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Harris v. Chao

United States District Court, District of Columbia

July 6, 2017

BRUCE HARRIS, Plaintiff,
v.
ELAINE L. CHAO, [1] Secretary, United States Department of Transportation, Defendant. Re Document Nos. 17, 19

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS, United States District Judge

         Denying Defendant's Motion for Summary Judgment; Granting Plaintiff's Motion for Leave to File Exhibits

         I. INTRODUCTION

         Plaintiff, 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.

         II. BACKGROUND[2]

         Mr. 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.[3] Harris Decl. ¶ 6, ECF No. 19-26.

         While 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.

         Mr. 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).

         Before 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:// www.transportation.gov/sites/dot.gov/files/docs/ProceduresforProcessingReasonable AccommodationRequestsbyJobApplicantsandEmployeeswithDisabilities20140.pdf; see also Order 1011.1A § 3.4, ECF No. 17-12.

         In 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.

         The 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 qualified[4] for the following series and grade levels:

Series

Grades

Title

0343

GS 13

Management / Program Analyst / Supervisory -in either grants, finance, financial [5]

505

GS 13

Financial Manager

501

GS 13

Financial Administrator / Supervisory

510

GS 13

Accountant / Supervisory

511

GS 13

Auditor

1109

GS 13

Grants Management Specialist / Supervisory

         Email from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28;[6] 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 . . .”).

         The Department's selective placement program manager emailed Mr. Harris's materials and qualifications to all of the selective placement coordinators.[7] 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 identified.

         Apparently 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.

         Only three of the operating administrations responded to the second search.[8] 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.”).[9] 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.[10] 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. 17-3.

         None of 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.”).

         Throughout 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.

         No 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).

         In the 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[11]-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.

         Once in 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 area”).

         Other 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).

         The 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, sometimes no.”).

         Mr. 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.

         III. LEGAL STANDARD

         A. Summary Judgment

         Summary 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. Cir. 2007).

         B. The Rehabilitation Act

         Mr. 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 retaliation.

         1. Discrimination

         “To 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.”[12] 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).

         A 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.”);[13] 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)).

         The 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 banc)).

         The 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 graded position.”).

         It is 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)).

         Throughout 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, ...


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