through Noelle Jackson, informed Plaintiff that the Navy had agreed to meet Plaintiff's request for accommodations and would allow her to "return to work ASAP." Id. Ex. 19 at Plaintiff to 1, ECF No. contact 83-22. Ms. Lieutenant schedule setting up the VRS directed Plaintiff, after Jackson Commander (TCA) Lina instructed Badura connectivity/phone attachment" speaking 17 with Lieutenant "to and Commander Badura, to "confirm the first day you will be able to return to work." Id. The next day, Plaintiff responded that she needed TCMP and the clinic to coordinate Sorenson setting up the video phone. Id. Lieutenant Plaintiff stated Commander Badura within accommodations were in place. The parties dispute would permit Plaintiff installation of 11, 2011, the to that she would forty-eight report to after the hours Id. extent to which the return to work Navy and TCMP prior the accommodations Plaintiff sought. to the On August Lieutenant Commander Badura emailed Plaintiff and told her that the Navy planned: to provide a staff office space which can be equipped with your video relay equipment and we can discuss these details further in person. I understand that it may take some time to get everything set up, but as you know, this will not limit your ability to perform your job since phone use is not often required for this position. Id. Ex. 15, Plaintiff ECF No. 83-18. emailed Lieutenant accommodation requests. 17, ECF No. 83-20. On August 15, 2011, Commander Badura at 11:11 a.m., "regarding [her] Navy's Mem. Supp. Mot. For Summ. J. Ex. Plaintiff stated she was "still waiting for a response from TCMP regarding my RTW and accommodations." Id. Plaintiff noted in the email that "[p]reviously TCMP would not allow me to limitations' RTW without the accommodations as stated in the contract." in the same email, adds that Id. due to my Plaintiff then, "[m]y attorney has advised me not 18 to RTW until contacting accommodations TCMP today as are in well." place. Id. Badura responded at 11:15 a.m. that she She Lieutenant will be Commander : [w] as hoping you would be coming in sooner since installation of the video phone may take [a while] . This was not my understanding and I thought you would be in even though we might have to wait for video." Id. At 11:42 a.m. on that same day (August 15, 2011), TCMP Site Leader Angela Green emailed Marivic Williams, a copy going coordinate Opp'n to the Navy's "Below" seems Jackson at Plaintiff, return Mot. PA For to Summer Summ. refer to TCA, of stating saying J. an that A2 email Plaintiff for me Lieutenant to respond Commander to Propes, Leader Green's 11:42 a.m. Ms. this." email to Ms. Badura, since she is [Ms. "trying PL's ECF an At Mem. 112-2. to Noelle email "from I need to know how you Three been minutes later, copied on TCMP Site Williams, emailed back to "send all future emails to LCDR Crump's] Department Head now," Propes included Lieutenant Commander Badura in the "To" the email. to No. Plaintiff received Id. who had Green telling her to please 42, from had was below." at LCDR Badura asking me to report to work. wish she Crump Ex. the Navy COR, with and line of Id_;_ at 41, ECF No. 112-2. 15:22:40 (3:22 p.m.) the same day (August 15, 2011), Lieutenant Commander Badura wrote Ms. Green at TCMP with a copy to Plaintiff, advising that " [w] e will be glad to have PA Crump 19 return to work ASAP while installation." Id. to Commander Lieutenant we await the video phone At 5:02 p.m. that day, Ms. Green responded Badura (apparently with a copy to Plaintiff) that Green had "no issue with [Crump] returning prior to the installation [of the videophone] but I need to verify that is OK with my benefits department . . . Can you manage till it[']s p.m. installed Summer?" that day, Lieutenant to RTW, Id. at 40, ECF No. Plaintiff responded to Ms. Commander Badura, and her Green, stating she was "understanding is the 112-2. At 7:44 with a copy to eager and excited only things I will need for installation of the video phone is a television and Internet hook up." Id. The next morning, August 16, 2011 at 9:00 a.m., Plaintiff wrote Lieutenant Commander Badura asking if she had heard "from anyone." ECF No. Pi's Mem. 112-2. Opp'n Navy's Mot. At 9:45 a.m. For Summ. J. Ex. A2 at 87, that day, Lieutenant Badura responded that she just heard from someone states TCMP is installation." "Bottom line, Id. we responsible for providing installation. Sorry, with "at COR that equipment for Lieutenant Commander Badura then concluded: need to wait for TCMP Sorenson and have all equipment available coordinate Commander our communications to coordinate ... dept so with that I can about actual I guess you can't come back until all in place. out of my hands from here." 20 Id. At 10:11 a.m. that day (August 16, 2011), TCMP Site Leader Ms. Green emailed Plaintiff in response to Plaintiff's email of 7:44 p.m. Id. at 39-40, ECF No. 112-2. Ms. the night before. Green informed Plaintiff that "[a]11 equipment has to be handled through yourself since you know the company. The government had approved the accommodations but all equipment cannot be billed to either the government nor TCMP as this falls outside of our contract." Id. Ms. the Green then installation is due to us stated a.m. small, but installed. for me Then, Plaintiff added have prior to you listing these items as to Ms. "I sized wait so until returning FTE. Id. really TV to This is order for you a need in . . . ." Green: reasonably to Plaintiff need that TCMP responded at to Sorenson provide VRS can a be The TV does not need to be large, just big enough to see the at "we complete fulfill your positions 10:19 that 10:26 interpreter etc." am., Ms. Green This is truly at 39, responded "TCMP nor the government expense. Id. by ECF No. email, 112-2. telling can be accountable for any outside our contract. The government and TCMP have worked diligently to get this approved but in accommodations, we stated there could be no expense per our previous conversations." that Lieutenant Badura Id. "informed Furthermore, [her] on different that she was instructed by Marivic Williams, and CDR Neill that I could 21 not Plaintiff avers return occasions Cynthia Carpenter, to work until accommodations were in place." Pi's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B 1 87, ECF No. 112-3. Later that same morning (August 16, 2011), «TTY system" to Plaintiff for the first time.5 Mot. for Summ. J. Ex. 1 1 9, ECF No. 86-1 In an email to Plaintiff, that she had spoken a TCA employee, with a TCA offered a TCA's Mem. Supp. (Coombs Declaration) . Ms. Jackson, representative from explained Sorenson and confirmed that Plaintiff was approved for "ntouch pc services," but that Sorenson locations, TV. Id. and Ex. did there B at 3, not was install therefore ECF No. 86-3. VRS need services for at employer installation of a Until the nTouch PC services 5 The record before the Court reflects that a TTY, or teletypewriter, involves a keyboard and monitor attached to a telephone. The TTY permits a hearing-impaired user to transmit typed messages through a phone line, rather than speaking. The ADA requires common carriers to provide a telecommunications relay service ("TRS") that allows hearing-impaired users to communicate with other persons in a manner that is functionally equivalent to communication between hearing individuals. See 47 U.S.C. § 225; 47 C.F.R. § 64.603. TRS essentially permits a hearing-impaired individual to communicate with another individual using a third party operator as an intermediary. A TTY allows a hearing-impaired individual to transmit text messages to a third party operator at a relay service who will then relay the messages to the intended recipient. When the operator receives messages from the other party, he sends them to the hearing-impaired user by typing the other person's message and transmitting the typed message. The typed message then appears on the TTY screen. The record also reflects that a "voice carry over" ("VCO") TRS allows a hearing-impaired individual who can speak to communicate directly to the other end user, rather than having the operator voice conversation by reading the hearing-impaired individual's message. However, even with VCO, the operator will type the the typed other user's messages and transmit them to the hearing-impaired individual's TTY. Throughout their briefs, the parties often refer to TTY interchangeably with TRS, but it appears that a TTY is a form of TRS. To the extent the parties refer simply to TTY, the Court has interpreted such references to involve a TTY-based TRS. 22 system was system. in place, Id. appeared to TCA offered Plaintiff be an However, Plaintiff meantime because "when someone responded appropriate rejected it Plaintiff use at of the least speaks after the call 22, 2011, TCMP a nTouch eight at indicated preferred that Sorenson accommodation, the second Mobile" Mem. day that were Supp. Commander approved potential Mot. Anthony "NTouch for denied VP-200, to the which often the use because Roberts Badura for PL's Mem. use a in Navy, J. report the 21, employee) of the Department Opp'n Navy's Mot. 2011, Ex. of three for and to systems Defense not TCMP "NTouch Plaintiff. submitted of did However, ECF No. 83-24. Sorenson TCMP's Plaintiff's Sorenson "SIPRELAY," accommodations (Navy 112-2; id. Ex. H at 15, August 29, Software," Summ. delay Id. at 2-3. provide that technology for employment settings. indicated the and it would not adequately submitted, had 2. in potential options for video relay service for Plaintiff. email TTY system Id. connected," permit Plaintiff to convey medical jargon. August of TTY system an is causes people to hang up the phone, On the use accommodation. the involved that the Navy's That same Lieutenant that network. were See for Summ. J. Ex. A2 at 90, ECF No. ECF No. 112-9 (Roberts Deposition) . On the Navy requested that TCMP provide additional technical information about the three options in TCMP's original 23 email. Navy's Mem. Supp. Mot. for Summ. J. Ex. 23, ECF No. 83- 26. While the Navy was communicating with TCMP, on August 24, 2011, TCA offered Plaintiff Sorenson's SIPRelay system. Mem. Supp. Mot. for Summ. J. Ex. 1 f 10. In the email, indicated that Sorenson had rejected the VP-200 workplace, but Software, "SIPRELAY Services" system 86-4. expressed as an therefore, in her Additionally, "could and at definitely accommodation suffered August Plaintiff people for the "NTouch Id. Ex. Sorenson receive from 16, stated . . this because the 2011 that On September 1, that accommodations Sorenson However, would be did in VP-200)" Navy's Mem. the 2011, Supp. next the not . regarding Mot. day, an effective involve not of a Plaintiff a J. if I with and submit an that relay means (NTouch at 2, that TCMP 2. Id. phone suggested accommodation, 24 24 at VP[-]200" if reasonable Ex. TTY deficiencies "permanent video be for Summ. a a "spoke[n] the accommodation Plaintiff Id. had C, at was Plaintiff stated to TCA form would it same email to them requesting why I would need one." services 1, Ex. email. she "Ntouch Mobil[e] In a responsive email the next day, SIPRelay and, several Service," to the Government for approval. 3, ECF No. rejected IM TCA for use in the that TCA had submitted requests - TCA's of PC or accommodation. ECF No. 83-27. nTouch Mobile provided a data plan and an iPad2 with a forward facing camera. September also be 10, 2011, Plaintiff stated a reasonable accommodation. that Id. Id. at 1. interpreters Ex. On would 26 at 5, ECF No. stated to the 83-29. On for September the 12, contract explanation of that what purpose." Id. Carpenter, advised concise 2011, at would Navy exactly 1. is needed being That same day, TCMP that of it what the Navy, "need[ed] TCMP provide 2011, is system accommodation. "provide and for an what through Cynthia to have requesting a clear of the TTY TCMP suggested—for a third time-that services to Plaintiff for Summ. J. Ex. 1 f 11, ECF No. 86-1. TTY to requested accommodation for her hearing impairment. a TCMP COR Id. On September 29, it the understanding government." Commander Neill on the Id. Ex. basis that D at 2, ECF No. On October 6, 2011, as a reasonable TCA's Mem. Supp. Mot. Plaintiff again rejected it was an unreasonable 86-5. the Navy advised TCMP that it would be sending the form that it uses for "GS employees" to Plaintiff for Plaintiff and her physician to complete so that the Navy could have requested specific and Ex. her 27, information on the accommodations need therefor. ECF No. 83-30. Navy's Mem. the Mot. for Summ. J. that, although TCMP had requested a meeting with the Government 25 Additionally, Supp. Plaintiff Navy noted to discuss Plaintiff's situation, prior to any meeting, TCMP needed to submit a request in writing providing details of what it wanted to discuss. On October completed Navy's 17, request Mot. Id. for 2011, for Plaintiff transmitted accommodation J. Summ. form. 106, Ex. A2 at to PL's ECF No. TCA Mem. the Opp'n 112-2. On October 31, 2011, TCMP returned such completed form to the Navy. On the Language form, ("ASL") nTouch PC; and Navy's Mem. 31. Plaintiff requested: interpreters; (4) Supp. (2) (1) certified American Sorenson VP-200; (3) Sign Sorenson nTouch Mobile on an iPad 2 or similar device. Mot. Additionally, for Summ. J. Ex. 28 at Plaintiff commented that 5-6, ECF No. "TTY, Skype, [and] [r]elay services do not act as a reasonable accommodation." at 7. counsel That for Government, meeting. same TCA, as day, a counsel proposed the Navy had PL's Mem. for Plaintiff agenda for requested as Opp'n Navy's Mot. a with a prerequisite for Summ. Id. submitted, meeting 83- to the for a J. Ex. A2 at 61. On December 7, manager for the Navy, 2011, Diana suggested that DeLucia, a communications "a free service within the state of Virginia called 'Virginia Relay'" that "works with TTY phones, "viable solution" to which we have on site," might be a Plaintiff's request for accommodation. for Summ. J. Ex. 29, ECF No. 83-32. 26 Navy's Mem. Supp. Mot. According to Ms. DeLucia, through the Virginia Relay system, types [her] make the information into the phone, phone call party." Id. Plaintiff whether (1) The and next the read of another Plaintiff; day, the information Navy to directed following options staff and (3) 2, ECF No. 83-33. regarding the called TCMP would meet at 84, 2012. ECF No. While a filed to her response Plaintiff make telephone to those needs: (2) calls the for Id. Ex. 30 at 1- three Opp'n TCA's Mot. options for Summ. J. until Ex. B2 113-3. the Navy was charge considering accommodation, of on Summ. J. alleged Disabilities Act Ex. that 11, TCA the Virginia Relay service December discrimination Opportunity Commission ("EEOC") for to ask The Navy did not receive a response from TCA PL's Mem. potential a member a hard of hearing handset. Plaintiff's March 26, Mot. the the interpreter will the Virginia Relay system described by Ms. DeLucia; use as "[t]he end user dials 7-1-1, with the against TCA. ECF had No. 9, 2011, Equal Employment Navy's Mem. Supp. 83-14. violated Plaintiff In the such charge, Americans with ("ADA") by refusing to provide Plaintiff with a reasonable accommodation for her hearing impairment. Shortly after Plaintiff filed her EEOC charge against TCA, on December 14, 2011, the Navy informed TCA that it required an answer to its December 8 email—in which the Navy had instructed TCA to determine whether the 27 Virginia Relay service was acceptable to Plaintiff-to Plaintiff's case. 2011, TCA allow Id. Ex. 31, formally offered Virginia Id. Ex. email offering such accommodation, accommodation the Naval "has been Hospital." approved Id. to further ECF No. 83-34. the accommodation to Plaintiff. it 32, review On December 16, Relay service 83-35. ECF No. as an In the TCA stated that the offer of for use by Furthermore, the in government such email, at TCA explained the Virginia Relay service using language very similar to the Navy's description thereof to TCA. The December 16 email was the use of a TTY system as See id.; id. Ex. 30. fourth time TCA had proposed the an accommodation Plaintiff declined the offered accommodation. for Plaintiff. TCA's Mem. Supp. Mot. for Summ. J. Ex. 1 % 12, ECF No. 86-1. On December 22, 2011, Plaintiff physician assistant for CompHealth. Summ. J. Ex. 2 at 2, ECF No. 83-2. to follow which she up on 2012, her October Plaintiff agenda in October. Id. at for Id. request form that for the Navy accommodation, Navy prescribed. for Summ. J. Ex. A2 at 117-18. complained conference with Plaintiff, Mot. a Plaintiff describes her job 2011 had submitted on the letter, Supp. as Plaintiff sent a letter to the PL's Mem. Opp'n Navy's Mot. the working Navy's Mem. at CompHealth as a "temporary position." On February 22, began that the Navy had not In set a despite Plaintiff's submission of an 117. 28 In light of her belief that " [a] ttempts to dialogue and resolve the matter have gone on for far too long TCA/TCMP and to ample resolve this submitted an ultimatum: (10) days request of for has been given time matter," to Plaintiff [the Navy] and her and counsel "if we do not hear from you within ten receipt of this accommodation to letter, be we and denied will will consulting a Counselor pursuant to 29 C.F.R. to resolve the matter." Id. consider our proceed with § 1614.105 in order at 117-18. Plaintiff did not receive a response from the Navy within the ten-day period she demanded. Consistent with her letter, on April 11, 2012, Plaintiff initiated equal employment opportunity ("EEO") Summ. counseling with the Navy. J. Ex. Plaintiff 12, ECF No. alleged that her hearing accommodate Navy's Mem. Supp. Mot. for 83-15. the In Navy had impairment her initial failed and had to contact, reasonably constructively discharged her in violation of the Rehabilitation Act. On May 24, 2012, the Navy issued a memorandum offering to accommodate Plaintiff in response to her October 2011 request for accommodation. memorandum, member with Id. Ex. Commander Neill the 33 at 1, offered: appropriate ECF No. 83-36. In a properly trained medical background to such staff assist Plaintiff in making telephone calls; the Virginia Relay system; sign language services through interpreters within the agency; and the Z-150 video phone, subject 29 to such phone meeting security and network requirements. Id. at 2. The Navy indicated that it could not approve Plaintiff's request for the Sorenson VP-200 or the Sorenson nTouch PC "because they are not approved devices However, though Plaintiff did for the not the Agency's Navy's receive computer memorandum a copy is of network." dated it Id. 24, 2012, June until May 15, 2012. PL's Mem. Supp. Mot. for Summ. J. Ex. B H 198, ECF No. 112-3. On June the 19, Z-150 video requirements, try the 2012, phone Plaintiff device Id. approved." although the Navy had not yet as as meeting communicated an July U 202. 2, 2012, proceed DSL available bandwidth Navy's Mem. to 83-38. Supp. the to Mot. On July 9, she it were network willing to ultimately Id. f 203. Neill Medical Line accommodate for Summ. J. instructed Center - required the Exs. to 34-35, the Portsmouth to increase Z-150 video the phone. ECF Nos. 83-37 2012, the Navy's IT and HIPAA compliance departments approved the Z-150 video phone. 83-39. "was if Commander Naval process and Commander Neill advised Plaintiff that Communications Manager at to that accommodation she would keep Plaintiff updated. On security approved Id. Ex. 36, ECF No. On August 2, 2012, the Navy ordered the Z-150 phone. Around the same time that the Navy was arranging to obtain the Z-150 Specifically, video phone, Plaintiff resigned from TCA. on July 27, 2012, Plaintiff resigned her position 30 with TCA because she believed TCA had constructively discharged her by failing to respond to her request for accommodation for more than thirteen months. Id. Ex. 38 at 2, ECF No. 83-41. One week after the Navy ordered the Z-150 video phone, August 9, 2012, Plaintiff rejected the offers of accommodation included in the Navy's May 24, 2012 letter to Plaintiff. 1. In Plaintiff's response, inadequate because it approved by the equipment could, further noted amenable to she indicated that such letter was Government, that, or calls that was the offer inadequate would confirm be ordered/approved." though Z-150 which she video had phone, of another because it Id. indicated she response from the Navy since June 19, stated Id. at "did not propose an accommodation that was if ever, the on had 2012. staff was she was received any Plaintiff then person "not the Plaintiff that not Id. when to make responsive phone to an emergency situation and requires the staff person to paraphrase, which is potentially dangerous in such situations" and Plaintiff reiterated her view that forms or relay, and SIPRelay, were inadequate. Id. such as Virginia Relay Finally, Plaintiff asserted that she believed she had been constructively discharged. Id. As she noted would above, keep explained Commander Plaintiff that she Neill updated; did not do had advised however, Commander so because [Plaintiff] was still a TCA employee." 31 Plaintiff she was that Neill not "later sure if PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B K 203. However, Commander Neill never asked Plaintiff whether she was still a TCA employee. At some point following her resignation, See id. Plaintiff asserts that she has "learned that the Navy has made false statements to future employers stating denied, suspended, [- Portsmouth]." Bureau of that limited, told privileges were adversely or revoked at Id. U 216. Medicine [her] Naval Medical Center In February 2015, counsel for the Plaintiff that the Navy had not disseminated any false information about Plaintiff. Id. Plaintiff asserts that such statement was not true. Id. U 218. Plaintiff received recurring responses and U 217. inquiries from potential employers that caused Plaintiff to question the Navy again. Id. falsehood." On April Id. % 219. "has failed to correct, information contained 1, 2015, the Navy "corrected the However, Plaintiff avers that the Navy or commit in to correct, [Plaintiff's] other inaccurate Performance Appraisal Report" that Plaintiff discovered after the Navy produced such documents. Id^ Instead, the Navy has advised Plaintiff "to file an appeal to obtain corrections." Id. D. Procedural History On December 19, 2013, Plaintiff filed an action in this Court alleging claims under the ADA and the Rehabilitation Act. Compl. , ECF No. accommodate her 1. and Plaintiff had alleged that constructively 32 TCA had discharged failed to her, in violation of the ADA, and that the Navy had violated the Rehabilitation Act under the same two theories. On March Plaintiff's 31, 2014, the Rehabilitation administrative remedies Navy Act moved claims through EEO to for dismiss failure counseling both of to to and exhaust dismiss Plaintiff's constructive discharge claim for failure to state a claim upon which relief can be granted. ECF No. 9. On April complaint. 2014, the because PL's Mot. Court the 14, Rules amend her Complaint as and October 7, the Navy ECF No. Plaintiff's of Civil a matter of the Navy's motion to dismiss. TCA Plaintiff to Amend, dismissed Federal 2014, answered Navy's Mot. to Dismiss, moved 11. motion Procedure to amend her On September 23, to amend as moot permitted her to course and the Court denied Opinion and Order, Plaintiff's amended ECF No. 23. complaint on 2014. On May 8, 2015, with the second amended complaint. Court's Second Am. leave, Plaintiff CompL, ECF No. filed a 75. TCA and the Navy timely answered such complaint. Three motions before the Court. judgment, favor (and, for summary On May 12, judgment 2015, are currently pending the Navy moved for summary arguing that the Court should enter judgment in its because: (1) therefore, depend on an Plaintiff Plaintiff's employer-employee is not an employee Rehabilitation Act of the claims relationship necessarily 33 Navy that fail); (2) Plaintiff did not timely Plaintiff has not discharged her. initiate EEO counseling; demonstrated Navy's Mot. that the for Summ. J., 13, 2015, TCA moved for summary judgment. J., No. ECF 85. TCA contends that Navy (3) constructively ECF No. 82. TCA's Mot. the and On May for Summ. undisputed facts demonstrate that TCA is entitled to judgment as a matter of law on Plaintiff's ADA claims because Plaintiff rejected its offer of a reasonable accommodation in the form of a TTY and TRS, because TCA did not constructively discharge Plaintiff. 17, 2015, issue of Plaintiff whether liability under J., ECF No. moved the the 135. for partial Navy was her Rehabilitation Act. The parties motions for summary judgment. have to submit additional motions heard from fully purposes Mot. briefed 2015, the of for Summ. all three pursuant to Plaintiff moved for leave evidence to oppose the Navy's and TCA's for summary judgment. argument for PL's On August 26, Federal Rule of Civil Procedure 56(d), On June summary judgment on employer and the On August parties on 31, their 2015, summary the Court judgment motions. II. The Federal Rules STANDARD OF of Civil REVIEW Procedure provide that a district court shall grant summary judgment in favor of a movant if such party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter 34 of law." Fed. R. Civ. P. 56(a). " [T]he mere existence of some alleged factual dispute between the parties will not otherwise properly supported motion for summary defeat an judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). A fact is "material" if it "might affect the outcome of the suit," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A party opposing a summary judgment motion "cannot create a genuine issue of material fact through mere speculation or the v. Phelan, Hardy, building of 526 one inference upon another." F.3d 135, 769 F.2d 213, 214 140 (4th Cir. (4th Cir. 2008) Othentec Ltd. (quoting Beale v. 1985)). If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere the allegations specific other facts Civ. in materials Celotex Corp. P. himself matter trial." v. but weigh to the that pleadings, form of illustrate a Catrett, 477 U.S. point, the that evidence determine Anderson, but instead must exhibits, At 56(c). to of genuine 317, 322-24 determine there 477 U.S. at 24 9. is a forth statements, issue "the judge's and whether sworn set for (1986); function the truth genuine or trial. Fed. R. is not of the issue for In doing so, the judge must construe the facts and all "justifiable inferences" in the light 35 most favorable to the non-moving party, and the judge may not make credibility Montgomery Cty., When determinations. 789 F.3d 407, confronted with Id. 413 cross at 255; (4th Cir. motions Reyazuddin v. 2015). for summary judgment, the court must review "each motion separately on its own merits to determine whether either of a matter of 762 law." Defs. F.3d 374, 392 Richmond, 475 of (4th Cir. 2014) 638 (4th F.3d motion, competing rational Cir. 633, the Court must at 392-93 the parties deserves judgment as Wildlife v. N.C. (quoting Cir. in favor of (citing Rossignol v. Voorhaar, Bacon 2007)). separately resolve inferences Dep't of v. As Transp., City to of each factual disputes and the 316 non-movant. F.3d 516, 523 Id. (4th 2003)). III. DISCUSSION Three motions for summary judgment are currently before the Court. First, partial summary the Court judgment will consider and the Plaintiff's Navy's motion motion for judgment regarding whether the Navy employed Plaintiff. for summary Second, the Court will consider the remaining contentions in the Navy's motion for summary TCA's motion. judgment motion, judgment. However, the Third, the Court will address before turning to the parties' summary Court will resolve leave to submit additional evidence. 36 Plaintiff's motion for A. Plaintiff's Motion for Leave to Submit Additional Evidence Shortly before the Court's hearing on the parties' for Rule motions summary under Federal Rule 7(F)(1) of judgment, Civil Plaintiff Procedure 56(d) requesting leave to Navy's TCA's motions. and summary judgment part of submit record filed and additional include the record as a result of motion Local Plaintiff to a Civil evidence seeks to evidence to oppose the supplement the that has become a supplemental discovery that the Court ordered as a sanction for discovery violations by the parties. By Order of Plaintiff to conduct a Rule 30(b)(6) July 17, 2015, the supplemental deposition representative and Court of directed supplement certain interrogatory responses. Order, In her motion to submit additional evidence, permitted the Navy's Plaintiff to ECF No. 147. Plaintiff seeks to submit testimony, from the supplemental deposition of the Navy's Rule 30(b)(6) witness that occurred after the Navy submitted its motion for summary judgment, regarding the absence of posters informing Plaintiff, and other contractors, of the right to file an EEO charge against the Navy. Additionally, Plaintiff requests leave to submit the supplemental and amended answers to interrogatories that Plaintiff provided to the Navy, as directed by the Court, and supplemental and amended interrogatories that Plaintiff provided to TCA. 37 answers to Federal Rule of Civil Procedure 56(d) concerns situations in which facts are unavailable to a party opposing a motion for summary judgment. Such rule provides: If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed. R. Civ. judgment be opportunity P. denied to opposition.'" 2014) 56(d). when discover Pisano "Rule the v. 195 (4th Cir. mandates nonmovant information Strach, (quoting Ingle ex rel. 191, 56(d) 'has that 743 that is F.3d not had essential 927, 931 Thus, the to (4th Estate of Ingle v. Yelton, 2006)). summary his Cir. 439 F.3d parties normally seek relief under Rule 56 (d) when they have had an insufficient opportunity to discovery conduct the summary judgment. & Mary Kay Kane, 1998 & Supp. recognized 56(f) is itself opportunity Sixty for 961 Federal "the Practice oppose and Procedure Importantly, failure to file sufficient grounds discovery was Internet Domain Names, (quoting Evans v. to a motion for See 10B Charles Alan Wright, Arthur R. Miller 2015). that necessary Techs. (4th Cir. 1996)) to the Fourth an affidavit reject F.3d 214, (referring to Rule 38 Circuit has under Harrods 244 Applications & Serv. (3d ed. Rule a claim that inadequate." 302 § 274 0 (4th Cir. Co., 56(f), Ltd. the v. 2002) 80 F.3d 954, the predecessor to Rule 56(d)). Likewise, "a court may deny a Rule 56(d) motion when the information sought would not by itself create a genuine issue of material fact summary judgment." sufficient Pisano, for the nonmovant to survive 743 F.3d at 931 (citing Ingle, 439 F.3d at 195) . After considering Plaintiff's motion additional evidence and the parties' DENY such judgment for submissions, motion with respect to and will DENY AS such motion MOOT motion for summary judgment. procedurally affidavit deficient or cannot present facts TCA's Plaintiff as that, essential for to 56(d). Moreover, explained why the as to TCA, [her] information Plaintiff contained summary Navy's motion "show[n] reasons, is by [she] opposition" TCA's and the Navy's motions for summary judgment. P. submit the not specified to justify for 56(d) has to the Court will motion Plaintiff's Rule because declaration leave to Fed. R. Civ. has not adequately in the supplemental answers to interrogatories that she wishes to add to the record was not available to her prior to her response in opposition to TCA's motion. Therefore, the Court will DENY Plaintiff's motion for leave to submit additional evidence, pursuant to Rule 56(d), in response to TCA's motion for summary judgment. Ltd., has 302 F.3d at 244. not Civil demonstrated Rule 7(F)(1), Likewise, that and, the Court finds that Plaintiff relief with 39 See Harrods is appropriate respect to TCA's under Local motion for summary judgment, the Court will DENY Plaintiff's motion for leave to submit additional evidence pursuant to such local rule. Regarding the Navy's motion for summary judgment, in opposition thereto, in her brief Plaintiff stated that she had not had the opportunity to discover information essential to opposing such motion because of alleged discovery violations by the Navy. Yet, as with her motion with respect to TCA's motion for summary judgment, Plaintiff has not submitted declaration required under Rule 56(d). arguendo that the Court with Rule 56(d)'s additional evidence that such evidence regarding any Thus, a formal of Nonetheless, requirement, Plaintiff would the affidavit overlooked Plaintiff's affidavit that the issues not the Navy ruling on the merits of assuming noncompliance after reviewing submitted, alter or the the Court Court's raised in the finds decision its motion. Plaintiff's motion for leave to submit additional evidence to oppose the Navy's motion for summary judgment is unnecessary because Plaintiff's additional evidence does not affect the Court's ruling on the Navy's motion. Plaintiff's motion Therefore the for to leave Court submit will additional oppose the Navy's motion for summary judgment. 40 DENY AS MOOT evidence to B. Plaintiff's Motion and the Navy's Motion: Joint Employer Doctrine 1. The Joint Employer Doctrine The Rehabilitation Act prohibits the Navy from discriminating against its employees on the basis of disability. Section 501 of such Act establishes: The standards used to determine whether this section has been violated in a complaint alleging nonaffirmative action employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections relate to employment. 29 U.S.C. Title I § of against a regard to 791(f); the see ADA, qualified also "[n]o entity" or 12112(a). 1614.203(b). the shall basis the of disability the ADA job training, defines: employment agency, committee," in advancement, and privileges of employment." Furthermore, labor-management Under discriminate hiring, employee compensation, conditions, as "an employer, joint on § entity job application procedures, and other terms, § C.F.R. covered individual or discharge of employees, U.S.C. 29 a 42 "covered labor organization, id. § 12111(2); an "employee," in pertinent part, as "an individual employed by an employer," and id. § pertinent part, as commerce who has 15 12111(4); an "employer," "a person engaged in an or more employees 41 again, in industry affecting for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person," id. § 12111(5)(A).6 Thus, under the statutory Rehabilitation Act therein, of Section 501 of the the provisions of the ADA incorporated the Navy cannot discriminate against its employees on the basis under and framework of disability. Section 501 of Put differently, the a cause Rehabilitation Act of action depends on the existence of an employer-employee relationship between the Navy and the plaintiff.7 6 The ADA incorporates the definition of "person" set forth in Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12111(7) ;see also id. § 2000e(a). Additionally, while the ADA expressly exempts the United States from its definition of "employer," see id. § 12111(5) (B) (i), as noted above, Section 501 of the Rehabilitation Act establishes a cause of action against the Government. 7 In a footnote, Plaintiff argues that she has asserted claims under Section 501 and Section 504 of the Rehabilitation Act and that her Section 504 claim does not depend on the existence of an employeremployee relationship between the Navy and Plaintiff. See PL's Mem. Opp'n Navy's Mot. for Summ. J. at 6 n.l. Section 504(a) provides: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a). The courts of appeals are divided regarding whether Section 504 applies outside of an employment relationship. Compare, e.g., Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009), with, e.g., Wojewski v. Rapid City Reg'l Hosp., Inc., 450 F.3d 338, 345 (8th Cir. 2006) . However, even if Section 504 provides a cause of action to non-employees, the United States has not waived its sovereign immunity from actions for damages under Section 504. Lane v. Pena, Section 504 518 U.S. action, 187, 200 (1996). the Court may 42 Thus, if successful grant Plaintiff on her only equitable Importantly, in the context of Title VII, the Fourth Circuit has recognized that, under the joint employer doctrine, when two entities exercise control over a person, one entity may exercise qualify as formally Drive sufficient that control person's employed Automotive the over such employer, individual. Industries of individual even As if the explained America, Inc., other in while contracting independent company, of the are Cir. that good faith with to entity v. basis for is that one an otherwise retained for itself sufficient control terms and conditions of employment of the employees who employed by 2015) 40 n.6 has in as Butler "[t]he the finding that two companies are 'joint employers' employer[,] so the other employer." (quoting Torres-Negron v. (1st Cir. "multiple 2007)). entities Therefore, may 793 F.3d 404, Merck & Co., 408 (4th 488 F.3d 34, the Fourth Circuit has held simultaneously employers for the purposes of Title VII." be Id. at 410. considered Although relief. In this case, the parties limited their briefing regarding Section 504 to an exchange of footnotes. See PL's Mem. Opp'n Navy's Mot. for Summ. J. at 6 n.l; Navy's Reply Supp. Mot. for Summ. J. at 6 n.l, ECF No. 117. In the operative complaint, Plaintiff does not expressly seek reinstatement. Second Am. Compl. U C, at 15, ECF No. 75. Therefore, on the issue, though the Court has not had the benefit of briefing it is not clear that Plaintiff would be entitled to most of the relief she seeks in light of the Navy's sovereign immunity from actions for damages under Section 504. Cf. Sailor v. Hubbell, Inc., 4 F.3d 323, 325-26 (4th Cir. 1993); Hubbard v. Adm'r, EPA, 982 F.2d 531, 539 (D.C. Cir. 1992) (en banc). In any event, the Court's resolution of the instant motions renders unnecessary any further analysis of Section 504 at this stage of the proceedings. However, the parties should be prepared to address the issue further at any trial that may occur in this matter. 43 this claim against the Navy involves the Rehabilitation Act, the parties agreed during the summary judgment hearing that the under the joint employer doctrine applies in this context as well. To determine whether an entity joint employer doctrine, the analysis set Butler. relevant, is an employer though none is dispositive: forth in Court must apply the multi-factor The following factors are (1) authority to hire and fire the individual; (2) day-to-day supervision of the individual, including employee discipline; (3) whether the putative employer furnishes the equipment used and the place of work; (4) possession of and responsibility over the individual's employment records, including payroll, insurance, and taxes; (5) the length of time during which has worked for the putative employer; the individual (6) whether the putative employer provides individual with formal or informal training; (7) whether the individual's duties are akin the to a regular employee's duties; (8) whether the individual is assigned solely to the putative employer; and (9) whether the individual and putative employer intended to enter into an employment relationship. Id. at 414. Additionally, the industry context," specific the Court may "modify the factors to and "the common-law element of control remains the 'principal guidepost' in the analysis." Id. The purpose of an analysis of the Butler factors is "to pierce the legal formalities of an employment relationship to determine the loci of effective control over discounting those formalities entirely." 44 an employee, Id. at 415. while not That Instead, said, not all Butler factors are created equal. "[t]hree factors are the most important": The first factor, which entity or entities have the power to hire and fire the putative employee, determining ultimate control. The second is important to factor, to what extent is the employee is supervised, useful for determining the day-to-day, practical control of the employee. The third factor, where and how the work takes place, is valuable for determining how similar the work functions are compared to those of an ordinary employee. Id. at 414-15 "whether the (emphasis added). individual and Conversely, the putative enter into an employment relationship," minimal consequence in the joint the ninth factor, employer intended to "ordinarily will be of employment analysis," though "the intent of the parties should be part of the overall fact- specific Id. inquiry the putative employee's circumstances." at 414 n.12. Beyond the the into joint court's employment application of Butler, court the explanation of such the determination, factors considered in the Butler whether the is factors relevant Fourth Circuit's instructive. trial court to had In erred in granting summary judgment to an automotive-parts manufacturer on the basis that the manufacturer did not employ the plaintiff within the meaning liable for any plaintiff. plaintiff facility. In to Id. of Title sexual that work at VII and, harassment case, at 406. the a therefore, discrimination staffing agency automotive-parts The 45 could not plaintiff wore be against the had hired the manufacturer's the staffing company's uniform, parked in pay from such company. "had ultimate and its parking Id. at 406-07. responsibility termination." Id. for at lot, And the staffing company issues 407. and received her related On the to other discipline hand, the automotive-parts manufacturer set the plaintiff's work schedule and "arranged portions Furthermore, supervised the the of plaintiff's] automotive-parts plaintiff, manufacturer's [the factory. and she Id. training." manufacturer's worked The on the staffing Id. employees floor the told company of the plaintiff that she worked for both it and the manufacturer. Id. Based on those manufacturer facts, did not the trial exercise court concluded that the control over the sufficient plaintiff to qualify as her employer under Title VII. On appeal, the Fourth Circuit reversed the trial court and held that, as a matter of law, the automotive-parts manufacturer was the plaintiff's employer. four factors. "exhibited plaintiff's] a First, high Id. at 415. The Court emphasized the court concluded that the manufacturer degree employment" of control because it over had the sent terms an of email [the to the staffing company stating that the plaintiff should be "add[ed] to the list for replacement," and, after a delay, company then terminated the plaintiff. staffing found company that the "formally fired manufacturer had 46 Id. the staffing Thus, although the [the plaintiff]," "effective control" the court over her employment, company's especially in manager that light of he testimony from the staffing "could not recall an instance" when the staffing company declined a request from the manufacturer to discipline Second, or the terminate court staffing-company underscored "day-to-day supervision" manufacturer's a of factory. that the the manufacturer plaintiff Id. Third, employee. on the the exercised floor court used the same equipment" indicated that there of noted although the plaintiff wore a staffing-company uniform, other staffing-company employees Id. that, she and "performed the same tasks, as the manufacturer's employees, was "little or no effective and finally, and which difference between the work performed by the two sets of employees." Fourth, the Id. the court found that the plaintiff's "labor was not tangential or peripheral to [the manufacturing company]" because "[the manufacturer's] manufacturer's] seventh plaintiff] performed employees core and produced business." factor—"whether the the Id. same goods This individual's tasks as were that indicated duties are [the [the that akin the to a regular employee's duties"-militated towards a finding that the manufacturer employed the plaintiff. Id. The Butler court concluded that the district court had failed to give appropriate weight to together, those they four factors established that and the determined that, manufacturer plaintiff's employer under the joint employer doctrine. 47 was taken the 2. Whether the Navy Employed Plaintiff Both the Navy and Plaintiff contend that the undisputed facts demonstrate that they are entitled to judgment as a matter of law regarding whether support such contention, Circuit's 115 F.3d the the Navy (4th Cir. Plaintiff. Navy relies heavily on the decision in Cilecek v. 256 employed 1997), To Fourth Inova Health System Services, in which the physician was an independent contractor and, court held that a therefore, that a hospital did not employ such physician for the purposes of Title VII liability. In particular, the Navy refers to the portions of Cilecek indicating that a hospital's degree of control over, provision of equipment to, and scheduling the hours of, a physician are unreliable indicators of whether such physician is an independent contractor or an employee of the hospital. light of Cilecek, employer because Plaintiff's wages, In the Navy emphasizes that TCMP was Plaintiff's it recruited withheld taxes Plaintiff, set when required for and paid Plaintiff, paid employee benefits to Plaintiff, managed Plaintiff's leave, and had the Additionally, Plaintiff was authority to fire the Navy underscores of limited duration and discipline that its and that relationship with the Navy prohibit Plaintiff from working for other entities. further notes that, under the contract, fill the physician extender position-be 48 Plaintiff. did not The Navy TCA determined who would it Plaintiff or one of the other two position. set for HCWs Finally, the Plaintiff's who, under the contract, could fill such the Navy asserts that the qualifications it physician extender technical position package prior and to constitute routine quality assurance actions its review credentialing that do not of her render the Navy Plaintiff's employer. As noted above, the Butler factors guide the Court's analysis with regard to the joint employer doctrine. The Court will apply begin by considering such factors as they to Plaintiff's motion, with the disputed facts construed in a light most favorable to the Navy. The first factor-the authority to hire and fire Plaintiff- weighs, to some degree, employed Plaintiff. Navy had things, some role In in in favor of a finding that the Navy this case, hiring it is undisputed that Plaintiff it set the qualifications No. 83-6; id. Attachment C, 83-7; 76-77 PL's Mem. other Navy's Mem. Supp. Mot. § 8, at 6 (Task Order 25), ECF § 8, at 7-8 (Task Order 68), ECF No. Opp'n Navy's Mot. (Task Order 81), among for the physician extender position in Task Orders 25, 68, and 81. for Summ. J. Ex. 4, Attachment B, because, the ECF No. for Summ. 112-2. J. Ex. A2 § 7, Furthermore, at although Plaintiff applied to TCA for the physician extender position, the Navy reviewed Plaintiff's technical package, and, as part of such review, Captain Nelson conducted 49 a phone interview with Plaintiff to ensure that she met the qualifications in the Task Order. Therefore, technical even if the Navy merely reviewed Plaintiff's package (including the to ensure compliance qualifications position that the Navy set), BMC Sewells without the for the with the contract physician extender Plaintiff could not have worked at Navy's approval. For the purposes of determining whether the Navy employed Plaintiff while she worked at BMC Sewells, with TCA, this partial Sewells HCW's that the Navy at least shared, the authority to hire Plaintiff. Additionally, least suggests the record establishes authority because the misconduct or to Navy terminate retained deficiencies the Navy had at Plaintiff's the to that authority TCA for work to at report corrective BMC an action and the contract generally required TCA to take such action. In this case, viewing the evidence in a light most favorable to the Navy, TCA retained the exclusive authority to formally terminate Plaintiff. itself could only bar Plaintiff from its premises for safety reasons, it is undisputed that the Navy Although the Navy could report an HCW's misconduct or performance deficiencies to TCA and that the contract generally required TCA to correct such issues. the right meetings. A, to require Navy's Mem. § C.13.1, ECF No. Under the contract, TCA to attend Supp. Mot. 83-5. the Navy reserved contract status review for Summ. J. Ex. 4, Attachment The contract further provided that, 50 at such meetings, "the Government shall inform the Contractor of any employment-related issues that require corrective action on the part of the The use status of Contractor." the term "require" review meeting, once employment-related issue, TCA was mandatory.8 Id. § C.13.1.1 suggests the (emphasis added). that, Government at a contract informed TCA of an some corrective action on the part of Additionally, the uncontroverted testimony of Ms. Robles establishes that the Navy could report misconduct by, or problems with, a TCA employee, and TCA would "act upon a performance improvement and/or the person's actions are." Ex. 7 at 9, ECF No. termination, depending on what Navy's Mem. Supp. Mot. for Summ. J. 83-10. Likewise, although she states that "[t]he Navy does not have the ability under the Contract or a Task or Order Carpenter Center - to (the terminate Head Portsmouth) contractor are fire Contract has reported contract Administrator averred to a the that COR, "any which employee," at Naval Medical deficiencies is then Ms. of a responsible for addressing the issue as a contract performance matter with the contractor which (generally) is responsible for taking any 8 See Merriam Webster's Collegiate Dictionary 995 (10th ed. 1997) (defining "require" as "to claim or ask for by right and authority . . ."); Webster's Third New International Dictionary 1929 (1993) (defining "require" as "to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation). . . ."); Require, v., Oxford English Dictionary Online, http://www.oed.com/view/Entry/163258 (updated June 2015) (defining "require" as "[o]f a law, custom, a general principle, etc.: to demand as necessary or essential. . . ."). 51 necessary corrective or disciplinary action." ECF No. 83-4. favorable to Considered the Navy, the as a whole, above Id. and undisputed in Ex. 4 H 11, a light facts most demonstrate that, like any HCW, the Navy could report Plaintiff's misconduct or deficiencies to TCA and that, at least as a general matter, TCA was required to take corrective action. To be sure, the or Navy's authority to report misconduct whether deficiencies TCA, which generally required TCA to take corrective action, to was akin to the authority to effectively terminate Plaintiff's work at BMC Butler, Sewells is less there is no clear evidence than in Butler. that TCA always Here, unlike disciplined or terminated an HCW if the Navy made such a request. Nonetheless, under Butler, the Navy's authority to report an HCW's misconduct or deficiencies to TCA, which generally would take corrective or disciplinary action, authority on the part least id. for Ex. severe establishes a of to the Navy misconduct significant terminate or performance level Plaintiff, deficiencies. of at See 7 at 9 (noting that TCA would "act upon a performance improvement and/or termination, actions are"). Although depending on what the person's such authority to terminate is less clear than in Butler, when combined with the Navy's ability to set the qualifications interview of Plaintiff for Plaintiff's (at minimum, 52 position and its to ensure that she met such qualifications), the Court finds that the first Butler factor slightly favors a finding that the Navy employed Plaintiff. With respect including Court the to employee finds that "day-to-day discipline," Navy Indeed, the second such factor militates Navy employed Plaintiff. the supervision exercised employees, Butler towards a The parties day-to-day of do the finding that dispute not supervision factor, that over Plaintiff. the contract provided that TCMP's HCWs would be "subject to day-to-day supervision and control by Government personnel." Navy's Mem. Supp. Mot. § C.2.3. And, as part FPPE OPPE and for Summ. J. Ex. of such supervision, evaluations of Plaintiff Mot. for Furthermore, that the Summ. uncontroverted Navy provided telephone consults referrals, and exercised No. the 1 Navy, at evidence Plaintiff test with cancer over the record possessed the authority to discipline and exercised contract that authority contemplated that on the at ECF record "standard No. 'blurbs'" Id. facts in establishes Plaintiff least one 136-1. demonstrates screenings, Plaintiff's 53 PL's Mem. for diabetes, which shows that the A, physicians charts. Plaintiff. even viewing Navy 23-24, in results, control Moreover, to Ex. regarding lab or day-to-day 136-9. favorable J. Attachment the Navy conducted and periodically reviewed Plaintiff's patients' Supp. 4, the Navy Ex. a that 3C, ECF light most the Navy to some extent, occasion. supervisors The might discipline her for supervisors to manner as staff." A, minor misconduct. "supervis [e] they § 9.6, at 45. supervising HCWs the to government Mot. Supp. Also, contract advised the contract personnel in the same supervise Navy's Mem. The for Summ. the provide contract to personnel J. Ex. on their 4, Attachment directed Navy personnel such HCWs "the normal feedback that should be provided to any employee regarding the quality of their performance," "inform[ing] well, or performed poorly," [them] when they have performed and to document " [c]ounseling sessions regarding both good performance and poor performance." Id. § 9.7, at 45. On at least one occasion, Commander Neill exercised such supervision by counseling Plaintiff regarding a patient's complaint.9 PL's Mem Opp'n Navy's Mot. for Summ. J. Ex. B U 46, ECF No. 112-3. Finally, it is undisputed that the Navy possessed the unilateral authority to transfer Plaintiff to "any Navy medical Center, Portsmouth medical treatment facility within a 50-mile commuting radius of the NMCP proper." Mem. Supp. Mot. for Summ. J. Ex. 4, Attachment A, Navy's § C.3.3.11. 9 The Navy attempts to dispute the fact that Commander Neill counseled Plaintiff by asserting that Plaintiff has only supported such fact with her declaration. However, Plaintiff's sworn declaration sufficiently establishes her personal knowledge of the fact stated therein with respect to such counseling (namely, that Plaintiff was aware of the counseling because she was the person whom Commander Neill counseled) and, therefore, the Navy's bare assertion that such fact is unsupported does not establish a genuine dispute. Although the Navy provides actions-ensuring that explanation not does an Plaintiff rebut the explanation was fact Plaintiff. 54 for providing that Commander quality Commander Neill Neill's care—that counseled Accordingly, in light of the forgoing, the establish record that supervision of Plaintiff, the the undisputed facts Navy exercised in day-to-day which favors a finding that the Navy employed Plaintiff. Along with the first and second Butler factors, factor also favors reflect that the Navy place of work." Plaintiff because "furnish [ed] the the undisputed the equipment used See 793 F.3d at 414. third facts and the The Navy does not dispute that it "provided Plaintiff's place of employment as well as all equipment (both medical and technical)," stethoscope. No. 136. PL's Mem. Supp. Mot. aside from Plaintiff's for Summ. J. at 9-10, ECF Thus, the Navy furnished the equipment Plaintiff used and the place of her employment. Rehabilitation Act liability, For the purposes of potential the Court concludes that the third factor suggests that the Navy employed Plaintiff. Before turning to the remaining Butler factors, the Court will consider the Navy's contention that Butler factors two and three medical are unreliable indicia professionals. establishes that, of The Navy for the control in cases correctly notes purposes of involving that Cilecek determining whether a medical professional is an employee or independent contractor, the degree to which a hospital exercises control over aspects of patient care professional is is not an a "reliable employee 55 indicator" because of whether hospitals such have a professional responsibility to their patients and, therefore, require the ability to ensure that physicians maintain standards of patient care. See 115 F.3d at 261-62. Similarly, the fact that a medical professional uses instruments and equipment that a hospital supplies is not a "reliable indicator of employee status" because such use generally is inherent in the provision of certain medical services, See id. such as emergency medical services. at 262. Although the Navy cites Cilecek as indicating that day-to day supervision and the provision of equipment and the place of work are status unreliable for a factors physician for assistant, assessing Cilecek joint is employment distinguishable from this case because it did not involve the joint employer doctrine. An independent contractor analysis, such as that in Cilecek, arguably differs from the joint employer determination that the Court must undertake in this case. In determining whether a plaintiff worked as an independent contractor, a court evaluates the balance of control between the plaintiff and the alleged employer to determine whether the plaintiff exercised sufficient control over her own work, such that she operated as an independent contractor rather than an employee. hand, On the other a court's joint employer inquiry focuses on the balance of control employers over to the plaintiff's determine work whether 56 between both two entities purported exercised sufficient operated control as the over the plaintiff, plaintiff's such employer. that Thus, they both though the independent contractor and joint employer analyses both focus on control over the plaintiff's work, control from contractor exercises joint different analysis over employer an vantage considers the individual analysis they compare the exercise of points. degree of vis-a-vis considers The control such the independent an entity individual; degree of control the an entity exercises over an individual, vis-a-vis another entity.10 Accordingly, while the degree of day-to-day supervision and the provision of the instrumentalities of work may be unreliable for determining whether a medical contractor or employee, are irrelevant to professional is an independent it does not necessarily follow that they ascertaining whether a medical professional who undisputedly is an employee of one entity—not an independent contractor—also entity. be In other words, professional exercises should is an control considered where it employee, over such the an employee of another is undisputed that a medical extent professional to which and to a hospital which the 10 Cf. Zheng v. Liberty Apparel Co., 355 F.3d 61, 67-68 (2d Cir. 2003) (noting that factors used to ascertain whether an individual is an independent contractor under the Fair Labor Standards Act "do not bear directly on whether workers who are already employed by a primary employer are also employed by a second employer. Instead, they help courts determine if particular workers are independent of all employers."); Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1217-18 (10th Cir. 2002) (en banc) (distinguishing between the factors relevant to an independent contractor analysis and those relevant to a joint employer analysis). 57 professional uses "determining] the professional]" because such hospital as loci of between factors equipment effective the are probative if, under professional Cilecek, and instrumentalities and the use providing patient over in [the other employer, 793 supervision professional's Court relative balance See Butler, day-to-day such while of the control hospital control between the two entities. Even aids F.3d at 415. of of care of a an are medical entity's inherent the provision of medical services at a hospital (and, in therefore, not probative of whether the medical professional is an employee or independent contractor), it matters which entity exercised such inherent control and provided such instrumentalities. example, if a company contracts with a hospital For to provide physician assistants to serve the hospital's patients, but such physician assistants operate from a clinic owned and equipped by the contracting company and under contracting company's physicians, much lesser degree of the supervision of the the hospital would exercise a effective control over the physician assistants than if such professionals operated on-site at the hospital and under the supervision of the hospital's physicians. Accordingly, purported in a employer joint employer exercised the provided the equipment required for, services, instead of the other 58 case, control the fact inherent that one in, and the provision of medical conceded employer, weighs in favor of a finding that the former entity also is an employer. For the Court is not persuaded that Cilecek and those reasons, the medical professional render irrelevant two of considered to be context the the most in which three factors important this that case arises the Butler court in determining whether an entity is a joint employer.11 11 The Court also finds that Robb v. (4th United States, 80 F.3d 884 Cir. this court 1996), considered is distinguishable whether the from United States case. was In liable Robb, the under the Federal Tort Claims Act for the negligence of two physicians employed by a provider of primary care medical services that had entered into a "Partnership Memorandum of Understanding" ("MOU") with the United States Air Force. 80 F.3d at 885-86. The Robb court concluded that one of the physicians was an independent contractor, rather than an employee of the Air Force, because the Air Force did not pay the physician, the primary care provider that employed the physician operated a "stand alone clinic" on Government property and provided malpractice insurance coverage for the physician, and the Air Force lacked control over the physician's independent medical judgment. In addition, the Robb court emphasized "the clear expression of intent in the MOU to establish an independent contractor relationship." id. at 893. For the same reasons noted with respect to Cilecek, the Court finds that the independent contractor analysis in Robb differs from the joint employer analysis required in this case. Furthermore, Robb is factually dissimilar from this case. Unlike Robb, Plaintiff did not work at a "stand alone clinic," and the Navy provided malpractice insurance coverage for Plaintiff. See Navy's Mem. Supp. Mot. for Summ. J. Ex. 4, Attachment A, §§ C.2, C.3.3.11. Moreover, the Navy exercised a greater degree of control over the independent medical judgment of Plaintiff, a physician assistant, than the Air Force exercised over the physician in Robb. As the Navy's Guidelines for the Utilization of Physician Assistants establish, "[a]lthough [physician assistants) exercise a substantial degree of independence in the performance of their duties, they must, by definition, function with the supervision of a doctor of medicine or osteopathy, when performing medical services." PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. C at 3, And although Plaintiff, ECF No. 112-4. as a physician assistant, was "expected to exercise a substantial degree of clinical judgment," id. at 4, she remained subject to significant supervision by Navy physicians, see id. at 4-5. Finally, to the extent the Robb court emphasized the at 893, Robb is "clear expression of inconsistent with the intent in the MOU," Fourth authority on the joint employer doctrine, 59 Circuit's most 80 F.3d recent which suggests that "the The fourth Butler factor, over the individual's insurance, The and taxes" undisputed wages, applicable employment weighs facts provided "possession of and responsibility in favor of establish earning records, that statements, withholdings required including the by Navy's position. "TCMP withheld law, payroll, paid from paid Plaintiff's her the pay all employer's share of social security and Medicare taxes owed on her behalf, and provided her with federal tax form W-2s." Mot. J. at 6, for Summ. ECF No. 83. Navy's Mem. And "Plaintiff was eligible for and enrolled in various employee benefits offered for) by TCMP, including a 401(k) insurance benefits, and short Sewells." Navy, term Id. to Moreover, maintain That Plaintiff. for said, Id. the contract workers' Ex. even malpractice group while life though the Navy the including evidence in a payroll, light most insurance, was favorable to taxes" the the employer's ECF No. insurance for responsible considering and BMC not § H.8, retained most of the responsibility for Plaintiff's records, at required TCMP, 4, Attachment A, dental insurance working compensation and insurance, (and paid health insurance, Navy provided malpractice Nonetheless, Plaintiff's benefits the general liability insurance. 83-5. plan, vision care benefits, disability Supp. that TCA "employment and Navy, viewing the Court subjective intentions of the parties ordinarily will be of minimal consequence in the joint employment analysis." Butler, 793 F.3d at 414 n.12. 60 finds that the fourth Butler factor militates against a finding that the Navy employed Plaintiff. With individual Butler has such that period "the for factor Plaintiff length the Viewing the Navy, Plaintiff 18, until April underwent cochlear Plaintiff never 26, 2011 implant returned the during Navy Navy for worked for date on surgery work at BMC fifth the Court a relatively in the the the because evidence (the which employer," the revision to time the worked for time. to of putative favors of favorable 2010 to worked factor, concludes short regard a light Navy which and most from May Plaintiff after which Sewells). Thus, Plaintiff worked for the Navy for approximately one year. The one-year duration of Plaintiff's work relationship with the Navy is relatively short. See, e.g., 364 F. 1375 (M.D. Ga. 2005) Supp. 2d 1368, Lockett v. Allstate Ins. Co., (finding that three years was a relatively short period in considering the duration of employment); cf. 34, 1983) 38 (3d Cir. e.g., EEOC v. Zippo Mfg. Co., 713 F.2d 32, (finding that a ten-year duration of work indicated that the length of time the plaintiffs worked for a defendant was status employees"). of the only factor Therefore, light most favorable to the Navy, Butler factor favors that a finding Plaintiff. 61 "point [ed] viewing the toward evidence their in a the Court finds that the fifth that the Navy did not employ The Butler, sixth Butler factor slightly favors Plaintiff. the Court looks to "whether the putative Under employer provides the individual with formal or informal training." this case, In the parties dispute the extent to which the Navy trained Plaintiff. It is undisputed that "TCA was responsible for providing [Plaintiff's] Continuing Medical Education (CME)," PL's Mem Opp'n Navy's Mot. 112-2, J. Ex. B % 213, ECF No. and "Plaintiff received monetary assistance from TCMP to offset costs Navy's Mem. for Supp. continuing Mot. Navy, provided medical for Summ. Based on such evidence, the for Summ. J. education Ex. requirements," 1 at 10, ECF No. the Navy contends that TCA, training undisputed evidence Plaintiff with training. In the Navy's view, to Plaintiff. also establishes CHCS/AHLTA, HIPAA, that rather than However, the FEMA, 83-1. the Navy provided OSHA, and CBRNE such training simply reflects an effort to have Plaintiff "learn and comply with the Navy medical facility's rules and procedures," Navy's Mem. Opp'n PL's Mot. for Summ. J. at 25, ECF No. 141, and to fulfill its professional obligation to provide its patients with adequate care. even assuming record also that is indicates the that case, the Navy substantive training to Plaintiff: 1, 2010, the Navy required undisputed provided at in the least some from September 29 to October Plaintiff to attend conference at Navy Medical Center - Portsmouth. 62 evidence Yet, a radiology See id. at 17. Accordingly, although TCA may have shouldered the primary burden of training Plaintiff, the record establishes that the Navy provided some training to Plaintiff beyond simply ensuring that Plaintiff understood procedures at BMC Sewells. Court finds that the sixth Butler factor Therefore, slightly the favors a finding that the Navy employed Plaintiff. Regarding the seventh Butler factor—whether the individual's duties are akin to a regular employee's duties—the undisputed facts indicate finding that Navy employed Plaintiff. orders the reflect employee's that that such factor militates Plaintiff's duties. The task duties The applicable were orders akin to required Mem. No. 83-7 Ex. clinical privileges granted by the Supp. Mot. 83-6 for Summ. J. (Task Order 25) ; id. (Task Order 68); A2 Ex. § 6, at PL's Mem. 75, ECF No. C, § 7, (Task to within the Navy's § 7, at 5, ECF at Opp'n Navy's Mot. 112-2 regular Commander," 4, Attachment B, Attachment a a task Plaintiff perform "a full range of Physician Extender services, scope of towards 6, ECF No. for Summ. J. Order 81), and Plaintiff's clinical privileges included the core privileges for a physician assistant, 4-5, ECF Nos. physician extenders. 136-10 extender Moreover, PL's Mem. Supp. to were 136-11. akin evidence Thus, to Mot. Plaintiff's those in the for Summ. J. Exs. of duties other record indicates as a physician that the Navy expected Plaintiff's supervisors to supervise Plaintiff in 63 the same manner that they supervised Government personnel and to "not impose on contractor personnel burdens or privileges which are contrary to those imposed on other staff performing the same function." Navy's Mem. Supp. Mot. for Attachment A, § 9.6, at 45, ECF No. 83-5. Summ. Furthermore, actually performed an FPPE for Plaintiff, for Summ. J. Ex. 1 at 23-24, ECF No. Plaintiff's work as a physician assistant was of the medical care which indicates see Butler, "labor putative employer]," was not putative factor seven that, [BMC a a whole, the or akin Accordingly, to 136-1. Supp. Finally, "an integral part same id. tasks at as 2, the (finding that the peripheral to [the she performed the same tasks as core business," finding the above of the Navy's and joint regular therefore employer undisputed in her role as a physician extender, duties the Navy PL's Mem. Sewells]," F.3d at 415 tangential 4, employees and produced goods that were employer's] favored Considered as 793 "[i]nstead, [the putative employer's] [the at that Plaintiff performed Navy's personnel, plaintiff's provide [d] Ex. as it did for any new provider at Naval Medical Center - Portsmouth. Mot. J. facts that status). demonstrate Plaintiff performed employees' duties. Butler factor seven favors a finding that the Navy employed Plaintiff. As putative to "whether employer," the the individual eighth 64 is assigned Butler solely factor, the to the Court concludes that Plaintiff. such factor suggests At the hearing, that the Navy employed the Navy conceded that TCA only assigned Plaintiff to work for the Navy, even though, under the contract, TCA may have had the right to assign her elsewhere. Therefore, the eighth Butler factor militates against the Navy. The ninth and final Butler factor, and putative employer intended relationship," favors the Navy. was not a party to thereto, to "whether the individual enter into an employment Plaintiff has admitted that she the contract, or task orders issued pursuant under which Plaintiff provided services as a physician extender to the Navy on behalf of TCA. for Summ. J. Ex. 1 at 15-16, Navy's Mem. Supp. Mot. ECF No. 83-1. Consequently, the Court finds that the Navy and Plaintiff did not intend to enter into an employment relationship. favors However, that a finding the Court that the Navy recognizes "the ninth factor The ninth Butler factor, thus, did not the Fourth regarding the employ Plaintiff. Circuit's suggestion subjective intentions of the parties ordinarily will be of minimal consequence in the joint employment analysis." After considering the Butler, 793 F.3d at 414 n.12. factors set forth in Butler, mindful that "control" is the Court's "principal guidepost" applying the joint employer doctrine, the specific undisputed facts of this case, Court finds that and in the viewed in a light most favorable to the Navy, demonstrate that the Navy was Plaintiff's 65 employer three for purposes most of important the Rehabilitation factors, Act. day-to-day Two of supervision the and furnishing the equipment used and place of work, weigh in favor of a finding that the Navy employed Plaintiff. third of the triad of fire—at least Plaintiff. important factors—authority slightly favors a finding Together, that the to hire the and Navy employed those three factors indicate that the Navy exercised some degree of ultimate control, practical control, Furthermore, over Plaintiff. and a high degree of In addition, as noted above, a number of other Butler factors also favor Plaintiff's position on the joint employer doctrine. Although Butler factors five, and nine militate against employer status, factors favoring Plaintiff, the Court four, in light of the concludes that such factors are insufficient to create a triable issue regarding the Navy's status as a joint employer. Accordingly, concludes that, under the joint employer doctrine, Plaintiff's employer.12 Therefore the Court the Court the Navy was will GRANT 12 The Court notes that its decision is consistent with the EEOC's enforcement guidance. U.S. Equal Emp. Opportunity Comm'n, EEOC Notice No. 915.002, Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (1997), 1997 WL 33159161, at *6 ("the client [of a contract firm] is an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work to be performed, to make or change assignments, and to terminate the relationship. On the other hand, the client would not qualify as an employer if the staffing firm furnishes the job equipment and has the exclusive right, through on-site managers, to control the details of the work, to make or change assignments, and to terminate the workers."). However, 66 the Court further notes that such Plaintiff's motion and will DENY IN PART the Navy's motion as to the joint employer doctrine.13 C. The Navy's Motion In light of the Court's decision with respect to the joint employer Navy's issue, the motion. Plaintiff, the Court must consider the remainder of the In addition to contesting whether it employed Navy asserts that Plaintiff failed to timely initiate EEO counseling and that Plaintiff has not demonstrated a triable issue of fact with respect to her constructive discharge claim. 1. Timeliness The Navy contends that the undisputed facts establish that Plaintiff failed to timely initiate EEO counseling with the Navy and, therefore, that Plaintiff's failure to exhaust administrative remedies bars her claims against the Navy. her The Navy primarily contends that Plaintiff should have initiated EEO counseling within forty-five days of December 12, 2011. guidance is entitled to deference only to the extent of its power to persuade the Court. Ct. 2517, 2533 See Univ. of Tex. Sw. Med. (2013); Butler, 13 The Court Navy's motions—as summary judgment. Ctr. v. Nassar, 133 S. 739 F.3d at 411 n.6. has independently considered Plaintiff's and the the Court must when reviewing cross-motions for However, the forgoing explanation of the Court's decision with respect to Plaintiff's motion necessarily renders superfluous a further explication of the Court's reasoning as to the Navy's motion. If the undisputed facts viewed in a light most favorable to the Navy demonstrate that the Navy was Plaintiff's employer, it follows that viewing such facts in a light most favorable to Plaintiff does not alter the Court's employed Plaintiff. 67 conclusion that the Navy According to the charge against Navy, TCA on that date, Plaintiff alleging ADA violations filed an that were EEOC nearly identical to the Rehabilitation Act violations she later alleged in her EEO initial contact with the Navy and, therefore, given such potential claim similarity, Navy Plaintiff against the at against TCA. latest, Plaintiff was Navy on February the was same Additionally, 22, aware point a she the she that, claim aware of any potential claim against the date contends her the the Navy indicating that, Navy asserted at 2012, the of submitted a letter to if the Navy did not respond within ten days of receipt of the letter, she would "consider [her] request for accommodation to be denied and will proceed with consulting a Counselor pursuant to 29 C.F.R. the matter." at 117-18, PL's Mem. ECF No. In response, § 1614.105 in order to resolve Opp'n Navy's Mot. for Summ. J. Ex. A2 112-2. Plaintiff asserts that the Court must consider her request for accommodation from the Navy independently of her request for accommodation from TCA. December 12, 2011, although she According to Plaintiff, may have been aware of on a potential cause of action against TCA for failure to reasonably accommodate her hearing impairment, have reason to know that request for accommodation. the at that point, she did not Navy had unreasonably denied her In Plaintiff's view, filed her EEOC charge against TCA, 68 at the time she the only communication she had received from the Navy was an August 8, 2011 email indicating that the Navy had approved the use of a video phone, "Plaintiff understood that the Navy in fact was in the process of evaluating parties had regarding use of specific communicated the the Navy," the set-up of "nTouch PC" request for Summ. No. meeting proffered," to resolve previously "the issues approved by the Navy had stated in response to a request for the received any 2011 about accommodations that the and that "this was not a yet accommodations "process might 'denial of anything,'" response from the for accommodation. J. at 17, 122-1)). In ECF No. light take of Navy PL's 112 a and she had not regarding Mem. few months" her Opp'n Navy's (quoting id. Ex. Al such October situation, Mot. at 28, ECF Plaintiff contends that a reasonable person in her position would have no reason to believe that the Navy had denied her request for accommodations as of December 12, hearing Morton in this Court (unpublished), 2011. Furthermore, matter, Partners on relying LP, 581 F. at the August 31, 2015 Hill App'x v. 178 Hampstead (4th Cir. Lester 2014) Plaintiff presented the additional argument that her February 22, 2012 letter qualified as a renewal of her prior requests for accommodation, start the Although also forty-five Plaintiff's argues that day purportedly, period position the to is Navy's 69 such that it would re initiate somewhat alleged EEO unclear, repeated counseling. Plaintiff failure to accommodate her hearing impairment constitutes a continuing violation for purposes of timely administrative exhaustion. Prior to filing an action in a district court, a plaintiff alleging a Rehabilitation against the Navy must Under federal employment Act employment discrimination claim initiate EEO counseling with the Navy. regulations discrimination applicable . . . to prohibited "complaints of by the Rehabilitation Act" and filed against, among others, the Navy, 29 C.F.R. § 1614.103(a), (b) provides: (a) Aggrieved persons who believe they have been discriminated against on the basis of . . . disability . must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. (l) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). Thus, a plaintiff alleging a Rehabilitation Act employment discrimination claim against the Navy must initiate EEO counseling within forty-five days of the date of the alleged unlawful employment practice. employment practice occurs when 250, Plaintiff knows, See Del. State Coll. v. reason to know, of such action. 449 U.S. the The unlawful or has Ricks, 258-59 (1980); A Soc'y Without a Name v. Virginia, 655 F.3d 342, 347-48 (4th Cir. 2011); see also Green v. Donahoe, 760 F.3d 1135, 1143 (10th Cir. 2014). 70 The when crux of Plaintiff alleged the parties' dispute or reason to knew, unlawful had employment regarding know, practices, timeliness of is the Navy's triggering the requirement that Plaintiff initiate EEO counseling within fortyfive days. At the hearing in clarified when this matter, Plaintiff contends the Navy unlawfully rejected her requests for reasonable accommodation. the discrete accommodate act of occurred discrimination on June Plaintiff's counsel 15, In Plaintiff's view, regarding 2012, the failure date on to which Plaintiff received the Navy's proposed accommodations responsive to Plaintiff's 2011 request for accommodation. Plaintiff has suggested that the Navy's failure to Additionally, accommodate October Plaintiff Plaintiff's last was request a continuing for violation, accommodation and that occurred in Plaintiff's letter to the Navy on February 22, 2012. To begin, Navy's alleged continuing counseling. Supreme the Court rejects Plaintiff's contention that the failure violation to accommodate for purposes Plaintiff of timely constituted initiating In National Railroad Passenger Corp. v. Morgan, Court established that " [a] hostile work a EEO the environment claim is composed of a series of separate acts that collectively constitute 117 one 'unlawful employment (2002), and, therefore, practice,'" 536 U.S. 101, that an EEOC charge predicated on a hostile work environment is considered timely filed "so long as 71 an act contributing to that hostile work environment takes place within the theory, statutory the consideration time period," continuing of that 219 (4th Cir. 2007) v. Homes, (citing Morgan, Thus, this "allows for the outside a single, Wash. 105. theory, occurred when those incidents are part of Holland at violation incidents discrimination." id. bar time ongoing pattern of Inc., 536 U.S. 487 F.3d at 118) . 208, However, an employer's failure to accommodate an employee's disability is a discrete act of discrimination, violation. Hill, accommodate constitutes omission"); accord, than a continuing 581 F. App'x at 181 ("a defendant's failure to a discrete e.g., Ayala (1st Cir. 2015) ; Mayers v. Am., F.3d 478 rather 364, although Plaintiff act v. Shinseki, Laborers' 368-69 rather 780 an ongoing F.3d 52, 57 Health & Safety Fund of N. (D.C. Cir. relies on Hill than to 2007). Accordingly, support her argument that her February 22, 2012 letter to the Navy revived prior requests for accommodation, violation doctrine accommodate. Hill, is Thus, in fact, states inapplicable Plaintiff's to a that the claim for continuing failure failure-to-accommodate claim to is timely only if the discriminatory acts alleged in her April 11, 2012 initial contact with an EEO counselor occurred within forty-five days prior to April 11, 2012. The Court concludes that the Navy has failed to demonstrate that it is entitled to judgment 72 as a matter of law, on the affirmative Plaintiff's finder of defense of administrative failure-to-accommodate fact could determine claim that exhaustion, because the a as to reasonable Navy's failure respond within ten days of Plaintiff's February 22, 2012 to letter constituted a rejection of Plaintiff's October 2011 request for accommodation and that such rejection occurred within forty-five days of Plaintiff's initial contact with the EEO counselor. October 6, 2011, the Navy provided TCA with accommodation form for Plaintiff to complete. Mot. for Summ. J. Ex. 27, ECF No. such form and submitted it Mem. Opp'n Navy's Mot. 2. The Navy Navy's Mem. 31. Supp. Mot. On February 22, regarding her request J. 83-30. Plaintiff's for Summ. J. Ex. Plaintiff completed 2011. A2 at 106, form Ex. for Navy's Mem. Supp. to TCA on October 17, for Summ. received a On on 27 ECF No. October at PL's 5-6, 31, 112- 2011. ECF No. 83- 2012, Plaintiff sent a letter to the Navy October 2011 request for accommodation, and indicated that she would consider her request denied if she did not hear from the Navy within ten days of its receipt of the letter. PL's Mem. 117-18. Opp'n Navy's Mot. for Summ. J. The Navy did not respond within ten days. Ex. A2 at Considering the evidence in a light most favorable to Plaintiff, the Court concludes Navy, that a through October request reasonable its failure finder to of fact respond, could rejected for accommodation ten days 73 find that the Plaintiff's after receipt of Plaintiff's February 22, 2012 letter. Thus, a finder of fact reasonably could conclude that a cause of action for the Navy's alleged rejection of Plaintiff's October accommodation accrued on March 4, 2012. 2011 request for Plaintiff initiated EEO counseling thirty-eight days after such date, on April 11, 2012. Accordingly, in light of Plaintiff's February 22, 2012 letter, the Navy has not demonstrated that no reasonable finder of fact could conclude predicated accrued that on her within Plaintiff's October forty-five failure-to-accommodate 2011 days request of DENY regarding IN PART the the timeliness Navy's of accommodations, Plaintiff's initial contact with an EEO counselor.14 will for motion Plaintiff's April Therefore, for claim, summary 11, 2012 the Court judgment failure-to-accommodate claim.15 2. Constructive Discharge The Court Plaintiff's now will turn constructive to the discharge Navy's challenge Although claim. to a 14 Although the Navy relied heavily on Plaintiff's December 12, 2011 EEOC charge have known of against TCA as the date on which the Navy's allegedly unreasonable Plaintiff should rejection of her request for accommodation, even assuming the truth of that proposition, the Court finds that a reasonable finder of fact could conclude that Plaintiff's February 22, qualified as a renewal of Plaintiff's accommodation, 2012 letter to the Navy October 2011 request for such that the Navy's alleged rejection thereof was an independent and discrete act of discrimination separate from any prior failure to accommodate. See, e.g., Hill, 581 F. App'x at 181. 15 In light of the Court's ruling with respect to Plaintiff's constructive discharge claim, the timeliness of such claim. 74 Court need not resolve the constructive discharge claim requires Plaintiff to establish two elements, the element: the Court will deliberateness. undisputed Plaintiff, facts, focus An discussion assessment viewed establish its in whether a of the light the on extent most Navy only to one which favorable intended to to force Plaintiff to quit her position is dispositive of her claim. To establish a Rehabilitation claim for constructive Act, Plaintiff must discharge prove two under the elements. "An employee is considered constructively discharged 'if an employer deliberately makes effort to Corp., 750 F.3d 413, Allen & Thus, a induce the the Hamilton, demonstrated drive the employee 425 and by such intent, the 126, 131 383 180, deliberateness F.3d claim intolerability. evidence from the including a (4th quit.'" 2014) Cir. job, inquiry or in an Dal-Tile (quoting Honor v. Booz186-87 (4th involves Cir.2004)). two elements: by the can be employer to circumstantial evidence of actions on that single Johnson v. (citations turns Freeman v. intent treatment." 1993) intolerable "Deliberateness of series of plaintiff for differential F.2d to discharge actual employee conditions (4th Cir. Inc., constructive deliberateness working the Shalala, omitted). extent out In to a 991 short, which a plaintiff demonstrates—by direct or circumstantial evidence—that "the actions complained of were intended by the employer as an effort to force the employee to quit." 75 Martin v. Cavalier Hotel Corp., 48 F.3d 1343, marks omitted). to (4th Cir. 1995) (internal quotation The intolerability element requires a plaintiff demonstrate intolerable. 1354 that See her Honor, working 383 conditions F.3d at 187 were objectively (citations omitted). Working conditions are objectively intolerable if "a 'reasonable person' in the employee's position would have felt compelled to resign." Bristow v. Daily Press, Cir. 1985) U.S. 129, discharge,' 134 the (2004) plaintiff working environment 770 F.2d 1251, 1255 (4th see Pa. State Police v. Suders, (citations omitted); 542 Inc., ("[T]o must . . establish . show became so intolerable qualified as a fitting response."). 'constructive that the abusive that her resignation Notably, "dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not intolerable as to compel a reasonable person to resign." 383 423, F.3d at 434 187 (quoting Williams v. Giant Food Inc., (4th Cir. Importantly, so Honor 370 F.3d 2004)). the Fourth Circuit has indicated that courts should exercise caution to avoid transforming every failure-toaccommodate claim into a claim for constructive discharge. the court expressed in Johnson: The consequences of regarding every failure to accommodate an employee as a constructive discharge would be plaintiff the Act, significant. Under this standard, can prove that the government has she can automatically quit her 76 if a violated position As without first judicial resorting remedies to provided the by administrative Congress to and mediate these disputes while the employment relationship can still be salvaged. ... In the interval between a constructive discharge and reinstatement of the employee, both sides lose. . . . Moreover, once the employment relationship has terminated, the parties may harden their positions and become unable to resolve their dispute. It is far better for all concerned to resolve the dispute while the employment relationship is ongoing. 991 F.2d at 131. "a complete requests, However, the Fourth Circuit has suggested that failure might to accommodate, suffice as in evidence to necessary for constructive discharge." In this sufficient case, Plaintiff evidence regarding the discharge to claim. deliberateness could conclude that triable element the repeated deliberateness she her asserts Navy has question of under Johnson, that of Id. at 132. Plaintiff demonstrated deliberateness, jury a face show the contends create First, the adduced of constructive that she completely completely fail has because a reasonable failed accommodate Plaintiff in the face of repeated requests. even if the Navy did not fact to Second, to accommodate her, Plaintiff argues that a reasonable jury could conclude, based on circumstantial evidence, Plaintiff to quit. demonstrated Plaintiff's that request that the Navy intended to force Specifically, Plaintiff asserts that she has the for Navy: (1) accommodation misrepresented in June 2011; receiving (2) never retracted the August 2011 approval of Plaintiff's request for a 77 VRS phone, instead, failing to implement such approval until one year later; (3) available, never communicated even though there was that an "internal (4) interpreter would be appropriate;" interpreter was agreement that an failed to engage in an interactive process with Plaintiff and, therefore, misunderstood her disability; (5) failed to schedule a meeting with Plaintiff, despite prior meeting; (6) indications failed to that it was interested in such adequately research and submit for the products Plaintiff requested; (7) a waivers inadequately responded to Plaintiff's Freedom of Information Act ("FOIA") requests; (8) failed to make the Z-150 video phone available until two months after offering it to Plaintiff; had acquired such phone statements to future (9) did not communicate that it until March 2013; potential and employers of (10) made false Plaintiff. See PL's Mem. Opp'n Navy's Mot. for Summ. J. at 20-24. Neither of Plaintiff's contentions are availing. forth below, on this record, conclude that through either the a Navy no reasonable finder of intended complete to force failure to As set fact could Plaintiff accommodate to quit or the purported circumstantial evidence of intent upon which Plaintiff relies. a. The Navy Did Not Completely Fail to Accommodate Plaintiff Based concludes on the undisputed facts that no reasonable finder of 78 of this fact case, the could determine Court that the Navy completely failed to accommodate Plaintiff of repeated multiple from requests. offers to Lieutenant 2011, It accommodate Commander Lieutenant is undisputed Plaintiff. Badura Commander that Badura to the First, Plaintiff stated that in the face on Navy in an made email August "[w]e 11, plan to provide a staff office space which can be equipped with your video relay equipment and we in person," Navy's Mem. can discuss Supp. Mot. these details for Summ. further J. Ex. 15, ECF No. 83-18, which communicated to Plaintiff that the Navy tentatively had approved her request for a VRS system, 2, ECF No. 83-21.16 see id. Ex. 18 at 1- After a dispute arose over provision of a 16 There is also substantial evidence in the record that the Navy offered to allow Plaintiff to return to work without having to make phone calls until the VRS system was in place. See Navy's Mem. Supp. Mot. for Summ. J. Ex. 15; id. Ex. 10 at 3, ECF No. 83-13 (testimony of Lieutenant Commander Badura that "[a] t one point we did offer that we could make phone calls for her, she would just have to use other staff to do that."); id. Ex. 16, ECF No. 83-19 (letter from members Plaintiff's counsel stating her understanding, "through LCDR [Badura], that [Plaintiff] will not be required to utilize a telephone if she is to return to work without the accommodation in place," and asking for confirmation thereof). Even if making telephone calls was an essential function of Plaintiff's contests), the elimination accommodation to Plaintiff. Barbara T. Lindemann et job (a proposition the Navy of such function would qualify as an See 29 C.F.R. pt. 1630.2(o)(2)(ii); 1 al. , Employment Discrimination Law 13-138 to 13-140 (5th ed. 2012) ("[Ajlthough an employer may choose to eliminate essential functions to allow a disabled employee to perform 'light duty,' the employer is not required to do so."). However, there is a genuine dispute of fact regarding whether Plaintiff could return to work before her requested accommodations were in place. See Plaintiff's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B U 87, ECF No. 112-3. Of course, depending on the evidence at trial regarding the Navy's offer, Lieutenant Commander Badura's initial communications to Plaintiff might implicate 29 C.F.R. pt. 1630.9(d). The Navy has not raised the issue in its brief and disputes of fact surround it. Therefore, the Court need not consider it further at this juncture. 79 television monitor and technical other alternatives implementation of a VRS were explored, the system proved problematic. The Navy researched at least some of the products that Plaintiff had proposed, at 90-94; PL's Mem. however, accommodations Mot. for 2011, the Navy to Summ. Navy at advised 9, TCMP of (internal was id. ECF that what No. it requested. to of 123; ("On needed Ex. A2 specific Navy's Mem. September to have is marks omitted)). the J. the TCMP quotation ascertain at 83 the Navy then submitted a request Plaintiff for Summ. uncertain requested, J. understanding government." 2011, the Plaintiff Supp. concise Opp'n Navy's Mot. requesting In a 12, clear of the October for accommodation form specific accommodations she Navy's Mem. Supp. Mot. for Summ. J. at 9. The Navy made a second attempt to accommodate Plaintiff in December 2011. On December 7, manager broached with TTY a Plaintiff. Navy whether phone, the would be 2011, the Virginia a viable Id. Ex. 29, ECF No. 83-32. then asked TCA to Navy's Relay service, solution Id. response with 30, from TCA, TCA provide Ex. and forward information about our ECF No. 83-33. on December 14, stated that department to it that 80 accommodate the the Virginia it would meet her When the Navy received no 2011, "need[ed] is combined On December 8, 2011, Relay service to Plaintiff and to ask her if needs. communications the an reviewing Navy answer followed up to [Plaintiff's] this to case." Id. Ex. 31, ECF offered the Virginia Relay Plaintiff. Id. 32, communicated to "has been No. Ex. On Id. for In December service ECF Plaintiff's approved Hospital." 83-34. use as No. the Plaintiff's an 2011, that the then Critically, such government view, TCA accommodation 83-35. attorney by 16, to TCA accommodation at offer the of Naval Virginia Relay that TCA transmitted cannot be considered an accommodation proposed by the Navy because the Navy did not send it directly to Plaintiff. offered However, the undisputed facts establish that TCA the Virginia Relay service to Plaintiff at the Navy's direction and that TCA communicated to Plaintiff that the Navy had approved such accommodation. In light of the undisputed evidence that the Navy asked TCA to determine whether Virginia Relay was reasonable from TCA acceptable juror to Finally, Plaintiff, could Plaintiff from the Navy, formally to find was that not the Court the also concludes December an offer 16, of that 2011 no email accommodation though TCA transmitted it. as a offered third offer Plaintiff a of accommodation, number of the Navy accommodations in response to Plaintiff's October 2011 request for accommodations. In a May June 15, member to 24, 2012, 2012 the assist letter Navy in to Plaintiff, which offered Plaintiff: making calls, sign a she received supporting language on staff interpreter services, and the Z-150 video phone (subject to further approval 81 and ordering). No. 83-36. those Even that if such Plaintiff Plaintiff's equipment Navy's Mem. two and Mot. for Summ. J. Ex. 33, ECF accommodations requested, major an Supp. such requested American were offer not was accommodations: Sign identical to responsive to relay interpreter. Language video Cf. Crabill v. Charlotte Mecklenburg Bd. of Educ, 423 F. App'x 314, 324 (4th Cir. 2011) (unpublished)(holding that a genuine dispute of material fact existed as to a constructive discharge because evidence of that the employer completely claim failed to provide a transfer that the Plaintiff requested). Moreover, undisputed communicated, on June 19, facts establish that, 2012, that after Plaintiff the she was willing to try the Z-150 video phone as an accommodation if it was ultimately approved, Mem. Opp'n Navy's Mot. for Summ. J. PL's Ex. B % 202, ECF No. 112-3, within thirteen days of Plaintiff's response, the Navy directed its personnel to install the DSL line required to implement the Z-150 phone, Navy's Mem. Supp. Mot. for Summ. J. Ex. 34, ECF No. 83-37, on August 2, Ex. 37, ECF No. thereafter. 2012, the Navy ordered the Z-150 phone, 83-40, and such phone was operational id. shortly Although the Navy did not communicate to Plaintiff that the Z-150 video phone was operational until March 2013, no reasonable finder of fact could conclude that such failure vitiated the Navy's offer of the Z-150 phone because, on August 9, 2012 (around the same time 82 the Navy acquired the Z-150 phone), Plaintiff communicated to the Navy that she had resigned as she believed that she was constructively discharged. Navy's Motion of for above Summ. undisputed Plaintiff, could the in F.2d at of the the the face of law, Navy's no In attempts completely the Plaintiff a complete See facts cannot constructive to of fact accommodate Johnson, establish, 991 as demonstrate discharge failure the accommodate finder failed undisputed light to reasonable repeated requests. of alleged 83-41. three that Navy that element ECF No. of finds Therefore, deliberateness 38, evidence that 132. matter Ex. Court conclude Plaintiff on J. to a the claim based accommodate her hearing impairment. b. The Record Is Devoid of Circumstantial Evidence That the Navy Intended to Force Plaintiff to Quit. After thoroughly circumstantial evidence, reasonable finder of reviewing the Court Plaintiff's further concludes fact could find from such evidence Navy intended to force Plaintiff to quit. proffered that that no the To begin, Plaintiff has failed to submit admissible evidence to support some of her contentions. Williams, chain of Plaintiff's allegedly command evidence withheld and that accommodation misrepresented the COR, requests having Marivic from received the such requests generally does not find support in the cited paragraphs of Plaintiff's declaration, paragraphs 83 165 and 170-73, and, to the extent Plaintiff facts such has paragraphs not See Fed. Additional sufficiently see facts stated. adduced 89, 90, admissible 2, Plaintiff's Additionally, 55, Supp. at 94, knowledge regarding B Ex. assertion, 56(c)(4). Mem. personal alleged for No. the Likewise, such Mot. ECF of Leave 172-2, to do of knowledge not the such responses rely on exhibits not present in the record before Exhibits P. responses Evidence Plaintiff's personal Civ. PL's establish her R. interrogatory misrepresentations, Submit support demonstrated averred. Plaintiff's do the Court and evidence 217) . to (Plaintiff's Deposition Thus, support Plaintiff her factual has claim not that Marivic Williams misrepresented the status of any of Plaintiff's requests for evidence to agreement accommodation. support that an her Similarly, contention that to Plaintiff." Navy's J. independent support for Summ. review of for the above 56(c)(3). there at 23. See factual PL's Furthermore, the record did not assertions. Mot. Plaintiff's no "internal but which Mem. Opp'n the Court's reveal evidentiary See Fed. R. Civ. P. To the contrary, the record establishes that the Navy offered Plaintiff the use of interpreter services. Supp. cites was interpreter would be appropriate, was never communicated Mot. Plaintiff for Summ. J. allegations regarding receipt of Ex. with 33, ECF No. respect 83-36. to Navy's Mem. Accordingly, misrepresentations Plaintiff's request for accommodations and 84 internal agreement about interpreter services do not create a genuine dispute of fact. With respect to the remaining circumstantial evidence upon which Plaintiff relies, only "through mere speculation or the building of one inference upon another" could the Court conclude that Plaintiff has created a genuine dispute of material fact as to the deliberateness element of her constructive discharge claim against the Navy. See Othentec Ltd. v. Phelan, 135, 140 (quoting Beale v. Hardy, 214 (4th Cir. (4th Cir. 2008) 1985)). The circumstantial 526 F.3d 769 F.2d 213, evidence cited by Plaintiff is insufficient individually, or as a whole, to create a genuine dispute of fact with respect to the Navy's alleged intent to force Plaintiff to quit. First, the Navy's failure to retract its August 2011 approval of a VRS phone does not permit a reasonable inference that the Navy intended to force Plaintiff to quit. has admitted, Charge of BMC the August Sewells 1, 2011 indicated email that from the As Plaintiff the Navy's Officer in approval of equipment for VRS connectivity was subject to vetting through the contract office. See Navy's Mem. Supp. Mot. for Summ. J. at 8, ECF No. 83. of Plaintiff's request, the requested accommodation While the Navy evaluated the technical aspects it sought clarification from TCMP about technology form to and Plaintiff 85 then for sent her to a request provide for specific information on the Ultimately, once accommodations the Navy she received requested. id. Plaintiff's at request, 9. it offered her a video phone (the Z-150), ordered it, and installed it. Admittedly, equipment the Navy took almost one year to install VRS for Plaintiff. However, this delay must be viewed through the prism of Plaintiff's apparent hesitance (expressed by her in an email and her attorney in a letter) to return to work while continuing the interactive process of evaluating and attempting accommodation implementation. Moreover, from the time Plaintiff responded to the Navy's offer of the Z-150 video phone, on June 19, 2012, see PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. B U 202, ECF No. 112-3, it took the Navy less than two weeks to begin establishing the required DSL connectivity for the Z-150 phone. 2, 2012, Mem. A less than one month after its approval. Supp. short And the Navy ordered the Z-150 on August Mot. time for Summ. later, J. the Ex. 36-37, Z-15 0 ECF Nos. phone was See Navy's 83-39 to 83-40. operational-though Plaintiff had informed the Navy of her resignation around that same time. Considering the above undisputed facts, the mere fact that the Navy did not revoke its tentative approval while it evaluated VRS technology does not permit a reasonable inference that the Navy intended to force Plaintiff to quit. Second, only speculation would allow a reasonable finder of fact to conclude that any deficiency in the Navy's interactive 86 process to with Plaintiff quit because disability and interactive Navy did Plaintiff asserts reflected process personnel not that the seek to force misunderstood clarification "[t]he Navy's with intent Plaintiff failure resulted Plaintiff Plaintiff's from Plaintiff. to engage in the in the failure to identify an appropriate accommodation for Plaintiff, as the Navy was left with misunderstandings of her disability (as reflected by Carpenter and CDR Neill's bewildered questions posed to Navy colleagues on September 12, answers from [Plaintiff])." Summ. 22. 2011, J. at The for which they sought PL's Mem. Opp'n Navy's Mot. emails and deposition testimony no for that Plaintiff cites do not permit the reasonable inference that Ms. Carpenter and Commander Neill were Plaintiff's disability and chose not "bewildered" to reach out about to Plaintiff because the Navy intended to force Plaintiff to quit. Rather, only through speculation could a reasonable finder of fact infer that they reflected anything other than a desire to determine the specific accommodations that TCMP sought to implement for Plaintiff. Likewise, the mere fact that the Navy never held a face-toface meeting inference with that it Plaintiff intended does to not force permit a Plaintiff reasonable to quit. Plaintiff relies heavily on the fact that the Navy instructed some of its personnel not to contact Plaintiff and that the Navy 87 expressed interest in a meeting between itself, TCA, and Plaintiff, but never set up such a meeting even though Plaintiff submitted an agenda for the meeting as requested. To be sure, there is evidence in the record that the Navy, at least early in the process, Badura that that TCMP on July 29, Plaintiff's needed Navy's Mot. to 2011, Commander for accommodation was an issue request resolve for Summ. instructed Lieutenant J. with Ex. A2 her, at see 86, 89, PL's Mem. ECF No. Opp'n 112-2, and that Plaintiff submitted an agenda for a meeting with the Navy, but no such meeting occurred. However, the Court finds that such facts do not permit the reasonable inference that the Navy intended to force Plaintiff to quit, the contractual Navy's Mem. ECF No. relationship Supp. 83-5 Mot. between for Summ. (providing when considered in light of J. that the Ex. 4, Navy and TCA, Attachment A, contract discrepancy cf. § 8.8, reports concerning contractor performance problems are "presented to the contractor employee firm's who contract"), designated representative, failed and the to perform undisputed in facts attempts to accommodate Plaintiff. light most favorable to Plaintiff, degrees at Plaintiff. Lieutenant various Such Commander times, process Badura in 88 the contractor accordance regarding with the the Navy's Even viewing the facts in a the Navy engaged, an interactive included: and not the Plaintiff in in varying process dialogue August with between 2011, the Navy's October 2011 request that Plaintiff fill out a form in an attempt to determine the accommodations she requested, Navy's offer of a number of accommodations to Plaintiff, the on June 15, 2012, in response to Plaintiff's formal request on the form the Navy provided, video phone and within the two Navy's months of indication that she was willing appears that, in August 2011, implementation of Plaintiff's June the Z-150 19, 2012 to try such video phone. It the Navy was anxious for Plaintiff to return to work and continue the interactive process once she had done so, but Plaintiff suggested she not place. communicated that return until accommodations her were attorney fully in While some comments by TCA suggest it agreed with this approach, it is difficult to know the degree to which Plaintiff's position may have driven or affected such position by TCA. Indeed, such hitch in the interactive process made the remainder of such process even more difficult for all parties. The Court concludes process between the that such facts regarding Navy and Plaintiff the interactive indicate that no reasonable finder of fact could determine that any deficiency in the Navy's interactive process with Plaintiff demonstrated that the Navy intended to force Plaintiff to quit. Third, Plaintiff's evidence regarding the Navy's failure to adequately research and submit waivers for the products Plaintiff suggested does not permit a reasonable inference of an 89 intent to force record from Plaintiff which a to quit. reasonable There finder is fact of evidence could in the conclude that the Navy did not specifically research whether the VP-200 video phone that Plaintiff requested was approved for use in its network and did not transmit a "two-pager" request for approval of nTouch software by the Navy's Bureau of Medicine. Anthony Roberts conducted Application & Database a review Management" software was approved for use of the Although Navy's "DON to determine whether nTouch in the BMC Sewells network, see PL's Mem. Opp'n Navy's Mot. for Summ. J. Ex. H at 2-3, ECF No. 112-9 (Roberts Deposition); id. and also reviewed whether Ex. A2 at 90-94, there were Department of Defense Network, id. Ex. Sorenson H at ECF No. systems 14-15, Mr. 112-2, in the Roberts did not look for the Sorenson VP-200 prior to the initiation of this action, Deposition). id. Ex. Similarly, I at 2, despite ECF No. Lieutenant 112-10 Commander (Roberts Badura filling out a "Navy Medicine New IM/IT Capability Request 2 Page Submission Form" form to Mr. J. Ex. B2 at for the nTouch software, and submitting such Roberts, see PL's Mem. Opp'n TCA's Mot. for Summ. 97-103, ECF No. to the Bureau of Medicine, Summ. J. Ex. I at 4. 113-3, PL's no one submitted such form Mem. Opp'n Navy's Mot. for But the Navy's assessment of the products Plaintiff requested must be viewed in the broader context of the Navy's overall efforts to accommodate Plaintiff. 90 In view of the Navy's infer efforts that approval to the for accommodate Navy the failed Plaintiff, to products adequately Plaintiff intended to force Plaintiff to quit, to infer that any failure on Navy personnel was Navy offered as were sham instead accommodations of resolving Plaintiff to quit. as to the Navy's and to requested that designed However, above, and because to seek it a finder of fact would have those Plaintiff's noted research the part of Mr. intentional alternatives as the Roberts and other accommodations that Plaintiff to prolong request, the Court finds research and requests for requested the thereby the process, encouraging that the evidence approval does not permit the reasonable inference that the Navy intended to force Plaintiff to quit and the causal link is too far attenuated. Fourth, the Navy's response to Plaintiff's FOIA requests does not permit a reasonable inference that the Navy failed to adequately respond to Plaintiff's request for because it intended to force Plaintiff to quit. evidence that in the record "[t]he requests, Navy does not support refused to respond accommodation The admissible Plaintiff's to assertion Plaintiff's redacting hundreds of pages, with the deliberate goal of frustrating her request for answers with the knowledge the appeal would forestall her efforts. Mot. in FOIA for Summ. support of J. at 22, such ECF No. contention 91 that PL's Mem. Opp'n Navy's 112. The email Plaintiff cites does not permit a reasonable finder FOIA of fact request to response accommodations. request as "[w]hen that the was Indeed, are give released. that the gathering me information Navy's Mot. that in Plaintiff's refers to the Navy's request Plaintiff's for FOIA and instructs Navy personnel that the documents even if it you is very think important it should be will review each document and redact cannot for Summ. J. inadequacy to email everything, [Navy personnel] any linked "a separate issue" you you conclude Ex. be released." A2 at 29, PL's ECF No. Mem. 112-2. Opp'n Moreover, Plaintiff's declaration only establishes that the Navy requested extensions to respond to Plaintiff's request, of pages when it did previously had received. Navy's April 26, 2012 respond, and See id. response only Ex. to B <[ redacted hundreds produced Plaintiff's she However, 192. what the FOIA request explains, with citations to the authorities upon which the Navy relied, why the Navy withheld certain documents. for Summ. J. Ex. 3A, ECF No. 136-7. Supp. Mot. weakens any inference of an intent to force PL's Mem. Such explanation Plaintiff to quit that otherwise could be drawn if the Navy had withheld relevant documents without Plaintiff's fifth interrogatories sufficient knowledge explanation. of supplemental relating facts the Additionally, to the FOIA establish that facts to answers stated, 92 request beyond the to does Plaintiff those that portion the not had are of Navy's contain personal evident from Plaintiff's declaration and the email upon which Plaintiff relies. See PL's Mem. Supp. Mot. for Additional Evidence Ex. B at 6-7, ECF No. Leave 172-2. to Submit Accordingly, based on the evidence in the record with respect to Plaintiff's FOIA requests, the building the Court finds that only through speculation or of one inference upon another could a reasonable finder of fact infer from the Navy's redaction and withholding of certain materials that the request Navy in did response not to Plaintiff's sufficiently for accommodation because it respond intended FOIA to to request Plaintiff's force her to quit. Fifth, the Navy's implementation of the Z-150 video phone, and communication to Plaintiff regarding permit a reasonable inference that Plaintiff Plaintiff asserts to quit. of fact could infer, to Plaintiff following an requested by communicate apparent Plaintiff the the Navy phone, do intended to that a reasonable not force finder from "the Navy's failure to make available operational the Navy's such all video offer of along" availability phone of and the in the two months the very accommodation "the video Navy's phone failure until to March, 2013," that the Navy "deliberately attempted to drive Plaintiff from her position." PL's Mem. at noted 23. However, as the Navy, on June 19, 2012, Opp'n Navy's Mot. above, after Plaintiff for Summ. J. indicated to that she was willing to try the Z93 150 phone, on July 2, 2012, the Officer in Charge at BMC Sewells directed manager a communications necessary to Sewells. Navy's 83-37. allow the Mem. Z-150 Supp. One week later, to video Mot. implement phone to for Summ. J. the changes operate Ex. at 34, the Navy approved the use of ECF No. the Z-150 as compatible with its HIPAA and security requirements. 36, ECF No. 150, id. 83-39. Ex. thereafter. June 37, On August 2, ECF No. Even if 19, 2012, reasonable to quit. Id. Ex. the Navy ordered the Z- and it the Navy did not those implementation of her willingness 83-40, 2012, BMC was operational shortly contact Plaintiff facts regarding undisputed after the the Z-150 phone once Plaintiff had indicated to attempt inference Similarly, that to the use Navy such phone do intended to not permit a force Plaintiff the failure to notify Plaintiff that the Z- 150 phone was operational until March 2013, does not qualify as circumstantial evidence of genuine dispute of 2012, Plaintiff fact. sufficient It is undisputed that, informed position at TCA. deliberateness the Navy that she Id. Ex. 38, ECF No. 83-41. resigned although keep phone, from Commander Plaintiff TCA. Neill updated Commander Neill Furthermore, had about later advised the it explained 94 to resigned 9, her is Plaintiff already undisputed Plaintiff status on August a Thus, by the time the Navy had received the Z-150 video phone, had had to create of that the that, she would Z-150 video Plaintiff that she "did not do so because she was not sure if a TCA employee." B H 203, ECF No. reasonable force PL's Mem. inform her of Opp'n Navy's Mot. was still for Summ. J. Ex. 112-3. Only pure speculation would allow a of finder Plaintiff [Plaintiff] to to the fact quit infer from the that fact the Navy that the intended Navy did to not status of a video phone that it had obtained after she had resigned. Sixth and finally, the Navy's employers responses does not deliberateness. Plaintiff's proffered evidence regarding to inquiries create a from genuine Plaintiff's dispute of prospective fact Plaintiff's declaration establishes that, her alleged constructive discharge and EEO complaint, made inaccurate Plaintiff's limited, "privileges or revoked at Opp'n Navy's Mot. February 2015, that statements for to future were [the] Summ. adversely Naval J. Medical Ex. However, Id. after the Navy employers that suspended, Center." PL's Mem. K 216. Thereafter, in counsel for the Bureau of Medicine told Plaintiff U 218. information that information. Id. after Plaintiff received further responses and inquiries from potential employers, 219. B to denied, the Navy had not disseminated any false 1 217. more. potential as On April 1, she questioned the Navy once 2015, it previously had the Navy corrected the stated incorrectly. Id. 51 The Navy has not corrected other inaccurate information in Plaintiff's "Performance Appraisal 95 Report," but, instead, has advised to "file an The Court finds Id. Plaintiff appeal that, like to obtain corrections." the other evidence upon which Plaintiff relies, the Navy's initial misrepresentation regarding information in Plaintiff's personnel file, subsequent correction of such obtain information, corrections reasonable and requirement of other inference force her to quit. response to information, that, reasonably accommodate when Plaintiff, The potential that it Plaintiff does appeal not allegedly to permit refused it did so with the a to intent to temporal disconnect between the Navy's employers and its actions in response to after Plaintiff's resignation Plaintiff's October 2011 request for accommodation undermines the reasonableness of any inference that, to about Plaintiff towards the extent her) , it position by falsified by inexcusable, force requested See [the fails [the evaluation was Navy example, would to to adequately Johnson, 991 of to F.2d at to prepared force to 132 demonstrate an intent by from only her after retirement."). Plaintiff to quit 96 animosity her to quit her her request for ("The evaluation while plainly [the defendant] position [the information general supervisor], because plaintiff] Additionally, the Navy corrected the false information, intended a force respond plaintiff's plaintiff] disability misrepresent because also would attempt failing accommodations. to (for the the herself given that to infer that the Navy would require a finder of fact, first, information inference innocent to infer that the Navy purposefully misrepresented about from Plaintiff the mistake Navy's and regarding request for reject correction such that the it information, infer from such misrepresentation Plaintiff's to that simply made an second, to response to and, the Navy's years accommodation reasonable prior reflected a similar intention to harm Plaintiff by forcing her to quit her position. The unreasonable therefore, Court based finds on the that such undisputed chain facts of of inferences this case is and, that Plaintiff has not demonstrated a genuine dispute of material fact regarding deliberateness through her proffered evidence regarding the Navy's post-resignation representations to Plaintiff's potential employers. Considered Plaintiff, as the a whole, and in a circumstantial light evidence most that favorable Plaintiff to has adduced would not permit a reasonable finder of fact to conclude that the intended Navy to extender.17 failed force her to to accommodate quit her Plaintiff position as because a it physician Therefore, Plaintiff has not demonstrated a genuine 17 The Court is mindful of its obligation to view the evidence in a light most favorable to Plaintiff and of the fact that considering all of Plaintiff's circumstantial evidence regarding deliberateness together, rather than evaluating each strand in isolation, pushes Plaintiff's evidence of deliberateness closer to the point at which a reasonable jury could conclude that the Navy intended to force Plaintiff to quit. Thus, though the Court has explained the deficiencies in Plaintiff's circumstantial evidence sequentially for ease of discussion, the Court has 97 determined that the collective issue of material fact as to the deliberateness element of her constructive discharge claim because the Navy did not completely fail to accommodate Plaintiff and evidence from which a finder of there is no circumstantial fact reasonably could determine that the Navy deliberately failed to accommodate Plaintiff. The undisputed facts establish that the Navy is entitled to judgment as a matter of conclude that position law no reasonable finder the Navy intended to force and, therefore, deliberateness Accordingly, because element the Plaintiff of a of Plaintiff has not could to quit her demonstrated constructive Court will GRANT IN PART fact discharge the the claim. Navy's motion as to Plaintiff's constructive discharge claim.18 D. TCA has ADA claims demonstrate because TCA's moved for summary judgment on both of against that it. TCA Plaintiff's Plaintiff rejected repeated offers system, TCA's Motion to a argues reasonable provide a TTY and ultimately a video TRS The Court's the undisputed failure-to-accommodate strength of Plaintiff's evidence genuine dispute of material fact. 18 that still Plaintiff's claim accommodation, facts fails namely, or other non-video TRS system, as falls conclusion with respect substitutes short to of for creating a the deliberateness element renders unnecessary any consideration of the Navy's alternative contention that it is entitled to summary judgment on Plaintiff's constructive discharge claim because Plaintiff has failed to demonstrate a genuine dispute of intolerability element of such claim. 98 material fact regarding the telephonic was communications in the alternative, for TCA to provide the accommodations Relatedly, impossible TCA requested. constructive discharge alleged failure to and, contends that claim fails because accommodate because it it Plaintiff Plaintiff's depends on TCA's Plaintiff. The Court will consider each claim in turn. 1. Through the ADA, Failure to Accommodate Congress and the President have prohibited employers from discriminating against persons with disabilities. The ADA provides: "No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, discharge of employees, other terms, U.S.C. include "not physical unless privileges individual on making reasonable mental or individual and Additionally, a qualified limitations with a such hiring, employee compensation, conditions, § 12112(a). against the disability who covered entity of advancement, job training, and employment." the ADA defines the basis of is can an an 42 "discriminate disability" accommodations of or to the otherwise applicant or demonstrate to known qualified employee, that the accommodation would impose an undue hardship on the operation of the business of § 12112(b) (5) (A) . for failure to such Thus, covered the accommodate entity . ADA establishes an otherwise 99 . a . ." cause qualified Id. of action individual's known physical limitations.19 for failure to accommodate, To establish a prima facie claim Plaintiff must show: (1) that [s]he was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of [her] disability; (3) that with reasonable accommodation [s]he could perform the essential functions of the position; and (4) that the employer refused to make such accommodations. Wilson v. Dollar Gen. (ellipsis and Deposit Ins. Corp., alterations Corp., With respect to accommodate, 717 omitted) 257 F.3d 373, to the the F.3d 337, 345 (quoting 387 n.ll (4th Cir. Rhoads (4th Cir. fourth element of v. 2013) Fed. 2001)). a claim for failure refusal to make a reasonable accommodation, to defeat an employer's motion for summary judgment, a plaintiff "need only show that an 'accommodation' seems reasonable on its face, i.e., ordinarily or in the run of cases." Inc. v. omitted); Barnett, U.S. 391, 401-02 Reyazuddin v. Montgomery Cty., Cir. 2015). (A) 535 789 U.S. Airways, (2002) (citations F.3d 407, 414 (4th A "reasonable accommodation" may include: making existing readily accessible facilities to and usable used by by employees individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and 19 The ADA defines a "qualified individual" as "an individual who, with or without functions desires." of the reasonable employment 42 U.S.C. accommodation, position § 12111(8). 100 that can perform the essential such individual holds or other similar accommodations for individuals with disabilities. 42 U.S.C. employer § 12111(9). has a duty Additionally, to engage in under EEOC regulations, an an to interactive process identify a reasonable accommodation: To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations 29 C.F.R. suggested pt. that could overcome those limitations. 1630.2(o)(3). that However, "liability for the Fourth failure to interactive process depends on a finding that, interactive process occurred, the reasonable accommodation that parties 347 (1st Cir. 2012)). That an rather end in itself; said, reasonable accommodations individual to perform position sought.'" F.3d 1009, establish 1015 that, is a are the have means available Wilson, Co., essential for to job in an found a disabled person 717 F.3d at 696 F.3d 78, "the interactive process it has had a good faith would enable the (quoting Jones v. Nationwide Life Ins. engage could to perform the job's essential functions." Circuit 'is not determining allow a 91 what disabled functions of the Id. (quoting Rehling v. City of Chicago, 207 (7th Cir. if an accommodation necessary to 2000)). employee Moreover, rejects enable her to 101 ADA a regulations reasonable perform the essential functions of her position, qualified individual she will (as required not be considered a to establish liability under the ADA for failure to accommodate): An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to such individual rejects a accept. However, if reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified. 29 C.F.R. pt. 1630.9(d). its regulations, Furthermore, in guidance interpreting the EEOC has suggested that: Once potential accommodations have been identified, the employer should assess the effectiveness of each potential accommodation in assisting the individual in need of the accommodation in the performance of the essential functions of the position. If more than one of these accommodations will enable the individual to perform the essential functions or if the individual would prefer to provide his or her own accommodation, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide. 29 C.F.R. pt. With 1630, App. at 406 respect against TCA, to (2015). Plaintiff's the parties' dispute failure-to-accommodate claim turns on whether TCA's offer of a TTY or other non-video TRS system qualified as a reasonable accommodation that would permit 102 Plaintiff to perform her position's essential function requiring the use of a telephone.20 In particular, the parties dispute whether Plaintiff's rejection of a TTY or other non-video TRS system constituted a rejection of a reasonable accommodation to use the telephone, Plaintiff and, no was necessary for Plaintiff such that, under 29 C.F.R. pt. 1630.9(d), longer therefore, that can be considered a qualified individual cannot succeed on her claims under the ADA. TCA's contentions regarding the reasonableness of a TTY and other non-video TRS that such because accommodation Plaintiff's could communicate accountability present and systems are was two-fold. reasonable deposition for mistakes by an that a TTY and two-way other non-video conversation Summ. for J. at 15-19, accommodations TCA to provide ECF that No. 86. Plaintiff because TRS are the equally permit an hearing-impaired TCA requested could she including VRS, See TCA's Mem. TCA law any problems with systems Second, of that establishes that between TCA contends matter interpreter individual and recipient of the call. other a in any system involving an interpreter, interactive, for as testimony accurately using TTY, First, Supp. Mot. contends that were not impossible install any 20 TCA has not contested whether the use of a telephone was an essential function of Plaintiff's position. Thus, for the purposes of this motion, the Court assumes, without deciding, that use of a telephone was an essential function. However, the Court does note that Plaintiff represented in her Affidavit that while she was assigned to the Primary Care Clinic, she made "approximately three to five phone calls daily," though some days required more. ECF No. 1123, H 75. 103 accommodation without TCA, it relayed all the Navy and VRS of Plaintiff's depended accommodations. the the assistance of Thus, to accommodations relayed them to on Navy extent Plaintiff the Navy, it was According to requested accommodations the the the Navy. the to approve Navy did not proposed, given to such approve that TCA impossible for TCA to provide such accommodations because TCA depended on the Navy's approval. In response, first, Plaintiff contends that TTY and other non-video TRS systems were not a reasonable accommodation in the context of Plaintiff's particular, Plaintiff position asserts as a that physician it would assistant. be difficult In for Plaintiff to relay medical information over a TTY or other nonvideo TRS systems, nature systems of the purportedly detached and non-interactive communication would impair through a the TTY and other patient-client relationship diminish trust between Plaintiff and her patients, had concerns that the TRS communications non-video TRS and and Plaintiff assistants ("CAs") would not accurately relay her TTY and non-video TRS responses. Additionally, delay, TTY, Plaintiff between the argues that an at least eight-second time at which a call is connected through a or other non-video TRS, system and recipient of the call hears the CA speak, the time at which the renders a TTY or other non-video TRS system unreasonable because call recipients often disconnect delay. the call prematurely 104 due to the Second, Plaintiff a contends reasonable failed to Plaintiff that jury engage to to find that interactive has adduced conclude in good parties could have faith she an that faith TCA in an effective sufficient is evidence liable interactive accommodation because process and that it with the found a reasonable accommodation had a good process occurred. Third, Plaintiff contends it was not impossible for TCA to provide a VRS system or interpreter. Plaintiff asserts that it was not impossible for TCA to provide a VRS system because the VP-200 phone was at for other Navy facilities security concerns, video phone as and could be installed an Status minimal and the Navy ultimately installed the accommodation for Plaintiff. counsel also stated during the September 21, telephonic with in use Conference that the Z-15 0 Plaintiff's 2015 on-the-record VRS system Plaintiff requested included an option for her to verbally introduce the call once connected and the recipient answered, her concerns about the delay experienced on thus overcoming TTY calls between the time of connection with the call recipient and the CA first speaking. Tr. 18:21-25, Sept. of Telephonic 21, 2015, of interpreter services, states and that that TCA will the Navy Proceedings ECF No. 181. (Status Conference), As to the impossibility Plaintiff argues that TCA's own policy provide "never interpreters expressed 105 an as an accommodation objection to this accommodation if TCA paid for it." for Summ. To J. at 23, begin, ECF No. PL's Mem. Opp'n TCA's Mot. 113. although the Court must view evidence in a light most favorable to Plaintiff, not resolve, in Plaintiff's favor of declaration Plaintiff, in the disputed the Court need inconsistencies opposition to TCA's summary judgment and her deposition testimony. between motion for "A genuine issue of material fact is not created where the only issue of fact is to determine plaintiff's 736 which of testimony F.2d 946, 960 the is two conflicting correct." (4th Cir. 1984) Barwick versions v. of Celotex (citation omitted). the Corp., Thus, a party cannot create a genuine dispute of material fact by using a summary judgment affidavit to contradict statement in a deposition. See Cleveland v. Corp., (1999) 526 U.S. 795, 806-07 her previous sworn Policy Mgmt. Sys. (collecting cases and noting that "[t]he lower courts . . . have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, flatly contradicts without explaining the 411, disparity"); 421-22 that the say, filing a later affidavit that party's contradiction Stevenson v. (4th Cir. earlier City 2014). 106 of or sworn attempting Seat deposition) to Pleasant, Accordingly, to resolve 743 the F.3d extent Plaintiff's declaration contradicts her deposition testimony, the Court will disregard her declaration. Plaintiff's sworn deposition testimony belies contentions regarding the reasonableness of video TRS system. In her deposition, she could transmit complicated medical or non-video TRS system. For many of her a TTY or other non- Plaintiff confirmed that information using a TTY example, by typing into a TTY, Plaintiff could communicate with an ophthalmologist regarding a patient's diagnosis of "post open-angle glaucoma" and schedule an appointment between the patient and specialist. Supp. for Mot. Deposition). Summ. Similarly, rays and lab results, referred to responses results," the a 2 at using a TTY, Urgent from Ex. 6, ECF person Care Center," specialist, "prescribe receive "relay lab new medications," Id. at transmitting could 86-11 (Crump Plaintiff could request x- 6, and 10-11. the clarify message directions results and "instruct from the test although TRS operator had Plaintiff, misunderstandings and regarding Additionally, other party would need to wait until finished No. "formulate a health care plan for patients dosages and usages." the J. TCA's Mem. about the other Plaintiff's communications and "say whatever they want to say" to Plaintiff. See id. at 9. establishes Plaintiff Accordingly, that to a TTY or accurately Plaintiff's own deposition testimony non-video TRS communicate 107 system could complicated allow medical information and would permit a two-way communication between Plaintiff and the recipient of the phone call.21 21 In her deposition, with respect to a TTY or non-video TRS system, Plaintiff expressed that "the biggest concern that I have is the accuracy." TCA's Mem. Supp. Mot. for Summ. J. Ex. 2 at 7. Although FCC regulations generally prohibit TRS CAs "from intentionally altering a relayed conversation" and provide that TRS CAs "must relay all conversation verbatim unless the relay user specifically requests summarization, or if the user requests interpretation of an ASL call," 47 C.F.R. § 64.604(a) (2) (ii), Plaintiff has suggested that "she herself experienced problems in the past with accuracy of information relayed by CAs." PL's Mem. Opp'n TCA's Mot. for Summ. J. at somewhat sparse, non-video TRS 18, ECF No. 113. However, though the record is it appears that all of the alternatives to a TTY and system proposed by Plaintiff, including VRS, present similar concerns regarding accuracy. Although a VRS system might permit Plaintiff to verify that a CA has accurately relayed her communications to the recipient of Plaintiff's call, it appears that, just as with TTY, there is no way for Plaintiff to ensure that the CA has accurately communicated the recipient's responses to Plaintiff. In other words, if there are concerns that a TRS CA will disregard federal regulations (intentionally or unintentionally) and fail to accurately translate, the same concerns exist, though possibly to a lesser extent, with a VRS CA because VRS still does not allow Plaintiff to verify the accuracy of the CA's interpretation of the call recipient's responses. But Plaintiff's argument may cut both ways. To the extent Plaintiff now emphasizes the possibility of inaccurate communication for a hearing-impaired physician assistant relying on some form of relay service or interpreter to make phone calls in a medical context, such evidence may be probative of other aspects of Plaintiff's ADA claim. Indeed, the possibility of miscommunicacion inherent in the use of any form of interpreter, and Plaintiff's inability to verify completely that an interpreter has accurately relayed communications, raises the specter that no accommodation can effectively permit Plaintiff to perform the essential functions of her position in a situation depending on accurate telephonic communications in the provision of medical care, including for patients in need of urgent or emergency care. Therefore, if the ability to make accurate phone calls in such a situation actually is an essential function of Plaintiff's position, Plaintiff's concerns about accuracy, if well founded, (perhaps perversely) call into question whether Plaintiff is a "qualified individual" within the meaning of the ADA and whether she can safely perform the essential functions of the job. See 42 U.S.C. § 12111(8); Wright v. Hospital Authority of Houston Cty. , CA. No. 5:07-cv-281, 2009 U.S. Dist. LEXIS 7504 *34-35 (M.D. Ga. 2009) (discussing "direct threat" doctrine in medical context involving nurse with profound bilateral hearing loss). At this point, the parties have presented 108 Nevertheless, reasonable the finder of eight-second delay evidence fact in the to determine between the time record that when would there permit an at person a is picks a least up a call sent from a TTY through a TRS operator/CA and the time when the TRS operator/CA informs such person that he is receiving a call from record a hearing-impaired cited exploration by of TCA—or the individual. unearthed voluminous Plaintiff's that least an is at the record, 56(c)(3)—contradicts l'[t]here in No Court's see statement eight evidence Fed. in second delay the independent R. her in Civ. P. declaration when someone speaks after the call is connected resulting in the receiver to disconnect the for Summ. J. Supp. Mot. call prematurely." Ex. D % 122(A), for Summ. J. PL's Mem. Opp'n TCA's Mot. ECF No. 113-6; see also TCA's Mem. Ex. 1, Ex. B at 2, ECF No. 86-3 (detailing, in an email from Plaintiff to TCA, that "when making calls, there is at LEAST an 8 second delay when someone speaks after the call is connected and disconnected as most people do not someone speaks." Admittedly, hence, most calls become wait several seconds before the Court surely would prefer a more detailed exposition of the delay between the time at which the recipient of a TTY or other non-video TRS call picks up the limited evidence regarding this issue and have not addressed it in their briefing. That said, if evidence at trial demonstrates problems regarding the accuracy of TRS, VRS, and/or interpreter services, Plaintiff should be prepared to address the issue should it arise. 109 phone and the time at which a TRS operator/CA first communicates to the recipient, similar delays offered. as in well as a discussion of whether there are video-based However, Plaintiff "experienced with different TTY, IP-Relay, "former user developments [and] as those averred ultimately that she telecommunication devices text the such has SIPRelay," of of TRS id. H 7, telephone video relay and is including that she was a devices systems," prior id. U to the 122(D). Plaintiff's counsel maintained at the September 21, 2015 on-therecord telephonic Status Conference that experience with TTY and other non-video TRS, Plaintiff has that based on her experience such delay exists, and that no such delay exists with the kind of VRS system she requested because such systems allow for the caller to immediately introduce themselves in their own voice. Tr. 20:21-25, Sept. statements, presents of a the Telephonic 21, 2015, Court sufficient Proceedings (ECF No. finds factual 181). that basis (Status Based Conference), on such Plaintiff's for the sworn declaration Court to conclude that Plaintiff has adequate personal knowledge to testify that, in her experience with TTY and other non-video TRS systems, "[t]here is at least an eight second delay when someone speaks after the call is connected resulting disconnect the call prematurely." in the receiver to See id. fl 122(A).22 22By letter of September 18, 2015, Plaintiff's counsel advised the 110 The eight-second delay case-specific BMC Sewells, facts and regarding her video TRS systems, other reasonable discussed above as above, Plaintiff's concerns about coupled with the responsibilities TTY and other at non- preclude the Court from holding that the TTY and other non-video TRS were discussed a systems matter would permit of a that TCA offered to law. The reasonable Plaintiff eight-second finder of delay fact to Court that she may have misspoken during oral argument about a federal standard. Letter, ECF No. 180. The Federal Communications Commission ("FCC") standard for TRS requires that "TRS providers must answer 85 percent of all calls within 10 seconds (but there are different answer speed rules for VRS." FCC Telecommunications Relay Service Guide, Id. at pg. 3 (paraphrasing 47 CFR 64.604(b)(2)(ii)). Notwithstanding this clarification, "Plaintiff continues to maintain that there is a delay in connecting to the remote recipient." Id. at pg. 1. Plaintiff also noted in her letter that the "hang up" factor, which formed part of her objection to services utilizing an introduction by a CA, and referenced in her brief, is discussed in the FCC TRS guide attached to her letter. Id. During the September 21, 2015 on-the-record telephonic Status Conference, Plaintiff's counsel reiterated that there is a delay of up to 8 seconds between the time a TTY call connects with the recipient and the time the recipient actually hears any voice introducing the call—thus resulting in many hang ups. Plaintiff's counsel also contends there is no such delay in VRS when the caller exercises the "inherent" VRS option to speak herself to introduce the call. In response, counsel for the Navy contends that Plaintiff never requested, and no such VRS option existed, when Plaintiff requested her accommodations, and therefore, the requested VRS accommodation suffered from the same inadequacy allegedly experienced with TTY and other non-video TRS. In support of such assertion, counsel for the Navy cited deposition testimony from a Sorenson representative that is less than clear on this point. Tr. of Telephonic Proceedings (Status Conference), pgs. 23-24. He also notes that without a VRS voice carry over option, the slower time guidelines for VRS, versus TTY, outlined at 47 CFR 64.604 (b) (2) (iii) , suggest that there might be slower connectivity with VRS than with TTY, though such guidelines involve answering of calls by VRS providers, not the time within which a VRS call is audibly introduced to the call recipient. Plaintiff responds that TCA and the Navy understood she wanted a voice carry over option for the VRS accommodation she requested as they ultimately offered her a Z-150 video phone which is a "video based voice carry over system. Id. at p. 32. Ill conclude that a TTY and non-video TRS system were not reasonable accommodations extender for at Plaintiff times dealing emergent situations. most favorable to in her with position complex as a medical physician issues and Construing the disputed facts in a light Plaintiff, a reasonable juror could conclude that Plaintiff's position as a physician extender required her to make telephone calls delay described above recipient of delay) the in (and situations the where attendant call would hang up the the eight-second possibility that the phone because of such would not allow Plaintiff to effectively perform her job responsibilities. For example, than one occasion," as part of her duties, the Navy informed Plaintiff "that in order for an urgent or emergent referral to be processed, was required that "[t]hese actual the to referrals provider specialist referral." conduct U 77. from which a finder of Navy required Plaintiff effectively provide provider-to-provider would overseeing directly Id. a to Thus, fact to medical be care of the that he and without the processed request there [Plaintiff] consult," not the patient or is evidence "on more contacting she accept in the record reasonably could conclude that make care time-sensitive while serving phone as a the calls the to physician extender. The would uncontroverted permit a facts reasonable regarding fact 112 finder the to eight-second determine delay that the substantial likelihood that a specialist receiving a TTY or other non-video TRS call from Plaintiff would hang up the phone prior to the TRS operator/CA informing him that he is receiving a call from a hearing-impaired person would prevent Plaintiff from effectively making referrals via telephone for patients in need even of urgent minor or delays likelihood that contact emergency a in care. In communication Plaintiff specialist, might situations, might have after such to such be repeat where critical, her specialist the attempt to prematurely disconnected Plaintiff's prior TTY or other non-video TRS call because of the eight-second delay, would allow a reasonable juror to conclude that a TTY or other non-video TRS system was insufficient physician to permit extender. Plaintiff Consequently, to perform while a her job or other TTY as a non- video TRS system might qualify as a reasonable accommodation for hearing-impaired individuals in most jobs because it permits such individuals to communicate information accurately and in a two-way dialogue Opportunity Guidance: over Comm'n, a EEOC telephone, Notice U.S. Equal 915.002, Emp. Enforcement Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (stating, No. cf. as an example, (2002) , 2002 WL that a TTY might 31994335, be a at *3 reasonable accommodation to permit an employee with a hearing disability to perform the essential function 113 of contacting the public by telephone), on the specific facts of this case, find, as a matter of law, that a TTY or the Court cannot other non-video system was a reasonable accommodation to Plaintiff.23 reasonable finder non-video TRS is a fact system was genuine Plaintiff's of not dispute rejection could of of a conclude or other there fact therefore, establishing a failure-to-accommodate claim. TTY regarding accommodations longer a qualified individual and, a Because a accommodation, reasonable material such that TRS rendered whether her no prevented her from See 29 C.F.R. pt. 1630.9(d). The Court also concludes that there is a genuine dispute of material fact regarding whether it was impossible for TCA to provide the accommodations that Plaintiff requested because TCA relied on the Navy to implement such accommodations. TCA correctly notes that courts generally have held that an employer 23 The Court has found no evidence in the record regarding the extent of the delay when a person communicates using a VRS, rather than a non-video TRS, system. However, at least based on the parties' explanation of a TTY and other non-video TRS systems, and a VRS system, while VRS may improve the quality of communications between a hearing-impaired user and the recipient of a phone call, it is not imminently clear that VRS systems would reduce the eight-second delay discussed above with respect to non-video TRS systems. This was the subject of much discussion at the September 21, 2015 on-the-record telephonic Status Conference, but at the end of that telephone Status Conference, it appeared to the Court that there was an incomplete evidentiary record on this issue. As with Plaintiff's doubled-edged argument with respect to accuracy, see supra note 21, if the VRS system Plaintiff requested involves delays similar to those present in TTY and other non-video TRS systems, the logic of Plaintiff's current position regarding the delay present in a TTY and non-video TRS system implicates a different element of Plaintiff's failure-to-accommodate claim: the requirement that she satisfy the ADA'S definition of a qualified individual. 114 cannot be with a held liable requested for failing accommodation to provide that is an ADA plaintiff impossible for it to provide. See, e.g., Wilson, 717 F.3d at 347 ("[a]n employer who fails engage to liable if in the the interactive employee process cannot will identify not a be held reasonable accommodation that would have been possible."); Webb v. Clyde L. Choate Mental 2000). the Health & Dev. However, record in this from which a Ctr. , 230 case, there reasonable F.3d 991, is 1000 sufficient finder of fact (7th Cir. evidence in could conclude that it was not infeasible or impossible for TCA to provide "all of the accommodations requested by Supp. Mot. for Summ. J. at 22, adequately cooperate installing an although with Sorenson's accommodation from ECF No. the accommodation Navy for VP-200 the [Plaintiff]," 86, because TCA did not to on facilitate Plaintiff. was outset, Plaintiff's August 22, J. Ex. 21, some evidence in such about the email, two ECF No. 83-24. See Navy's Mem. Moreover, the record suggesting that representation follow-up example, preferred 2011, the Navy when Ms. COR for the she indicated that Sorenson had denied the use of VP-200 in the workplace environment. for Summ. the For Robles communicated potential accommodations to contract, see TCA's Mem. about the Commander options other VP-200 Neill than 115 only the Supp. the Mot. there is at least the Navy relied on system, because requested VP-200 and in a information the nTouch software See (which id. Ex. the 23, Navy ECF already No. had 83-26. found to However, a be unapproved). reasonable fact finder could conclude based on a September 12, 2011 email from a Sorenson representative to two TCA employees, 200 was available for a workplace setting, not only that VP- but also would be the representative's "first choice" for Plaintiff to use at her work desk. PL's Mem. ECF No. 2011, 113-3. the calls to even TCA whether Plaintiff, amplify Plaintiff, that Relay, for sound though it for Summ. J. Ex. B2 at 27-31, it is undisputed that on December 8, requested Virginia phone handset Similarly, Navy regarding: make Opp'n TCA's Mot. ask Plaintiff another staff and whether would be appeared member could a hard-of-hearing sufficient that questions assist required she to "visual communication to help her understand conversations," Navy's Mem. Supp. ask Mot. for Summ. Plaintiff PL's Mem. 113-4, Ex. answer until Furthermore, March the forwarding the 30, such Opp'n TCA's Mot. or provide questions of to J. ECF No. accommodations until J. but TCA did not March Ex. B3 19, at 23, Navy with Plaintiff's responses 26, at 2012, Navy's accommodations to Plaintiff, B3 at 46, 83-33, questions for Summ. undisputed the ECF No. 113-4, facts May id. Ex. B2 also establish 24, 2012 2012, ECF No. to such 84-87, 119-21. that, instead formal as the Navy requested, offer of see id. Ex. TCA only summarized the Navy's proposed for Plaintiff, id. 116 at 32. Accordingly, viewing the evidence in a light most favorable to Plaintiff, the Court cannot finder find, as a matter of law, that no reasonable of fact could conclude that it was possible or feasible for TCA to provide the evidence efforts accommodations that to TCA did Plaintiff adequately not accommodate requested facilitate Plaintiff. Thus, there because the is of Navy's a genuine dispute of material fact as to whether it was impossible for TCA to provide the accommodations Plaintiff requested.24 Genuine disputes of material fact prevent the Court from holding either that a TTY or other non-video TRS system was a reasonable accommodation as a matter of law, or that it was impossible for TCA to provide Plaintiff with the accommodations she requested. Therefore, the Court will DENY TCA's motion with respect to Plaintiff's failure-to-accommodate claim. 2. Constructive Discharge Lastly, Plaintiff's applicable the Court will constructive to Plaintiff's turn discharge ADA to TCA's claim. constructive motion The as to standard discharge claim 24 The Court notes that its conclusion regarding impossibility is consistent with the EEOC's interpretative guidance. Opportunity Comm'n, EEOC Notice No. 915.002, U.S. Equal Emp. Enforcement Guidance: Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms (2000), 2000 WL 33407189, at *10 ("Where a staffing firm and its client are joint employers of a staffing firm worker with a disability, may one entity claim undue hardship where providing the accommodation is solely within the other's control? Yes, if it can demonstrate that it has made good faith, but unsuccessful, efforts to obtain the other's cooperation in providing the reasonable accommodation."). 117 against TCA is identical to that discussed above with respect to Plaintiff's Rehabilitation against the Navy. TCA contends Act constructive discharge claim See supra Part III.C.2. that Plaintiff has failed to adduce sufficient evidence to establish a prima facie constructive discharge claim because nor Plaintiff has intolerability demonstrated elements of neither such a the claim. deliberateness In TCA's view, Plaintiff's constructive discharge claim is predicated on TCA's alleged argues the complete that failure Plaintiff's same reason accommodate constructive Plaintiff's allegedly fails, namely, accommodate her. to Plaintiff. discharge claim Plaintiff an had that or its the according to TCA, Plaintiff intolerability, any evidence caused In submitted her claim it offered Plaintiff her and, although resignation, offered particular, fact to video efforts phone. to Similarly, accommodate from concluding that TCA Plaintiff intended to Additionally, quit. it regarding TCA asserts that Plaintiff has failed to submit that to Z-150 repeated preclude a finder of force for the opportunity to return to work with a TTY device, interpreter, contends fails because TCA did not completely fail to Rather, already TCA failure-to-accommodate a TTY and other TRS systems at least five times, Plaintiff Thus, its alleged failure suffer TCA objectively argues that 118 to accommodate intolerable Plaintiff Plaintiff work conditions. cannot demonstrate intolerability because she never returned to work and, therefore, never experienced any intolerable working condition. Plaintiff responds by arguing that her constructive discharge claim is not contingent on her failure-to-accommodate claim. According evidence to by to accommodation, such adequately that from a accommodation Navy; to failing by delaying her "demonstrated hostility emails to Plaintiff;" response to "misrepresenting Opp'n TCA's Mot. intolerability, towards request for Specifically, to provide actively communications to delaying with and from the Plaintiff; Navy the Navy; forbidding directly; Plaintiff's any showing disability in its threatening legal action against Plaintiff her its months; with the to whether, could reasonably infer communications contacting sufficient fact as failing thirteen communications from fact for forward misrepresenting Mem. adduced to completely Plaintiff in has respond finder of TCA: accommodating Plaintiff she TCA intended to force her to quit. asserts intent effective Plaintiff, establish a genuine dispute of failing Plaintiff to FOIA request obligations for Summ. Plaintiff under J. contends at to the 24, that the Navy; law." Plaintiff's ECF No. she and 113. has As to presented sufficient evidence to create a genuine dispute of fact whether a reasonable person in her position would have felt compelled to resign. In Plaintiff's view, 119 TCA's alleged failure to accommodate her communicating was an hearing by telephone essential Plaintiff, this impairment with function created an of prevented patients her from providers, and her which position. objectively According intolerable because it precluded her from returning to work and, to environment therefore, required her to go unpaid while TCA failed to accommodate her. As an initial matter, the Court's conclusion with respect to the failure-to-accommodate claim against TCA prevents it from holding that TCA is entitled to summary judgment on Plaintiff's constructive fact, discharge offered a claim based reasonable on the accommodation theory to that TCA, Plaintiff. in Given the genuine dispute of material fact as to the reasonableness of a TTY or other non-video TRS system, matter of law, accommodate that Plaintiff TCA met and, the Court cannot find, its obligation therefore, that to as a reasonably Plaintiff cannot establish a constructive discharge claim based on a failure to accommodate. However, jury concludes Plaintiff, the Court that TCA did not Plaintiff's notes fail constructive that, at trial, 762 F.3d 24, For reasons to the Navy, could the conclude 35-36 (D.C. discharge Cir. the to reasonably accommodate claim predicated on a failure to accommodate necessarily will fail. McDonald, if See Ward v. 2014). similar to those discussed above with respect Court that finds Plaintiff that no reasonable has 120 demonstrated finder of a triable fact issue with regard to completely deliberateness failed to through her accommodate contention Plaintiff. The that TCA undisputed facts establish that, on multiple occasions from August 16, 2011 until August 1, 2012, TCA offered Plaintiff a TTY or other non- video TRS system as an accommodation for her inability to use a conventional telephone. Court cannot hold, video TRS However, as system even accommodation a noted matter of a not jury above, law, constitutes if was As a on that a more to accommodate Plaintiff, and record, accommodation. concludes that the TTY or other non- reasonable ultimately reasonable this TCA that should such have done given TCA's repeated offers of a TTY or other non-video TRS system, as well as a later offer of a video noted VRS, challenges return to interactive could and presented BMC the Court by Plaintiff's Sewells process conclude Plaintiff. (as on that See and the job, TCA Johnson, work though no F.2d the at hearing) persistent failed 132. The the hesitance the reasonable completely 992 at to accommodation finder to of fact accommodate mere fact that Plaintiff believed that a TTY or other non-video TRS system was an unreasonable thereof. However, deliberateness claim failed against to accommodation the element TCA accommodate Court's of does not end because 121 negate analysis Plaintiff's not her does with TCA's regarding constructive whether Plaintiff TCA also offer the discharge completely asserts that she has presented sufficient circumstantial evidence from which a reasonable juror could find that TCA failed to accommodate her because it intended to force her to quit. After carefully considering the parties' adduced submissions, sufficient the the evidence Court circumstantial finds evidence in this that to case and Plaintiff has create a genuine dispute of material fact as to whether TCA failed to accommodate her because course, that Plaintiff. it intended the jury concludes This is to force her combination with quit—assuming, a very close case on such issue. other if fact to Much of considered alone or even circumstantial permit a reasonable finder of evidence, would For example, the contractual relationship between TCA and the Navy, TCA requested that Plaintiff Navy directly does not, itself, that TCA intended to considered in isolation, force not infer from TCA's actions that it intended to force Plaintiff to quit. that of that TCA failed to accommodate Plaintiff's circumstantial evidence, in to refrain permit Plaintiff a given the fact from contacting reasonable to quit. the inference Likewise, TCA's delay in relaying communications between the Navy and Plaintiff would not allow a reasonable fact finder to conclude that TCA intended to force Plaintiff to quit. Similarly, contain while Plaintiff statements Plaintiff's request that for produced might be two viewed accommodation, 122 emails as see from TCA hostile PL's Mem. that towards Opp'n TCA's Mot. for Summ. J. Ex. Bl at 47, ECF No. 113-2 (stating, an email bigger from TCA than we done"); to the expected Navy, so we " [w] e realize understand id. Ex. B3 at 54, ECF No. 113-4 if this it has in gotten just can't be (noting in an email from TCA to the Navy that "[u]nfortunately under our Nation's laws we have to ensure that we uncover every stone"), those isolated, offhand remarks alone would not permit a reasonable jury to find that TCA did intended Court's to a force the her Instead, is to issue to matter but trial." in the Accordingly, Plaintiff has light most to if weigh considered to it stage, the evidence the determine favorable because this and whether 477 U.S. facts and all while each sliver of submitted, at Anderson, the Court must construe the inferences" Plaintiff However, [itself] the for accommodate quit. not truth of genuine 255. adequately "function determine is not there at 249. "justifiable Plaintiff. Id. at circumstantial evidence individually, might not permit a reasonable finder of fact to conclude that TCA intended to force stronger Plaintiff inference to of quit, intent the that Court a cannot juror might discount the draw from the evidence when considering Plaintiff's circumstantial evidence as a whole. the In this case, evidence in the emails noted above, delay in the Court finds that, record, including the considering all of statements in the TCA's communications with the Navy and TCA's forwarding the Navy's 123 questions and offer of accommodation to Plaintiff communicate not Plaintiff, Opp'n TCA's Mot. even though directly for Summ. J. TCA with Ex. Bl at asked that Navy, the had PL's Mem. 18-19, ECF No. 113-2, and TCA's letter threatening legal action against Plaintiff for filing a FOIA request with the Navy and for directly contacting the Navy, of fact id. Ex. could B3 at 22, conclude that, Plaintiff, it did Therefore, the Court concludes of material fact so ECF No. with if the 113-4, TCA intent a reasonable finder failed to to force her that there the regarding accommodate deliberateness to quit. is a genuine dispute element of Plaintiff's constructive discharge claim against TCA. The genuine Court further dispute of finds material that fact Plaintiff regarding has the created a intolerability element of her constructive discharge claim against TCA. In the Court's Opinion and Order denying the Navy's motion to dismiss Plaintiff's the constructive truth of reasonable jury communicate render the Plaintiff's could with Plaintiff's telephone is discharge allegations, conclude patients to 'prescribe dosage/usage, new against the a Court her by it, to "[a] inability telephone 'intolerable,' ability assuming held that complete providers conditions patients and other providers,' patients, that and working vital claim would as 'communicate using with 'relay lab and test results' medications and instruct and explain new tests and lab results.'" 124 to to regarding Opinion and Order at 23, No. 11-1). has adduced, genuine to Viewing the 23 (quoting Am. Compl. flU 14, For the same reason, the dispute respect ECF No. Court her "[w]hile assigned to in the a that Plaintiff has created a fact regarding intolerability with constructive evidence ECF based on the evidence Plaintiff concludes of material 17, discharge light most claim against favorable Primary Care Clinic, to TCA. Plaintiff, [Plaintiff] made approximately three to five phone calls daily," and "[s]ome days required more calls." Ex. D U 75, evidence PL's Mem. Opp'n TCA's Mot. ECF No. in the 113-6. record In addition, indicates that for Summ. J. as explained above, Plaintiff needed to use a telephone to refer patients needing urgent or emergency care to another provider. Id. U 77. Indeed, for the purposes of this motion, TCA has not challenged Plaintiff's assertion that making telephone calls was an essential function of her position. In light of the evidence that Plaintiff needed to use a telephone to perform the essential functions of her position (including in situations involving patients in need of urgent and emergency care), if a finder of fact ultimately concluded that TCA failed to offer Plaintiff a reasonable accommodation that would permit her also to make could such telephone find that intolerable working Plaintiff's licensure calls, such a reasonable failure created conditions-particularly requirements. 125 finder of If in TCA fact objectively light of failed to accommodate Plaintiff, reasonable person in on this record, Plaintiff's a jury could find that a position—unable to return to work without accommodation and having not received any pay while TCA failed to provide an adequate accommodation—could have felt compelled to resign because of Court concludes that such failure. a genuine dispute of Accordingly, material the fact exists regarding the intolerability element of Plaintiff's constructive discharge claim against TCA. In create short, Plaintiff genuine deliberateness discharge disputes and claim has presented sufficient of material fact intolerability against TCA. elements Therefore, as of evidence to her the both to the constructive Court will DENY TCA's motion for summary judgment as to such claim. The Court has considered and resolved the parties' judgment motions. the issues sometimes the formal presented for decision does not a So here. Court picture of summary judgment the-record However, case. hearing the September 21, explained at 2015 telephone work and presented the on- If to evidence the complete portrays each party in this action in an unflattering light. returned the paint far had Conference, resolution of thus Plaintiff Status and As summary sought to accommodation alternatives with TCA and the Navy, quickly concerns. and easily Despite found resolution Plaintiff's for suggestion 126 her that work through she might have accommodation the August 16, 2011 email failure from Lieutenant on her part, a Commander fair reading Badura of the justified such record before the Court reflects a hesitance on Plaintiff's part to return to work until her demands were completely met and accommodations were in place, while rather than returning to work immediately at BMC Sewells the parties into place. have attempted to put On the other hand, quickly and easily an effective equally, found accommodation TCA and the Navy might resolution for Plaintiff's unfortunate post-surgery hearing challenges if they had convened an in-person lengthy meeting back and between forth themselves between and Plaintiff, Plaintiff. TCA, and the The Navy, appears to have understandably damaged Plaintiff's confidence in their ability to resolve parties an on-the-job and While the Court recognizes that hindsight is 20/20, it for in accommodation process. helpful engage for her sometimes to request dampened is desire her to be interactive reminded of the challenges in their case—even those that are not susceptible to disposition recognition by leads summary to judgment resolution; motion. if not, Sometimes it should allow parties to better prepare to present their case at trial. observations are offered in such a vein, for all sides the These because the challenges in this case are considerable. 127 such IV. For DENIES the IN PART Additional as to forgoing AS the reasons, MOOT Evidence, the Plaintiff's ECF No. additional opposition to TCA's CONCLUSION 171. evidence motion Court DENIES Motion for IN PART Leave to and Submit The Court DENIES such motion Plaintiff for summary sought to judgment submit and the in Court DENIES AS MOOT such motion as to the evidence Plaintiff sought to submit in opposition to the Navy's motion for summary judgment. The ECF Court No. 135, employer. GRANTS Plaintiff's regarding the Motion Navy's for Summary Judgment, status as Plaintiff's For the purposes of Rehabilitation Act liability, the Navy was Plaintiff's employer under the joint employer doctrine. The Court GRANTS IN PART Motion for Summary Judgment, motion defense with of respect to ECF No. 82. the administrative and DENIES joint IN the Navy's The Court DENIES such employer exhaustion PART doctrine because the and the Court has determined that the Navy employed Plaintiff and that there is a genuine dispute of material fact as to whether Plaintiff timely initiated EEO counseling with the Navy. The Court GRANTS the Navy's motion with respect to Plaintiff's constructive discharge claim because no reasonable finder of fact could conclude that, if the Navy failed to accommodate Plaintiff, intent to force Plaintiff to quit. 128 it did so with the The Court DENIES TCA's Motion for Summary Judgment, 85. ECF No. Plaintiff has adduced evidence creating genuine disputes of material fact as to both her failure-to-accommodate and constructive discharge claims against TCA. The Order to IT Clerk all IS SO is REQUESTED counsel of to send a copy of this Opinion and record. ORDERED. /B/lffiMark UNITED Norfolk, Virginia September _5L9i_, 2015 129 STATES S. Davis DISTRICT JUDGE

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