FARRELL, Senior Judge:
Garnetta L. Hunt (Hunt), formerly a correctional officer with the rank of Sergeant with the District of Columbia Department of Corrections (DOC), filed suit alleging that she had not been provided with a reasonable accommodation for a disability — mainly psychological — that she sustained after being attacked by a jail inmate. Hunt claimed discrimination based on her disability, in violation of the District of Columbia Human Rights Act (DCHRA), D.C.Code § 2-1401 et seq. (2001), intentional interference with contractual relations, and intentional infliction of emotional distress. The Superior Court (Bartnoff, J.) granted summary judgment to the District of Columbia and two named DOC officials on all of the claims. On appeal, Hunt argues primarily that triable issues of fact precluded summary judgment on whether DOC had reasonably accommodated her disability either by changes to her job at the Jail
The following facts, drawn from depositions and other proffered materials, are not disputed. On March 23, 2004, while on duty at the Jail, Hunt suffered head, neck, and shoulder injuries from an attack by an inmate. She was hospitalized for these injuries and also diagnosed with Post-Traumatic Stress Disorder (PTSD), for which she received treatment from a psychiatrist and other mental health professionals. After a prolonged absence during which she was treated and received worker's compensation, she returned to work on April 18, 2006. At that time, her treating psychiatrist stated in a letter that she could work, on a trial basis, but only if the position she were assigned to had limited contact with inmates. DOC therefore assigned her to a post at the staff entrance to the Jail, where she would not regularly come into contact with inmates; and, to further insulate her from such contact, it no longer required her to attend roll call.
Nevertheless, Hunt experienced three succeeding panic attacks. The first two occurred after she had incidental contact with inmates while going from one place to another within the facility. The third, on September 26, 2006, occurred when she heard inmates in a nearby hallway pounding on a secure door to which she controlled access. As a result, Hunt was placed on administrative leave until November 29, 2006, when (after her pay was terminated because she had failed to furnish a "medical evaluation") she obtained a note from a treating therapist that she could resume work if assigned to a post where she had no direct contact with inmates. As this had not proved feasible, she remained on leave without pay.
More than a year later, a DOC official (Captain Watford) again talked to Hunt about possible positions at the jail involving limited contact with inmates. One was in the motor pool, the other in the records office, but both locations, although "outside the perimeter of the jail setting," entailed some "limited contact with inmates."
To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue with regard to any material fact and, therefore,
The DCHRA makes it an "unlawful discriminatory practice" for an employer, with respect to compensation or the terms of employment, to discharge or otherwise discriminate against an employee "based upon [a] ... disability...." D.C.Code § 2-1402.11(a)(1) (2006 Supp.). For purposes of summary judgment, Judge Bartnoff assumed that Hunt suffered from a "disability," i.e., PTSD that prevented her from working as a correctional officer who had contact with inmates.
Our decisions under the DCHRA regarding whether an employee was discriminated against because of a "disability" effectively incorporate judicial construction of related anti-discrimination provisions of the Americans with Disability Act (ADA), 42 U.S.C. § 12102 et seq. (2006). See, e.g., Strass v. Kaiser Found. Health Plan, 744 A.2d 1000, 1007-09 & n. 8 (D.C.2000). To show unlawful discrimination, an ADA plaintiff with a disability "must prove ... that [s]he was qualified for the position with or without a reasonable accommodation, and that [s]he suffered an adverse employment action because of [her] disability." Duncan v. Washington Metro. Area Transit Auth., 345 U.S.App.D.C. 170, 174, 240 F.3d 1110, 1114 (2001) (internal quotation marks omitted).
We look first at the position Hunt occupied, a correctional officer at the Jail. In determining the essential functions of a position, courts "generally give substantial weight to the employer's view of job requirements," Ward v. Massachusetts Health Research Inst., 209 F.3d 29, 34 (1st Cir.2000), deference particularly apt for a job such as Hunt's, intimately associated with preserving public safety. We thus reject Hunt's threshold argument that, despite the affidavit of Warden Wainwright, supra, note 2, a jury should have been
Hunt's principal argument focuses on DOC's alleged twofold failure to make reasonable accommodation for her disability. The District, as it must, acknowledges an employer's duty under the ADA (hence under the DCHRA) to "make reasonable accommodation to the known physical or mental limitations of [a disabled] ... employee... unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Carr, 306 U.S.App.D.C. at 221, 23 F.3d at 529 (italics omitted) (quoting 29 C.F.R. § 1614.203(c)). Hunt, for her part, does not dispute that DOC provided her with an accommodation when, at her request, it placed her at the staff entrance (and excused her from appearing at roll call), measures that would reduce but not eliminate her contact with inmates. Also undisputed is that Captain Watford discussed with Hunt a reassignment to other positions at the Jail with the same potential to limit, but not eliminate, contact with inmates, but that the 2008 judgment of her psychiatrist made this too unfeasible.
Even so, Hunt argues first that a reasonable accommodation she asked DOC to make, but which it rejected, was the fairly simple one of allowing her, at the onset of any panic attack, "to take a break to get herself together" before returning to her post. Reply Br. for Appellant at 4 (quoting Hunt's deposition testimony that "[w]hen I had the relapse ... [after] the inmates had come down and were banging on the door ... I had just asked for time to get myself together ... because I did fine otherwise").
Hunt focuses at greater length on the case law establishing that an employer's obligation to make reasonable accommodations may include reassignment of a disabled employee, on request, to a different job if it is vacant and she is qualified for it. As the court stated in Aka v. Washington Hosp. Ctr., 332 U.S.App.D.C. 256, 156 F.3d 1284 (1998):
Id. at 272-73, 156 F.3d at 1300-01 (emphasis omitted); see Strass, 744 A.2d at 1007 ("Under the [ADA], ... the definition of reasonable accommodation includes ... `reassignment to a vacant position.'"). Hunt thus argues that, even if her disability kept her from serving as a correctional officer at the Jail, DOC was obliged to consider whether she was qualified for "positions other than in the correctional officer field," Br. for Appellant at 10, such as vacant jobs back at the Grimke Building where administrative functions were quartered. In opposing summary judgment, Hunt provided the trial court with multiple "job postings" for positions away from the Jail that, she claimed, were open at or around the time her problems at the Jail arose. She points out further that, under settled law construing the ADA, DOC was required to engage in an "interactive process" with her, as employee, to determine her suitability for any of these jobs. See, e.g., Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 902 (8th Cir.2006) ("Under the ADA, an employer must engage in an interactive process to identify potential accommodations that could overcome the employee's limitations." (citation omitted)).
On the subject of reassignment as a reasonable accommodation, federal courts have extensively discussed the relation between a plaintiff-employee's burden of proof in ADA litigation and the employer's contemporaneous duty to engage in an interactive process. The widely prevailing view is that "[a]n ADA plaintiff ... must demonstrate the existence, at or around the time when accommodation was sought, of an existing vacant position to which she could have been reassigned [and] ... for which she was qualified." McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 97-98 (2d Cir.2009); Donahue v. Consol. Rail Corp., 224 F.3d 226, 230 (3d Cir.2000) ("[P]laintiff bears the burden of demonstrating ... that there was a vacant, funded position ... and ... that [she] was qualified to perform the essential duties of this job...."); Peltier v. United States, 388 F.3d 984, 989 (6th Cir.2004) (same).
We need not, however, trace the contours of this relationship further because, for two combined reasons, Hunt has not raised a triable issue of whether DOC failed to accommodate her by transfer to a job away from the jail setting. As already pointed out, DOC worked with Hunt, at her request, to restructure her job at the jail to limit inmate contact as far as possible. But, as Judge Bartnoff determined,
Moreover, when we move to considering the job openings Hunt identified after her suit was filed, and to which she allegedly could have been transferred at the time, her case fares no better. Even if Hunt did not bear the burden of proof on that issue,
Hunt's challenge to summary judgment on her remaining claims — intentional interference with contractual relations and intentional infliction of emotional distress — may be dealt with briefly. As to the first, she alleged that DOC had interfered with her rights under the Collective Bargaining Agreement between the Union of which she was a member and the District government. But "the tort of interference with contractual relations does not lie when the defendant itself is a party to the contract." Farmland Indus., Inc. v. Grain Bd. of Iraq, 284 U.S.App. D.C. 276, 282, 904 F.2d 732, 738 (1990) (citing, inter alia, W. KEETON, PROSSER AND KEETON ON THE LAW OF TORTS § 129 at 990 (5th ed. 1984)). Thus, the District's alleged actions through DOC "may or may not [have] rise[n] to the level of a breach of contract, but ... [could] not support an action for interference with it." Donohoe v. Watt,
The additional cause of action, for intentional infliction of emotional distress, likewise failed as a matter of law. "We have been exacting as to the proof required to sustain such claims in an employment context." Futrell v. Dep't of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003) (internal quotation marks omitted). "The conduct alleged must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Id. (internal quotation marks omitted). As Judge Bartnoff explained:
Affirmed.