RUDOLPH CONTRERAS, United States District Judge.
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.
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.
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/Procedures_for_Processing_Reasonable_Accommodation_Requests_by_Job_Applicants_and_Employees_with_Disabilities_2014_0.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. Home 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 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
Series Grades Title 0343 GS 13 Management/Program Analyst/Supervisory — in either grants, finance, financial5 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
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Email from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28;
The Department's selective placement program manager emailed Mr. Harris's materials and qualifications to all of the selective placement coordinators.
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.
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
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
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.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, and "eschew[s] making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
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.
"To establish a prima facie case of discrimination based on the failure to accommodate under the Rehabilitation Act,
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.");
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
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, 763 F.3d 1, 9 (D.C. Cir. 2014) ("Determining whether a particular type of accommodation is reasonable is commonly a contextual and fact-specific inquiry.").
Establishing a prima facie case of retaliation under the Rehabilitation Act requires showing that "(i) [the plaintiff] engaged in statutorily protected activity; (ii) [the plaintiff] suffered a materially adverse action by [his or her] employer; and (iii) a causal link connects the two." Solomon v. Vilsack, 763 F.3d 1, 14 (D.C. Cir. 2014) (internal quotation marks and citations omitted).
When the plaintiff presents only circumstantial evidence of retaliation, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies. Id. Under that framework, the plaintiff must "first establish a prima facie case of retaliation." Id. (internal quotation marks and citations omitted). If the plaintiff establishes a prima facie case, "the burden of production shifts to the employer to produce a `legitimate, nondiscriminatory reason' for its action." Id. (quoting
The Department moves for summary judgment, asserting that it (1) did not discriminate against Mr. Harris because it reasonably accommodated him by reassigning him to the Office of Acquisitions, and (2) did not retaliate against him for seeking a reasonable accommodation.
The Department asserts that it reasonably accommodated Mr. Harris by offering to reassign him either to the Grants Management Office (GMO) or into acquisitions, either of which it claims would constitute a reasonable accommodation. It further argues that, even if the acquisitions job was inferior to Mr. Harris's previous job, it had no better options available to accommodate him. However, genuine issues of material fact exist as to whether the Department offered Mr. Harris the GMO position and whether that position would have accommodated Mr. Harris. The Court also concludes that Mr. Harris has demonstrated a genuine issue of material fact concerning whether the acquisitions position was inferior to his existing job. Because the acquisitions job may therefore constitute a de facto demotion, the Court considers whether such a demotion would have been appropriate on the grounds that no equivalent jobs were available to Mr. Harris. Ultimately, the Court concludes that genuine issues of material fact also exist as to whether other jobs for which Mr. Harris was qualified were vacant, and therefore denies the Department summary judgment on Mr. Harris's discrimination claim.
The Department claims that it satisfied its obligation to provide a reasonable accommodation by offering Mr. Harris a position in the GMO that he declined. Def.'s MSJ at 3, 13, ECF No. 17-1. Mr. Harris argues, to the contrary, that he was not offered the GMO position during the reassignment search, and that in any event the position would not have been a reasonable accommodation because it would have required the same conference calls as his previous job. Because genuine issues of material fact exist on both issues, the GMO position does not justify summary judgment for the Department.
The Department and Mr. Harris agree that he was initially offered the GMO position before beginning the reassignment process. According to the Department, he was offered the GMO position for a second time after seeking reassignment, Def.'s Reply at 7, ECF No. 21, which Mr. Harris disputes, Pl.'s Mem. Opp'n Def.'s Mot. Summ. J. (Pl.'s Opp'n) at 2 n.1, 15, ECF No. 18; Pl.'s Statement Dispute Def.'s Statement Mat. Facts, ECF No. 18-20 ¶ 3. The evidence in the record establishes that there is a genuine issue of material fact as to whether Mr. Harris was re-offered the GMO job after requesting reassignment in April of 2014. See Email from Bruce Harris to Brandon Poarch (April 28, 2014, 4:37 PM), ECF No. 17-8. No direct evidence of an offer, such as an email or testimony about a specific conversation, appears in the record. Some evidence suggests Mr. Harris was offered the GMO job during the reassignment process. Mr. Harris acknowledged in his deposition that he had conversations with Mr. Poarch about the GMO as part of the reasonable accommodation process, although it is not clear if these conversations rose to the level of a job offer. See Harris Dep. 65:18-66:3, ECF No. 17-4 ("Q: Did anybody talk to you about a position [in the GMO]? A: They did.... Q: And this was as part of the attempt to find a reassignment that's [a] reasonable accommodation? A: Yes and no. He was trying to bypass that process. But we knew right from the beginning that [the GMO] position has the same speakerphone problem."); see also Kuo Aff. at 3, ECF No. 21-5 (discussing what may or may not be the same job as being discussed during the "[s]ummer of 2014" but rejected by Mr. Harris because "[the] Office of Financial Management, under the CFO Office.... was under the [GMO]"); Email from Brandon Poarch to Bruce Harris (Jan. 8, 2015, 5:32 PM), ECF No. 21-6 ("Since this process [of reassignment] has started, FMCSA has pursued with you options to transfer you to [the GMO] (for which you were initially hired and for which you are qualified as a GS-1109/13)..."); Poarch Aff. at 8, ECF No. 21-1 ("We told him about this vacancy [in the GMO] but [Mr. Harris] did not want it.").
But other evidence in the record suggests that the Department did not re-offer the GMO job to Mr. Harris. See Poarch Aff. at 9, ECF No. 21-1 (stating that, as of "July 21, [2014,]" they "had no plans to reassign [Mr. Harris] to GMO" because of the problems between Mr. Harris and Mr. Bethel); Quade Aff. at 5, ECF No. 21-2 (ruling out the possibility of finding a job for Mr. Harris in GMO because "that was not an option"). However, Mr. Harris, unlike his counsel, does not explicitly deny being offered the GMO job after beginning the reassignment process. Compare Pl.'s Opp'n ("Nor was Mr. Harris offered to work in the FMCSA [GMO] as a reasonable accommodation. That position had been discussed in July 2013 ... long before
Furthermore, even if the Department had offered Mr. Harris the GMO job during the reassignment process, there are genuine issues of material fact as to whether the GMO job would have been effective accommodation. Some evidence in the record indicates that the GMO job would have caused the same conference call issues that initially necessitated reassignment. See Harris Dep. 66:2-67:13 ("[W]e knew right from the beginning that [the GMO] position has the same speakerphone problem. In fact, a[] GMO representative would be on that same call."). Although the Department attempts to argue that Mr. Harris was not certain of the exact contours of conference calls from the GMO side, Harris Dep. 67:15-18 ("Q: Did the GMO official have the same role on those conference calls as you had ...? A: I don't know."), Def.'s MSJ at 7 n.8, there is a genuine issue of material fact as to whether or not the GMO job, if it involved conference calls, would be a reasonable accommodation.
It is unclear if the Department also claims that it should receive summary judgment because of various other job opportunities it offered Mr. Harris. See Def.'s MSJ at 13 ("Most notably, Mr. Harris was offered the opportunity to work in the [GMO]...." (emphasis added)); ECF No 17-1 at 7 (describing conversations about possible jobs for Mr. Harris in the Internal Audit Division, the National Training Center, and Human Resources). However, because genuine issues of material fact exist as to whether Mr. Harris was ever offered a job in any of those assorted areas, none justifies summary judgment.
The Department argues that Mr. Harris's eventual reassignment into the Office of Acquisitions constituted a reasonable accommodation. Def.'s MSJ at 13-15; Def.'s Reply at 7-10. Mr. Harris argues that it was not a reasonable accommodation because his lack of qualifications forced him to perform GS-7 or GS-8 work and delayed his eligibility for a promotion. Pl.'s Opp'n at 21-24.
The parties do not dispute that the Office of Acquisitions job provided Mr. Harris with the same pay and benefits as he had previously received. SF-50 Notification of Personnel Action, ECF No. 17-25 (showing that Mr. Harris was reassigned at the same grade and step and same total salary); Letter from Brandon A. Poarch to Bruce Harris (Jan. 5, 2015), ECF No. 17-23 (offering Mr. Harris reassignment into acquisitions as a GS-301/13).
However, a genuine dispute of material fact clearly exists over whether Mr. Harris was able to perform GS-13 work in the Office of Acquisitions. See supra Part II; see also, e.g., Harris Decl. ¶ 14 (stating that Mr. Harris "was not assigned grade 13 work, but instead, was assigned duties that are more typically performed by a GS-8 level employee"); 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."). But see 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.").
In addition, Mr. Harris argues — without dispute from the Department — that the acquisitions job limited his opportunities for promotion. See, e.g., Harris Dep. 77:16-19 ("I found out ... it would take me three to five years to obtain enough experience to
Therefore, in order to prevail at summary judgment, the Department must establish that the acquisitions job was still a reasonable accommodation even if Mr. Harris performed work below the GS-13 grade level and had impaired promotion opportunities. The Department argues that this is the case because a reassignment is a reasonable accommodation "virtually as a matter of law" so long as it "does not require a significant reduction in pay and benefits." Def.'s MSJ at 13 (quoting Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir. 1992)). Under the Department's theory, therefore, the existence of other potential positions is irrelevant as long as it placed the employee into a job with the same pay and benefits. Def.'s Reply at 9. Mr. Harris disagrees with the Department's laser focus on pay and benefits. According to Mr. Harris, whether a job is equivalent to the employee's original job should be measured on additional factors — including difficulty of work and the opportunity for promotion — and an employer may not reassign an employee to an inferior job if an equivalent job is available. Pl.'s Opp'n at 22.
The Court finds that Mr. Harris has the better position. The Department's own procedure states that "[t]he reassignment search should focus on vacant positions that are equivalent to the current job in terms of pay, grade, promotion potential, status, benefits, geographical location, and other relevant factors." DOT Order 1011.1A § 3.4, ECF No. 17-12; see also DOT Order 1011.1A § 3.4 ("Prior to assigning the employee to a non-equivalent position, the decision-maker must consult with the employee to determine which factors are most significant to the employee."). This clearly signals that pay and benefits are not the only relevant factors. Promotion potential — which the Department does not dispute Mr. Harris lost — is explicitly named. The Department's procedure is consistent with the ADA regulations, which require employers to "reassign the individual to an equivalent position, in terms of pay, status, etc." but provide that "[i]f ... 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." 29 C.F.R. § Pt. 1630, App.
Both the ADA regulations and the Department's procedure contemplate that, if no equivalent vacant position is available, an employee may be reassigned to an inferior position. They do not suggest that an employer may assign an employee to an inferior position without first searching for an equivalent position. Here, Mr. Harris has demonstrated at least a genuine of issue of material fact as to whether the acquisitions job was inferior because it provided fewer opportunities to perform interesting and difficult work and reduced his promotion potential. The Court thus
Mr. Harris identifies 11 job postings
The plaintiff "is required to show that vacant positions existed that were equivalent in terms of status and pay to [the former] position, and that [he or] she was qualified for those positions."
First, the Court addresses which grades of jobs were appropriate for Mr. Harris. The Department asserts that, because an employer need not promote an employee through a reassignment as a reasonable accommodation, it could not be required to reassign Mr. Harris to any GS-14 positions. Def.'s MSJ at 15, ECF No. 17-1. Mr. Harris accepts this assertion — the 11 jobs are all either GS-13 positions or I band
The Department appears to expand this argument to also apply to GS-13 positions that "ladder" to GS-14. Laddering refers to jobs with a career path to the higher grade through a non-competitive promotion. For example, the Court understands from the parties' briefing that a person could be placed as a GS-13 in a position graded as GS-13/14, but later could be eligible for a non-competitive (but not automatic) promotion to GS-14. The Department appears to argue that it can refuse to reassign Mr. Harris to any position with a career track that reaches GS-14 because of the future promotion potential. See Def.'s Reply at 13 (contending that Mr. Harris was "not eligible" for a particular position because "it [was] a ladder, target GS-14 position, which means that the incumbent would be eligible for a noncompetitive promotion to a GS-14"); cf., e.g., Adams Aff. at 4, ECF No. 21-3 ("We were not authorized to reassign him to a GS-14 position or to a position that had a career track to GS-14." (emphasis added)); May Dep. 51:1-7, 51:12-22, ECF No. 21-9 (eliminating one possible position because "[i]nasmuch as the position is a target 14, it's not comparable to the one that [Mr. Harris] encumbered at the time of his request" and explaining that a "target 14" has a "career ladder" that goes to GS-14, although that "would still require an action by the manager to promote the person").
The Court need not resolve this argument because it is new in the Department's reply.
Because all of the 11 jobs include either GS-13 or I band positions, the Court therefore finds that their grades do not exclude them from consideration. Next, the Court addresses whether Mr. Harris has shown that a genuine issue of material fact exists concerning his qualifications for the 11 jobs. The Court concludes that a genuine issue of material fact exists for two reasons.
First, ten of the jobs are within the list of grades and series that Mr. Harris was found to be qualified for by human resources.
The Department uses the exact language of "minimal qualification" to describe the list generated by human resources.
Second, even if the Court analyzed the vacancy announcements, there are genuine issues of material fact as to whether Mr. Harris was qualified for the 11 jobs. The Department argues that Mr. Harris failed to meet the "specific requirements" from each individual job posting.
For example, Mr. Harris identified an I band position as a Management and Program Analyst in the FAA (AWA-AHR-14-0064DB-37476). See 37476 Job Posting, ECF No. 19-23. The Department asserts he could not satisfy the requirement that the applicant "have the ability to be a Contracting Officer Representative (COR)," because he "only obtained COR training after his reassignment to the Office of Acquisitions." Def.'s Reply at 17 (first quoting 37476 Job Posting, ECF No. 19-23). However, the posting does not require that the applicant already be a COR. Instead, it specifies that the applicant "should have the ability to be a [COR]." 37476 Job Posting, ECF No. 19-23 (emphasis added). Mr. Harris's subsequent COR training empirically demonstrates that he had the ability to become a COR at the time of the reasonable accommodation reassignment search. Furthermore, the COR requirement is followed by "and/or be knowledgeable about working with contracts and assisting the Lead COR." 37476 Job Posting, ECF No. 19-23. This language suggests that COR expertise is permissive if the applicant is experienced with contracts and able to assist the COR. Although the Department also quotes this requirement and the requirement that the applicant have "[s]ome knowledge of personnel operations' activities," it does not explain why it believes these requirements have not been met. Def.'s Reply at 17 (quoting 37476 Job Posting, ECF No. 19-23. Because Mr. Harris previously ran his own company — including "[n]egotiat[ing] contracts with customers" — Harris Résumé, ECF No. 18-1 at 8, there is at least a genuine dispute as to whether Mr. Harris is knowledgeable about contracts and personnel operations' activities. This is especially the case because Mr. Harris need only have been "minimally qualified," rather than the strongest candidate, to be placed into the position under the Department's policy. See DOT Order 1011.1A § 3.4, ECF No. 17-12.
Similarly, Mr. Harris identified a second I band position as a Management and Program Analyst in the FAA (AWA-AHR-14-0061WE-37272). See 37272 Job Posting, ECF No. 19-22. The Department argues that Mr. Harris was not qualified for this position because it required the applicant to have "experience that has led to the knowledge of human resource policies." Def.'s Reply at 16-17 (quoting 37272 Job Posting, ECF No. 19-22). The Department asserts that Mr. Harris cannot be qualified because he "has never held a human-recourses [sic] position." Def.'s Reply at 16-17. However, as Mr. Harris notes, he previously managed his own company where he "[i]nterviewed, hired and developed every one of [his] employees, performed evaluations, terminations, and layoffs." Harris Résumé, ECF No. 18-1 at
In a final example, Mr. Harris identified a third Management and Program Analyst position in the FAA at the I band (AWA-AHR-14-0067DB-37288). See 37288 Job Posting, ECF No. 19-24. The Department argues that Mr. Harris was not qualified for this position because it required "knowledge of" EEO policies, which Mr. Harris admits he was "not an expert on." Def.'s Reply at 17 (second quoting Harris Decl. at 17, ECF No. 19-26). However, Mr. Harris explains that he has been "involved with disability-related issues" for the past four decades, including presenting to organizations, writing his MBA thesis, chairing the Fairfax County Disability Service Board, and serving as the executive director for an advocacy group for" hearing-impaired persons. See Harris Decl. ¶ 28 (discussing the 37288 job posting); see generally Harris Résumé, ECF No. 18-1. These extensive experiences at the intersection of disability issues and employment create a genuine issue of material fact as to whether Mr. Harris could satisfy the "knowledge of" EEO program requirement.
Based on an examination of Mr. Harris's qualifications and the requested qualifications for the 11 positions he identifies, the Court concludes that genuine issues of material fact exist as to whether Mr. Harris was qualified. This conclusion is in harmony with the decision of another court in this circuit, which found that genuine issues of material fact precluded summary judgment when it was unclear if the Rehabilitation Act plaintiff could satisfy each of the specific requirements in a job posting. See Alston, 571 F.Supp.2d at 84-86. As discussed above, supra Part IV.A.2, the possible existence of jobs for which Mr. Harris was qualified prevents summary judgment on the Department's choice to place Mr. Harris in an inferior job for which he was not qualified and which impaired his opportunities for promotion.
The Department does not dispute that Mr. Harris has presented a prima
Although it is certainly accurate that Mr. Harris requested reassignment, that alone does not explain why the Department reassigned him to acquisitions instead of, according to Mr. Harris, a job for which he was qualified. The Department's argument to the contrary proves too much by suggesting that whenever an employee can establish causation for the prima facie case (by showing that the alleged retaliation was causally linked to the request for a reasonable accommodation), that causation can also be deployed as a nondiscriminatory reason by the employer. See Thomas v. Vilsack, 718 F.Supp.2d 106, 122 (D.D.C. 2010) (rejecting the employer's argument that "because Plaintiff requested a reassignment, she cannot then use that reassignment as the basis for her Title VII [retaliation] claim" because "regardless of whether she requested the reassignment, the fact that she suffered a drastic reduction, both quantitative and qualitative, in work assignments and responsibilities constituted an adverse employment action"). Similarly, although Mr. Harris does not dispute that "the opportunity was available" in acquisitions, that reason alone does not explain why Mr. Harris was reassigned into acquisitions when, as discussed above, other jobs for which he was qualified may have been available.
The Court thus reaches the Department's third reason — that Mr. Harris expressed enthusiasm for acquisitions. Mr. Harris can demonstrate a genuine issue of material fact concerning his enthusiasm for acquisitions. Some evidence in the record indicates that he was initially interested. See Poarch Dep. 41:7-10, ECF No. 17-5 ("[Mr. Harris] expressed enthusiasm regarding the Office of Acquisitions" after attending a training and after the end of the second reassignment search). However, other evidence indicates that any interest had cooled well before the reassignment. See Email from Bruce Harris to Brandon Poarch (Jan. 23, 2015, 11:38 AM), ECF No. 17-24 (accepting the acquisitions position "under protest" and stating that it was "not correct" that he was interested in the position, as any interest had been expressed before he fully understood that the reassignment was "essentially a demotion and also has negative concoctions [sic] on [his] career"); Harris Decl. ¶ 13, ECF No. 19-26 ("I never expressed `enthusiasm' for [the acquisitions] position but agreed to consider it.").
The D.C. Circuit has held that a Rehabilitation Act plaintiff generally need not
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 17) is
Although some documents in the record list the STB within the components to be contacted for reassignment searches, ECF No. 19-11, it is not clear that anyone from STB was ever emailed concerning Mr. Harris's search. See, e.g., ECF No. 17-15 (search email to selective placement coordinators). Although the Court notes this inconsistency, none of Mr. Harris's arguments rely on the possible omission of the STB search, and the Court thus does not resolve it.
This conclusion assumes that the common "No response/no vacancies" label used by the Department actually means no response, as suggested by the document as a whole. First, whenever "No response/no vacancies" is used, the corresponding date field is empty, but when any other comment describes a response the date of the response is filled in. Second, many of the other comments (with dates) use more specific language to indicate that no positions were available ("No positions available in requested area," "Agency is on a hiring freeze," "Not successful in finding a vacant position," etc.), suggesting that the "No response/no vacancies" label was not used when a mode actually replied indicating that no vacancies were available. Cf. Burnham Dep. 19:5-8, ECF No. 19-12 ("Q: Now, suppose [the modes] determine there isn't a position? A: They would typically respond by email and say we don't have any vacancies.").
It also appears that Mr. Harris was initially expected to work as a contracting specialist, but was later moved into the purchasing agent track based on his prior work experience. See Adams Aff. at 6, ECF No. 21-3 ("[The new Director] said she wanted to switch [Mr. Harris] to a GS-1102 in the purchasing agent track, which is different from contracting specialist, where we originally planned to have him work.... He was qualified for this position. He ha[d] enough experience to do purchasing and [it would] allow him to progress more quickly than if he were in contracting."). Any differences between a contracting specialist and purchasing agent do not appear to be at issue in this lawsuit.
Similarly, the evidence in the record generally indicates that Mr. Harris was not offered a position at the National Training Center. Harris Dep. 82:24-83:16, ECF No. 17-4 (he recalled "[v]ery, very briefly" a conversation about an opportunity at the National Training Center, but "it was no specific position that [was] talked about" and the conversation only lasted "a minute or two" because "there was really nothing there"); Poarch Dep. 31:10-32:8, ECF No. 17-5 (noting that he and another supervisor "discussed the possibility of [Mr. Harris] working at the National Training Center for FMCSA" but he "d[id]n't recall specifically whether there was a vacancy or not"). But see Adams Aff. at 4, ECF No. 21-3 ("I was able to offer him [a] position[] [with] the National Training Center.... as a program specialist on course related work and training.").
Finally, the evidence is mixed as to whether Mr. Harris was offered a position in human resources. Harris Dep. 79:12-80:10, ECF No. 17-4 (stating that he was "asked if [he] would be interested in something about hiring people with disabilities" but "[t]here never was a position available" and he "never interviewed with anybody"). But see Adams Aff. at 4, ECF No. 21-3. "I was able to offer him [a] position[] in HR.... as a program specialist working on special emphasis programs and specific projects.").
Given that the Court cannot weigh evidence or make credibility determinations at summary judgment, Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), it cannot resolve these disputes in favor of the Department, and summary judgment is therefore inappropriate.
First, the Department objects that Mr. Harris did not "present[] his claimed qualifications to the Department during the reassignment search" or "actually request[] reassignment to any of the positions." Def.'s Reply at 2, ECF No. 21. This argument does not appear in the Department's motion for summary judgment, cf. Def.'s MSJ at 14-15, and therefore the Court disregards it because Mr. Harris has not had the opportunity to respond. Furthermore, the Department identifies no legal authority placing the burden on the employee to take either of these steps.
Second, the Department argues for the first time in its reply that Mr. Harris has not shown "that he could have performed the essential functions of those positions with or without an accommodation." Def.'s Reply at 12. The relevant legal authority speaks to the plaintiff's requirement to demonstrate that an equivalent position existed and that the employee was qualified, not that the employee could perform it with or without reasonable accommodations. Alston v. Wash. Metro. Area Transit Auth., 571 F.Supp.2d 77, 84 (D.D.C. 2008) (citing 29 C.F.R. § 1630, App. § 1630.2(o) and McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1165 (7th Cir. 1997)). Nor have other courts in this jurisdiction examined at summary judgment whether the employee had made a showing that she could perform the job to which she sought reassignment with or without reasonable accommodation. See, e.g., Alston, 571 F.Supp.2d at 85.
The Department's argument is especially egregious in the context of job posting 37288. After emailing his supervisor about the job posting, Mr. Harris followed-up the next day by emailing his manager two versions of his résumé, including one that "more fully describes [his] background working with persons with disabilities, ADA, Vocational Rehab Act of 1973, etc." Compare Email from Bruce Harris to Brandon Poarch (Oct. 3, 2014, 8:24 AM), ECF No. 18-1, with Email from Bruce Harris to Brandon Poarch (Oct. 2, 2014, 11:11 AM), ECF No. 19-1. The focus on the disability experiences was apparently unsolicited, and still resulted in no known feedback from the Department.
Mr. Harris engaged in a protected activity — requesting a reasonable accommodation. See id. at 15 ("[W]e join our sister circuits in holding that the act of requesting in good faith a reasonable accommodation is a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, see 29 U.S.C. § 791(g)."). According to Mr. Harris, his reassignment into acquisitions was a de facto demotion which forced him to do work he was not qualified to do and prevented him from getting a promotion. Compl. ¶ 21, ECF No. 1. Such a reassignment could constitute an adverse action. See, e.g., Norden v. Samper, 503 F.Supp.2d 130, 158 (D.D.C. 2007) (holding that assigning "a Fulbright Scholar who had published several research papers ... to the full-time cataloguing of insect specimens was demeaning and transparently punitive" and could justify a retaliation claim under the Rehabilitation Act); see also Loya v. Sebelius, 840 F.Supp.2d 245, 256 (D.D.C. 2012) (holding, in the Title VII context, that "a reduction in responsibilities can constitute an adverse employment action" (collecting citations)). Nor does the Department contend that the reassignment was causally unrelated to Mr. Harris's request for a reasonable accommodation. Cf. Poarch Aff. at 14, ECF No. 19-18 ("[Mr. Harris's] disability was indeed a factor and the reason he requested an accommodation.... [H]is disability and request for a reasonable accommodation were the reason for the [reassignment] process ...").
However, unlike the claims at issue in Floyd and Prescott-Harris, here Mr. Harris alleges a distinct retaliatory act (reassignment to the Office of Acquisitions) in addition to the denial of his request for a reasonable accommodation (denial of reassignment to any of the jobs he identified). In other words, Mr. Harris alleges that he would have been better off had he never requested a reasonable accommodation at all. Under these circumstances, a retaliation claim is not double-counting because it arises from a separate harm. If, for example, an employee requests an office with fewer stairs as a reasonable accommodation, the wrongful denial of that request might constitute discrimination under the Rehabilitation Act. But if the employer not only wrongfully denies a move into a preferred office but also vindictively moves the employee into an unfinished basement corridor — with even more steps — a claim for retaliation may also exist.
A similar fact pattern existed in Norden v. Samper, where an employee with a disability requested flex time and reduced exposure to chemicals as reasonable accommodations. 503 F.Supp.2d 130, 140 (D.D.C. 2007). The employer did not remove the employee from chemicals or allow her to work flexible hours. Instead, the employer assigned her — purportedly as an accommodation — to work "almost exclusively" with chemical-soaked specimens during a strict 8 AM to 5:30 PM schedule. Id. at 140-42. The court in Norden analyzed the employee's retaliation claims in addition to her discrimination claims under the Rehabilitation Act. Id. at 157-61. The court granted the employee summary judgment on her retaliation claims based on this "de facto demotion" after noting, as evidence of causation, that the conditions were the employer's "response to [the employee's] EEO complaint after she requested accommodations under the Rehabilitation Act." Id. at 159 (quoting the employer's briefing that the conditions were "offered to [the employee] by the [employer] in an attempt to resolve her EEO claims").
Mr. Harris alleges similar events here — not only did the Department, according to him, fail to reasonably accommodate him by reassigning him to a job that he identified and was qualified for, but it also retaliated by moving him into a job for which he was unqualified and where he would be unable to advance. The Court finds no structural obstacle to Mr. Harris's retaliation claims.
