United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
Randolph D. Moss, United States District Judge.
matter is before the Court on Plaintiff Charmayne
Kirkland's motion for partial summary judgment. Although
Kirkland, a former employee of Defendant Department of
Homeland Security, has asserted race, sex, age, and
disability discrimination claims against the Department,
see Dkt. 53 (Third Am. Compl.), the present motion
is much narrower: Kirkland seeks partial summary judgment
only as to her claims arising out of the Department's
alleged failure to accommodate her disabilities pursuant to
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq. A plaintiff seeking summary judgment in a
discrimination case, however, faces a difficult task: She
must show that, construing all “evidence in the light
most favorable to” her former employer, “no
reasonable jury could reach a verdict in [the
Defendant's] favor.” Wheeler v. Georgetown
Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016).
Because the record reveals several genuine disputes of
material fact, the Court will deny Plaintiff's motion for
partial summary judgment.
Charmayne Kirkland began employment with the federal
government in 1996, first with the Department of
Justice's Immigration and Naturalization Service
(“INS”), Dkt. 57-1 at 1 (SUMF ¶ 2), later
with the Department of Homeland Security's Immigration
and Customs Enforcement (“ICE”), id.
(SUMF ¶ 4) and then with Customs and Border Protection
(“CBP”), id. (SUMF ¶ 5). She holds
a bachelor's degree in microbiology, id. at
(SUMF ¶ 1), and spent most of her time in federal
service as an industrial hygienist. In the present motion,
Kirkland contends that the Department of Homeland Security
(“Department”) failed to accommodate two sets of
disabilities: (1) her carpal tunnel syndrome and (2) her
degenerative joint disease and plantar fasciitis. The
following facts are undisputed except where noted.
January 2005, Kirkland faxed her then-second level supervisor
Gary McMahen a note indicating that she had been diagnosed
with moderate to severe bilateral carpal tunnel syndrome.
Id. at 11 (SUMF ¶ 47). The note, provided by
Kirkland's physician, suggested that the Department
provide Kirkland voice-activated word processing software and
install an ergonomically correct workstation. Id.
(SUMF ¶ 49). Kirkland sent an additional note to McMahen
on February 2, 2005, reiterating both requests. Id.
at 12 (SUMF ¶ 52).
Kirkland had been assigned to CBP since 2004, she had used
office space provided by ICE. See Dkt. 57-6 at 69.
On March 3, 2005, McMahen directed Kirkland to move from ICE
to CBP's offices at the Ronald Reagan Building.
Dkt. 57-1 at 13 (SUMF ¶ 57). That same day,
Linda Church, president of Kirkland's union, sent an
email to McMahen indicating that Kirkland required assistance
to pack, lift, and move her office materials given her
medical condition. Id. (SUMF ¶ 58); see
also Dkt. 57-6 at 4. Although the parties dispute who
coordinated that move, they agree that the Department did
assist Kirkland in packing and moving her boxes. Kirkland
alleges, however, that, the Department did not assist her in
unpacking the boxes, and, as a result, her “items
remained packed in the unopen boxes for months.” Dkt.
57-1 at 14 (SUMF ¶ 62). Although the Department disputes
the “materiality” of that assertion, Dkt. 60 at
23 (Response to SUMF ¶ 62), the parties appear to agree
that no one, in fact, assisted Kirkland in unpacking her
parties further dispute when-and to what extent-the
Department took steps to provide Kirkland with her requested
voice-activated software and ergonomic workstation. Although
the parties agree that “Plaintiff received
voice-activated word-processing software . . . on or about
July 1, 2005, ” Dkt. 57-1 at 17 (SUMF ¶ 78), they
dispute the extent to which the Department promptly provided
training for the software, compare, e.g.,
id. (SUMF ¶ 79) (“DNS training was not
completely provided when the software was” installed)
and id. at 22 (SUMF ¶ 102) (“As of June
29, 2007, the Plaintiff had still not completed the . . .
software training.”), with Dkt. 60 at 25
(Response to SUMF ¶ 79) (“Plaintiff's own
emails from July of 2005 indicate that CBP provided at least
one demonstration of the use of the voice-activated software
no later than July 28, 2005.”).
is agreement that, at least by August 2005, the
Department's Equal Employment Opportunity Officer, Adline
Tatum, had begun an interactive process with Kirkland to
determine and to implement reasonable accommodations. Dkt.
57-1 at 16-17 (SUMF ¶ 76), Dkt. 60 at 24 (Response to
SUMF ¶ 76). In November 2005, however, Mic McKeighan,
the Department's Deputy Director of the Occupational
Safety and Health Division, informed Kirkland that,
“[i]n accordance with the Rehabilitation Act and based
on a review and consideration of your physician's
assessment, we do not believe that you have an impairment
that substantially limits a major life activity and[, ]
therefore, you do not meet the definition of a qualified
individual with a disability. Therefore, no further
accommodation is required.” Dkt. 57-1 at 20 (SUMF
¶ 92). The Department, nevertheless, undertook an
ergonomic assessment at least in December 2005, id.
at 21 (SUMF ¶ 96), and the evaluation recommended that
“Kirkland receive, inter alia, a trackball
mouse to promote finger cursor control, as opposed to a
standard mouse that contributed to reported shoulder
discomfort, ” id. (SUMF ¶ 99).
to Kirkland, she was also suffering from degenerative joint
disease and plantar fasciitis during this same period, having
been diagnosed with both conditions in 2004. Id. at
3 (SUMF ¶ 7). These conditions “severely
restricted [her] ability to walk more than one quarter of a
mile, ascend or descend more than three ten-inch steps, or
climb or descend ladders, hills or slopes without
experiencing physical pain or risking injury.”
Id. (SUMF ¶ 8).
2006, CBP informed Kirkland that it had decided to reassign
her from her position in the District of Columbia to a
position at the CBP office in Indianapolis, Indiana.
Id. at 5 (SUMF ¶ 18); see also Dkt.
57-6 at 37 (Reassignment Ltr.). The letter explained that the
move was required so that the CBP industrial hygienists would
“be physically located in the same office, ”
thereby facilitating their ability to consult with one
another on “emergency situations and highly sensitive
issues” and to “interact with [their] supervisors
and other national safety program managers.”
Id. After researching her commute to the CBP branch
office, however, Kirkland concluded that the only public
transportation available would drop her off “across a
busy interstate highway, ” Dkt. 57-1 at 5-6
(SUMF ¶ 23), and that, as an employee who “walks
with the aid of a walker, ” she would have “had
to somehow traverse . . . three entrances to highway I-465 as
well as from north to south across [a busy intersection]-all
without the benefit of traffic lights-to get to and from the
. . . bus stop and the [CBP] office each day.”
Id. at 6 (SUMF ¶ 24). In light of this problem,
Kirkland requested that, “as an accommodation, she be
allowed to continue to perform the duties of her Industrial
Hygienist position from Washington, DC or, in the
alternative, to work a full-time telework schedule.”
Id. (SUMF ¶ 27).
the precise details of CBP's rejection of the proposed
accommodations are unclear, see infra, Section
II.A., the agency ultimately agreed that Kirkland had a
“physical impairment that substantially limit[ed] [her]
ability to perform the major life activities of walking,
standing, climbing, sitting, and lifting” but
determined that “there [was] no reasonable
accommodation available that would allow [her] to perform the
essential functions of [her] Industrial Hygienist (GS
0690-13) position at this time.” Dkt. 57-5 at 29 (Feb.
2007 Offer Ltr.). CBP concluded that its “only option
to reasonably accommodate [Kirkland's] disability [was]
to reassign [her] to a vacant-funded position, ”
id., and it accordingly offered Kirkland a position
as a “Management Program Specialist, ” a GS-11
position based in the District of Columbia, which she
accepted effective March 4, 2007. Dkt. 57-1 at 10 (SUMF
¶ 41). CBP later terminated Kirkland in 2008, although
that termination is not at issue here.
filed suit in 2013, alleging race, gender, disability, and
age discrimination claims against the Department,
see Dkt. 1 (Compl.), and, following discovery, she
filed a third amended complaint in April 2018. See
Dkt. 53 (Third Am. Compl.). In May 2018, this Court set a
briefing schedule for cross-motions for summary judgment to
be completed by October 2018, see Minute Order (May
4, 2018), and Kirkland filed the instant motion, seeking
partial summary judgment on her claims of disability
discrimination only, see Dkt. 57.
Court has granted numerous, lengthy extensions of time over
the course of this litigation, both before and after counsel
filed the pending motion. As a result of the most recent
extensions, the cross-motions are not yet fully briefed.
After granting yet another extension on January 31, 2019, the
Court advised all parties that the Court “intend[ed]
promptly to resolve Plaintiff's long-pending [and fully
briefed] motion for partial summary judgment, Dkt. 57, and
[would] do so on the basis of whatever papers are before the
Court.” See Minute Order (Jan. 31, 2019). The
Court cautioned that, “[i]n the event that the Court
decides Plaintiff's motion for partial summary judgment
before briefing is complete on Defendant's cross-motion,
the Court will, if necessary, reserve disposition on any
additional issues raised in Defendant's
cross-motion.” Id. Because briefing on the
Department's cross-motion is still not complete-now three
months later-the Court will consider only those issues raised
by Kirkland's motion and reserves judgment on the
Department's cross-motion. For the reasons explained
below, the Court will deny Kirkland's motion for partial
moves for partial summary judgment on “several
disability discrimination and failure to accommodate
claims.” Dkt. 57. To prevail on that motion, she must
demonstrate “that there is no genuine dispute as to any
material fact and [that she] is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Holcomb v. Powell, 433 F.3d 889, 895-96 (D.C. Cir.
2006). A fact is “material” if it is capable of
affecting the outcome of the litigation, see Liberty
Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895, and a dispute is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party, see Scott v. Harris, 550 U.S. 372,
380 (2007); Liberty Lobby, 477 U.S. at 247-48;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of
materials in the record . . . .” Fed.R.Civ.P.
56(c)(1)(A). “The Court is only required to consider
the materials explicitly cited by the parties, but may on its
own accord consider ‘other materials in the
record.'” Smith v. Lynch, 106 F.Supp.3d