The opinion of the court was delivered by: JOHN H. PRATT
Before the Court are plaintiff's Motion for Partial Summary Judgment as to Counts I and II of his Amended Complaint and defendants' Motion for Partial Summary Judgment as to Count I and to Dismiss Counts II and III. There has been full discovery and the issues have been extensively briefed. For the reasons given below, we deny plaintiff's motion and grant defendants' motion.
Plaintiff, Ilmar Paegle, has been an officer with the United States Park Police ("Park Police"), a subdivision of the Department of Interior, for the last nineteen years. In November 1987, plaintiff was a "private" in the Alcohol/Speed Enforcement Unit within the Patrol Branch and took an exam offered to officers interested in promotion from "private" to "sergeant." Plaintiff was informed that, based on his test results and his paperwork, he ranked twenty-first on the list of candidates eligible for promotion and that he would be promoted in that rank order. Subsequently, the Park Police notified plaintiff that he was to be promoted on November 20, 1988, and solicited plaintiff's choice of patrol and communication sergeants' positions for the new assignment. Plaintiff informed the Park Police that he wished to be elevated to the patrol sergeant's position in District One.
On November 7, 1988, before plaintiff was scheduled to take his new position, he was informed that he could not be promoted while on limited duty. A superior explained to plaintiff that it was a general, unwritten policy not to promote persons who were unable to perform the full range of police duties. Plaintiff was subsequently passed over for promotion on November 20, 1988, while five persons ranking below him on the list received promotions.
He was eventually promoted to patrol sergeant on August 21, 1989, following his return to full duty on July 21, 1989.
Plaintiff filed the present suit in January 1991 to contest the nine month delay in his promotion. In Count I of his Amended Complaint, plaintiff alleges that defendants violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Supp. 1992), (hereinafter "Rehabilitation Act") by failing to reasonably accommodate his needs despite his known handicap. Plaintiff also alleges that the delay in promotion violated his rights under the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 2301 et seq. (Supp. 1992) (Count II), and under the due process and equal protection clauses of the Fifth Amendment (Count III). Plaintiff seeks an injunction awarding him back pay for the period between November 20, 1988 and August 21, 1989, placement on the sergeant's priority list dating from November 20, 1988, and costs and attorney's fees.
This matter comes before the Court upon dispositive motions filed by both parties. Plaintiff has moved for partial summary judgment with respect to Counts I and II, the handicap discrimination and CSRA claims respectively. Defendants have also moved for partial summary judgment with respect to the handicap discrimination claim, and have moved to dismiss Counts II and III primarily on the grounds that the Rehabilitation Act constitutes plaintiff's exclusive remedy.
A. Rehabilitation Act Claim
In reviewing plaintiff and defendants' motions for summary judgment with respect to plaintiff's Rehabilitation Act claim, this Court may award summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In the present case, the parties do not dispute the facts, but differ over whether plaintiff has a valid cause of action under Section 504 of the Rehabilitation Act. That section provides, in part, that:
No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title shall, solely by reason of her or his handicap, 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.
29 U.S.C. § 794(a) (Supp. 1992). If the individual is a "qualified handicapped . . . employee," government agencies employing such individuals are required to make "reasonable accommodation to the known physical ...