Harris v. Chao, Civil Action No.: 16-0162 (RC).
| Decision Date | 06 July 2017 |
| Docket Number | Civil Action No.: 16-0162 (RC). |
| Parties | Bruce HARRIS, Plaintiff, v. Elaine L. CHAO, Secretary, United States Department of Transportation, Defendant. |
| Court | U.S. District Court — District of Columbia |
Ellen K. Renaud, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.
Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendant.
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE EXHIBITS
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.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 (); Email from Brandon Poarch to Bruce Harris (May 28, 2014, 9:35 AM), ECF No. 17–10 ().
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. 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 qualified4 for the following series and grade levels:
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
[Editor's Note: The preceding image contains the reference for footnote5 ].
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 ( ); Horne Aff. at 3, ECF No. 18–3 ().
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 (). 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 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 (). 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 ( ...
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