Albert ADAMS, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALBERT ADAMS,
Plaintiff,
v. Civil Action No. 09-2459 (JEB)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
Plaintiff Albert Adams, at the time an Information Technology Specialist with the
District of Columbia Department of Mental Health, suffered a serious stroke in 2005. After
being incapacitated for a few months in the hospital, he sought an accommodation that would
allow him to keep working for DMH despite significant physical and mental after-effects. To
that end, Adams spent several months negotiating an alternative work arrangement with the
Department. Those talks ultimately went nowhere, however, so Adams brought this action
against the District under the Americans with Disabilities Act, the federal Rehabilitation Act, and
the D.C. Human Rights Act, alleging that DMH failed to provide him with reasonable
accommodations while he was recovering from his stroke, discriminated against him because of
his disability, and subjected him to a hostile work environment. Another court in this District
dismissed Adams’s intentional-discrimination and DCHRA claims, but it allowed him to
commence discovery relating to the allegations in his reasonable-accommodation and hostile-
work-environment counts. Discovery now complete, Defendant moves for summary judgment.
Although Plaintiff’s plight is regrettable, the Court must conclude that his remaining claims fail
as a matter of law, and so it will grant the District’s Motion in full.
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I. Background
Viewing the facts in the light most favorable to Plaintiff, the Court finds that Albert
Adams joined the District’s Department of Mental Health in late 2003 as an Information
Technology Specialist. In that role, he trained agency staff to use computer systems and
provided in-person and virtual-help-desk support to users. See Def. Statement of Undisputed
Material Facts, ¶¶ 1-2. He was also responsible for planning and implementing assignments and
reporting on the efficiency of programs, among other things. See Pl. Response to Def. SUMF, ¶
2. Travel was a key function of his position, as was speaking with others, see Opp., Exh. 1
(Deposition of Albert Adams) at 55:18-57:9, 65:5-66:7; Def. SUMF, ¶ 5, though Adams insists
that neither was a “requirement.” See Adams Depo. at 54:20-21.
On May 8, 2005, Adams experienced a significant stroke, which required hospitalization
through July of the same year and continued medical supervision thereafter. Before his stroke,
Adams had been a model employee, receiving excellent ratings from his supervisors. See Def.
SUMF, ¶ 7. Afterward, however, he suffered from a variety of complications, including slurred
speech, difficulty walking, memory loss, trouble focusing, and an inability to stand or sit for long
periods of time. See Adams Depo. at 105:1-126:4.
About four months after the stroke, Adams’s wife notified DMH that he wanted to return
to work, but that he would need to telecommute. Nothing ultimately came of the request, so
Adams took action, applying for Social Security disability benefits. Mot., Exh. 3 (Application
for Disability Insurance Benefits). In that application, after describing his job – he mentioned,
among other things, that he “traveled to various locations to train persons on computer software
and hardware” – Adams represented that his “health [would] no longer allow [him] to work” and
that he was “still disabled” at the time of the application. Id. at 2-3, 12. Threatened by mounting
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financial obligations, he also submitted a letter to the IRS seeking discharge of unpaid taxes
because he was “physically disabled and not able to work.” Mot., Exh. 5 (Letter to IRS, Sept.
27, 2005). Consistent with those statements, Adams has not returned to work since his stroke.
While he sought accommodation for his disability, Adams alleges, he was made to suffer
a hostile work environment at his home. In particular, he asserts that his supervisor, with whom
he had discussed his disability, was “very abrasive” to his wife over the phone (though he never
heard any of those conversations). See Adams Depo. at 217:22-218:20. He also claims to have
felt intimidated by the same supervisor, who told Adams he was not “quite sure” if Adams would
be needed in the office going forward. Id. at 228:20-229:7; 229:14-19.
The District finally decided in February 2006 that it would not allow Adams to work
from home and so informed him. See 2d Am. Compl., ¶ 32-33. After properly exhausting the
available administrative remedies, Adams brought this suit against the District on November 9,
2009. His Second Amended Complaint alleges three principal violations of the ADA and the
federal Rehabilitation Act: first, the District intentionally discriminated against him because of
his disability, see id., ¶¶ 108-21; second, it failed to provide the reasonable accommodations he
requested, see id., ¶¶ 65-73; and third, it subjected him to a hostile work environment. See id., ¶¶
98-107. The Complaint also asserts that DMH discriminated against Adams in violation of the
D.C. Human Rights Act. In a 2012 Memorandum Opinion, another court in this District
dismissed the intentional-discrimination count and the claims based on the DCHRA. See Adams
v. District of Columbia, 740 F. Supp. 2d 173 (D.D.C. 2010). It did, however, allow the other two
ADA and Rehabilitation Act claims to proceed to discovery. The case was subsequently
transferred to this Court during a courtwide case reassignment in April 2012. Discovery
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complete, Defendant has renewed its Motion for Summary Judgment, to which the Court now
turns.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986); Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the Court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
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See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant,
in other words, is required to provide evidence that would permit a reasonable jury to find in her
favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).
III. Analysis
Adams contends both that his supervisor, Eric Strassman, promoted a hostile work
environment by harassing Adams’s wife and insinuating that his job might be eliminated and
that the District failed to provide him reasonable accommodations after his stroke. The Court
will address those two claims in sequence.
A. Hostile Work Environment
To prevail on a hostile-work-environment claim under the ADA and the Rehabilitation
Act – the standards under the two statutes are “substantively the same,” see Faison v. Vance-
Cooks, 896 F. Supp. 2d 37, 44 n.2 (D.D.C. 2012) – a plaintiff must demonstrate that he faced
“discriminatory intimidation, ridicule, and insult” that was “sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working environment.’”
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993)). That discrimination, moreover, must have been based on
his membership in a protected class. Kelley v. Billington, 370 F. Supp. 2d 151, 156 (D.D.C.
2005) (citing Jones v. Billington, 12 F. Supp. 2d 1, 11 (D.D.C. 1997), aff’d, 1998 WL 389101
(D.C. Cir. June 30, 1998)).
In evaluating a hostile-work-environment claim, the Court “looks to the totality of the
circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550
F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). “The
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Supreme Court has made it clear that ‘conduct must be extreme to amount to a change in the
terms and conditions of employment.’” Leavitt, 407 F.3d at 416 (quoting Faragher, 524 U.S. at
788). By adhering to these standards, the Court thereby “ensure[s] that [employment-
discrimination law] does not become a general civility code” that involves courts in policing “the
ordinary tribulations of the workplace.” Faragher, 524 U.S. at 788 (citation and internal
quotation marks omitted).
Even viewing the evidence in the light most favorable to Adams, the Court must find that
the limited facts on the record cannot meet the “demanding standard” for a hostile-work-
environment claim under federal law. See Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir.
2011). Adams bases his theory on the following evidence:
 Strassman, his supervisor, called and spoke abrasively to Mrs. Adams, see Adams
Depo. at 217:16-218:20;
 Strassman told Adams that he would need to take public transportation to get to work,
see id. at 218:21-219:20;
 Strassman said he was not sure if Adams’s position was still needed, see id. at
228:20-229:19, this statement was “disturbing,” and Adams thought Strassman was
trying to get rid of him, see id. at 229:7; and
 Strassman exhibited a “disdainful attitude” toward Adams, in that he “never bothered
to learn the nature of Adams’s position or duties” or to explore reasonable
accommodations and made it clear he was happy to do without his employee. Opp. at
24.
So, in sum, Adams alleges that his boss spoke harshly to his wife on a few occasions and
made him feel unwanted as an employee. Putting aside that the worst of the purported hostility
was directed not at Adams but at his wife and that Adams was confronted by those difficulties at
home, not at work – two details that could scuttle the hostile-work-environment claim on their
own – the law requires far more. These mild slights in no way approach the bar set for this type
of cause of action; if they did, few workplaces would be entirely immune. Cf., e.g., Badibanga
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v. Howard Univ. Hosp., 679 F. Supp. 2d 99, 104 (D.D.C. 2010) (dismissing hostile-work-
environment claim where plaintiff was placed on administrative leave due to false accusation, his
accent was criticized, he was told he was easy to replace with an American, and he was told that
his supervisor would not hire other Africans); George v. Leavitt, 407 F.3d 405, 408, 416-17
(D.C. Cir. 2005) (statements by three employees over six-month period that plaintiff should “go
back where she came from,” separate acts of yelling, and hostility did not rise to level of severity
necessary to find hostile work environment).
Even if the treatment to which Plaintiff was subjected could plausibly occasion a hostile-
work-environment claim, moreover, he has offered no facts to support the contention that the
alleged mistreatment was due to his disability. Indeed, although Adams asserts that he was
mistreated by his boss “based on his disability,” 2d Am. Compl., ¶ 76, nothing corroborates that
claim. All we learn from the record is that Strassman verbally abused Adams’s wife and that he
insinuated that Adams’s job might be redundant; nothing in either the Complaint or the
Opposition to Defendant’s Motion for Summary Judgment ties these incidents to his disability.
Adams does not allege, for example, that Strassman accosted his wife because her husband was
disabled or because he had requested an accommodation. Nor does he offer any reason to
believe that his supervisor deemed his position unnecessary even in part because he was
disabled. The Court will thus dismiss Plaintiff’s hostile-work-environment claim.
B. Reasonable Accommodation
In seeking summary judgment, the District also argues that Adams has failed to establish
a reasonable-accommodation cause of action under the Rehabilitation Act and the ADA. To
make out such a case, Adams must show that: (1) he was disabled within the meaning of the
statutes; (2) his employer was aware of his disability; (3) he could have done his job with
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reasonable accommodations; and (4) he was denied such accommodations. See 42 U.S.C. §
12112; Carr v. Reno, 23 F.3d 525, 529 (D.C. Cir. 1994).
Adams has provided substantial evidence that he suffered a stroke in 2005, that the
District was aware of his condition, and that it did not provide him with any accommodation for
at least a year after he requested one. Defendant, moreover, concedes those points for the
purpose of summary judgment. See Mot. at 2-3. The District, however, does contend that
Adams has not presented evidence sufficient to establish the third element of his case – i.e., that
he could have performed his job even with reasonable accommodations.
To satisfy that requirement, Adams must show that he is a “qualified individual” for the
purpose of the statutes. See 42 U.S.C. § 12112(a); Woodruff v. Peters, 482 F.3d 521, 526 (D.C.
Cir. 2007). A qualified individual is “an individual with handicaps who, with or without
reasonable accommodation, can perform the essential functions of the position in question.”
Carr, 23 F.3d at 529 (citing 29 C.F.R. § 1614.203(a)(6)). An employer need not provide an
accommodation, therefore, if the employee could not perform the essential functions of his job
even with such an accommodation. See Woodruff, 482 F.3d at 527. Nor must an employer
accommodate an individual if it would impose an “undue hardship” on the employer, as such an
accommodation would not be “reasonable.” See 29 C.F.R. 1630.2(o)(4).
Adams asked the District for one primary accommodation: that he be allowed to work
from home. It is true that an employer must generally consider telecommuting as a potential
form of reasonable accommodation. See 29 C.F.R. § 1630.2(o)(2)(ii); Carr, 23 F.3d at 530 (“in
appropriate cases, [the ADA] requires an agency to consider work at home . . . as [a] potential
form[] of accommodation”) (citation omitted). That obligation, however, only goes so far. The
typical reasonable-accommodation analysis still applies to telecommuting, and so if the job in
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question requires that an employee leave his home – that is, if the employee can perform the
essential functions of his job only by being in the office or out on the road – the employer need
not grant a telecommuting request. Such accommodation may be required, conversely, if the
employee can do his whole job from home – for example, if his work is entirely electronic and
requires no personal interaction in the office. See, e.g., Langon v. Dep’t of Health and Human
Servs., 959 F.2d 1053, 1061 (D.C. Cir. 1992) (computer programmer whose work was electronic
could perform essential tasks from home); Graffius v. Shinseki, 672 F. Supp. 2d 119, 127
(D.D.C. 2009) (employee whose job was to reconstruct digital databases could do same).
In this case, then, the Court in presented with three questions: First, what were the
essential functions of Adams’s position with the Department? Second, could he have performed
those functions while working from home? And third, if he could, would allowing him to work
from home have caused the District undue hardship? As the Court answers the second question
in the negative, it need not address the third.
1. Essential Functions of an IT Specialist
EEOC regulations define “essential functions” as “the fundamental job duties of the
employment position the individual with a disability holds.” 29 C.F.R. § 1630.2(n)(1). In
determining whether a function is essential to a particular position, the Court is to grant the
employer substantial deference. See Swanks v. Wash. Metro. Area Transit Auth., 179 F.3d 929,
934 (D.C. Cir. 1999) (citing 42 U.S.C. § 12111(8)) (internal quotation marks omitted); see also
29 C.F.R. § 1630.2(n)(3) (“Evidence of whether a particular function is essential includes . . .
[t]he employer’s judgment as to which functions are essential.”). Employers may point to a
variety of evidence to support a claim that a function is essential, including “[w]ritten job
descriptions prepared before advertising or interviewing applicants for the job” and “[t]he work
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experience of past incumbents in the job,” including the plaintiff. 29 C.F.R. § 1630.2(n)(3); see
also 42 U.S.C. § 12111(8).
Adams argues that he is like the plaintiffs described in the string cite above, whose jobs
were wholly electronic. As far as he is concerned, the only requirements of his job were that he
complete reports and man the Department’s help desk, two tasks he could complete
electronically, and therefore remotely. The District, however, has presented an impressive array
of evidence proving that the essential functions of an IT specialist included tasks that either
necessitated travel or required Adams to speak to people on the phone and sit at a desk for long
periods, all things he could not do competently after his stroke and thus that no accommodation
would have made possible.
The District shows, for example, that IT Specialists are expected to travel to various sites
to train staff in the use of computer technology. In support of that position, it points first to the
job description for the IT Specialist position, which lists “train[ing] staff” as a major duty. See
Mot., Exh. 2 (DMH Information Technology Specialist Duties) at 1. At his own deposition,
moreover, Adams testified that he traveled at least once per week to do that training. Adams
Depo. at 95:2-16. And in his sworn application for Social Security benefits, he averred that his
day-to-day activities included “teach[ing] classes on computer software and hardware” and
“travel[ing] to various locations” to teach. If those responsibilities were not required, it would
not have made sense for Adams to list them in a sworn statement describing what he “d[id] all
day,” Social Security Application at 12, and how his disability limited his ability to complete his
work. Taken together, these bits of evidence indicate that training and travel were essential
functions of the IT Specialist position.
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In the face of this compelling evidence, Adams changes his tack at the summary-
judgment stage, now arguing that travel was a voluntary and “ad hoc” part of his job. Adams
Depo. at 57:12, 252:21-254:1. He neither offers an explanation for the discrepancy between his
Social Security application and the statements he made at his deposition, however, nor suggests
that travel had not been a part of his job in the past. To be fair, Adams does point out that he was
not training staff at the time of his stroke, but a snapshot of his duties at one point in nearly three
years on the job can hardly undermine the significant evidence on the other side of the ledger.
Indeed, the experience of a past incumbent (Plaintiff), the IT Specialist job description, and
Adams’s own statements are probative of the position’s essential functions, and the Court finds
nothing in the record to create a material issue of fact on the question.
Defendant similarly convinces the Court that, as an IT Specialist, Adams would have
been required to communicate orally with customers and other Department staff. Indeed, oral
communication was one factor on which the Department evaluated Adams before his stroke, see
Mot., Exh. 4 (Report of Adams’s Performance Rating, June 30, 2004) at 1, and IT Specialists at
the Department have in the past been required to answer phones at the Department’s help desk
and participate in meetings, conferences, and committees. IT Specialist Duties at 1. Adams
replies that he could have completed some of these tasks without communicating orally – for
example, that he could operate a help desk by e-mail. Such an accommodation, however, would
alter the purpose and effectiveness of the help desk, as assistance would no longer be as prompt –
and, indeed, would no longer be rendered in real time at all. Allowing Adams to work the help
desk electronically, moreover, would have been of no help if he had to lie down frequently, see
Social Security Application at 11, or when it came time to attend meetings and conferences
outside his home.
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As a result, the Court concludes that, as a D.C. Department of Mental Health IT
Specialist, Adams was required to travel for work and to communicate orally – and to sit in front
of a computer for long periods – at the help desk, among other times.
2. Plaintiff’s Ability to Perform Essential Functions
Although Adams spends many pages attacking those conclusions, he makes little effort to
persuade the Court that he could handle those functions if they were indeed deemed essential.
He admitted at his deposition, for example, that he could not train staff from home or travel from
home to do so. See Adams Depo. at 124:6-11 (Q: “And you couldn’t train people from home . . .
[or] go to the customers or the client’s site to help with the training, correct, from home?” A:
“No, I could not.”). Adams allowed, furthermore, that his speech remained slurred for years
after the stroke and that during that period, people were not able to understand him and
communicating over the phone would have been “very difficult” for him. See id. at 251:19-
252:8; 221:10-19. And Plaintiff appears to have given up the ship in his application for Social
Security disability benefits when he stated that he “became unable to work because of [his]
disabling condition” and that he was “still disabled.” Social Security Application at 1. When
asked why he stopped working, Adams responded, “My health will no longer allow me to work.”
Id. at 12.
To be sure, those assertions are not dispositive, as “pursuit, and receipt, of [Social
Security Disability] benefits does not automatically estop the recipient from pursuing an ADA
claim” or even create “a strong presumption against the recipient’s success under the ADA.”
Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 797-98 (1995). After all, a “representation
of total disability [in the Social Security context] . . . often implies a context-related legal
conclusion, namely, ‘I am disabled for purposes of the Social Security Act.’” Id. at 802
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(emphasis added). In other words, because a person may be eligible for Social Security benefits
even if he could return to work with certain accommodations, it is entirely consistent for a
plaintiff to argue at once that he is both totally disabled for Social Security purposes and able to
work – if provided reasonable accommodation – for the purpose of the ADA inquiry. See
Whitbeck, 116 F.3d at 588 (“Whitbeck’s statement that she was no longer able to perform her
job might be nothing more than an accurate description of her condition – without
accommodation, she was unable to work.”).
Here, however, Defendant does not argue that Adams could not qualify under the ADA
merely because he sought and received Social Security benefits. The District instead cites
Adams’s Social Security application for the sworn factual admissions he made therein. When a
defendant claims a bar based on previous factual assertions that are inconsistent with an ADA
claim, a plaintiff “cannot simply ignore” his previous statements to the Social Security
Administration. Instead, he “must explain why that [Social Security] contention is consistent
with” the subsequent assertions made in connection with the ADA claim. Cleveland, 521 U.S. at
798. In short, an ADA plaintiff may not, simply by disavowing a prior claim of total disability,
perform an about-face and assert that he is a qualified individual who is capable of working.
Rather, the plaintiff must proceed from the premise that his previous assertion of an inability to
work was true, or that he in good faith believed it to be true, and he must demonstrate that the
assertion was nonetheless consistent with his ability to perform the essential functions of his job.
Solomon v. Vilsack, 628 F.3d 555, 567 (D.C. Cir. 2010) (citing Cleveland, 526 U.S. at 807).
At bottom, then, courts are instructed to simply apply the standard summary-judgment
analysis to situations like this one. If there are factual statements on the record that compel a
finding against Plaintiff as a matter of law, they “must be given controlling weight” – and the
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Court must grant summary judgment to Defendant – unless other facts on the record call that
conclusion into doubt. Swanks v. Washington Metro. Area Transit Auth., 116 F.3d 582, 587
(D.C. Cir. 1997) (internal quotation marks omitted).
Adams made just that sort of statement in his application, claiming that he “cannot walk
without the assistance of a walker,” that he “has to lie down all the time because he becomes
weak and cannot stand or walk for more than 10 minutes,” that “[t]he left side of his body is
paralyzed and as a result he does not have control over the left side of his body,” that “[h]is
tongue aches, feels heavy and thick and as a result his speech is slurred,” that “[h]is cognitive
abilities have been diminished due to the stroke,” and that his job entailed travel and oral
communication. Social Security Application at 12-15.
Adams’s condition, as he described it, would have made it impossible for him to do the
job of an IT specialist. As the Court has found, the job required Adams to travel to various
locations, to communicate over the phone with customers, and to sit in front of a computer for
long hours. Adams, however, had mobility issues, see Adams Depo. at 107:3-19, found it
difficult to communicate orally, see id. at 110:9-10, and had to lie down frequently. See Social
Security Application at 12-15. Each of these symptoms would have prevented him from doing
the job he was hired to do.
To qualify under the ADA, then, Adams would have to assert facts that would directly
conflict with the statements in his Social Security application that show he was not capable of
fulfilling the essential functions of his job. He has offered the Court no reason to credit his
present statements over those in his Social Security application – he has not informed the Social
Security Administration of his renewed abilities, for example, which is required if his status
changes, see Social Security Application at 4-5 – and, as a result, the Court has no reason to
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believe that the statements in his Social Security application were not and are not an accurate
description of his physical and mental condition. In these circumstances, the Court concludes
that Adams had the disabilities described in that previous statement. And, indeed, those
disabilities would have prevented Adams from doing his job even if the District had allowed him
to work from home. See Opsteen v. Keller Structures, Inc., 408 F.3d 390, 392 (7th Cir. 2005)
(rejecting plaintiff’s ADA claim where factual representations plaintiff made in his Social
Security disability application showed he was unable to do the job for which he was requesting
accommodation); Swanks, 116 F.3d at 587 (“ADA plaintiffs who in support of claims for
disability benefits tell the Social Security Administration they cannot perform the essential
functions of a job even with accommodation could well be barred from asserting, for ADA
purposes, that accommodation would have allowed them to perform that same job.”).
3. Plaintiff’s Counterarguments
Plaintiff marshals three principal counterarguments in support of his reasonable-
accommodation claim. First, he posits that the District “appears to have conceded” that he could
do his job because “[Strassman] . . . attempted to place Mr. Adams in a position in which he
would be exclusively writing reports.” Opp. at 15. That is, although the Court has concluded
that an IT Specialist must travel to train staff and communicate orally when working the help
desk – functions that Adams could no longer perform – he contends that, after his stroke, his
newly defined job actually required nothing more than report writing, a job he could complete
without trouble at home. He was given those diminished responsibilities, however, only after the
Department’s human-resources staff asked Strassman to find work that Adams could do despite
his disability. Opp., Exh. 6 (Deposition of Eric Strassman) at 69:15-20, 102:20-103:2.
Defendant’s statement thus actually proves the opposite of what Adams claims. Indeed, it was
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precisely because Adams could not do his full job after his stroke even with accommodations
that the Department tried to find him other work. That such work did not pan out is
inconsequential, as neither the ADA nor the Rehabilitation Act requires that an employer create a
new position to accommodate a disabled employee, even if he is a qualified individual as to that
new job. See Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987). Had the District not even made
an effort to accommodate Adams, then, he would have had no recourse; the fact that it tried and
failed cannot change that, as “an employer who goes beyond the demands of the law to help a
disabled employee incurs no legal obligation to continue doing so.” Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1257 n.3 (11th Cir. 2001). There is, of course good reason for the District
to have tried to help Adams out of a jam. Indeed, the Court is sympathetic to his plight.
Unfortunately, the law requires nothing more of Defendant, and so these facts are of no help to
his legal cause.
Next, Plaintiff points to the opinion of his treating physician, Dr. Khosrow Davachi, who
stated on the record that Adams could perform certain jobs despite the limitations stemming from
his stroke. Davachi’s opinion, however, is unhelpful to Plaintiff for two reasons. First, much of
that opinion amounts to legal conclusions on which Plaintiff’s doctor is anything but
authoritative. See, e.g., Pl. Response to Def. SUMF, ¶ 1 (“[A]fter examining [Adams] and
reviewing the position description, [Davachi] concluded that travel is not essential to the
functions of [Adams’s position].”). And second, Davachi did not make his opinion on Plaintiff’s
condition known until October 2006, more than a year after Plaintiff’s September 2005 request
for accommodation and eight months after the District had denied that request. (The doctor did
submit one letter on Adams’s behalf in October 2005, before the denial, but it contained nothing
more than generalities that are unhelpful to Adams’s case. See Mot., Exh. 6 (Letter from
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Davachi to DMH, Aug. 25, 2005)). Perhaps Adams means to suggest that his status has changed
since the District made its decision in February 2006, but he does not make that claim explicit,
nor does the Government have any duty to revisit the issue once it has made its final
determination not to accommodate him. See, e.g., Basden v. Professional Transp., Inc., 714 F.3d
1034, 1037 (7th Cir. 2013) (“[Plaintiff’s] ability . . . [to] perform the essential functions of her
job[] is examined as of the time of the adverse employment decision at issue.”). The courts, after
all, must be wary of punishing employers for effectively postponing the effective date of denial
by doing their utmost to help their disabled employees.
Finally, Plaintiff submits that the Court should consider a 2006 “letter of determination”
from the D.C. Office of Human Rights, which concluded that there was “probable cause” to
conclude that he was an ADA-qualified individual. Opp. at 34-35, 43-44. That letter, he
suggests, is “evidence to be taken into account,” although he concedes the Court must examine
the case de novo. Id. (quoting Langon, 959 F.2d at 1061). The Court takes the letter into
account, but the legal conclusions of one District employee do not call into question the
mountain of primary materials and sworn testimony in this case. Cf. Scott v. Johanns, 409 F.3d
466, 470 (D.C. Cir. 2005) (holding that administrative findings on employment discrimination
may be admitted as evidence, but are not determinative, in federal agency employee’s
discrimination lawsuit). Accordingly, the DCOHR letter does not alter the preceding analysis.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment in full. A contemporaneous Order to that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 27, 2014
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