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Geter v. Government Publishing Office

United States District Court, District of Columbia

June 23, 2016

HENRY GETER, Plaintiff,
v.
GOVERNMENT PUBLISHING OFFICE, Defendant.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, District Judge.

         Plaintiff 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.

         Geter 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.

         The GPO 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.

         The GPO 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.

         The GPO 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 accommodate.

         Finally, 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.

         BACKGROUND

         Geter 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.

         On March 25, 2009, Geter injured his back while on the job and eventually stopped working.[1] 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.

         The GPO 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.[2] 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.

         The GPO 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. 35-12.

         After 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[.]"[3] Id.

         On 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.[4]

         Geter 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.[5] 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 eventually

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.

         Pl.'s Opp'n & Mot. at 4; see also Geter Aff. ¶¶ 9-12.

         The GPO 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.

         Def.'s Mot. Summ. J. at 5 (citations omitted); see also 2010 Robinson Mem.; Pl.'s Opp'n & Mot. at 11.

         Geter 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.

         Id. at 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.

         Geter 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;[6] 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 following claim:

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 restrictions.

         EEO 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.

         Geter 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.

         DISCUSSION

         Under 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 ...


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