The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
Plaintiff Alice Slater ("Slater") brings suit against her former employer, the Social Security Administration ("SSA"), pursuant to Title VII of the Civils Rights Act of 1964, 42 USC 2000e-2, the American with Disabilities Act of 1990 ("ADA"), 42 USC § 12101 et seq, and the Rehabilitation Act of 1973 ("RHA"), 29 USC § 701 et seq. Pl Compl (Doc #1). Before the court are the parties' cross-motions for summary judgment on Slater's claims for disparate treatment and hostile work environment.
For the reasons that follow, the court GRANTS the SSA's motion and TERMINATES as moot Slater's cross-motion inasmuch as these motions pertain to Slater's disparate treatment claim. The court RESERVES ruling on Slater's hostile work environment claim.
In October 1982, Slater developed multiple sclerosis ("MS"). Doc #38 at 2. In September 1987, she was hired by the SSA as an Equal Opportunity Assistant. See Benton Dec (Doc #30), ¶3, Exhibit A, Deposition of Alice Slater ("Slater Depo") at 17:12-20. In 1988, Slater became a tele-service representative ("TSR") receiving incoming calls. Slater Depo at 17:21-23. The TSR position required Slater to sit at a desk for several hours each day. Her tasks included: (1) handwriting and completing forms, (2) using a video-display terminal to input data, (3) reading manuals, computer printouts and correspondence, (4) communicating by telephone with the public, (5) understanding and performing various computations and (6) analyzing and comprehending various social security procedures, laws and systems. Slater Depo at 22:19-23, 23:1-12, 25:6-10; see also Admin Rec ("AR") at 759-760.
Beginning in 1991, various accommodations for Slater's MS condition were made by the SSA. For example, on June 13, 1991, SSA granted Slater's request to use "leave" to compensate for her habitual tardiness (due to fatigue caused by her MS). AR at 747-48. These accommodations varied slightly between 1991 and 1996; but, in essence, Slater was afforded flexibility regarding her arrival time to work. See eg, AR at 748-57.
On December 12, 1996, Slater's accommodations were modified: Her ability to arrive to work late was drastically limited. AR at 777. Slater's tardiness, however, did not decrease. The narrowed accommodations, Slater's increased tardiness and increased enforcement by the SSA combined to create a series of escalating disciplinary actions being taken against Slater. These disciplinary actions included an official reprimand, sick leave restriction and a suspension. AR at 1575 (official reprimand); AR at 1570 (sick leave restriction); AR at 1472 (suspension).
Further adding to Slater's problems, sometime after Mary Ayers assumed the position of tele-service conference manager, SSA implemented a policy preventing employees from leaving their workstation for any reason, including bathroom usage, outside of their official break times. Pl Opp (Doc #53) at 8:1-6. Slater asserts that she suffered from "bladder and bowel incontinence" associated with her MS. Doc #46 at 7.
On August 5, 1997, Slater was completely absent from work and was charged with absence without leave pending medical documentation. Slater Depo at 61:17-72:22. On August 8, 1997, in response to a request for medical documentation from her supervisor, Slater stated that she had suffered from menstrual cramps on August 5 and had not seen a doctor for that condition. Consequently, Slater told her supervisor that she did not have the required medical documentation. Slater Depo, 62-65:1-22; AR 846-848, 941. Slater's supervisor, however, repeated the request for medical documentation. AR 848, 941. Slater responded that she could provide a used sanitary napkin as proof of her menstrual cramps. Id. Her supervisor, not surprisingly, told Slater this comment was highly inappropriate. Id. After lunch, the supervisor returned to find a bloodied sanitary napkin on his desk. See AR at 1505; Slater Depo at 68:24-70:9. What is more, Slater also made a photocopy of the bloodied sanitary napkin using the work photocopier and distributed copies to her co-workers. Slater Depo at 71:16-72:22. Dried blood was subsequently found on the photocopier after this episode. See AR at 224.
On December 1, 1997, Slater was terminated based upon her August 8, 1997, conduct. AR at 2062-74. Specifically, Slater was terminated based on two charges: (1) insolent disrespect and disruptive conduct and (2) misuse of the SSA's photocopier. AR at 362.
Slater unsuccessfully appealed her termination to the Merit Systems Protection Board ("MSPB"). AR at 324-56. On October 26, 1998, Slater filed a petition for review with the MSPB; the petition was denied. AR at 235, 239-42. On July 11, 1999, Slater filed a petition with the Equal Employment Opportunity Commission ("EEOC") for review of the MSPB's decision. AR at 235. On June 9, 2000, the EEOC denied Slater's petition. AR at 223-28.
On July 10, 2000, Slater, acting in pro per, filed the current suit. Doc #1 (Compl). In her complaint, Slater alleges that the SSA discriminated and retaliated against her "on the basis of her disability [by:]  revoking [the] agreed upon reasonable accommodation for her [MS],  subjecting her to progressive disciplinary actions,  harassing her by abusing [its] management authority and  terminating her from her federal employment services." Id at ¶9. These actions were allegedly taken with the "intent and purpose of discriminating against [Slater] on the [sic] account of her disability and previous EEO[C] complaint activity." Id at ¶10. Further, Slater alleges that the SSA created an "intolerable working condition" for her. Id at ¶14.
On January 9, 2003, SSA made a motion for summary judgment on Slater's disability discrimination claims for unlawful termination, unreasonable accommodation and retaliation. Doc #29. On February 5, 2004, the court GRANTED SSA's motion. Doc #44. The court noted, however, that SSA had failed to address Slater's allegations regarding: (1) intolerable working conditions, (2) harassment and (3) progressive disciplinary actions (the "remaining allegations"). While the court did not determine whether the remaining allegations stated a claim, the court treated SSA's motion as a motion for partial summary judgment and gave SSA an opportunity to address these allegations in a second motion for summary ...