The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Celeste H. Davis ("Davis") filed suit against Defendant, Elaine L. Chao ("Chao" or "Defendant")) in her official capacity as the Secretary of Labor for the United States Department of Labor (the "DOL" or "Defendant") alleging that the DOL failed to reasonably accommodate her disability under Section 1614.203 of the Rehabilitation Act and retaliated against her for filing a disability discrimination complaint against the DOL. Chao moves for summary judgment on all of Davis's claims. For the reasons set forth below, Chao's Motion for Summary Judgment is granted.
Davis is a full-time, pay grade GS-13 Program Analyst at the DOL's Office of Federal Contract Compliance Programs ("OFCCP") in the Midwest Regional Office located in Chicago, Illinois. Pltf. Resp. 56.1 ¶ 1*fn1 . After Davis graduated from law school, she began working as a trial attorney for the Equal Employment Opportunity Commission ("EEOC") in Chicago. Id. In 2001, Davis left the EEOC and accepted a position at the DOL as the Deputy Director of Policy for the OFCCP in Washington, D.C. at pay grade GS-15. Id. As the Deputy Director of Policy, Davis supervised three chiefs, attended meetings, and served in her supervisor's stead when needed. Pltf. Resp. 56.2 ¶ 3. Davis's supervisor was James Melvin, the Division Director of OFCCP in the Washington D.C. office. Def. Resp. 56.1 ¶ 2; Pltf. Resp. 56.1 ¶ 2. After Davis relocated to Washington D.C., she chose to maintain her Chicago residence. Pltf. Resp. 56.1 ¶ 7.
The Washington D.C. office is the "National Office." Pltf. Resp. 56.1 ¶ 3. National Office employees oversee the regional offices including the Midwest Regional Office located in Chicago, Illinois. Id. In turn, the Midwest Regional Office supervises district offices. Pltf. Resp. 56.1 ¶ 4. From 2002 to 2005, Sandra Zeigler ("Zeigler") was the Regional Director and Shirley Thomas ("Thomas") was the Deputy Regional Director for the Midwest Region of the OFCCP in Chicago, Illinois. Def. Resp. 56.1 ¶¶ 5, 6.
One example of National Office oversight was the DOL's waiver requirement for GS-13 and GS-14 level employees in the regional offices. Def. Resp. 56.1 ¶ 7. When a GS-13 or GS-14 position became vacant in a regional office, regional directors were required to prepare a memorandum setting forth the title of the position, its description, and the date when it became vacant. Def. Resp. 56.1 ¶ 7. Before a regional office could file a vacant position, the National Office had to approve the memorandum and agree with the need to fill the vacant position. Def. Resp. 56.1 ¶ 7. Charles James ("James") was the Agency Director of the OFCCP at the DOL in Washington, D.C. Regional directors frequently contacted James to discuss filling GS-13 and GS-14 vacancies prior to preparing the written memorandum seeking his approval to fill the vacant position. Def. Resp. 56.1 ¶ 8.
Sometime in 2002, Davis spoke to James about the financial hardship she experienced maintaining a home in Chicago and an apartment in Washington, D.C. and asked for assistance such as a temporary relocation to the Chicago area. Pltf. Resp. 56.1 ¶ 7. She also told James that she was very interested in becoming a Cook County Judge. Pltf. Resp. 56.1 ¶ 8.
During the summer of 2002, Davis began experiencing health problems including a persistent cough and pain. Pltf. Resp. 56.1 ¶ 9. Though she had relocated permanently to Washington D.C., Davis chose to seek treatment from physicians in Chicago. Id. Davis advised Melvin that she needed to take extended sick leave or vacation to receive extended medical attention and treatment for her deteriorating medical condition. Def. Resp. 56.1 ¶ 9. Davis's request was granted and on November 1, 2002 Davis began an eight-week medical leave of absence to undergo a lung biopsy and to treat symptoms that included moderate to severe joint and muscle aches in the hands, knees and feet, as well as periodic bouts of extreme exhaustion and fatigue. Def. Resp. 56.1 ¶ 10; Davis Ex. AA.*fn2 Davis was ultimately diagnosed with emphysema and fibromyalgia. Pltf. Resp. 56.1 ¶ 10.
On December 31, 2002, Davis submitted her first job reassignment request asking the DOL to relocate her position as Deputy Director from Washington, D.C. to her home in Chicago, Illinois. Pltf. Resp. 56.1 ¶ 11. Alternatively, Davis requested that she be reassigned to a GS-15 slot in any component of the DOL in Chicago. Id. Although Davis stated that she was quite capable of performing the essential functions of her deputy position in Washington D.C., she believed that working in Washington was not in her best interest because her medical team, family, church and other support groups who were able to assist her on "flare up" days were located in Chicago. Dr. Naureckas was Davis's physician in Chicago and Davis attached Dr. Naureckas's letter to her reassignment request. Pltf. Resp. 56.1 ¶ 12. In his letter, Dr. Naureckas stated that Davis's "ability to work has been significantly affected, and she is presently unable to continue to work in her previous capacity as currently structured". Pltf. Resp. 56.1 ¶ 12. Davis never asked Dr. Naureckas for a referral to a physician in Washington D.C. Id.
On February 21, 2003, Melvin responded to Davis's request in writing and denied her request to relocate her Deputy Director position from Washington D.C. to her home in Chicago. Def. Resp. 56.1 ¶ 16. Melvin explained, "[t]he Deputy Director's job is a senior level supervisory position, which has been classified and located in Washington, D.C. Because of our need to maintain and retain a strong and consistent National Office presence, we are unable to restructure the position in a way that would allow it to be performed from your residence in Chicago. It is our desire to work with you so that you may contemplate all options that can equally balance our need to utilize your many talents and your need to continue to get well." Id.; Davis Ex. X.
Instead of permanent relocation, the DOL offered Davis a 120-day temporary assignment (a "detail") to unspecified duties to allow her to work out of her Chicago home under the supervision of her Washington superiors while she was undergoing treatment. Pltf. Resp. 56.1 ¶ 13. Davis accepted, relocated to Chicago, and began working out of her home. Although management officials made efforts to allow Davis to work from her home, problems with Davis's home computer compelled her to work out of an office in Chicago's Kluzinski Federal Building. Id. At the end of her first 120-day detail, the agency granted Davis a second temporary 120-day detail. Pltf. Resp. 56.1 ¶ 14.
Meanwhile, a GS-14-level OFCCP employee in the Chicago office, Avery Goodrich ("Goodrich") requested to be reassigned out of the Chicago office to the Washington D.C. office because his working relationship with Thomas and Ziegler had become difficult. Def. Resp. 56.1 ¶¶ 15, 17. Approximately one month later, Melvin suggested to Zeigler that Goodrich be reassigned to the GS-15 Deputy Director position in Washington, D.C. then held by Davis and that Davis be reassigned to the GS-14 position then held by Goodrich in the Chicago Office. Def. Resp. 56.1 ¶ 15. The employee "swap" never occurred.
On May 13, 2003, Davis submitted a second request to be reassigned from Washington, D.C. to Chicago, Illinois. This time, Davis specifically asked the DOL to provide her with assistance in searching for a "reasonable accommodation" in the form of either a GS-14 or GS-15 position. Pltf. Resp. 56.1 ¶ 14. In doing so, Davis offered to voluntarily resign from her GS-15 Deputy Director position in Washington, D.C. Def. Resp. 56.1 ¶ 14. Davis's May 13, 2003 letter further stated that her physician had diagnosed her with severe emphysema and fibromyalgia and that:
"[s]ince beginning the detail, with rare exception, I have been able to work every day. My condition has stabilized, but I still experience 'flare-up' days, which are difficult, painful days when I may require some assistance. On those days, for example, my family assists me by driving for me, cooking my meals and helping with other everyday activities that are difficult for me to perform and may well be with me for the remainder of my life. In addition, I continue to have medical visits with my physicians every six to eight weeks where I am reevaluated and my medications adjusted if necessary. Despite these limitations, I am able to work and believe that a permanent job assignment in Chicago would now be in my best interests."
On July 16, 2003, Nancy Ponton, Director of the Division of Human Resources Management, Employment Standards Administration in Washington, D.C. forwarded Davis's May 13, 2003 request to be reassigned to the Chicago Regional Office to Kate Dorrell ("Dorrell"), the Director of the Equal Employment Opportunity ("EEO") Unit for the Employment Standards Division in Washington D.C. Pltf. Resp. 56.1 ¶ 20. During the same month and while Davis's May 13, 2003 reassignment request was pending, Davis applied for a GS-14 Chicago District Director position in Chicago that was posted on the DOL website. Pltf. Resp. 56.1 ¶ 14.*fn3 When the position was initially posted in 2002, it was listed as a temporary position and Davis did not apply for it. Id. This time, the DOL announced that it intended to convert the temporary position into a permanent assignment. Pltf. Resp. 56.1 ¶ 15.
At some point during the late summer, the DOL asked Dr. Neal. L Presant ("Dr. Presant") to review Davis's medical records, speak to Dr. Naureckas, and assess Davis's workplace accommodation request. Pltf. Ex. O. On August 12, 2003, Dr. Presant wrote Annabelle Lockhart ("Lockhart"), Director of Civil Rights at the Office of the Assistant Secretary for Administration and Management and detailed his findings. Pltf. Ex. O. Dr. Presant found that "Ms. Davis does suffer from a qualifying disabling condition." Def. Resp. 56.1 ¶ 25. However, Dr. Presant did not see any medical contraindication to Davis performing the essential functions of her job in Washington D.C. with the exception of the "occasional brief visits to factories, businesses, schools, or other sites during fact finding." Ex. O. Dr. Presant recommended that those functions be minimal and involve limited walking or other exertion. Id. Nevertheless, with the exception of off-site visits, Dr. Presant believed that Davis was capable of performing the specified duties of her Deputy Director position which was sedentary. Id. Accordingly, Dr. Presant opined that Davis's requested accommodation would only serve to help her perform her job indirectly by providing her with a more secure home environment. Id. However, he emphasized that "[t]he only accommodation relevant appears to be [Davis] being near to her Chicago relatives. The location, rather than the nature of the job seems to be the major issue." Id. Finally, Dr. Presant added that Davis's condition had a reasonable likelihood of worsening in the next few years so that her capabilities would potentially be less in the future. Id.
On August 15, 2003, the Chicago Regional Office received Davis's application for the vacant GS-14 position. Def. Resp. 56.1 ¶ 26. Two weeks later, having received Dr. Present's recommendation, Dorrell told Melvin that the Public Health Services ("PHS") assessment of Davis's request for accommodation was completed and that the specific recommendation was to "encourage supervisors and employees to work together to put an accommodation in place based on the PHS assessment." Def. Resp. 56.1 ¶ 27.
On September 12, 2003, Davis's July 2003 application for the vacant GS-14 position for Chicago District Director was certified "qualified as eligible" for a noncompetitive appointment by the Regional Human Resources Officer of the DOL in Chicago, Illinois. Def. Resp. 56.1 ¶ 28. Yet ultimately, Davis was not offered the position; instead Duane Grapperhaus ("Grapperhaus") was offered the position. PLtf. Resp. 56.1 ¶ 15. Grapperhaus applied for the position in 2002 when it was posted as a temporary assignment and Thomas allowed Grapperhaus to remain in the position when it was converted to a permanent assignment. Id. The parties dispute whether Thomas knew of Davis's application prior to making her hiring decision.*fn4 Pltf. Resp. 56.1 ¶ 15; Def. Resp. 56.1 ¶ 31. Thomas cancelled the vacancy announcement on September 19, 2003 after she hired Grapperhaus. Pltf. Resp. 56.1 ¶ 16; Def. Resp. 56.1 ¶ 29.
On October 23, 2003, the DOL denied Davis's May 13, 2003 request for permanent assignment to Chicago. Def. Resp. 56.1 ¶ 32. In his letter, Melvin relayed Dr. Presant's conclusion to Davis that although she suffered from a "qualifying disabling medical condition" there was "no medical evidence" that she was incapable of performing the essential functions of her Deputy Director position in Washington D.C. Id. Because the medical record did not establish that she required an accommodation to perform the essential functions of her position, Melvin denied Davis's permanent reassignment request and directed her to return to her Washington D.C. duty station at the conclusion of her second 120-day temporary detail. Id.; Def. Resp. 56.1 ¶ 17.*fn5 Melvin asked Davis to advise the DOL if her condition changed so that it could address any future need for an accommodation. Pltf. 56.1 Resp. at 17.
In October 2003, while Davis was on temporary detail in Chicago, the Chicago Office posted two GS-14 vacancies entitled Program Analysis Officer and Director of Planning and Support. Def. Resp. 56.1 ¶ 33. Michelle Ouellet ("Ouellet"), the Director of Management Administration and Planning at the OFCCP in Washington D.C., contacted Thomas in Chicago and asked Thomas to consider Davis for the vacant GS-14 position of Director of Planning and Support. Def. Resp. 56.1 ¶¶ 4, 34. Thomas replied, "She needs to apply like everyone else. That is up to Ms. Zeigler." Id. Both GS-14 vacancies were cancelled on or before October 28, 2003 and the positions have never been filled. Id.; Davis Ex. Z; Def. 56.1 ¶ 19. The parties dispute whether the OFCCP's National Office planned to reduce the number of district directors in the district offices in 2001. Pltf. Resp. 56.1 ¶ 5.*fn6 However, it is undisputed that the Midwest Region reduced the number of district directors from ten to three from 2001 to the present. Pltf. Resp. 56.1 ¶ 5.
Davis's second 120-day detail was scheduled to expire on October 31, 2003. After denying Davis's May 13, 2003 request for permanent reassignment, the DOL granted Davis's request for a 30-day extension on her temporary duty assignment. Pltf. Resp. ¶ 18. Davis contacted an EEO counselor regarding her complaints on November 4, 2003 and filed an informal complaint on November 13, 2003. Def. Resp. 56.1 ¶ 35; Pltf. Resp. 56.1 ¶ 22.*fn7 ...