United States District Court, District of Columbia
RUDOLPH CONTRERAS, District Judge.
Henry Geter, a former employee of the Government Publishing
Office ("GPO"), alleges in a one-count complaint
that the defendant, the GPO, violated the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, et.
seq., and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et. seq. Specifically, Geter, who purports to
weigh nearly 300 pounds and suffers from a back injury,
claims that the GPO failed to accommodate his disability,
intentionally discriminated against him after he engaged in
statutorily protected activity, and harassed him. See Compl.
at 1, 3, ECF No. 1. Geter is also suing the GPO for
discrimination based on race and age and for intentional
infliction of mental harm. See id.
filed his complaint on June 18, 2013. See Compl. The GPO
filed a motion for summary judgment on July 8, 2015. See
Def.'s Mot. Summ. J. at 1, ECF No. 35. Geter filed a
memorandum in opposition to GPO's motion for summary
judgment on July 22, 2015. See Pl.'s Opp'n to
Def.'s Mot. Summ. J. & in the Alt. Pl.'s Mot. Summ.
J. ("Pl.'s Opp'n & Mot.") at 1, ECF No. 40.
The GPO filed a reply on August 3, 2015. See Def.'s Reply
Pl.'s Opp'n Def.'s Mot. Summ. J.
("Def.'s Reply") at 1, ECF 41. For the reasons
set forth below, the GPO's motion for summary judgment
will be granted.
moves for summary judgment on the claims of race and age
discrimination, arguing that Geter failed to exhaust
administrative remedies and has failed to contradict the fact
that he did not exhaust his administrative remedies.
Def.'s Mot. Summ J. at 19-20. Because Geter has failed to
exhaust all administrative remedies and failed to contradict
that fact, the GPO's motion for summary judgment will be
granted on these two claims.
further moves for summary judgment on plaintiff's tort
claim of intentional infliction of mental harm. Id.
at 18. The GPO argues that Geter failed to properly submit
this tort claim to the GPO, an administrative agency, before
filing a complaint and that Geter has failed to contradict
that fact. Id . Because Geter failed to submit an
administrative tort claim of intentional infliction of mental
harm to the GPO before filing a complaint in district court
and has failed to respond to the GPO's factual assertion
that he has failed to do this, the GPO's motion will also
be granted on this claim.
also moves for summary judgment on Geter's claim of
retaliatory discrimination. See id. at 10-18. Because the GPO
demonstrated that Geter cannot prove retaliatory
discrimination, the GPO is granted summary judgment on that
claim. Additionally, because Geter failed to show that he is
a qualified individual under the ADA, summary judgment will
also be granted for Geter's claim of failure to
the GPO moves for summary judgment on Geter's retaliatory
hostile work environment claim, arguing that Geter failed to
establish that the GPO retaliated against him. Id.
at 13-18. Because the GPO has demonstrated that Geter can
establish neither a retaliatory hostile work environment
claim nor a claim of harassment based on disability, the
GPO's motion for summary judgment will also be granted on
these two claims.
has worked for the GPO on and off since 2002. See Gregory
Robinson Dep. Tr. (Aug. 28, 2014) at 13:12, Def.'s Mot.
Summ. J. Ex. 3, ECF No. 35-3. Geter started out as a helper
to the motor vehicle operator but eventually was promoted to
motor vehicle operator himself. See id. at 15:7-8. As a motor
vehicle operator, Geter was required to have a valid
commercial driver's license and the ability to "load
and unload by hand cartons weighing up to 50 pounds."
GPO Motor Vehicle Operator Job Description at 2 ("Job
Description"), Def.'s Mot. Summ. J. Ex. 1, ECF No.
35-2; see also Aff. Henry Geter ¶ 3 (July 22, 2015),
Pl.'s Opp'n & Mot. Ex. 9 ("Geter Aff."),
ECF No. 40-3.
March 25, 2009, Geter injured his back while on the job and
eventually stopped working. See Mem. from Gregory
Robinson to Office of General Counsel (Sept. 10, 2014),
Def.'s Mot. Summ. J. Ex. 6 ("2014 Robinson
Mem."), ECF No. 35-5. On June 29, 2009, Gregory
Robinson, Chief of the Delivery Section where Geter worked,
sent a letter to Geter informing him that he was being fired
for being absent without leave ("AWOL") and for
violating GPO's leave policy. See Letter from Gregory
Robinson to Henry Geter (June 29, 2009), Def.'s Mot.
Summ. J. Ex 7, ECF No. 35-6. Geter's termination became
effective August 6, 2009. See Settlement Agreement at 1 (Nov.
18, 2009) ("Settlement Agreement"), Def.'s Mot.
Summ. J. Ex. 8, ECF No. 35-7. Geter filed an appeal of the
August 6, 2009 removal with the Merit Systems Protection
Board ("MSPB") Washington Regional Office on
September 4, 2009. Id. at 5. The GPO and Geter
reached a settlement with the GPO reversing the August 6,
2009 removal and reinstating Geter to his motor vehicle
operator position. Id. at 1-2.
had Dr. Kevin Hanley, a medical examiner for the Department
of Labor Office of Workers' Compensation Programs
("OWCP"), evaluate Geter's physical health as a
result of his March 25, 2009 injury. Dr. Hanley issued a
medical examination report on May 24, 2010 explaining that,
due to Geter's March 25, 2009 injury and Dr. Hanley's
desire to give Geter the benefit of the doubt, he would
restrict Geter's lifting to 45 pounds. See Dr. Kevin
Hanley Med. Exam Rep. at 2 (May 24, 2010), Def.'s Mot.
Summ. J. Ex. 2 ("Hanley Rep."), ECF No.
44. On June 7, 2010, Geter and his
supervisors had a phone conference, and the GPO asked Geter
to return to work on June 21, 2010. See E-mail from Gregory
Robinson to Larry Brooks (June 7, 2010), Def.'s Mot.
Summ. J. Ex. 9, ECF No. 35-8. Geter refused to return to
work. See id.
sent Geter a job offer on June 14, 2010 for a "motor
vehicle operator [position] with a restriction of not lifting
more than 45 lbs. for six months." Letter from John
Sturniolo to Henry Geter at 1 (June 14, 2010), Def.'s
Mot. Summ. J. Ex 11, ECF No. 35-10. Geter believed that he
was not yet physically fit to return to work, so he visited
his personal doctor, Dr. Hampton Jackson, to treat his back
injury. Dr. Jackson issued a report on June 15, 2010 that
stated, due to the March 25, 2009 injury, Geter was "not
to lift 65 pounds, push or pull 65 pounds" for six
months. See Dr. Hampton Jackson Med. Exam Rep. at 1 (June 15,
2010), Def.'s Mot. Summ. J. Ex. 39 ("First Jackson
Rep."), ECF No. 47. On June 24, 2010, Geter turned down
the June 14, 2010 job offer. See Position Acceptance Form
(June 24, 2010), Def.'s Mot. Summ. J. Ex. 13, ECF No.
Geter turned down the June 14 job offer, the OWCP sent a
letter to Geter on July 14, 2010 "rejecting [the] June
15, 2010 report from Dr. Jackson" and "giving Geter
30 days to accept the position of truck driver" or face
termination. Def.'s Mot. Summ. J. at 5; Letter from John
Sturniolo to Henry Geter (July 14, 2010), Def.'s Mot.
Summ. J. Ex. 14, ECF No. 35-13. Geter went back to Dr.
Jackson to clarify that he was still not yet physically
capable and ready to return to work. See Dr. Hampton Jackson
Med. Exam Rep. at 1 (July 27, 2010), Def.'s Mot. Summ. J.
Ex. 39 ("Second Jackson Rep."), ECF No. 47. Dr.
Jackson issued a report on July 27, 2010 that stated, due to
the March 25, 2009 injury, Geter should be on "lifting
restrictions [of] 10-15 pounds, but in light duty capacity.
Fifteen pounds is his absolute limit[.]" Id.
August 3, 2010, the OWCP terminated Geter's benefits
because he refused to accept suitable work, which the OWCP
contends is prohibited under 5 U.S.C. § 8106(c)(2). See
Notice of Decision Letter from John Sturniolo to Henry Geter
at 1 (Aug. 3, 2010), Def.'s Mot. Summ. J. Ex. 15
("Notice of Decision"), ECF No. 35-14. Geter claims
that he returned to work on August 6, 2010, see Pl.'s
Opp'n & Mot. at 2, however, the GPO claims that he
returned to work on August 16, 2010, see Def.'s Mot.
Summ. J. at 5.
and the GPO differ slightly as to the events on August 17,
2010 that give rise to Geter's current claims.
Geter's immediate supervisor is Gerald Simms. Def.'s
Mot. Summ. J. at 4; Pl.'s Opp'n & Mot. at 2. Both
parties agree that Simms ordered Geter to drive a GPO truck
from the "lower lot up to the [p]latform."
Pl.'s Opp'n & Mot. at 3; see also Def.'s Mot.
Summ. J. at 5 ("from the loading dock to the parking lot
at GPO and to bring back another vehicle."); Mem. from
Gregory Robinson to Henry Geter at 1 (Sept. 10, 2010),
Def.'s Mot. Summ. J. Ex. 17 ("2010 Robinson
Mem."), ECF No. 35-16. In order to drive the truck,
Geter claims that he had to "pull himself up to get into
the truck." Pl.'s Opp'n & Mot. at 3. Geter
claims that part of the restriction that he lift no more than
10-15 pounds (light duty) is that Geter never pull himself up
into the truck, because Geter weighs nearly 300 pounds which
is more than 10-15 pounds. Id . Geter claims that
when he informed Simms that he was on light duty because of
his March 25, 2009 injury and that driving a truck violated
his light duty restriction, Simms "ordered him to drive
the truck or clock out of work." Id. at 4.
Geter claims that he then asked for a back brace but was
denied by Simms. Id . "Simms then told
him to go drive the truck or be escorted out of the building
by the GPO police." Id. at 4. When Geter
went to drive the truck [he] heard and felt a crack in his
back when he pulled himself up by the truck handle. Geter
immediately felt severe back pain and spasms in his back.
When Geter informed Simms what happen [sic] and that he
needed to go to the doctor to check his back Simms denied his
request. Simms told him that he had no leave or annual leave
and that he was not hurt and to get back to work or he would
be considered LOWP. Geter continued to work in pain.
Opp'n & Mot. at 4; see also Geter Aff. ¶¶ 9-12.
asserts in contrast that:
Upon completing the assignment, Geter told his immediate
supervisor, Mr. Simms, that climbing into the truck hurt his
back. When Mr. Simms asked if he was injured, Geter replied
that he was not. Both Mr. Simms and, later, Mr. Robinson
asked Geter if he needed to go to the medical unit and both
times he answered that he did not.
Mot. Summ. J. at 5 (citations omitted); see also 2010
Robinson Mem.; Pl.'s Opp'n & Mot. at 11.
claims that he "stayed at work form [sic] August 18 -
August 23, 2010, hurt and on light duty on the Platform and
not driving a truck in the delivery department."
Pl.'s Opp'n & Mot. at 7. On August 23, 2010,
Simms again told Geter to get a truck even though he was
still on light duty on August 23, 2010. In this incident
Simms directed Geter to get another truck after he was
injured getting a truck on August 17, 2010. Not to get hurt
further, Geter again refused to drive a truck after being
ordered by Simms. Simms ordered Geter to clock out and leave
the building. Mr. Geter complied with Mr. Simms [sic] order
and went home. Mr. Simms docketed [sic] Mr. Geter 3 hours of
leave without pay for failing to follow [a] supervisor's
instructions[, ] delay in carrying out orders, work
assignments and instructions of a supervisor.
11-12; compare Geter Aff. ¶¶ 10-13; with Def.'s Mot.
Summ. J. at 5 ("After these events, on August 23, 2010,
Geter refused to carry out an assignment to drive a truck
with a helper to deliver materials to Congress."). Geter
alleges that "[w]hen Geter did not return to work in
September 2010 [after the August 17, 2010 incident], Gregg
Robinson fired Plaintiff Geter [a second time] for AWOL in
November 2010." Pl.'s Opp'n & Mot. at 12; see
also Compl. ¶ 9.
sought counseling with the GPO's equal employment
opportunity ("EEO") office on October 7, 2010.
Pl.'s Opp'n & Mot. at 9; Def.'s Summ. J. Mot. at
8; see also EEO Couns. Rep. at 1, Def.'s Summ. J. Mot.
Ex. 29, ECF No. 35-27. Geter filed a formal complaint of
discrimination on November 19, 2010. Pl.'s Opp'n &
Mot. at 9; Def.'s Summ. J. Mot. at 8; EEO Compl.,
Def.'s Summ. J. Mot. Ex. 30 ("EEO Compl."), ECF
No. 35-28. "His complaint alleged discrimination on the
bases of physical disability because of his back injury and
retaliation and harassment." Pl.'s Opp'n & Mot.
at 9; see also Def.'s Summ. J. Mot. at 8. The complaint
was accepted in part and denied in part on July 25, 2011. See
Pl.'s Opp'n & Mot. at 9; Def.'s Summ. J. Mot.
at 8; Letter from Nadine Elzy to Donald Johnson at 3 (July
25, 2011), Def.'s Summ. J. Mot. Ex. 30A ("EEO
Acceptance Letter"), ECF No. 35-29. The GPO in its
partial acceptance of Geter's EEO complaint reviewed the
Whether the claimant was subjected to harassment (non-sexual)
and unfair conditions of employment on the bases of
retaliation and disability (physical). Specifically, he
alleges that on September 1, 2010, during a meeting with
management, he learned that they had ignored the medical
restrictions imposed in the orders of the Department of Labor
(DOL) physician, by assigning him the duties of a driver on
August 17, 2010, which exceeded the 45 pound lifting
Acceptance Letter at 1; see also Def.'s Summ. J. Mot. at
8; EEO Decision at 2, Def.'s Summ. J. Mot. Ex. 31
("EEO Decision"), ECF No. 35-30.
has alleged that "[t]he EEOC did not reach a decision
and Geter decided to opt out and file in this Court because
of how long it was taking." Pl.'s Opp'n & Mot.
at 9. However, "[o]n March 18, 2013, the EEO found in
favor of GPO and dismissed all of Geter's claims."
Def.'s Summ. J. Mot. at 8; see also EEO Decision at 10.
Geter filed the instant action on June 18, 2013. Compl. at 1.
Rule 56 of the Federal Rules of Civil Procedure, a court may
grant summary judgment if the pleadings and any affidavits or
declarations show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law. See Fed.R.Civ.P. 56(a). The moving party
bears the burden of demonstrating the absence of a genuine
issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The court
"should review all of the evidence in the record...
[and] draw all reasonable inferences in favor of the
nonmoving party." See Reeves, 530 U.S. at 150.
A genuine issue for trial exists if "the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, "[t]he
mere existence of a scintilla of evidence" in support of
a nonmoving party's position is not sufficient to create
a genuine issue of material fact. Id. at 252.
"Material facts are those that ...