The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Ronald Eugene DuBerry alleges that the District of Columbia Department of Corrections, by including him in a reduction in force ("RIF") and by refusing to rehire him, violated (1) the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.;*fn1 (2) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (3) 42 U.S.C. § 1983 ("Section 1983"); (4) 42 U.S.C. § 1981 ("Section 1981"); and (5) the District of Columbia Human Rights Act ("D.C. Human Rights Act"), D.C. Code § 2-1401 et seq. Before the Court are the District of Columbia's motion for summary judgment on all claims and Mr. DuBerry's cross motion for partial summary judgment on his ADA claims. For the reasons explained below, the Court will grant the District's motion with respect to Mr. DuBerry's Title VII claim, Section 1983 claim, and Section 1981 claim, deny the District's motion with respect to all other claims, and deny Mr. DuBerry's cross motion for partial summary judgment on his ADA claims.
Mr. DuBerry, a 56-year-old African American male,began working as a corrections officer for the District of Columbia Department of Corrections in 1985. In 1997, the Department promoted Mr. DuBerry to the rank of captain, a supervisory correctional officer, and assigned him to the Youth Center at the Lorton Correction Complex as the Shift Commander on the Number Two shift. The Department operates three shifts at its facilities: the Number One shift runs from 11:30 p.m. to 8:00 a.m.; the Number Two shift runs from 7:30 a.m. to 4:00 p.m.; and the Number Three shift runs from 3:30 p.m. to 12:00 a.m.
Mr. DuBerry was diagnosed with diabetes on January 17, 1998. Pl.'s Mem. in Supp. of Summ. J. ("Pl.'s Mem."), Ex. 1 (Ronald DuBerry Aff. ("DuBerry Aff.")¶ 5). Mr. DuBerry's condition requires him to eat meals at designated times and prevents him from skipping meals. Id. ¶ 8. Based on the results of his blood sugar tests, Mr. DuBerry must often change his diet on short notice. Id. ¶ 10. Mr. DuBerry's strict eating and blood sugar testing schedule requires that he plan the timing of his meals in advance and not depart from the planned schedule. Id. ¶ 11. Deviation from the planned eating and blood-sugar-testing schedule could result in mild and severe bodily reactions, including blurred vision and sweating, as well as circulatory problems, heart disease, kidney failure, blindness, shock, and diabetic coma. Id. ¶ 7.
On June 30, 1998, the Department informed Mr. DuBerry that he would be transferred to the Number Three shift effective July 19, 1998. Mr. DuBerry requested an accommodation because he believed working the Number Three Shift would be incompatible with the diabetes treatment regimen prescribed by his physician. Id. ¶¶ 15, 16. The Department denied his accommodation request and transferred Mr. DuBerry to the Number Three Shift on July 19, 1998. Mr. DuBerry used 208 hours of sick leave during the three months that he worked on the Number Three shift to accommodate his diabetes treatment regimen. Id. ¶ 18. In response to numerous accommodation requests, the Department transferred Mr. DuBerry to the Number One shift on October 18, 1998. Mr. DuBerry was able to resume his normal diabetes treatment regimen while assigned to the Number One shift. Id. ¶ 23.
On December 3, 2000, the Department transferred Mr. DuBerry to the Number One shift at the D.C. Jail. In June 2001, the Department again sought to transfer Mr. DuBerry to the Number Three shift, this time at the D.C. Jail. Mr. DuBerry again requested an accommodation on numerous occasions from supervisory personnel based on his belief that the Number Three shift's schedule interfered with his diabetes treatment regimen. Id. ¶¶ 33-35. Thereafter, the Department decided to retain Mr. DuBerry on the Number One Shift at the D.C. Jail.
In January 2002, the Department again sought to transfer Mr. DuBerry to the Number Three shift at the D.C. Jail, and Mr. DuBerry twice more requested an accommodation. Id. ¶¶ 38, 40. Mr. DuBerry also filed a Complaint alleging a violation of equal employment opportunity ("EEO") laws with the Department's EEO Officer. The Department never responded to Mr. DuBerry's EEO Complaint. Instead, on February 11, 2002, the Department placed Mr. DuBerry's position on a list of those positions to be included in the third phase of a RIF at the Lorton Central Facility.*fn2 The two other non-disabled captains then employed by the Department were not selected for inclusion in the RIF. On March 1, 2002, the Department sent Mr. DuBerry a letter informing him that his position would be eliminated effective March, 18, 2002. After receiving the letter, Mr. DuBerry elected to retire on March 18, 2002, in lieu of being involuntarily separated in order to preserve his retirement benefits.
On December 24, 2002, Mr. DuBerry applied for a vacant captain position at the Department. The Department rejected Mr. DuBerry's application on March 21, 2003, although a draft rejection letter had been composed as early as January 27, 2003. On February 6, 2003, the Department posted Position Vacancy Announcement No. FL(25)03-05 seeking applicants for six supervisory correctional officers. The Announcement was open to the general public. Mr. DuBerry applied for those positions. The Department rejected his application because it had allegedly determined to cancel the Announcement on April 30, 2003. On May 8, 2003, the Department posted Position Vacancy Announcement No. FL(25)03-07 again seeking applicants for six supervisory correctional officers. This time, however, only Department employees were eligible to apply. The Department promoted six lieutenants into the available captain positions.
Mr. DuBerry filed a charge with the Equal Employment Opportunity Commission ("EEOC") on December 3, 2002, alleging that the Department discriminated and retaliated against him because of his disability when it selected him for inclusion in the Lorton RIF. While the charge was pending investigation, Mr. DuBerry subsequently complained to the EEOC that the Department promoted a non-disabled lieutenant to captain. See Pl.'s Reply in Supp. of Summ. J., Ex. 69 (Complainant's Response to EEOC ("DuBerry EEOC Response")). On July 27, 2004, the EEOC issued a right-to-sue-letter, notifying Mr. DuBerry of the EEOC's determination that it was unable to conclude that the information established any violations of the applicable statutes. Mr. DuBerry, proceeding pro se at that time, filed a Complaint in this Court on September 27, 2004. By Order dated September 20, 2005, the Court dismissed Mr. DuBerry's ADA and Title VII claims that arose pre-separation because Mr. DuBerry failed to exhaust his administrative remedies with respect to those claims. The District now moves for summary judgment on all claims, and Mr. DuBerry cross moves for partial summary judgment on his ADA claims.
II. SUMMARY JUDGMENT STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion . . . 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, 477 U.S. at 322. To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248. A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] 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, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).