Wren v. Collins et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-00236-KAS
EDNA WREN,
Plaintiff,
v.
DOUGLAS A. COLLINS, Secretary of the U.S. Department of Veterans Affairs,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Dismiss Claims Three
Through Five [#23] (the “Motion”).1 Plaintiff filed a Response [#34] in opposition to the
Motion [#23], and Defendant filed a Reply [#38]. The Court has reviewed the briefs, the
entire case file, and the applicable law. For the reasons stated below, the Motion [#23] is
GRANTED in part and DENIED in part.2
1 The Motion [#23] was filed by Defendant Denis R. McDonough, but, pursuant to Fed. R. Civ. P.
25(d), Defendant Douglas A. Collins has been automatically substituted in his place.
2 This case has been referred to the undersigned for all purposes pursuant to D.C.COLO.LCivR
72.2(d) and 28 U.S.C. § 636(c), on consent of the parties. See [#15, #21, #22].
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I. Background
A. 	Factual Background
1. 	Plaintiff Accepts a Position at Veterans Affairs
According to the Complaint [#1],3 the United States Department of Veterans Affairs
(the “VA”) hired Plaintiff on March 17, 2017. Compl. [#1] at 3.4 The VA hired Plaintiff as
an optometry technician under Schedule A.5 See id. at 4. Plaintiff has a “diagnosed Brain
Injury with PTSD [post-traumatic stress disorder] that causes cognitive deficits in
processing, comprehension, memory storage, aphasia and fatigue.” Id. at 3. In her job,
Plaintiff conducted eye examinations of veterans at the Colorado Springs VA Optometry
Clinic. See id. at 4.
2. 	Plaintiff Faces Problems at Her New Job
In August 2017, Plaintiff complained to her supervisor, Dr. Christopher Allen (“Dr.
Allen”), about treatment by coworker Amanda Williams (“Ms. Williams”). Id. at 4-5. Over
the next six months, Plaintiff met with Dr. Allen three more times to discuss her concerns
3 For the purposes of resolving the Motion [#23], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in the Complaint [#1]. Shero v. City of Grove, 510 F.3d
1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The Court
views these allegations in a light most favorable to Plaintiff, the nonmoving party. Shero, 510 F.3d
at 1200. Although Plaintiff obtained counsel prior to filing the Response [#34], she was proceeding
as a pro se litigant when she filed the Complaint [#1]. The Court must liberally construe a pro se
litigant’s filings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, the Court will
not be the pro se litigant’s advocate nor “supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113
F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
4 The Court refers to the CM/ECF electronic docketing system’s page numbering rather than to
any internal page numbers on Plaintiff’s Complaint [#1] and other Court filings.
5 Plaintiff does not explain what Schedule A entails, but Defendant clarifies that “Schedule A . . .
allows a disabled individual to be selected for an open position outside of the competitive
process.”). Motion [#23] at 2; see Compl. [#1] at 3 (“I was hired . . . on a Schedule A hiring for
Disabled person.”).
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but received no assistance. See id. at 5. In March 2018, Plaintiff met with her union
representative to complain that her personal belongings were disappearing at work, for
which he ordered a lock box for Plaintiff. Id. On August 8, 2018, Plaintiff met with Dr. Allen
for a fifth time because the situation with Ms. Williams had not improved. Id. at 6.
On 	September 	12, 	2018, 	Plaintiff 	“called 	the 	ORM 	[Office 	of 	Resolution
Management] concerning the hostile work environment caused by” Ms. Williams. Id.
Plaintiff then filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”). See id. The next day, Dr. Allen confronted Plaintiff about the complaint,
accusing her of harming the clinic and attempting to get Ms. Williams fired. See id. During
this conversation, Plaintiff told Dr. Allen that she has a brain injury. Id. Based on Plaintiff’s
allegations, this appears to be the first time Plaintiff disclosed her disability to Dr. Allen.
On September 17, 2018, Plaintiff participated in an unsuccessful EEOC mediation. Id.
On September 20, 2018, Plaintiff wrote “a letter of concern and requested upper
management outside of clinic [sic] to conduct an investigation of hostile work environment
caused by” Ms. Williams. Id. (emphasis omitted). The next day, Dr. Allen began “coming
into [Plaintiff’s] exam room taking over [Plaintiff’s] eye exams . . . [and] making remarks
to [Plaintiff] to hurry up,” which caused Plaintiff to become confused and make mistakes.
Id. (emphasis omitted). Despite Plaintiff’s request that an investigation be conducted by
management outside the clinic, she found out on October 10, 2018, that Dr. Allen had
been assigned the task. See id. at 6-7. Dr. Allen requested that Plaintiff “sign a notice of
fact finding document,” which she did. Id. On October 18, 2018, Dr. Allen completed the
investigation “and stated [that] workplace harassment could not be substantiated.” Id. at
7.
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On May 9, 2019, the Office of Medical Inspector (“OMI”) requested that Plaintiff
speak with them. Id. at 9. Plaintiff then signed a whistleblower agreement. Id.
3. 	Promotion
Meanwhile, in September 2018, the clinic was “converted to Full Ophthalmology
status.” Id. at 6. Although Ms. Williams was converted to Ophthalmology status, Plaintiff
was not converted, and she was instead required to perform ophthalmology duties without
the accompanying promotion and pay raise. Id. During Plaintiff’s self-evaluation, on
November 6, 2018, Dr. Allen stated that she “may never get a bonus due to the fact that
[she] is forgetful and he has to remind [her] to do things.” Id. at 7 (emphasis omitted). In
January 2019, Plaintiff asked Dr. Allen when she would be converted to Ophthalmology
status, and he responded that he did not know and directed her to reach out to her chain
of command. Id. On May 22, 2019, Plaintiff “emailed [her] AO[6] Mary Ellen Winkler asking
about being converted to Ophthalmology.” Id. at 9.
Two months later, on July 25, 2019, a human resources (“HR”) specialist informed
Plaintiff 	that 	she 	was 	“receiving 	a 	GS8 	[General 	Schedule 	8] 	promotion 	into
Ophthalmology clinic with a two year time limit to receive [her] COA [Certified Ophthalmic
Assistant] certification.” Id. A few days later, Plaintiff received notification “of being
selected for the GS8 Ophthalmology Tech position” from the Office of Personnel
Management. Id. On August 7, 2019, however, HR specialist Rene Deedee (“Deedee”)
informed Plaintiff that her promotion was being rescinded. Id. Mr. Deedee requested that
Plaintiff sign documents through email confirming the rescission, which Plaintiff did. Id.
6 Neither Plaintiff nor Defendant define the acronym “AO” in their filings, although this may stand
for “Administrative Officer.”
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Two days later, Plaintiff asked Dr. Allen if he could help her regain her promotion, but he
said there was nothing he could do. Id. at 10.
4. 	Accommodation Requests
Plaintiff 	requested accommodations due 	to her 	disability several times. 	On
November 23, 2018, Plaintiff requested accommodations from HR and Dr. Allen. Id. at 7.
On November 30, 2018, Dr. Allen stated that the extra time Plaintiff was requesting “was
something that could not be done” and that she could “accommodate [her]self out of a
job.” Id. Although Dr. Allen stated that Plaintiff’s accommodation requests were “not valid”
because he could not accommodate Plaintiff for extra time, he did state that he would
stop coming into Plaintiff’s exam room and taking over her exams. Id. On January 3, 2019,
Plaintiff retracted her accommodation request “out of fear of losing [her] job” and after Dr.
Allen confirmed that he would no longer push her to go faster or make comments about
her forgetfulness and mistakes. Id.
In April 2019, Plaintiff asked Dr. Allen if she could sit in the front office where it was
quieter and less distracting. Id. at 8. Dr. Allen denied this request, stating that he wants
his tech “to sit in the room across from [him] in case [he] need[s] them.” Id.
On October 25, 2019, Plaintiff “sent an email to [her] chain of command stating
that [she] need[ed] accommodation and [she] would like to be re-assigned to different
duties.” 	Id. 	at 	10. 	Three 	days 	later, 	Plaintiff 	“re-submitted 	for 	Reasonable
Accommodation,” asking “to be re-assigned due to the stress of being harassed over [her]
cognitive disability by Dr. Allen.” Id. Plaintiff stated that she no longer wanted to work with
Dr. Allen. Id. On November 1, 2019, Plaintiff sent an email to Dr. Allen directly, asking to
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be placed in another doctor’s clinic until her reasonable accommodation reassignment
could take place. Id. This request was denied. Id.
On November 12, 2019, Plaintiff participated in an interactive meeting with her
union representative, HR specialist Tara Lisica (“Lisica”), and Dr. Allen. Id. During that
meeting, Dr. Allen denied Plaintiff’s request for accommodation. Id. He stated that
placement of Plaintiff in another doctor’s clinic or a reassignment to only diagnostic testing
would “disrupt the morale of [the] clinic.” Id. (emphasis omitted). He also denied Plaintiff’s
request for more time to work up patients, stating that Plaintiff was “a risk for his
Ophthalmology clinic.” Id. (emphasis omitted). Dr. Allen told Ms. Lisica “to take it to the
next level.” Id. Despite this denial, Dr. Allen met with Plaintiff the next day in another
doctor’s office and repeatedly asked Plaintiff what accommodations she needed. Id. at
11.
5. 	Plaintiff Takes Leave
On November 23, 2019, Plaintiff suffered a seizure. Id. On December 3, 2019,
Plaintiff took leave under the Family Medical Leave Act. Id. Plaintiff was then approved
for social security disability insurance payments. Id.
B. 	Procedural Background
On January 3, 2020, Plaintiff filed an EEOC complaint7 alleging that the VA
discriminated against her based on sex, disability, age, and in retaliation for protected
activity. Compl. Ex. 2 [#1-2] at 1-2. Plaintiff alleged that this occurred: (1) when Plaintiff
was subjected to harassment from August 2017 onward; (2) when Plaintiff’s July 2019
7 This EEOC complaint is distinct from the EEOC complaint Plaintiff filed on September 12, 2018.
Compl. [#1] at 6. Plaintiff made the September 12, 2018 complaint after calling the ORM regarding
the hostile work environment allegedly caused by Ms. Williams. Id. Plaintiff provides no further
information on the outcome, beyond her participation in an unsuccessful EEOC mediation. Id.
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promotion was rescinded in August 2019; and (3) when, on November 12, 2019, Plaintiff’s
supervisor denied her reasonable accommodation request made since 2018. Id. at 2.
After an investigation, the EEOC provided Plaintiff with a report of factual findings
and notice of her right to request a hearing before an EEOC Administrative Judge (“AJ”).
Id. Although Plaintiff requested a hearing, the AJ issued a decision without a hearing on
November 22, 2021. Id. The AJ found that Plaintiff “failed to prove that the [VA] subjected
her to discrimination as alleged.” Id. Plaintiff appealed this decision on December 24,
2021. Id. at 1. The EEOC affirmed the AJ’s final order on May 10, 2023, finding that
Plaintiff did not “establish[] the presence of a material fact or that discrimination occurred.”
Id. at 7, 9. On November 6, 2023, the EEOC denied Plaintiff’s request for reconsideration.
Compl. Ex. 3 [#1-3] at 2-3. After this denial, the EEOC explained that Plaintiff had “no
further right of administrative appeal on the decision of the Commission on this request.”
Id. at 2.
On 	January 	25, 	2024, 	Plaintiff 	filed 	her 	Complaint 	[#1] 	using 	the 	Court’s
Employment Discrimination Complaint form. See Compl. [#1] at 1. Plaintiff seeks: “Lost
wages, Career Rehabilitation, Health Rehabilitation . . . Lost Benefits, Lost 401 K[,] Front
Pay, Future Health Insurance[,] Future Mental Health Care[,] Economic and Non-
Economic damages[, and] All Attorney fee’s [sic] and costs.” Id. at 13.
II. Legal Standard
Rule 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state
a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A
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complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’”
Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir.
2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When a complaint
contains “well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do”; likewise, a complaint fails to “suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Id. at 678 (internal quotation
marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is
legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc.,
861 F.3d 1081, 1104-05 (10th Cir. 2017). However, “[t]he court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]”
Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
III. Analysis
At the outset, the Court addresses which claims Plaintiff has alleged in her
Complaint [#1]. In the Motion [#23], Defendant construes Plaintiff’s Complaint [#1] as
alleging five distinct claims under the Rehabilitation Act: (1) Claim 1, hostile work
environment based on disability discrimination; (2) Claim 2, hostile work environment
based on retaliation; (3) Claim 3: disability discrimination based on revocation of
promotion; (4) Claim 4, retaliation based on revocation of promotion; and (5) Claim 5,
failure to accommodate. See Motion [#23] at 1; Reply [#38] at 1-2.
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Through counsel, Plaintiff notes in her Response [#34] that she identified a “Claim
One” in the Complaint [#1] for “disability discrimination in violation of the Rehabilitation
Act,” stating that the underlying conduct concerned: (1) different terms and conditions of
employment, (2) failure to promote, (3) failure to accommodate disability, (4) retaliation,
and (5) violation of privacy.8 Response [#34] at 1. Plaintiff also states that “[t]he Complaint
asserts only a ‘Claim One’ (Complaint, pg. 3)[.]” Id. at 1 n.1. The Court presumes this is
an oversight, given that the Complaint [#1] later specifically refers to “Claim Two –
Retaliation” under the Rehabilitation Act. Compl. [#1] at 12.
Given this dissonance in the briefs, the Court must decide which claims Plaintiff
has alleged in her Complaint [#1]. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (“[I]f the court can reasonably read the [pro se plaintiff’s] pleadings to state a valid
claim . . . it should do so[.]”); but see Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th
Cir. 1997) (“[The Court] will not . . . construct a legal theory on a [pro se] plaintiff’s behalf.”).
Based on its review of the Complaint [#1], and taking into account the parties’ statements
and Plaintiff’s pro se status when she filed the Complaint [#1], the Court finds that
Plaintiff’s claims, all brought under the Rehabilitation Act, are as follows: (1) disability
discrimination, based on (a) the September 2018 failure to promote, (b) different terms
and conditions of employment, and (c) the August 7, 2019 revocation of Plaintiff’s
promotion; (2) retaliation, based on (a) the September 2018 failure to promote, (b)
different terms and conditions of employment, and (c) the August 7, 2019 revocation of
Plaintiff’s promotion; (3) failure to accommodate a disability, based on (a) the November
2018 request, (b) the April 2019 request, and (c) the October 2019 request; (4) hostile
8 After the Response [#34] was filed, Plaintiff voluntarily dismissed her privacy claim. Notice [#46].
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work environment based on Plaintiff’s disability; and (5) hostile work environment based
on retaliation.
Defendant seeks dismissal for failure to state a claim of Plaintiff’s disability
discrimination and retaliation claims based on the August 7, 2019 revocation of Plaintiff’s
promotion, and Plaintiff’s failure to accommodate claim based on her October 2019
request.9 See Motion [#23] at 1.
A. 	Exhaustion
The Court first addresses Defendant’s argument that the September 2018 failure
to promote and the November 2018 and April 2019 failures to accommodate are not
actionable because they were not timely exhausted, as required by the Rehabilitation Act.
See, e.g., Motion [#23] at 4; Reply [#38] at 6-8, 9-10.
Federal employees such as Plaintiff must exhaust their administrative remedies by
complying 	with 	specific 	administrative 	complaint 	procedures 	before 	suing 	for
discrimination or retaliation under Title VII or the Rehabilitation Act. Hickey v. Brennan,
969 F.3d 1113, 1118 (10th Cir. 2020); see 29 C.F.R. § 1614.407. The exhaustion
requirement serves “two principal purposes: ‘1) to give notice of the alleged violation to
the charged party; and 2) to give the EEOC an opportunity to conciliate the claim[.]’” Smith
v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (citation omitted). “To
advance these purposes . . . [a] plaintiff’s claim in court ‘is generally limited by the scope
of the administrative investigation that can reasonably be expected to follow the charge
of discrimination submitted to the EEOC.’” Id. (citation omitted). Discrete acts such as a
9 In the present Motion [#23], Defendant explicitly does not seek dismissal of Plaintiff’s two hostile
work environment claims at this time. See [#23] at 1. Defendant also does not argue that Plaintiff’s
disability discrimination and retaliation claims, to the extent that they are based on different terms
and conditions of employment, fail to state a claim. See generally Motion [#23]; Reply [#38].
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failure to promote, as opposed to the broad existence of a hostile work environment, for
example, constitute separate actionable unlawful employment practices, and each must
be administratively exhausted. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114-15 (2002).
Further, a federal employee can only administratively exhaust discrete acts
through a charge filed with the EEOC within the timely filing period. See Hickey, 969 F.3d
at 	1118; 	see 	also 	29 	C.F.R. 	§ 	1614.105(a-d) 	(containing 	pre-complaint 	timing
requirements); § 1614.106 (containing the complaint timing requirement). For instance,
before a federal employee can sue her employer for discrimination or retaliation, she must
initiate contact with an Equal Opportunity counselor at her agency within 45 days of the
discriminatory action. See Hickey, 969 F.3d at 1118; see also Green v. Brennan, 578 U.S.
547, 549-50 (2016) (discussing this requirement in the Title VII context). The EEOC’s
consideration of an act of discrimination which is contained in a plaintiff’s complaint is not
dispositive of whether the complaint was timely filed regarding that discriminatory act.
See Underwood v. Durango Coca-Cola Bottling Co., No. 20-cv-0997-WJM-SKC, 2021
WL 964051, at *3 (D. Colo. Mar. 15, 2021) (“Courts do not typically defer to the EEOC’s
interpretation of the clear requirement of a time limit on filing a charge, which is
unambiguous and easily verifiable.”).
The Court may grant a motion to dismiss under Rule 12(b)(6) based on the
affirmative defense of lack of exhaustion if the grounds for the defense are apparent on
the face of the complaint. Cirocco v. McMahon, 768 F. App’x 854, 858 (10th Cir. 2019).
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1. 	The September 2018 Failure to Promote
First, Defendant argues that the initial failure to promote in September 2018, where
Plaintiff was not promoted to “Full Ophthalmology status” alongside Ms. Williams, cannot
form the basis of Plaintiff’s discrimination or retaliation claims because it is a discrete act
that was not timely exhausted. See Reply [#38] at 6-8.
Plaintiff attached both the EEOC decision on appeal, see Compl. Ex. 2 [#1-2], and
the EEOC denial of her request for reconsideration, see Compl. Ex. 3 [#1-3], to the
Complaint [#1], but she did not attach the underlying complaint of discrimination.
Nevertheless, the EEOC’s description of the record demonstrates that Plaintiff likely
raised the issue of the September 2018 failure to promote, at least to some extent, during
the proceedings. See Compl. Ex. 2 [#1-2] at 3-4 (“The . . . technicians were all promoted
to GS 8 with or without COA certification. . . . I asked HR and my chain of command to
help me.”). However, even assuming that the September 2018 failure to promote was part
of Plaintiff’s complaint of discrimination, the Court finds that it was not timely exhausted
for the reasons explained below. See Morgan, 536 U.S. at 114-15 (identifying “failure to
promote” as a discrete act and holding that all discrete acts occurring outside the timely
filing deadline “are untimely filed and no longer actionable”).
Plaintiff filed her complaint of discrimination with the EEOC on January 3, 2020.
See Compl. Ex. 2 [#1-2] at 1. Defendant asserts that Plaintiff, as a federal employee, had
90 days, at a maximum, under the Rehabilitation Act to timely file her claims based on
the September 2018 failure to promote. See Reply [#38] at 8. Although the Court finds
this statement of law to be incorrect, these claims are nonetheless still untimely. Under
the Rehabilitation Act, a federal employee must initiate informal EEO counseling within
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45 days of the discrete act. See 29 C.F.R. § 1614.105(a)(1). Within 30 days of the initial
contact—or within 90 days if the counseling period is extended for an additional period of
no more than 60 days—if the complaint is not resolved the employee receives notice of
the right to file a complaint of discrimination with the EEOC. See 29 C.F.R. § 1614.105(d)-
(f). The employee then has 15 days from the date of receipt of the notice to file a
discrimination complaint with the EEOC. See 29 C.F.R. § 1614.106(b). Thus, under the
Rehabilitation Act, a federal employee has, at most, 150 days to file a discrimination
complaint. See Lee v. Saul, Nos. 19 Civ. 6553 (PGG) (SN), 20 Civ. 2956 (PGG) (SN),
2022 WL 873511, at *6 (S.D.N.Y. Mar. 23, 2022) (“[T]he earliest conduct that could
properly be cited in [the plaintiff’s] EEO complaint would have occurred 150 days before
the filing of the EEO complaint (45 + 90 + 15).”). Here, approximately 460 days elapsed
between the September 2018 failure to promote and Plaintiff’s filing of a discrimination
complaint with the EEOC on January 3, 2020. Because her EEOC discrimination
complaint was filed outside the statutory timely filing period, this alleged failure to promote
is no longer actionable. Although Plaintiff attempts to link this prior failure to promote to
the later revocation of her promotion, “related discrete acts” cannot be combined “into a
single unlawful practice for the purposes of timely filing.” Morgan, 536 U.S. at 111. Thus,
Plaintiff has failed to exhaust her claims for discrimination and retaliation under the
Rehabilitation Act based on the September 2018 failure to promote.
Accordingly, the Motion [#23] is granted to the extent that Defendant seeks
dismissal of Plaintiff’s discrimination and retaliation claims based on the September 2018
failure to promote. The Court finds that dismissal with prejudice is appropriate because
Plaintiff failed to exhaust her administrative remedies, and the time to do so has long
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since passed. Therefore, even if this case were dismissed without prejudice, it would have
the effect of a dismissal with prejudice. See, e.g., AdvantEdge Bus. Group v. Thomas E.
Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (recognizing that “a
dismissal without prejudice can have the practical effect of a dismissal with prejudice” if
a claim is time-barred); see also Lawrence v. Bonaventure of Castle Rock, No. 22-cv-
01143-WJM-KLM, 2022 WL 17960556, at *8 (D. Colo. Dec. 27, 2022) (“Here, even if
Plaintiff could cure the deficiencies in the . . . claim, the Court has also recommended that
the claim be dismissed for failure to exhaust administrative remedies. Because the failure
to exhaust bars the claims . . . it is recommended that the Complaint [ ] be dismissed with
prejudice.”), report and recommendation adopted, No. 22-cv-1143-WJM-KAS, 2023 WL
6976050 (D. Colo. Oct. 23, 2023).
2. 	The Accommodation Denials Prior to October 2019
Next, Defendant appears to concede that Plaintiff’s October 2019 failure to
accommodate 	claim 	is 	timely 	but 	argues 	that 	claims 	based 	on 	the 	two 	other
accommodation requests are not: (1) the November 23, 2018 request followed by the
November 30, 2018 denial, a request which Plaintiff ultimately retracted on January 3,
2019; and (2) the April 2019 request which was immediately denied by Dr. Allen. See
Reply [#38] at 8-10; see also Response [#34] at 4-6; Compl. [#1] at 7-8.
The Tenth Circuit has yet to decide whether a failure to accommodate is a discrete
act of discrimination that must be timely exhausted. See, e.g., Sanchez v. City & County
of Denver, No. 1:19-cv-01307-DDD-SKC, 2019 WL 5695949, at *5 (D. Colo. Nov. 4,
2019). However, at least two other courts within the Tenth Circuit have found that it is.
See id.; Becerra v. EarthLink, Inc., 421 F. Supp. 2d 1335, 1343 (D. Kan. 2006) (citing
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Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d. Cir. 2003)). In Elmenayer,
the Second Circuit explained that, “[a]lthough the effect of the employer’s rejection
continues to be felt by the employee for as long as he remains employed, that continued
effect is similar to the continued effect of being denied a promotion or denied a transfer,
denials that [National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002),] offered
as examples of a discrete act.” Elmenayer, 318 F.3d at 135. The Court finds that, as a
matter of law, a failure to accommodate is a discrete act of discrimination that must be
timely exhausted.
Plaintiff filed her complaint of discrimination with the EEOC on January 3, 2020.
See Compl. Ex. 2 [#1-2] at 1. As discussed above, for a claim based on a discrete act to
have been timely exhausted by this EEOC complaint, the discrete act could not have
occurred before August 6, 2019, at most— i.e., 150 days before the filing of her complaint.
Because both the November 2018 and April 2019 accommodation requests and denials
occurred before this date, the Court finds that they were not timely exhausted.
Accordingly, the Motion [#23] is granted to the extent that Plaintiff’s claims for
failure to accommodate November 2018 and April 2019 accommodation requests are
dismissed with prejudice. See Lawrence, 2022 WL 17960556, at *8.
B. 	Revocation of Promotion
On August 7, 2019, thirteen days after Plaintiff learned that she was being
promoted to “GS8 Ophthalmology Tech,” Mr. Deedee notified Plaintiff that her promotion
was being rescinded. Compl. [#1] at 9. Defendant argues that Plaintiff has not adequately
alleged that this decision was unlawfully motivated by her disability or retaliation. Motion
[#23] at 6.
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1. 	Discrimination
The Rehabilitation Act prohibits federal agencies, like the VA, from discriminating
against employees based on a qualified disability. See Ford v. Brennan, No. 21-4086,
2023 WL 5606233, at *4 (10th Cir. Aug. 30, 2023). To state a discrimination claim under
the Rehabilitation Act, a plaintiff must allege that “(1) [she] is a handicapped person within
the meaning of the Act; (2) she is otherwise qualified for the job; and (3) she was
discriminated against because of the handicap.” Woodman v. Runyon, 132 F.3d 1330,
1338 (10th Cir. 1997). Defendant argues that Plaintiff has failed to adequately allege
causation, the third element. See Motion [#23] at 7.
In the Motion [#23], Defendant analyzes Plaintiff’s claim under the more lenient
but-for causation standard for Americans with Disabilities Act claims. See Motion [#23] at
7. However, the causation element in a Rehabilitation Act claim is interpreted differently
than in an ADA claim due to differing statutory language. See Crane v. Utah Dep’t of
Corr., 15 F.4th 1296, 1312-13 (10th Cir. 2021) (“[T]he ADA merely requires the plaintiff’s
disability be a but-for-cause (i.e., ‘by reason of’) of the discrimination, rather than—as the
Rehabilitation Act requires—its sole cause (i.e., ‘solely by reason of’).”); see also Staton
v. DeJoy, No. 1:23-cv-03223-SBP, 2025 WL 42821, at *5 (D. Colo. Jan. 7, 2025)
(recognizing “sole cause” standard for Rehabilitation Act claim involving federal employee
plaintiff); 	Williams 	v. 	Colo. 	Dep’t 	of 	Corr., 	No. 	21-cv-02595-NYW-NRN, 	2024 	WL
3069274, at *5 (D. Colo. June 20, 2024) (distinguishing Rehabilitation Act’s “sole cause”
standard from the ADA’s “lesser but-for causation standard”). Thus, the Court utilizes the
more demanding “sole cause” standard in evaluating Plaintiff’s claim.
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The Complaint [#1] contains the following allegations regarding the August 7, 2019
rescission of Plaintiff’s promotion: (1) Plaintiff was notified of a promotion by an HR
Specialist; (2) ten days later she was notified by a different HR specialist that her
promotion had been rescinded; and (3) she asked Dr. Allen to help her regain her
promotion but he told her that there was nothing he could do. See Compl. [#1] at 9-10.
Defendant argues that “Plaintiff does not allege who made the decision to rescind her
promotion . . . that the decision-maker knew of her disability . . . [or] that the rescission
was motivated, in any way, by her disability, much less that her disability was the but-for
cause of the recission [sic].” Motion [#23] at 7. Under the appropriate sole cause standard,
the Court finds that Plaintiff has not plausibly alleged that her disability was the sole cause
of the August 7, 2019 rescission of her promotion.
Plaintiff asserts that Dr. Allen, her supervisor, “was well aware of and disdainful of
Plaintiff’s disability and accommodation needs[.]” Response [#34] at 3. Although Dr. Allen
directed Plaintiff to reach out to her chain of command for help getting the promotion, he
“was presumably part of that ‘chain of command’ whose input would be solicited or at
least considered in any promotion decision.” Id.; see Compl. [#1] at 7. Plaintiff concludes
that 	“[i]t 	would 	be 	improbable 	to 	promote 	Plaintiff 	without 	consulting 	her 	direct
supervisor[.]” Response [#34] at 3. If anything, however, this logic cuts against Plaintiff’s
disability being the sole cause of the August 7, 2019 rescission of her promotion. If the
Court presumes that Dr. Allen was consulted about Plaintiff’s promotion, the fact that she
was promoted suggests that he approved—or at the very least did not veto it.10 Plaintiff
10 For the first time in her Response [#34], Plaintiff contends that a similarly situated coworker
“without any perceived disability” was allowed a promotion, and this should bolster her
discrimination claim. See [#34] at 3. However, Plaintiff does not allege sufficient facts in her
Complaint [#1] to suggest that Ms. Williams was either similarly situated—whether she had the
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“ha[s] not nudged [her] claim[] across the line from conceivable to plausible[.]” See
Twombly, 550 U.S. at 570.
Accordingly, the Motion [#23] is granted to the extent that Plaintiff’s disability
discrimination claim based on the August 7, 2019 revocation of her promotion is
dismissed without prejudice. Cf. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219
(10th Cir. 2006) (holding that “dismissal with prejudice is appropriate where a complaint
fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile”).
2. 	Retaliation
“[T]he Rehabilitation Act prohibits not just discrimination on the basis of disability
but retaliation against those who report disability discrimination.” Hwang v. Kan. State
Univ., 753 F.3d 1159, 1165 (10th Cir. 2014). To state a retaliation claim premised on
disability, Plaintiff must plead facts plausibly alleging “(1) that [she] engaged in protected
opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Brown v. Austin, 13 F.4th 1079,
1090 (10th Cir. 2021) (internal quotations and citations omitted)). Here, Defendant again
challenges the causation element, arguing that Plaintiff has “not allege[d] any facts
plausibly showing a causal connection between [Plaintiff’s] protected conduct and the
rescinded promotion, or any well-pleaded facts from which a retaliatory motive could be
inferred.” Motion [#23] at 8.
disputed certification or not—or whether she herself was disabled. See Mobley, 40 F.3d at 340
(testing “the sufficiency of the allegations within the four corners of the complaint” in a Rule
12(b)(6) motion).
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Plaintiff argues that the rescission of her promotion was actionable retaliation in
response 	to 	several 	events 	which 	she 	characterizes 	as 	“EEO-protected 	activity.”
Response [#34] at 4. She argues that “temporal proximity between an adverse action and
EEO-protected activity is evidence of discriminatory and retaliatory pretext.” Id. (citing
Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir. 2008)). While true, the two
events “must be ‘very closely connected in time’ if that is the only evidence relied on.”
Mann v. XPO Logistics Freight, Inc., 819 F. App’x 585, 606 (10th Cir. 2020) (citation
omitted; emphasis in original); see also Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999) (citing legal authority holding that “a one and one-half month period
between protected activity and adverse action may, by itself, establish causation,” while
“a three-month period, standing alone, is insufficient to establish causation”).
Working 	backwards 	three 	months 	from 	the 	date 	Plaintiff’s 	promotion 	was
rescinded, August 7, 2019, there are two actions which Plaintiff characterizes as
protected conduct: (1) on May 9, 2019, Plaintiff signed a whistleblower agreement with
the OMI; and (2) in June 2019, Plaintiff participated in an Office of Inspector General
(“OIG”) interview. See Response [#34] at 4. Defendant argues that these activities are
not protected conduct under the Rehabilitation Act. See Reply [#38] at 5. Even if the Court
assumes that these activities are protected conduct, though, the facts as alleged present
another problem: When did the decisionmakers become aware of this conduct? Plaintiff
alleges that Dr. Allen knew about Plaintiff’s June 2019 OIG interview when it occurred.
Compl. [#1] at 9. Plaintiff further states that all the allegedly protected conduct occurred
before her July 29, 2019 promotion. See Response [#34] at 4. Plaintiff has alleged no
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facts to support an inference that this information became known in the short window
between the July 29, 2019 promotion and the August 7, 2019 rescission.
Even reading the Complaint [#1] in a light most favorable to Plaintiff, it is
implausible that the decisionmakers would promote Plaintiff and then rescind her
promotion as retaliation for conduct they knew about all along. At the Rule 12(b)(6) stage,
“[a] ‘causal connection may be demonstrated by evidence of circumstances that justify an
inference of retaliatory motive[.]” Davis v. BAE Sys. Tech. Sols. & Servs. Inc., 764 F.
App’x 741, 744 (10th Cir. 2019) (citation omitted). Here, the intervening promotion,
decided by decisionmakers who presumably already knew about Plaintiff’s conduct,
destroys any inference of retaliatory motive in the subsequent rescission of the promotion.
See, e.g., Mann, 819 F. App’x at 607 (finding no causal connection between an employee
filing a discrimination complaint and that employee’s suspension seventeen days later
because the employer decided to suspend the employee before the complaint was filed);
Chavez v. New Mexico, 397 F.3d 826, 838-39 (10th Cir. 2005) (finding no causal
connection between a discrimination complaint and an adverse employment action where
the plaintiff complained that, “although she received a promotion after filing her complaint,
she has yet to obtain the promised increase in salary”).
Accordingly, the Motion [#23] is granted to the extent that Plaintiff’s claim for
retaliation based on the August 7, 2019 revocation of her promotion is dismissed without
prejudice. See Brereton, 434 F.3d at 1219.
C. 	Failure to Accommodate
“The 	Rehabilitation 	Act 	imposes 	a 	duty 	on 	federal 	employers 	to 	‘provide
reasonable accommodations to disabled employees.’” Sanchez v. U.S. Dep’t of Energy,
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870 F.3d 1185, 1195 (10th Cir. 2017) (citation omitted). To state a claim premised on a
failure to accommodate, Plaintiff must plead facts plausibly alleging that: “1) she was
disabled, 2) she was otherwise qualified, 3) she requested a plausibly reasonable
accommodation, and 4) [Defendant] refused to accommodate her disability.” Aubrey v.
Koppes, 975 F.3d 995, 1005 (10th Cir. 2020) (discussing elements on an ADA failure to
accommodate claim); Crane, 15 F.4th at 1312 (“We typically evaluate claims identically
under the ADA and Rehabilitation Act.”). Defendant argues that Plaintiff has not plausibly
alleged that it denied her October 2019 accommodation request.11 See Motion [#23] at
10-13; Reply [#38] at 8-9.
According to Defendant’s reading of the Complaint [#1], Plaintiff’s October 2019
request had not yet been denied when she suffered a seizure on November 23, 2019,
and then took leave. See Motion [#23] at 10-12; Reply [#38] at 9. However, Plaintiff
explicitly alleges in the Complaint [#1] that Dr. Allen directly denied her accommodation
request at the November 12, 2019 meeting. See Compl. [#1] at 10 (“Dr. Allen denied my
request for reasonable accommodations of being placed in Dr. Henry’s clinic only or to
do the diagnostic testing only, stating that ‘it would disrupt the morale of the clinic[.]’ Dr.
Allen denied my reasonable accommodation request for ‘more time’ to work up [patients].”
11 In a footnote, Defendant states that “Plaintiff’s proposed allegations in this case do suggest that
she was requesting not to have to perform essential functions of her position, however, given the
fact-specific nature such an inquiry would require, Defendant seeks dismissal on the third
element—whether Plaintiff requested a plausibly reasonable accommodation—at this stage.”
Motion [#23] at 12 n.7. However, Defendant makes no further argument in either the Motion [#23]
or the Reply [#38] about the reasonableness of Plaintiff’s proposed accommodation. Rather,
Defendant’s arguments focus on the fourth element alone, i.e., whether Defendant refused to
accommodate her request. Thus, Defendant’s statement here regarding the third element
appears to be a drafting error. Regardless, because Defendant has not provided any specific
argument on the third element, the Court declines to dismiss Plaintiff’s failure to accommodate
claim on this basis.
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(emphasis omitted)). At most, there is a fact issue regarding when the accommodation
request was denied. Thus, at this early stage in the proceedings, the Court finds that
Plaintiff has plausibly alleged a claim for a failure to accommodate her disability based on
her October 2019 request.
Accordingly, Defendant’s Motion [#23] is denied to the extent that Defendant
seeks dismissal of Plaintiff’s October 2019 failure to accommodate claim.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#23] is GRANTED in part and DENIED
in part. The Motion [#23] is granted to the extent that the following of Plaintiff’s claims
are dismissed with prejudice: (1) disability discrimination based on the September 2018
failure to promote; (2) retaliation based on the September 2018 failure to promote; and
(3) failure to accommodate, as to (a) the November 2018 request and (b) the April 2019
request. The Motion [#23] is further granted to the extent that the following of Plaintiff’s
claims are dismissed without prejudice: (1) disability discrimination based on the
August 7, 2019 revocation of Plaintiff’s promotion; and (2) retaliation based on the August
7, 2019 revocation of Plaintiff’s promotion. The Motion [#23] is otherwise denied.12
12 The following claims, all brought under the Rehabilitation Act, remain in this lawsuit: (1) disability
discrimination based on different terms and conditions of employment; (2) retaliation based on
different terms and conditions of employment; (3) failure to accommodate disability as to Plaintiff’s
October 2019 request; (4) hostile work environment based on disability; and (5) hostile work
environment based on retaliation.
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Dated: March 14, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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