Leiterman v. Johnson, Civil Action No. 13–394 CKK

• Decision Date: 28 July 2014
• Docket Number: Civil Action No. 13–394 CKK
• Citation: 60 F.Supp.3d 166,30 A.D. Cases 524
• Parties: Michael Leiterman, Plaintiff, v. Jeh Johnson, Secretary, Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — District of Columbia

60 F.Supp.3d 166

30 A.D. Cases 524

Michael Leiterman, Plaintiff

v.Jeh Johnson, Secretary, Department of Homeland Security, et al., Defendants.

Civil Action No. 13–394 CKK

United States District Court, District of Columbia.

Signed July 28, 2014

Laura Ginsberg Abelson, Joseph B. Espo, Brown, Goldstein & Levy, L.L.P., Baltimore, MD, for Plaintiff.

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Michael Leiterman brings this action against Defendant Jeh Johnson¹ , in his official capacity as Secretary of Homeland Security, and Defendant David Aguilar, in his official capacity as Deputy Commissioner, U.S. Customs and Border Patrol, alleging violations of the Rehabilitation Act of 1973. Presently before the Court is Defendants' [24] Motion to Dismiss, or, in the Alternative, Motion for Summary Judgment. Upon consideration of the pleadings² , the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND DENIES IN PART Defendants' [24] Motion to Dismiss or, in the Alternative, for Summary Judgment. Specifically, the Court grants Defendants' motion with respect to (1) Plaintiff's failure to promote claim, and (2) Plaintiff's claim under Section 508 of the Rehabilitation Act. In all other respects, Defendants' motion is denied.

I. BACKGROUND

A. Factual Background

Plaintiff Michael Leiterman is a blind attorney who has worked at the U.S. Customs and Border Protection Agency (“CBP” or “Agency”), a division of the Department of Homeland Security, since August 2006. Compl. ¶ 1. Plaintiff alleges that he has experienced various issues with information technology utilized by CBP and that CBP has failed to reasonably accommodate his disability in several respects. See generally id.

By way of background, Plaintiff uses several assistive technologies that allow him to perform his responsibilities as an attorney. As a blind computer user, Plaintiff utilizes “JAWS”, a screen access software that converts digital information to synthesized speech. Id. ¶ 12. JAWS can read aloud information presented on a computer screen, including text in documents, websites, e-books, and other formats. Id. In order for JAWS to successfully “read” computer screens, the information on the screen must be coded so it is accessible to screen readers. Id. ¶ 17. In order for JAWS to successfully “read” information from a typed document that is e-mailed to a JAWS user, the document must be either a properly formatted Microsoft Word document or a properly formatted document that is converted to an accessible PDF. Pl.'s Opp'n, Ex. 3 (Suppl. Decl. of Michael Leiterman) ¶ 7. If there are images or links on a computer screen to be read by JAWS those images and links must have what are known as “alt tag” descriptions, which JAWS will read to inform the blind user of the content of the image. Id. ¶ 8. Because using a mouse is an inherently visual task, JAWS is operated through keyboard instructions that allow blind users to move through a document or a website and to activate links or buttons or highlight text much as a sighted user would do. Id.

Yet, despite the provision of assistive software such as JAWS, Plaintiff has experienced substantial issues with the office technology he utilizes on a daily basis. First, Plaintiff alleges significant problems with his office computer. Plaintiff contends that in 2007, CBP began to “push” frequent software updates that resulted in computer “crashes” that required Plaintiff to reconfigure his computer every time he received a new update. Id. ¶ 10. The crashes required significant amounts of time to fix and prevented Plaintiff from accessing his computer for large portions of time. Id. Although CBP's information technology (“IT”) department suspended the problematic software updates from November 2009 to July 2010, the technology issues have resumed since this time. Id. Accordingly, Plaintiff alleges that he has been required to troubleshoot his inaccessible technology from his cubicle, where his coworkers can hear his discussions with supervisors and IT personnel. Id. Compl. ¶ 47. Because of this lack of confidentiality, Plaintiff alleges that his colleagues have come to see him as a problem employee. Compl. ¶¶ 47–50.

In addition, in the Summer of 2011 CBP switched all Agency computers to the Windows 7 operating system, which Plaintiff contends has exacerbated the issues with his office computer. Id. ¶ 22. Plaintiff states that because of unresolved accessibility issues for blind users of Windows 7, he has been required to spend substantial amounts of work time testing the new operating system and identifying accessibility issues, which further interferes with his ability to complete his legal work. Compl. ¶ 23. In response, Defendants describe the Windows 7 operating system as the product that “best meets” both the Agency's business needs and accessibility standards. Defs.' Mot., Ex. 4 (Brooke Aiken Affidavit) ¶ 22. Defendants further state that, in response to Plaintiff's concerns regarding his computer, the Agency, through Plaintiff's supervisors, as well as numerous IT personnel, engaged in extensive discussions, with and without Plaintiff, attempting to determine the cause of the computer issues, possible resolutions, and implementation of solutions that are in keeping with the Agency's IT security requirements. Id. ¶¶ 6–10, 12. Until a full remedy could be determined, Plaintiff was provided with an additional computer for the office and a new laptop for his home. Id. ¶¶ 7–8, 13. In addition, Defendants state that Plaintiff requested and was approved to have the Windows 7 system installed on his computers as an Agency tester. Id. ¶ 7.

Plaintiff also experiences issues relating to other office technology, specifically his office telephone. Pl.'s Opp'n, Ex. 1 (Leiterman Declaration) ¶ 42 & Response. Plaintiff is unable to use the telephone's visual caller ID function. Id. In addition, he is unable to tell when there is a voicemail message because the voicemail indicator is purely visual. Plaintiff is also unable to use the internal CBP telephone directory stored in the telephone.Id. Defendants respond that the Agency has offered to replace Plaintiff's current telephone with his previous telephone or to provide him a new phone that would allow him to use functions such as hold and conference call. Defs.' Mot., Ex. 4 ¶ 18. Defendants state that Plaintiff has rebuffed these offers, insisting instead that the Agency make his current telephone's functions accessible. Id. However, Defendants do not specify whether Plaintiff's previous telephone made accessible all of the features that are inaccessible on Plaintiff's current telephone.

In addition, Plaintiff alleges that he continues to receive e-mailed documents that are inaccessible because, rather than requiring other CBP employees to follow Agency policy, CBP has Plaintiff devote his time to making the inaccessible documents accessible. Pl.'s Opp'n, Ex. 3 ¶ 19. Plaintiff states that the general CBP Intranet has many pages that are inaccessible to blind users because they contain unlabeled or mis-labeled links, unlabeled graphics, unidentified Flash content, and video content that cannot be navigated using a screen reader. Id. He also alleges that documents produced by CBP's Office of Diversity and Civil Rights are inaccessible because they contain content incompatible with JAWS. Compl. ¶¶ 54–58.

Plaintiff also previously experienced problems with CBP's technology for telecommuting. In 2007, Plaintiff requested and was approved to telework two days a week as a reasonable accommodation. Pl.'s Opp'n, Ex. 1 ¶ 26 & Response; Pl.'s Opp'n, Ex. 8 (Memorandum of William Rosoff). Plaintiff began telecommuting two days a week in the Spring of 2007. Id. Plaintiff was initially able to access the CBP network remotely using an accessible access method known as a “secure card.” Pl.'s Opp'n, Ex. 1 ¶ 26 & Response. However, in 2009, CBP switched to two alternative systems for remote access—a “MobiKey” and a keyfob security device. Id. ¶ 31 & Response; Pl.'s Opp'n, Ex. 3 ¶ 9. Both were inaccessible to blind users like Plaintiff. Pl.'s Opp'n, Ex. 1 ¶ 35 & Response. The keyfob security device, for example, generated and visually displayed a periodically changing random set of numbers required for remote access to CBP's network. Pl.'s Stmt. ¶ 37. Plaintiff alleges that the combination of these two inaccessible devices left him unable to access the CBP network while telecommuting. Pl.'s Opp'n, Ex. 3 ¶ 9. He states that when he wanted to e-mail his colleagues or supervisors on the days when he was telecommuting, he needed to do so from his personal Hotmail account. Id. Plaintiff brought this issue to the attention of his supervisors as early as 2010, and over the course of the next several years, he requested a series of accommodations. Pl.'s Opp'n, Ex. 11 (November 2010 E-mails). For example, Plaintiff requested a Blackberry or other smartphone that would allow him to access his e-mail remotely. Pl.'s Opp'n, Ex. 1 ¶¶ 36–37 & Responses. The possibility of installing a secure desktop computer in Plaintiff's home was also proposed. Id. ¶ 44 & Response. Although CBP officials told Plaintiff they were exploring alternative methods for him to access the Agency network, a solution that allowed Plaintiff to enjoy remote access was not adopted until approximately February 2012. Defs.' Mot., Ex. 4 ¶ 16.

On account of his disability, Plaintiff has also experienced issues with CBP's system for booking work-related travel, a program known as “FedTraveler.” Pl.'s Opp'n, Ex. 1 ¶ 5 & Response. On June 8, 2011, and again on August 2, 2011, Plaintiff's supervisor offered him an opportunity to attend a CBP seminar in Philadelphia on September 12–16, 2011. Defs.' Mot., Ex. 3 (Ieva O'Rourke Affidavit) ¶ 15. In accordance with federal travel regulations, 41 C.F.R. § 301–73.101, the Agency uses...