60 F. Supp. 3d 166
D.D.C.2014Background
- Plaintiff Michael Leiterman is a blind CBP attorney who uses screen‑reader software (JAWS) and alleges widespread inaccessibility of CBP electronic systems, office telephone, telework access, online training (VLC), travel booking (FedTraveler), and documents on the CBP intranet.
- Leiterman requested and received telework as an accommodation in 2007; remote access methods introduced in 2009 were inaccessible and an accessible solution was not implemented until 2012.
- He applied for an automatic GS‑13→GS‑14 promotion in 2010, received a short‑lived payroll increase in error, withdrew his promotion application after supervisors said he had insufficient productivity, and later repaid the overpayment with interest.
- Leiterman filed an EEO contact on June 3, 2011 raising multiple disability‑related complaints and sued in 2013 under Sections 501 and 508 of the Rehabilitation Act.
- Defendants moved to dismiss or for summary judgment. The court granted dismissal as to (1) the Section 508 claim and (2) the failure‑to‑promote claim for lack of timely administrative exhaustion, but denied summary judgment on the remaining Section 501 failure‑to‑accommodate claims to permit discovery and fact development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 508 creates a private, non‑administrative civil right for federal employees | Leiterman contends Section 508 (and implementing regs) permit him to sue in district court to enforce EIT accessibility | DHS argues Section 508 provides only an administrative enforcement scheme and contains no private civil cause of action for federal employees | Court: No private non‑administrative right under §508; claim dismissed |
| Whether Section 508 standards can be enforced via Section 501 (i.e., §508 noncompliance is per se §501 violation) | Leiterman urges incorporation of §508 as the specific standard for §501 reasonable accommodations | DHS argues that treating §508 noncompliance as per se §501 liability would circumvent §508’s enforcement scheme | Court: Rejection of per se incorporation; §508 noncompliance does not automatically constitute §501 liability |
| Whether failure‑to‑accommodate claims re: telework, training, office tech, phone, intranet survive summary judgment | Leiterman argues delays and inadequate alternatives (multi‑year delay for remote access, inaccessible VLC, inaccessible office systems) denied meaningful access and constitute failure to accommodate | DHS contends it offered alternatives, made partial accommodations, and ultimately implemented solutions (e.g., remote access in 2012) | Court: Denied summary judgment; factual disputes and discovery needed on reasonableness/timeliness of accommodations (telework delay actionable; other claims survive) |
| Whether failure to promote claim was timely exhausted or saved by continuing violation / equitable estoppel | Leiterman argues the denial was part of ongoing discrimination and that supervisors’ assurances justified delay in charging | DHS argues the promotion denial was a discrete act (May 2010) and plaintiff contacted EEO more than 45 days later; exhaustion is jurisdictional | Court: Promotion denial is a discrete act; plaintiff failed to exhaust within 45 days; continuing‑violation and equitable‑estoppel arguments rejected; claim dismissed |
Key Cases Cited
- Alexander v. Sandoval, 532 U.S. 275 (regulatory language cannot create a private right of action beyond statutory authorization)
- HCSC‑Laundry v. United States, 450 U.S. 1 (specific statute controls over a general provision when both apply)
- Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (discrete acts like failure to promote are separate actionable events and not subject to continuing‑violation tolling)
- Mogenhan v. Napolitano, 613 F.3d 1162 (multi‑year delay in accommodation can be unreasonable and actionable)
- Spinelli v. Goss, 446 F.3d 159 (Rehabilitation Act exhaustion requirement is jurisdictional)