257 F. Supp. 3d 67
D.D.C.2017Background
- Plaintiff Bruce Harris, a deaf/hard-of-hearing GS-13 Program Officer at FMCSA, requested reassignment in 2014 as a reasonable accommodation because he could not effectively participate in large conference calls despite prior accommodations (interpreters, video-phone).
- DOT conducted its formal reassignment search under DOT Order 1011.1A; responses from selective placement coordinators were sparse and produced no suitable vacancies identified through the formal search.
- Harris repeatedly flagged positions he believed he was qualified for (eventually focusing on 11 postings), but HR/selective-placement did not follow up or place him into those jobs.
- DOT reassigned Harris to FMCSA’s Office of Acquisitions (301/1102 series) at the same GS-13 pay, which Harris accepted "under protest," contending the work assigned was GS-7/8-level and reduced his promotion prospects.
- Harris filed EEO claims and then this suit under the Rehabilitation Act asserting failure to provide reasonable accommodation (improper reassignment/no search) and retaliation for requesting accommodation. The court denied DOT’s summary judgment motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOT failed to provide a reasonable accommodation by reassigning Harris to acquisitions instead of suitable vacant positions | Harris: DOT did not identify or offer vacant equivalent positions he was qualified for; acquisitions was inferior and limited promotion | DOT: DOT conducted required searches, offered acquisitions (same pay/grade) and other opportunities; reassignment was a reasonable accommodation | Genuine disputes of material fact exist about (1) whether DOT re-offered GMO/other jobs, (2) whether the 11 jobs were vacant and he was minimally qualified, and (3) whether acquisitions was a de facto demotion — summary judgment denied |
| Whether the GMO or other positions, if offered, would have been effective accommodations | Harris: GMO would have the same problematic conference calls; other offered opportunities were not actually offered or suitable | DOT: GMO and other positions were pursued/offered as alternatives | Fact issues exist as to whether GMO was re-offered and whether it would solve the accommodation problem — cannot resolve on summary judgment |
| Whether reassignment to acquisitions was a de facto demotion (inferior position) | Harris: Work assigned was GS-7/8 complexity, delayed/foreclosed promotions; DOT’s reassignment reduced status despite same pay | DOT: Same pay/grade/benefits; reassignment that preserves pay is reasonable; training/entry-level tasks are normal for cross-training | Court: Equivalence must consider pay, status, promotion potential and duties per DOT policy and ADA regs; genuine dispute whether acquisitions was inferior prevents summary judgment |
| Whether Harris states a retaliation claim for requesting accommodation | Harris: Requesting accommodation was protected activity; reassignment to inferior job was materially adverse and causally connected | DOT: Reassignment resulted from his request and/or his supposed enthusiasm for acquisitions; denial of accommodation cannot also be a retaliation claim | Court: Retaliation claim is viable because the alleged retaliatory act (assignment to acquisitions) is a distinct adverse act; plaintiff cast doubt on DOT’s nondiscriminatory reasons — summary judgment denied |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (party opposing summary judgment must show specific facts creating genuine dispute)
- Scott v. Harris, 550 U.S. 372 (genuine dispute standard on summary judgment)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for retaliation claims)
- Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir.) (standards for reassignment as accommodation)
- Norden v. Samper, 503 F. Supp. 2d 130 (D.D.C. 2007) (reassignment must be an actual offer, not mere invitation to apply; retaliation analysis for de facto demotion)
- Alston v. Wash. Metro. Area Transit Auth., 571 F. Supp. 2d 77 (D.D.C. 2008) (reassignment must be to an existing, vacant job for which plaintiff is qualified; equivalence in status/pay)
- Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir.) (retaliation elements and plaintiff’s showing to cast doubt on employer’s nondiscriminatory reason)
- Guice-Mills v. Derwinski, 967 F.2d 794 (2d Cir.) (reassignment that preserves pay/benefits may still be reasonable where no equivalent vacancy exists)
- Doak v. Johnson, 19 F. Supp. 3d 259 (D.D.C. 2014) (elements for failure-to-accommodate claim under Rehabilitation Act)