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Mitchell v. Pompeo

United States District Court, District of Columbia

March 31, 2019

MICHAEL POMPEO, United States Secretary of State, Defendant.


          Ketanji Brown Jackson United States District Judge.

         When la' Rufus Mitchell failed to complete a 1.5-mile-run training requirement for the sixth time, the United States Department of State (“State” or “Defendant”) terminated Mitchell from her status as a Special Agent candidate for the Bureau of Diplomatic Security. Mitchell is asthmatic, and in the instant lawsuit, she maintains that State unlawfully refused to accommodate her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (See Compl., ECF No. 1, ¶¶ 105-117.) Before this Court at present are State's motion for summary judgment and Mitchell's cross-motion for summary judgment. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 58); Pl.'s Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. (“Pl.'s Cross-Mot.”), ECF No. 60). State argues that Mitchell's request for waiver of the 1.5-mile run requirement was not a reasonable accommodation, because “it would have eliminated an essential function of the Special Agent job: physical fitness.” (Mem. in Supp. of Def.'s Mot. (“Def.'s Mem.”), ECF No. 58-1, at 14.)[1] Mitchell asserts that waiver of the run requirement was but one of “nine different accommodation requests” that she made to various State officials, each of which was directly or constructively denied. (Pl.'s Mem. in Supp. of Pl.'s Cross-Mot. (“Pl.'s Mem.”), ECF No. 60-8, at 6.) Mitchell further contends that State not only failed to accommodate her disability with respect to the run requirement (see Id. at 19), but also refused to “engage in a meaningful dialogue, in good faith, to discuss alternative reasonable accommodations” (id. at 21).

         For the reasons explained below, this Court concludes that Mitchell has not presented any evidence from which a reasonable jury could infer that Mitchell could have performed the essential functions of the Special Agent position even with accommodation, but that the record evidence does give rise to a genuine issue of fact regarding whether or not another position existed within State that Mitchell could have performed. Consequently, neither State nor Mitchell is entitled to judgment as a matter of law, and both parties' cross-motions for summary judgment must be DENIED.


         A. Basic Facts [2]

         Mitchell began her employment with State in January of 2013. (See Ex. 1 to Pl.'s Cross-Mot., ECF No. 60-1, at 7; see also Pl.'s Mem. at 8; Def.'s Mem. at 9.) There are many “Civil Service” and “Foreign Service” employment positions within State, and the positions are divided between numerous bureaus and offices.[3] State insists that “Mitchell applied to be a Special Agent[, ]” (Def.'s Mem. at 6) and that she “was hired as a Special Agent candidate” (id. at 9), while Mitchell claims she that was hired “as a Foreign Service Officer and placed into the special agent candidacy program[, ]” (Pl.'s Mem. at 7). Mitchell asserts, in particular, that after State hired her as a Foreign Service Officer, she was “assigned to the Bureau of Diplomatic Security[, ]” and that the Bureau of Diplomatic Security comprises “nearly 34, 000 employees[, ]” of which “2400 are Special Agents[.]” (Id. at 5 (emphasis added) (footnotes omitted).) Mitchell maintains that the Diplomatic Security Services division of the Bureau of Diplomatic Security “consists of special agents, security engineering officers, security technical specialists, diplomatic couriers, support personnel, and numerous other security professionals.” (Id. at 6 (footnote omitted).)

         In support of her assertion that she was hired “as a Foreign Service Officer” (id. at 5), Mitchell has attached to her cross-motion various “Agency Hiring Letters” and related records (id. at 5 n.1; see also Ex. 1 to Pl.'s Cross-Mot.). One of these attachments confirms that various “Foreign Service Specialist jobs” exist within State, including the position of “Special Agent” (Ex. 1. to Pl.'s Cross-Mot. at 17, 20; see also Id. at 17-20 (providing “Brief Position Descriptions” for “Foreign Service Specialist jobs”), while another suggests broadly that Mitchell's appointment was as “a Foreign Service Specialist” (id. at 2 (letter of May 25, 2011, from the Staff Director of the Board of Examiners for the Foreign Service to Mitchell, stating that “I am pleased to extend to you a Conditional Offer of appointment as a Foreign Service Specialist Career Candidate”).) However, other correspondence plainly indicates that Mitchell was hired specifically as a “Special Agent” candidate. (See Id. at 7 (correspondence from a Human Resources Specialist at the Registrar Office of the Bureau of Human Resources to Mitchell, stating that “[t]he Registrar's Office is pleased to extend an appointment offer for the January 28, 2013-Diplomatic Security Special Agent Class.” (emphasis omitted)); id. at 11 (letter of December 27, 2012, from a Human Resources Specialist at the Office of Recruitment, Examination and Employment to Mitchell, stating that “[b]y this letter, the Registrar of the Board of Examiners confirms to you an offer of appointment as an untenured Diplomatic Security Special Agent Career Candidate” (emphasis omitted)); see also Ex. 6 to Pl.'s Cross-Mot., ECF No. 60-1, at 37 (Foreign Service Grievance Board decision describing Mitchell as “an untenured FS-06 Diplomatic Security (DS) Special Agent Candidate, at the Department of State”).)

         There is no dispute that Foreign Service Special Agents “are specially trained Foreign Service security professionals” who are “sworn Federal law enforcement officers.” (Ex. 1 to Pl.'s Cross-Mot. at 20; see also Ex. 19 to Pl.'s Cross-Mot., ECF No. 60-4, at 2-3 (State Department vacancy announcement, describing “Duties” of Diplomatic Security Special Agents); Def.'s Mem. at 6.) State “requires all Special Agent candidates to pass a physical fitness test to successfully complete training- including push-ups, sit-ups, and a timed 1.5-mile run” (Def.'s Mem. at 5; see also Ex. 1 to Bearden Decl., ECF No. 58-3, at 3-13), and Mitchell apparently did quite well during training (see Ex. 10 to Pl.'s Cross-Mot., ECF No. 60-2, at 18), with the exception of certain physical fitness tests. In particular, Mitchell failed to meet the minimum time requirement for her 1.5-mile run, which, for her age and gender, was 16 minutes and 15 seconds. (See Ex. 2 to Coyle Decl., ECF No. 58-4, at 19.)

         The first time Mitchell attempted the 1.5-mile run, on February 19, 2013, it took her 22 minutes and 10 seconds to complete the course. (See Ex. 2 to Bearden Decl., ECF No. 58-3, at 28.) Mitchell attempted the run again on April 23, 2013, this time taking 22 minutes and 38 seconds to finish the task. (See Excerpts from Mitchell Dep., ECF No. 58-9, at 15 (99:9-20).) On May 17, 2013, Mitchell ran for a third time, taking 20 minutes and 53 seconds to finish. (See Ex. 2 to Bearden Decl. at 28.) Her fourth attempt took place on May 31, 2013, but she again failed to meet the requirement, finishing in 20 minutes and one second. (See id.) Mitchell alleges that “[e]ach time [she] failed to meet the set time for her age and gender because of her asthma.” (Pl.'s Mem. at 8.)

         After Mitchell failed to meet the minimum run-time standard four times, she was “referred to the Student Performance Review Committee for further review and action up to, and including, a recommendation for dismissal from training.” (Ex. 5 to Horvath Decl., ECF No. 58-5, at 18.) The Committee “considered three options: [t]hat [Mitchell] continue with [her] class; recycle to another BSAC class; or that [she be] removed from training.” (Ex. 2 to Shelton Decl., ECF No. 58-10, at 36.) The Committee opted to recommend that Mitchell “be recycled to the next [Special Agent training] class” (id.); thus, Mitchell was able to attempt the 1.5-mile-run test for a fifth time on July 9, 2013. She missed the 16-minute-15-second cut-off on that occasion once again, finishing in 19 minutes and 21 seconds. (See Ex. 2 to Bearden Decl. at 28.) And Mitchell took the run test one last time-her sixth attempt-one week later, taking 20 minutes and 42 minutes to run the 1.5-mile course. (See id.)

         Mitchell was referred once more to the Student Performance Review Committee, which this time recommended that she be dismissed from the training program. (See Ex. 3 to Shelton Decl., ECF No. 58-10, at 39.) “The committee's recommendation was accepted by the Assistant Director for Training and approved by the Director of the Diplomatic Security Service.” (Ex. 7 to Horvath Decl., ECF No. 58-5, at 22.) The Acting Director General of the Foreign Service and Acting Director of Human Resources then approved the recommendation to terminate Mitchell from “appointment to the Foreign Service” on September 20, 2013. (Ex. 1 to Klemm Decl., ECF No. 58-8, at 3). Mitchell was thus notified that her employment would be terminated “effective October 4, 2013[, ] . . . because you are unable to meet the basic conditions of employment.” (Ex. 2 to Klemm Decl., ECF No. 58-8, at 6.)

         Mitchell asserts that she “struggled during some of the physical fitness [training] due to her asthma[, ]” (Pl.'s Mem. at 8), and insists that she had specifically “informed Defendant that she suffered from asthma” before she was hired as a Special Agent candidate (id. at 7). State maintains that “[t]he medical records [Mitchell] submitted as part of her application materials said that although she had a history of asthma, her asthma was ‘completely controlled' and she had not had any symptoms recently.” (Def.'s Mem. at 9; see also Ex. 1 to Shelton Decl., ECF No. 58-10, at 11 (showing that Mitchell's doctor circled “completely controlled” when describing Mitchell's “asthma control during the past 4 weeks”).) There is no dispute that State knew about Mitchell's asthma before hiring her; that Mitchell had a history of asthma; that Mitchell suffered numerous asthma attacks while attempting to complete her training for the Special Agent position; and that State was aware that she was suffering from asthma attacks during training. (See, e.g., Ex. 9 to Pl.'s Cross-Mot., ECF No. 60-2, at 8-9, 12.)

         It is also undisputed that Mitchell made various requests for accommodation before she was terminated from the program. The record evidence demonstrates that she specifically requested a waiver of the 1.5-mile-run requirement (see Ex. 4 to Klemm Decl., ECF No. 58-8, at 10), and that she also sought reassignment to a different position (see Id. at 11 (“I hope that you will permit me to be an asset to the Department of State either as a [Diplomatic Security] agent or in some other capacity.”); Ex. 7 to Pl.'s Cross-Mot. at 44 (email from Mitchell to Tracy Mahaffey explaining that she, Mitchell, had been “placed with the DS/MGT/LS division” after being removed from Special Agent candidacy, and asking, “is it possible that I can remain in the position that I am in for 4-6 months?”)). Additionally, Mitchell's supervisors discussed permitting her to carry an inhaler during training (see, e.g., Ex. 3 to Pl.'s Cross-Mot., ECF No. 60-1, at 27), or allowing her to run indoors (see Ex. 5 to Pl.'s Cross-Mot, ECF No. 60-1, at 33), or use a treadmill (see id.), but it is unclear from the record whether any of these accommodations were ever attempted.

         On October 4, 2013, Mitchell filed an administrative grievance, challenging her termination. (See Ex. 1 to Shelton Decl. at 27-29.) Her grievance was denied on January 23, 2014. (See Id. at 30-34.) Mitchell filed an appeal on January 31, 2014 (see Ex. R to Pl.'s Opp'n to Def.'s Mot. to Dismiss, ECF No. 15-18, at 2-10), which was denied on August 27, 2015 (see Ex. C. to Def.'s Mot. to Dismiss, ECF No. 11-1, at 2, 23).

         B. Procedural History

         Mitchell filed the instant lawsuit on October 30, 2015. (See Compl., ECF No. 1.) In her two-count complaint, Mitchell alleged that State's act of terminating her violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., as well as the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the ADA, 42 U.S.C. § 1201 et seq. (See Compl. ¶¶ 84-104 (Count I)); id. at ¶¶ 105-17 (Count II).) State filed a motion to dismiss (see Def.'s Mot. to Dismiss, ECF No. 8), and this Court granted the motion as it pertained to Mitchell's APA claim but denied it as to her Rehabilitation Act and ADA claim (see Min. Entry of Mar. 23, 2017; see also Hr'g Tr.). State therefore filed an answer to Mitchell's complaint on April 6, 2017 (see Answer, ECF No. 23), and the parties engaged in discovery (see Min. Order of Feb. 20, 2018). Following the close of discovery, State filed a motion for summary judgment (see Def.'s Mot.), and Mitchell filed a cross-motion for summary judgment (see Pl.'s Cross-Mot.), both of which are now pending.

         State argues in its motion for summary judgment that Mitchell was not subject to Rehabilitation Act protections because she could not perform an essential function of the Special Agent position-i.e., physical fitness and running-as demonstrated by her inability to pass the 1.5-mile-run test, and that, therefore, waiving the run altogether was not a reasonable accommodation State was required to make. (Def.'s Mem. at 15); see also 42 U.S.C. § 12112(a) (prohibiting discrimination against “qualified” individuals); 29 C.F.R. § 1630.2(m) (defining “qualified individual”). State also argues that each of Mitchell's other accommodation requests were not administratively exhausted and thus “do not give rise to a viable reasonable accommodation claim[.]” (Mem. in Further Supp. of Def.'s Mot. and in Opp'n to Pl.'s Cross-Mot. (“Def.'s Reply”), ECF No. 65, at 13.)

         Mitchell responds in her cross-motion that “[t]he 1.5-mile run is not an essential job element” of the Special Agent position (Pl.'s Mem. at 12), nor of other positions within the Foreign Service. (See Id. at 15.) Mitchell also argues that Defendant failed to accommodate her disability, and at the very least had an obligation to engage in “an informal, interactive process to identify the appropriate accommodation” once she requested one. (Id. at 18; see also Id. at 21-22.)[4]


         A. Motions For Summary Judgment Under Rule 56

         To decide whether either party is entitled to summary judgment, this Court must undertake “the threshold inquiry of determining whether there is a need for trial- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). Such “evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (citation omitted); see also Celotex, 477 U.S. at 330 n.2 (“If . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment[.]” (internal quotation marks and citation omitted)). A factual dispute alone is not sufficient to bar summary judgment, see Liberty Lobby, 477 U.S. at 255, as the contested fact must be material and the dispute must be genuine, see Fed. R. Civ. P. 56(a). A fact is material only if it “might affect the outcome of the suit under the governing law[.]” Liberty Lobby, 477 U.S. at 248. Likewise, a dispute is genuine only if “the evidence presents a sufficient disagreement to require submission to a jury[.]” Id. at 251-52; see also Id. at 249 (“If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” (internal citations omitted)).

         In cases such as this one, where the parties have filed cross-motions for summary judgment, “each [party] must carry its own burden under the applicable legal standard.” Ehrman v. United States, 429 F.Supp.2d 61, 67 (D.D.C.2006). Accordingly, “[c]ross-motions for summary judgment are treated separately[, ]” Act Now to Stop War & End Racism Coal. v. Dist. of Columbia, 905 F.Supp.2d 317, 327 (D.D.C. 2012), rev'd on other grounds, 846 F.3d 391 (D.C. Cir. 2017), such that “[a] cross-motion for summary judgment does not concede the factual assertions of the opposing motion[, ]” CEI Washington Bureau, Inc. v. Dep't of Justice, 469 F.3d 126, 129 (D.C. Cir. 2006). Indeed, “‘neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.'” Sh ...

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