United States District Court, District of Columbia
RUDOLPH CONTRERAS, United States District Judge
Defendant's Motion for Summary Judgment; Granting
Plaintiff's Motion for Leave to File Exhibits
Mr. Bruce Harris, brings Rehabilitation Act claims against
his employer, the Department of Transportation. The
Department reassigned Mr. Harris to a different job when his
disability prevented him from completing his original job
duties. Mr. Harris argues that the Department reassigned him
into a job for which he was not qualified instead of other
vacant jobs for which he was qualified, thereby
discriminating against him by failing to provide a reasonable
accommodation for his disability. Mr. Harris also argues that
his reassignment constituted retaliation against him because
he requested a reasonable accommodation. The Department moves
for summary judgment on both claims. Because genuine issues
of material fact preclude summary judgment, the Court denies
the Department's motion.
Harris is a person with hearing impairments. Compl. ¶ 7,
ECF No. 1; Harris Dep. 5-6, ECF No. 17-4; Harris Decl. ¶
1, ECF No. 19-26. The Department of Transportation hired Mr.
Harris in 2012 as a Program Officer and Grant Manager within
the Federal Motor Carrier Safety Administration (FMSCA).
Harris Decl. ¶ 6, ECF No. 19-26. His Program Officer and
Grant Manager role at FMSCA was a GS-13 position in the 2101
Transportation Specialist series. Harris Decl. ¶ 6, ECF
No. 19-26. FMCSA is one of several operating administrations,
or modes, within the Department. Harris Decl. ¶ 6, ECF No. 19-26.
working as a Program Officer and Grant Manager, Mr. Harris
used a variety of accommodations for his hearing impairment,
including sign-language interpreters and a video-phone
system. Harris Dep. 18:13-24, ECF No. 17-4; Harris Decl.
¶ 7-8, ECF No. 19-26. At first, these accommodations
were apparently successful in enabling Mr. Harris to perform
his job. However, in early 2014 Mr. Harris began to
experience difficulties participating in conference calls of
twenty-five to thirty-five people. Poarch Aff. at 4-7, ECF
No. 19-18; Harris Dep. 27:15-24, ECF No. 17-4; Harris Decl.
¶ 9, ECF No. 19-26. Participation in these calls was an
increasing component of Mr. Harris's job. Harris Decl.
¶ 9, ECF No. 19-26. Even though sign-language
interpreters were active during the conference calls, Mr.
Harris still struggled to fully participate because, among
other issues, the interpreters had difficulty when multiple
people spoke simultaneously or when speakers did not identify
themselves. Harris Dep. 27-30, 36, ECF No. 17-4; Harris Decl.
¶ 9, ECF No. 19-26.
Harris and his supervisor discussed a variety of possible
accommodations to improve Mr. Harris's experience with
the conference calls. See Poarch Dep. 76:18-78:2,
ECF No. 17-5; Harris Dep. 34:15-36:6, ECF No. 17-4. However,
Mr. Harris concluded that none were effective and, in the
spring of 2014, requested reassignment to a different job as
a reasonable accommodation for his disability. Poarch Aff. at
6-7, ECF No. 19-18; Harris Dep. 51, ECF No. 17-4; see
also Email from Bruce Harris to Brandon Poarch (April
28, 2014, 4:37 PM), ECF No. 17-8 (requesting reasonable
accommodations due to the conference call issue); Email from
Brandon Poarch to Bruce Harris (May 28, 2014, 9:35 AM), ECF
No. 17-10 (stating that the reassignment process had begun).
initiating the formal process, the Department searched
informally for an appropriate reassignment but did not
identify any. Quade Aff. at 5, ECF No. 21-2. The Department
then initiated its formal process, known as a reasonable
accommodation reassignment search. Quade Aff. at 5, ECF No.
21-2. The Department has a procedure for such searches that
is memorialized in Department of Transportation Order
1011.1A. See generally Procedures for Processing
Reasonable Accommodation Requests from DOT Job Applicants and
Employees with Disabilities (DOT Order 1011.1A) (last updated
Sept. 19, 2014), https://
see also Order 1011.1A § 3.4, ECF No. 17-12.
theory, the Department's process works as follows. First,
the human resources specialist in the employee's home
operating administration collects application materials,
including a résumé and the employee's areas
of interest. Horne Dep. 10:9-12, 14:4-12, 16:19-22, ECF No.
17-2. Based on those materials, human resources identifies a
list of grades and series the employee would be qualified
for. Horne Dep. 10:9-12, 17:5, ECF No. 17-2. The application
materials and qualifications are then sent to the selective
placement program manager for the entire Department. Horne
Dep. 14:19-21, 23:3-6, ECF No. 17-2; Walker Dep. 4:16-19, ECF
No. 17-3. The selective placement program manager distributes
the materials to a group consisting of the “selective
placement coordinators in each one of the modes for the
Department of Transportation.” Walker Dep. 17:6-13, ECF
No. 17-3. The selective placement coordinators seek out
vacancies for which the employee is qualified, and, if any
are found, contact either the selective placement program
manager or the human resource specialist in the
employee's operating administration. Burnham Dep.
70:10-16, ECF No. 19-12.
Department attempted to use this process to reassign Mr.
Harris, and accordingly collected Mr. Harris's
application materials. Horne Aff. at 3, ECF No. 18-3. Human
resources determined that Mr. Harris was
the following series and grade levels:
Management / Program Analyst / Supervisory -in
either grants, finance, financial 
Financial Administrator / Supervisory
Accountant / Supervisory
Grants Management Specialist / Supervisory
from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6,
2014, 1:55 PM), ECF No. 19-28; see also Horne Dep. 32:11-18, ECF
No. 18-5 (“Q: . . . [D]o you have any role in
determining whether or not he's qualified for the
position? A: That was already determined. Q: Okay. And when
you said that, you were pointing to the email that you sent
on August 6th, 2014, at 1:55 p.m.? A: Yes.”); Horne
Aff. at 3, ECF No. 18-3 (“Michael Barber conducted an
analysis of [Mr. Harris's] qualifications . . .”).
Department's selective placement program manager emailed
Mr. Harris's materials and qualifications to all of the
selective placement coordinators. Walker Dep. 16:14-20:10, ECF No.
17-3; Email from Duronne Walker to multiple recipients (Aug.
19, 2014, 7:18 AM), ECF No. 17-15 (search email to selective
placement coordinators). The email requested that all
selective placement coordinators respond within thirty days.
Email from Duronne Walker to multiple recipients (Aug. 19,
2014, 7:18 AM), ECF No. 17-15. After the thirty-day period
had closed, the selective placement manager emailed the
selective placement coordinators again, stating that each
coordinator “absolutely ‘must' respond to
this inquiry. Also, keep in mind that in the near future
documentation may be asked of you justifying your responses
to this request” and requesting responses within the
next day. Email from Duronne Walker to multiple recipients
(Sept. 22, 2014, 11:47 AM), ECF No. 17-16. It is unclear if
any responses were received to the first request, and neither
party argues that any potential job vacancies were
unsatisfied with the results of the first search, a manager
at the Department's Disability Resource Center performed
a second search by emailing the selective placement
coordinators again. Burnham Dep. 76:21-78:5, ECF No. 17-9;
Email from Jonni Burnham to multiple recipients (Oct. 3,
2014, 3:59 PM), ECF No. 17-18 (second search email to
selective placement coordinators). Unlike the previous email,
this email provided in the body the list of grades and series
that “FMCSA has determined that [Mr. Harris] may be
qualified for.” Email from Jonni Burnham to multiple
recipients (Oct. 3, 2014, 3:59 PM), ECF No. 17-18. The second
search required the selective placement coordinators to
respond within sixty days. Email from Jonni Burnham to
multiple recipients (Oct. 3, 2014, 3:59 PM), ECF No. 17-18.
three of the operating administrations responded to the
second search. Email from Jonni Burnham to multiple
recipients (Dec. 3, 2014, 9:51 AM), ECF No.
17-17(“[O]nly three [operating administrations] have
responded to the request below.”). Other documents in the
record suggest that this poor response rate is par for the
course in the Department's reasonable accommodation
reassignment searches. ECF No. 19-11. Indeed, the selective
placement manager stated that, in his time in his job,
“two to five percent” of the people he had
searched for were reassigned. Walker Dep. 20:11-22, ECF No.
the three responses identified any potential vacancies for
Mr. Harris. Two of the modes stated they had found no
appropriate positions, and the third attached a list of all
open positions-none of which appeared to be appropriate.
Email from Jonni Burnham to Brandon Poarch (Dec. 3, 2014,
9:20 AM), ECF No. 17-17 (“FHWA responded that they are
under a hiring freeze. OIG responded that their search did
not find any positions for which the employee is qualified.
OST provided a list of all their vacancies[, ] most of which
are for series and grades that do not meet the search
criteria . . .”); see also Quade Aff. at 5,
ECF No. 21-2 (“The outcome was that no other modes
responded that they had a position.”). This result
confused Mr. Harris's supervisors in the Department.
See, e.g., Quade Aff. at 5, ECF No. 21-2 (“It
is difficult to believe that there were not vacant positions
in the entire Department for which he would qualify.”).
the reassignment process, Mr. Harris identified many jobs on
USAJOBS that he believed he was qualified for, and emailed
the postings to his supervisor and others. See,
e.g., Email from Bruce Harris to Brandon Poarch (July 3,
2014, 9:52 AM), ECF No. 18-8; Email from Bruce Harris to
Brandon Poarch (Aug. 7, 2014, 11:08 AM), ECF No. 18-10; Email
from Bruce Harris to Brandon Poarch (Aug. 13, 2014, 12:03
PM), ECF No. 18-11; Email from Bruce Harris to Lisa Horne
(Aug. 25, 2014, 4:33 PM), ECF No. 18-12; Email from Bruce
Harris to Lisa Horne (Aug. 29, 2014, 5:34 PM), ECF No. 18-13;
Email from Bruce Harris to Brandon Poarch (Oct. 2, 2014,
11:11 AM), ECF No. 19-1.
evidence in the record suggests that human resources or the
selective placement coordinators took any action concerning
the vacancies identified by Mr. Harris. The manager of the
Department's Disability Resource Center said that, if it
appeared that appropriate jobs were not being identified
through the search process, the human resources specialist in
the employee's operating administration or a supervisor
in human resources would be the appropriate person to
follow-up. Burnham Dep. 71:9-73:4, ECF No. 19-12. Here, no
evidence in the record indicates that such a follow-up was
performed. See, e.g., Horne Dep. 44:11-18, ECF No.
18-5 (testimony of FMSCA's human resources specialist
that she did not know if Mr. Harris was considered for the
positions he identified); Allen Dep. 24:3-25:11, ECF No.
19-14 (FMSCA's acting director of human resources
testifying that the human resources specialist did not
respond directly to his question about whether she had
followed up on the positions Mr. Harris had identified).
end, no jobs were identified through the formal agency-wide
search. The Department then pursued the
“non-traditional alternative” of reassigning
Mr. Harris into the Office of Acquisitions, still within
FMSCA. Quade Aff. at 5, ECF No. 21-2. The acquisitions job
was in either the 301 or 1102 series-neither of which was included in
the list of series Mr. Harris was qualified for according to
human resources. Cf. Email from Lisa Horne to Jonni
Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No.
19-28. Mr. Harris was offered the choice between accepting
the reassignment and staying in his current position with a
performance work plan. Poarch Aff. at 10, ECF No. 19-18. Mr.
Harris accepted the reassignment “under protest”
because he believed it would reduce his opportunities for
promotion. Email from Bruce Harris to Brandon Poarch (Jan.
23, 2015, 11:38 AM), ECF No. 17-24 (accepting the
acquisitions position “under protest” because
“[Mr. Harris] would be at least 5 years away from a
GS-14 promotion, plus the on[e] year in the 0301 position,
effectively making this position a demotion with reduced
promotional possibilities”); see also
Notification of Personnel Action, ECF No. 17-25. Mr. Harris
was officially offered reassignment to the Office of
Acquisitions as a GS-13 in January of 2015. Letter from
Brandon Poarch to Bruce Harris (Jan. 5, 2015), ECF No. 17-23.
the Office of Acquisitions job, the parties dispute whether
Mr. Harris was assigned work suitable for a GS-13. According
to Mr. Harris, he “was not assigned grade 13 work, but
instead, was assigned duties that are more typically
performed by a GS-8 level employee.” Harris Decl.
¶ 14, ECF No. 19-26; see also Harris Dep.
77:16-19, ECF No. 17-4 (“I found out . . . it would
take me three to five years to obtain enough experience to
function at the GS-13 level” in acquisitions); Harris
Decl. ¶ 15, ECF No. 19-26 (stating that Mr. Harris
“can neither do the work nor advance professionally
because . . . it would take at least 5 years to gain the
experience necessary to function at the GS-13 level in this
evidence in the record, especially the statements of Mr.
Harris's supervisor in acquisitions, indicates that he
was assigned work below the GS-13 level. See, e.g.,
Baker Aff. at 5, ECF No. 18-7 (“Mr. Harris had no prior
experience in the area of contracting, acquisitions and/or
procurement. Consequently, any person who cross-trains into
the field of contracting . . . must start work projects,
which equate in complexity to either a GS-07 or GS-08 grade
level. Mr. Harris having no prior contracting experience
should start his on the job training at the beginning, which
equates to being assigned tasks similar to those a GS-07 or
GS-08 would accomplish.”); Baker Aff. at 6, ECF No.
18-7 (“It is true that [Mr. Harris] has not been given
work commensurate with a GS-13 because he does not have the
skills, experience or certification to perform work at the
GS-13 level.”); Baker Aff. at 7, ECF No. 18-7
(“[M]ost persons who serve as GS-13 procurement
professionals typically have acquired at least 3 years of
procurement experience. Overall it is not realistic for Mr.
Harris to think he will catch up with the rest of the federal
government GS-13 1102 procurement professionals in just 52
short weeks when the other federal government GS-13 1102s
have worked in the procurement career-field for a minimum of
3 to 4 years.”); see also Cooper Dep.
14:2-15:2, ECF No. 21-7 (stating that “two to three
years' worth of training” would be required for a
person in Mr. Harris's position “to be a Grade 13
contracting officer” and that it would be
“possible” for a person to start in contracting
and be able to function as a Grade 13 in two to three years).
Department argues, to the contrary, that Mr. Harris was
sometimes able to perform GS-13 work. Reply Supp. Def.'s
Mot. Summ. J. (Def.'s Reply) at 8, ECF No. 21; see
also Cooper Dep. 12:17-22, ECF No. 21-7 (“I knew
from initial discussions with [Mr. Harris] that he had really
no contracting experience, but that wasn't a requirement
for him to come onto my staff”); Baker Dep. 19:10-12,
ECF No. 21-8 (“Q: And in your view, is he able to do
the duties of an 1102 at the GS-13 level? A: Sometimes yes,
Harris filed an EEO complaint concerning his allegations and
received a Final Agency Decision on December 11, 2015. Compl.
¶ 4, ECF No. 1. Mr. Harris initiated this suit shortly
after, raising claims of failure to provide a reasonable
accommodation and retaliation. See generally Compl.
The Department does not argue that Mr. Harris has failed to
exhaust his administrative remedies. Cf. Memroandum
[sic] P. & A. Supp. Def.'s Mot. Summ. J. (Def.'s
MSJ) at 9, ECF No. 17-1. The discovery period having
concluded, the Department now moves for summary judgment on
both claims. See generally Def.'s MSJ.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material” fact is one
capable of affecting the substantive outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
there is enough evidence for a reasonable jury to return a
verdict for the nonmovant. Scott v. Harris, 550 U.S.
372, 380 (2007). The burden is on the nonmovant to identify
specific facts in the record that reveal a genuine issue that
is suitable for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). When considering a motion for summary
judgment, the Court analyzes all underlying facts and
inferences in the light most favorable to the nonmovant,
Anderson, 477 U.S. at 255, and “eschew[s]
making credibility determinations or weighing the evidence,
” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.
The Rehabilitation Act
Harris pursues two claims under the Rehabilitation Act, 29
U.S.C. §§ 701 et seq.-discrimination based
on failure to provide a reasonable accommodation, and
establish a prima facie case of discrimination based on the
failure to accommodate under the Rehabilitation Act, a
plaintiff must proffer evidence from which a reasonable
fact-finder could find that (1) she had a qualifying
disability within the meaning of the statute, (2) her
employer had notice of the disability, (3) with reasonable
accommodation, she could perform the essential functions of
the position, and (4) she requested an accommodation but the
employer denied her request.” Doak v. Johnson, 19
F.Supp.3d 259, 273-74 (D.D.C. 2014), aff'd, 798
F.3d 1096 (D.C. Cir. 2015) (citation omitted).
reasonable accommodation may consist of reassignment to a new
job. See Norden v. Samper, 503 F.Supp.2d 130, 145
(D.D.C. 2007) (citing 42 U.S.C. § 12111(9)(B) and 29
C.F.R. § 1630.2(o)); 29 C.F.R. § 1630.2(o)(2))
(“Reasonable accommodation may include but is not
limited to: . . . reassignment to a vacant
position.”); 42 U.S.C. § 12111 (“The term
‘reasonable accommodation' may include . . .
reassignment to a vacant position . . .”). Indeed, when
an “accommodation cannot be made in the employee's
current position, the federal employer must consider
the feasibility of reassigning the disabled employee to a
vacant position.” Norden, 503 F.Supp.2d at
145-46 (emphasis added) (citing Carr, 23 F.3d at 530
and Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1301
(D.C. Cir. 1998)).
D.C. Circuit has outlined the applicable considerations in
reassigning an employee pursuant to a request for
accomodation. First, the employee must, “with or
without reasonable accommodation, [be able to] perform the
essential functions of the employment position to which [he
or] she seeks reassignment.” Aka, 156 F.3d at
1301 (citing Daugherty v. City of El Paso, 56 F.3d
695, 698-99 (5th Cir. 1995) (addressing the standard in an
ADA case, which has identical standards to the Rehabilitation
Act, see supra note 11)). The reassignment
“can only be to an existing, vacant job for which the
plaintiff is qualified, and positions to which other
employees have a ‘legitimate contractual or seniority
right' are not considered ‘vacant.'”
Alston v. Wash. Metro. Area Transit Auth., 571
F.Supp.2d 77, 84 (D.D.C. 2008) (quoting Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1170 (10th Cir. 1999) (en
regulations instruct employers to “reassign the
individual to an equivalent position, in terms of pay,
status, etc., if the individual is qualified, and if the
position is vacant within a reasonable amount of time.”
29 C.F.R. § Pt. 1630, App. Furthermore,
“[r]eassignment may not be used to limit, segregate, or
otherwise discriminate against employees with disabilities by
forcing reassignments to undesirable positions or to
designated offices or facilities.” 29 C.F.R. § Pt.
1630, App. However, the employer is not required to reassign
an employee to a job that would constitute a promotion, and
the “employer has the authority to pick and choose
which appropriate vacant job is to be offered to the
otherwise qualified disabled employee.”
Alston, 571 F.Supp.2d at 84 (quoting Midland
Brake, 180 F.3d at 1170); see also Johnson v.
Brown, 26 F.Supp.2d 147, 151 (D.D.C. 1998) (“Thus,
the regulations do not require an employer to promote an
employee to a higher wage level; nor do they require an
employer to create a position where no vacancy exists.”
(citing Mengine v. Runyon, 114 F.3d 415, 418 (3rd
Cir. 1997)). Indeed, not only is there no requirement that an
employer promote through reassignment, but an
employer may demote through reassignment if no
equivalent positions are available. See 29 C.F.R.
§ Pt. 1630, App. (“If . . . there are no vacant
equivalent positions for which the individual is qualified
with or without reasonable accommodation” then
“[a]n employer may reassign an individual to a lower
the plaintiff's duty to “demonstrate that there
existed some vacant position to which he [or she] could have
been reassigned.” Aka, 156 F.3d at 1304 n.27;
see also Alston, 571 F.Supp.2d at 82 (requiring the
plaintiff to show “that a reasonable accommodation was
possible and would have led to a reassignment
position”-in other words, the plaintiff “bears
both the burden of production and the burden of persuasion on
the question whether a suitable vacancy existed at the time
[she] sought transfer.” (first quoting Midland
Brake, 180 F.3d at 1174, then quoting Jackan v. N.Y.
State Dept. of Labor, 205 F.3d 562, 567 (2d Cir. 2000));
Faison v. Vance-Cooks, 896 F.Supp.2d 37, 60 (D.D.C.
2012) (“[I]t is the plaintiff's burden to identify
available positions and to demonstrate that she was qualified
for those positions.” (citations omitted)).
the reassignment process, both parties are obligated to
proceed in a “reasonably interactive manner.”
Norden v. Samper, 503 F.Supp.2d 130, 145-46 (D.D.C.
2007) (citing Midland Brake, 180 F.3d at 1173).
“Ultimately, the touchstone of the reassignment inquiry
is ‘reasonableness.' ‘Everything that an
employer must do in terms of a reassignment is modified by
the adjective reasonable, just as that adjective modifies any
other accommodation required by the employer under the
ADA.'” Alston, 571 F.Supp.2d at 84
(quoting Midland Brake, 180 F.3d at 1171); see
also Solomon v. Vilsack, ...