Geter v. Government Printing Office

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
HENRY GETER, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-916 (RC)
)
GOVERNMENT PUBLISHING OFFICE, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Henry Geter, a former employee of the Government
Publishing Office (“GPO”), alleges in a one-count complaint that
the defendant, the GPO, violated the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et. seq., and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq.
Specifically, Geter, who purports to weigh nearly 300 pounds and
suffers from a back injury, claims that the GPO failed to
accommodate his disability, intentionally discriminated against
him after he engaged in statutorily protected activity, and
harassed him. See Compl. at 1, 3, ECF No. 1. Geter is also
suing the GPO for discrimination based on race and age and for
intentional infliction of mental harm. See id.
Geter filed his complaint on June 18, 2013. See Compl.
The GPO filed a motion for summary judgment on July 8, 2015.
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See Def.’s Mot. Summ. J. at 1, ECF No. 35. Geter filed a
memorandum in opposition to GPO’s motion for summary judgment on
July 22, 2015. See Pl.’s Opp’n to Def.’s Mot. Summ. J. & in the
Alt. Pl.’s Mot. Summ. J. (“Pl.’s Opp’n & Mot.”) at 1, ECF No.
40. The GPO filed a reply on August 3, 2015. See Def.’s Reply
Pl.’s Opp’n Def.’s Mot. Summ. J. (“Def.’s Reply”) at 1, ECF 41.
For the reasons set forth below, the GPO’s motion for summary
judgment will be granted.
The GPO moves for summary judgment on the claims of race
and age discrimination, arguing that Geter failed to exhaust
administrative remedies and has failed to contradict the fact
that he did not exhaust his administrative remedies. Def.’s
Mot. Summ J. at 19-20. Because Geter has failed to exhaust all
administrative remedies and failed to contradict that fact, the
GPO’s motion for summary judgment will be granted on these two
claims.
The GPO further moves for summary judgment on plaintiff’s
tort claim of intentional infliction of mental harm. Id. at 18.
The GPO argues that Geter failed to properly submit this tort
claim to the GPO, an administrative agency, before filing a
complaint and that Geter has failed to contradict that fact.
Id. Because Geter failed to submit an administrative tort claim
of intentional infliction of mental harm to the GPO before
filing a complaint in district court and has failed to respond
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to the GPO’s factual assertion that he has failed to do this,
the GPO’s motion will also be granted on this claim.
The GPO also moves for summary judgment on Geter’s claim of
retaliatory discrimination. See id. at 10-18. Because the GPO
demonstrated that Geter cannot prove retaliatory discrimination,
the GPO is granted summary judgment on that claim.
Additionally, because Geter failed to show that he is a
qualified individual under the ADA, summary judgment will also
be granted for Geter’s claim of failure to accommodate.
Finally, the GPO moves for summary judgment on Geter’s
retaliatory hostile work environment claim, arguing that Geter
failed to establish that the GPO retaliated against him. Id. at
13-18. Because the GPO has demonstrated that Geter can
establish neither a retaliatory hostile work environment claim
nor a claim of harassment based on disability, the GPO’s motion
for summary judgment will also be granted on these two claims.
BACKGROUND
Geter has worked for the GPO on and off since 2002. See
Gregory Robinson Dep. Tr. (Aug. 28, 2014) at 13:12, Def.’s Mot.
Summ. J. Ex. 3, ECF No. 35-3. Geter started out as a helper to
the motor vehicle operator but eventually was promoted to motor
vehicle operator himself. See id. at 15:7-8. As a motor
vehicle operator, Geter was required to have a valid commercial
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driver’s license and the ability to “load and unload by hand
cartons weighing up to 50 pounds.” GPO Motor Vehicle Operator
Job Description at 2 (“Job Description”), Def.’s Mot. Summ. J.
Ex. 1, ECF No. 35-2; see also Aff. Henry Geter ¶ 3 (July 22,
2015), Pl.’s Opp’n & Mot. Ex. 9 (“Geter Aff.”), ECF No. 40-3.
On March 25, 2009, Geter injured his back while on the job
and eventually stopped working.1 See Mem. from Gregory Robinson
to Office of General Counsel (Sept. 10, 2014), Def.’s Mot. Summ.
J. Ex. 6 (“2014 Robinson Mem.”), ECF No. 35-5. On June 29,
2009, Gregory Robinson, Chief of the Delivery Section where
Geter worked, sent a letter to Geter informing him that he was
being fired for being absent without leave (“AWOL”) and for
violating GPO’s leave policy. See Letter from Gregory Robinson
to Henry Geter (June 29, 2009), Def.’s Mot. Summ. J. Ex 7, ECF
No. 35-6. Geter’s termination became effective August 6, 2009.
See Settlement Agreement at 1 (Nov. 18, 2009) (“Settlement
Agreement”), Def.’s Mot. Summ. J. Ex. 8, ECF No. 35-7. Geter
filed an appeal of the August 6, 2009 removal with the Merit
Systems Protection Board (“MSPB”) Washington Regional Office on
September 4, 2009. Id. at 5. The GPO and Geter reached a
1
This is not Geter’s first injury while on the job. The
GPO claims that Geter has missed extended periods of time from
work as a result of injuries sustained on “December 23, 2003;
November 28, 2005; July 3, 2006; [and] June 21, 2007.” Def.’s
Mot. Summ. J. at 3; see also 2014 Robinson Mem. at 1.
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settlement with the GPO reversing the August 6, 2009 removal and
reinstating Geter to his motor vehicle operator position. Id.
at 1-2.
The GPO had Dr. Kevin Hanley, a medical examiner for the
Department of Labor Office of Workers’ Compensation Programs
(“OWCP”), evaluate Geter’s physical health as a result of his
March 25, 2009 injury. Dr. Hanley issued a medical examination
report on May 24, 2010 explaining that, due to Geter’s March 25,
2009 injury and Dr. Hanley’s desire to give Geter the benefit of
the doubt, he would restrict Geter’s lifting to 45 pounds. See
Dr. Kevin Hanley Med. Exam Rep. at 2 (May 24, 2010), Def.’s Mot.
Summ. J. Ex. 2 (“Hanley Rep.”), ECF No. 44.2 On June 7, 2010,
Geter and his supervisors had a phone conference, and the GPO
asked Geter to return to work on June 21, 2010. See E-mail
from Gregory Robinson to Larry Brooks (June 7, 2010), Def.’s
Mot. Summ. J. Ex. 9, ECF No. 35-8. Geter refused to return to
work. See id.
2
Dr. Hanley’s report remains sealed, and the Court only
refers to information that has previously been made public by
the parties. Dr. Hanley was very skeptical of Geter’s injury.
Dr. Hanley stated that a limitation was not called for unless he
gave “some credence to [Geter’s] subjective complaints.” Hanley
Rep. at 2. Dr. Hanley reported his impression that Geter had
“absolutely no desire to return to work since he does not feel
that it was his fault that his back got hurt in the first
place.” Id.
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The GPO sent Geter a job offer on June 14, 2010 for a
“motor vehicle operator [position] with a restriction of not
lifting more than 45 lbs. for six months.” Letter from John
Sturniolo to Henry Geter at 1 (June 14, 2010), Def.’s Mot. Summ.
J. Ex 11, ECF No. 35-10. Geter believed that he was not yet
physically fit to return to work, so he visited his personal
doctor, Dr. Hampton Jackson, to treat his back injury. Dr.
Jackson issued a report on June 15, 2010 that stated, due to the
March 25, 2009 injury, Geter was “not to lift 65 pounds, push or
pull 65 pounds” for six months. See Dr. Hampton Jackson Med.
Exam Rep. at 1 (June 15, 2010), Def.’s Mot. Summ. J. Ex. 39
(“First Jackson Rep.”), ECF No. 47. On June 24, 2010, Geter
turned down the June 14, 2010 job offer. See Position
Acceptance Form (June 24, 2010), Def.’s Mot. Summ. J. Ex. 13,
ECF No. 35-12.
After Geter turned down the June 14 job offer, the OWCP
sent a letter to Geter on July 14, 2010 “rejecting [the] June
15, 2010 report from Dr. Jackson” and “giving Geter 30 days to
accept the position of truck driver” or face termination.
Def.’s Mot. Summ. J. at 5; Letter from John Sturniolo to Henry
Geter (July 14, 2010), Def.’s Mot. Summ. J. Ex. 14, ECF No. 35-
13. Geter went back to Dr. Jackson to clarify that he was still
not yet physically capable and ready to return to work. See Dr.
Hampton Jackson Med. Exam Rep. at 1 (July 27, 2010), Def.’s Mot.
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Summ. J. Ex. 39 (“Second Jackson Rep.”), ECF No. 47. Dr.
Jackson issued a report on July 27, 2010 that stated, due to the
March 25, 2009 injury, Geter should be on “lifting restrictions
[of] 10-15 pounds, but in light duty capacity. Fifteen pounds
is his absolute limit[.]”3 Id.
On August 3, 2010, the OWCP terminated Geter’s benefits
because he refused to accept suitable work, which the OWCP
contends is prohibited under 5 U.S.C. § 8106(c)(2). See Notice
of Decision Letter from John Sturniolo to Henry Geter at 1 (Aug.
3, 2010), Def.’s Mot. Summ. J. Ex. 15 (“Notice of Decision”),
ECF No. 35-14. Geter claims that he returned to work on August
6, 2010, see Pl.’s Opp’n & Mot. at 2, however, the GPO claims
that he returned to work on August 16, 2010, see Def.’s Mot.
Summ. J. at 5.4
3
The plaintiff explains the discrepancy between Dr.
Jackson’s early report, which restricted Geter’s lifting to “65
pounds,” and the later Dr. Jackson report, which restricted
Geter’s lifting to “10-15 pounds,” by stating, “[a]n early
Doctor Jackson report indicated a limit of 45 pounds but Doctor
Jackson made it clear in his July 27, 2010 report that the 45
pound restriction in a prior report was a typographical error
and the limit should have been no more than 15 pounds.” Pl.’s
Opp’n & Mot. at 2-3. Because, we have to “draw all reasonable
inferences in favor of the nonmoving party” in the summary
judgment stage, then we will assume Dr. Jackson intended to
convey in his report that it is his opinion that Geter should be
placed on a lifting restriction of 10-15 pounds. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(citations omitted).
4
Geter contradicts himself by stating that “on August 16,
2010 Geter reported to work on light duty[.]” Pl.’s Opp’n &
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Geter and the GPO differ slightly as to the events on
August 17, 2010 that give rise to Geter’s current claims.
Geter’s immediate supervisor is Gerald Simms. Def.’s Mot. Summ.
J. at 4; Pl.’s Opp’n & Mot. at 2. Both parties agree that Simms
ordered Geter to drive a GPO truck from the “lower lot up to the
[p]latform.” Pl.’s Opp’n & Mot. at 3; see also Def.’s Mot.
Summ. J. at 5 (“from the loading dock to the parking lot at GPO
and to bring back another vehicle.”); Mem. from Gregory Robinson
to Henry Geter at 1 (Sept. 10, 2010), Def.’s Mot. Summ. J. Ex.
17 (“2010 Robinson Mem.”), ECF No. 35-16. In order to drive the
truck, Geter claims that he had to “pull himself up to get into
the truck.” Pl.’s Opp’n & Mot. at 3. Geter claims that part of
the restriction that he lift no more than 10-15 pounds (light
duty) is that Geter never pull himself up into the truck,
because Geter weighs nearly 300 pounds which is more than 10-15
pounds. Id. Geter claims that when he informed Simms that he
was on light duty because of his March 25, 2009 injury and that
driving a truck violated his light duty restriction, Simms
“ordered him to drive the truck or clock out of work.” Id. at
4. Geter claims that he then asked for a back brace but was
Mot. at 11. In Gregory Robinson’s affidavit, which Geter offers
in conjunction with his memorandum in opposition, Robinson
states, “[t]he only thing Complainant did from the time he
returned from August 6, 2010 to August 17, 2010 was the driving
task.” Aff. Gregory Robinson at 3 (Feb. 1, 2012), Pl.’s Opp’n &
Mot. Ex. 5 (“Robinson Aff.”), ECF 40-2.
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denied by Simms.5 Id. “Simms then told him to go drive the
truck or be escorted out of the building by the GPO police.”
Id. at 4. When Geter eventually
went to drive the truck [he] heard and felt a crack in
his back when he pulled himself up by the truck
handle. Geter immediately felt severe back pain and
spasms in his back. When Geter informed Simms what
happen [sic] and that he needed to go to the doctor to
check his back Simms denied his request. Simms told
him that he had no leave or annual leave and that he
was not hurt and to get back to work or he would be
considered LOWP. Geter continued to work in pain.
Pl.’s Opp’n & Mot. at 4; see also Geter Aff. ¶¶ 9-12.
The GPO asserts in contrast that:
Upon completing the assignment, Geter told his
immediate supervisor, Mr. Simms, that climbing into
the truck hurt his back. When Mr. Simms asked if he
was injured, Geter replied that he was not. Both Mr.
Simms and, later, Mr. Robinson asked Geter if he
needed to go to the medical unit and both times he
answered that he did not.
Def.’s Mot. Summ. J. at 5 (citations omitted); see also 2010
Robinson Mem.; Pl.’s Opp’n & Mot. at 11.
Geter claims that he “stayed at work form [sic] August 18 –
August 23, 2010, hurt and on light duty on the Platform and not
driving a truck in the delivery department.” Pl.’s Opp’n & Mot.
at 7. On August 23, 2010,
Simms again told Geter to get a truck even though he
was still on light duty on August 23, 2010. In this
incident Simms directed Geter to get another truck
5
Geter does not state whether a back brace was available on
site or whether a back brace has ever been prescribed to him by
a medical professional. See Geter Aff. ¶ 10.
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after he was injured getting a truck on August 17,
2010. Not to get hurt further, Geter again refused to
drive a truck after being ordered by Simms. Simms
ordered Geter to clock out and leave the building.
Mr. Geter complied with Mr. Simms [sic] order and went
home. Mr. Simms docketed [sic] Mr. Geter 3 hours of
leave without pay for failing to follow [a]
supervisor’s instructions[,] delay in carrying out
orders, work assignments and instructions of a
supervisor.
Id. at 11-12; compare Geter Aff. ¶¶ 10-13; with Def.’s Mot.
Summ. J. at 5 (“After these events, on August 23, 2010, Geter
refused to carry out an assignment to drive a truck with a
helper to deliver materials to Congress.”). Geter alleges that
“[w]hen Geter did not return to work in September 2010 [after
the August 17, 2010 incident], Gregg Robinson fired Plaintiff
Geter [a second time] for AWOL in November 2010.” Pl.’s Opp’n &
Mot. at 12; see also Compl. ¶ 9.
Geter sought counseling with the GPO’s equal employment
opportunity (“EEO”) office on October 7, 2010. Pl.’s Opp’n &
Mot. at 9; Def.’s Summ. J. Mot. at 8; see also EEO Couns. Rep.
at 1, Def.’s Summ. J. Mot. Ex. 29, ECF No. 35-27. Geter filed a
formal complaint of discrimination on November 19, 2010. Pl.’s
Opp’n & Mot. at 9; Def.’s Summ. J. Mot. at 8; EEO Compl., Def.’s
Summ. J. Mot. Ex. 30 (“EEO Compl.”), ECF No. 35-28. “His
complaint alleged discrimination on the bases of physical
disability because of his back injury and retaliation and
harassment.” Pl.’s Opp’n & Mot. at 9; see also Def.’s Summ. J.
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Mot. at 8. The complaint was accepted in part and denied in
part on July 25, 2011. See Pl.’s Opp’n & Mot. at 9;6 Def.’s
Summ. J. Mot. at 8; Letter from Nadine Elzy to Donald Johnson at
3 (July 25, 2011), Def.’s Summ. J. Mot. Ex. 30A (“EEO Acceptance
Letter”), ECF No. 35-29. The GPO in its partial acceptance of
Geter’s EEO complaint reviewed the following claim:
Whether the claimant was subjected to harassment (non-
sexual) and unfair conditions of employment on the
bases of retaliation and disability (physical).
Specifically, he alleges that on September 1, 2010,
during a meeting with management, he learned that they
had ignored the medical restrictions imposed in the
orders of the Department of Labor (DOL) physician, by
assigning him the duties of a driver on August 17,
2010, which exceeded the 45 pound lifting
restrictions.
EEO Acceptance Letter at 1; see also Def.’s Summ. J. Mot. at 8;
EEO Decision at 2, Def.’s Summ. J. Mot. Ex. 31 (“EEO Decision”),
ECF No. 35-30.
Geter has alleged that “[t]he EEOC did not reach a decision
and Geter decided to opt out and file in this Court because of
how long it was taking.” Pl.’s Opp’n & Mot. at 9. However,
“[o]n March 18, 2013, the EEO found in favor of GPO and
dismissed all of Geter’s claims.” Def.’s Summ. J. Mot. at 8;
6
Plaintiff refers only to the acceptance of his EEO
complaint, but the document itself makes clear that some of
Geter’s claims were dismissed. See EEO Acceptance Letter at 3
(“The investigation of this complaint will not explore the
dismissed claim.”).
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see also EEO Decision at 10. Geter filed the instant action on
June 18, 2013. Compl. at 1.
DISCUSSION
Under Rule 56 of the Federal Rules of Civil Procedure, a
court may grant summary judgment if the pleadings and any
affidavits or declarations show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The
moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The court “should review all of the
evidence in the record . . . [and] draw all reasonable
inferences in favor of the nonmoving party.” See Reeves, 530
U.S. at 150. A genuine issue for trial exists if “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). However, “[t]he mere existence of a scintilla
of evidence” in support of a nonmoving party’s position is not
sufficient to create a genuine issue of material fact. Id. at
252. “Material facts are those that might affect the outcome of
the suit under governing law[.]” Nails v. England, 311 F. Supp.
2d 116, 121 (D.D.C. 2004) (citing America’s Cmty. Bankers v.
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FDIC, 200 F.3d 822, 831 (D.C. Cir. 2000)) (internal quotation
marks omitted).
I. RACE AND AGE DISCRIMINATION
The GPO moves for summary judgment on Geter’s claims of
race and age discrimination under Title VII of the Civil Rights
Act. Def.’s Summ. J. Mot. at 2. Geter alleges in his complaint
that, “[d]efendant and it [sic] representatives discriminated
against the plaintiff based upon his . . . race and age.”
Compl. at 1. The GPO argues that “plaintiff’s allegations of
race and age discrimination must be dismissed as neither claim
was alleged at the administrative level.” Def.’s Summ. J. Mot.
at 20. The GPO also avers that the race and age discrimination
claims must be dismissed, because Geter conceded those claims
when he failed to respond to the fact that he did not raise the
race and age discrimination claims at the administrative level.
Def.’s Reply at 1-2.
Generally, if the non-moving party fails to respond to an
argument and claims of facts raised in a motion for summary
judgment, it is proper to treat the non-moving party’s arguments
and claims as conceded. See Gordon v. District of Columbia, 605
F. Supp. 2d 239, 245 (D.D.C. 2009) (“Because of her failure to
respond, plaintiff concedes the point.”); Sykes v. Dudas, 573 F.
Supp. 2d 191, 202 (D.D.C. 2008) (“[W]hen a party responds to
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some but not all arguments raised on a Motion for Summary
Judgment, a court may fairly view the unacknowledged arguments
as conceded.”). Recently, the D.C. Circuit has begun to back
away from the view that a fact or argument is automatically
conceded after a failure to respond. The D.C. Circuit has
suggested that, “[t]he wiser course for district courts is to
conduct an independent review of the record to determine whether
there remains any genuine dispute over material facts. If not,
the court should say as much without relying upon any concession
by the nonmoving party.” Grimes v. District of Columbia, 794
F.3d 83, 98-99 (D.C. Cir. 2015) (Griffith, J., concurring). The
district court should focus on whether the nonmoving party has
failed to contradict the facts as alleged by the moving party.
Id. at 96 (citations omitted).
Any federal employee covered under the Civil Rights Act
must exhaust administrative remedies before filing a complaint
alleging race discrimination. See 42 U.S.C. § 2000e-16(c)
(allowing civil action by employee or applicant for employment
for redress of grievances within 90 days of receipt of notice of
final action taken by a department); Doak v. Johnson, 798 F.3d
1096, 1099 (D.C. Cir. 2015) (“For claims against federal
agencies, exhaustion requires submitting a claim to the
employing agency itself.”) (citations omitted); Bowden v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Complainants must
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timely exhaust these administrative remedies before bringing
their claims to court.”) (citations omitted).
The Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et. seq.,7 requires a federal employee to exhaust
administrative remedies before filing a civil suit alleging age
discrimination in federal district court. See Kennedy v.
Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982). To properly
exhaust administrative remedies under the ADEA, the complainant
can either file his or her complaint with the agency, see 29
C.F.R. § 1614.105 (“Aggrieved persons who believe they have been
discriminated against on the basis of . . . age . . . must
consult a Counselor prior to filing a complaint in order to try
to informally resolve the matter.”), or with the EEOC itself,
see 29 U.S.C. § 633a(d) (“When the individual has not filed a
complaint concerning age discrimination with the Commission, no
civil action may be commenced by any individual under this
section until the individual has given the Commission not less
than thirty days’ notice of an intent to file such action.”).
7
The plaintiff alleges age discrimination in his complaint,
but only cites Title VII of the Civil Rights Act and the ADA.
Neither Title VII of the Civil Rights Act nor the ADA provides
relief for age discrimination. Instead, the plaintiff should
have cited the ADEA, which provides that “[a]ll personnel
actions affecting employees or applicants for employment who are
at least 40 years of age . . . in the Government Publishing
Office . . . shall be made free from any discrimination based on
age.” 29 U.S.C. § 633a(a).
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Summary judgment is granted in the GPO’s favor for Geter’s
claims of race discrimination under Title VII of the Civil
Rights Act and age discrimination under the ADEA, because Geter
failed to exhaust administrative remedies as required by the
statute and case law. Geter failed to allege race or age
discrimination in his initial claim to the GPO’s EEO office.
See EEO Compl. at 30; see also EEO Acceptance Letter at 1;
Def.’s Summ. J. Mot. at 19-20. Also, the record is devoid of
any proof that Geter, alternatively, brought his age
discrimination claim directly to the EEOC. Because Geter failed
to exhaust his administrative remedies prior to commencing
district court litigation, the claims for age and race
discrimination fail.8 Geter has not argued that any potential
relevant equitable doctrines may be used as relief for his
failure to meet the exhaustion requirement. Carson v. Sim, 778
F. Supp. 2d 85, 95 (D.D.C. 2011) (“He offers no basis for
finding that his failure to exhaust this claim is not fatal.”).
8
See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995) (“Title VII requires that a person complaining of a
violation file an administrative charge with the EEOC and allow
the agency time to act on the charge. Only after the EEOC has
notified the aggrieved person of its decision to dismiss or its
inability to bring a civil action within the requisite time
period can that person bring a civil action herself.”); Nichols
v. Truscott, 424 F. Supp. 2d 124, 134 (D.D.C. 2006) (“[A]lthough
the complaint alleges facts going well beyond those underlying
plaintiff’s EEOC complaint, the plaintiff’s discrimination and
retaliation claims are limited to these six exhausted claims.”).
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Because Geter has failed to contradict the fact, as alleged by
the GPO and supported by this Court’s independent review of the
record, that he failed to exhaust his administrative remedies
for his race and age discrimination claims, these claims are
dismissed.9 See generally, Pl’s Opp’n & Mot.
II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The GPO also moves for summary judgment on the plaintiff’s
tort claim for intentional infliction of mental harm, because he
has not exhausted his administrative remedies and conceded the
claim when he failed to respond to the GPO’s argument. See
Def.’s Summ. J. Mot. at 18; Def.’s Reply at 1-2; Compl. ¶¶ 11-
12. The Federal Tort Claims Act (“FTCA”) requires a plaintiff
to bring any tort claims, including intentional infliction of
emotional distress, to the administrative agency that has
wronged him or her before he or she can bring the action in
district court. 28 U.S.C. § 2675(a). The FTCA states:
An action shall not be instituted upon a claim against
the United States for money damages for injury or loss
of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, unless the claimant shall have
9
Geter also is not a qualified individual under the ADEA,
because he was not at least 40 years old at the time of the
August 17, 2010 incident as is required under the ADEA. See
supra note 7; see also Dr. David Dorin Med. Exam Rep. at 1 (Nov.
8, 2012), Def.’s Mot. Summ. J. Ex. 26, ECF No. 44 (“DOB:
9/22/1972”); Hanley Rep. at 1 (“Mr. Geter is 37 years old.”).
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first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by
the agency in writing and sent by certified or
registered mail.
Id.; see also Hemingway v. State & Fed. Gov’t, 561 F. App’x 12,
13 (D.C. Cir. 2014) (per curiam) (“Appellant has not identified
any error in the district court’s dismissal of the complaint
based on his failure to satisfy the exhaustion requirement of
the [FTCA], a prerequisite to filing an FTCA complaint in
district court.”) (citations omitted); Simpkins v. D.C. Gov’t,
108 F.3d 366, 371 (D.C. Cir. 1997) (“[T]he Supreme Court has
held that the ‘FTCA bars claimants from bringing suit in federal
court until they have exhausted their administrative
remedies.’”) (quoting McNeil v. United States, 508 U.S. 106, 113
(1993)); McAllister v. Potter, 843 F. Supp. 2d 117, 123 (D.D.C.
2012) (exhausting “necessary administrative remedies under FTCA
. . . is a mandatory prerequisite” to bringing an FTCA claim)
(citations omitted).
Because Geter failed to submit to the GPO an administrative
tort claim encompassing his intentional infliction of mental
harm claim prior to this suit, he has failed to exhaust the
FTCA’s administrative remedies. See EEO Compl.; see also EEO
Acceptance Letter; Compl. at 1; Def.’s Summ. J. Mot. at 18.
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Accordingly, summary judgment will be entered in favor of the
GPO on this claim.10
III. ADA DISCRIMINATION – REASONABLE ACCOMMODATION
Because he can only raise administratively exhausted
claims, Geter states in his response to the GPO’s motion for
summary judgment that the ADA11 discrimination claim “is based
10
It appears that plaintiff’s tort claim would be precluded
nonetheless. Because the Federal Employee Compensation Act, 5
U.S.C. § 8101, et. seq., “provides the exclusive ‘liability of
the United States . . . because of the injury,’” a federal
employee may suffer in the workplace, an “independent lawsuit in
federal court is precluded.” Scott v. U.S. Postal Serv., 258 F.
App’x 333, 333 (D.C. Cir. 2007) (citing 5 U.S.C. § 8116(c)); see
also Spinelli v. Goss, 446 F.3d 159, 160-62 (D.C. Cir. 2006).
11
It is a general proposition that the ADA does not cover
federal government employees. See 42 U.S.C. § 121115(B)(i)
(“The term ‘employer’ does not include—(i) the United States, a
corporation wholly owned by the government of the United States,
or an Indian tribe[.]”); Jordan v. Evans, 404 F. Supp. 2d 28, 30
(D.D.C. 2005) (“The federal government is not subject to claims
brought pursuant to the ADA because the ADA expressly states
that ‘the term “employer” does not include the United States.’”)
(citing 42 U.S.C. § 121115(B)(i)); Jones v. Rumsfeld, Civil
Action No. 5:05-CV-01100-KOB, 2014 WL 1329550, at *12 (N.D. Ala.
Mar. 28, 2014) (“The proper vehicle for a claim of disability
discrimination in federal employment is the Rehabilitation
Act.”). Instead, the proper vehicle for a federal employee’s
redress for discrimination is typically the Rehabilitation Act.
29 U.S.C. § 791, et. seq. But the GPO, as a legislative
instrumentality of Congress, is covered by the ADA. Faison v.
Vance-Cooks, 896 F. Supp. 2d 37, 45 n.2 (D.D.C. 2012). And
“inasmuch as the GPO is a legislative branch agency, it is not
subject to the Rehabilitation Act, which applies only to the
executive branch and certain enumerated legislative agencies,
not including the GPO.” Id.; see also Collins v. James, 171 F.
App’x 859, 860 (D.C. Cir. 2005) (per curiam) (“It is undisputed
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solely upon Geter’s EEOC filing in October 2010.” Pl.’s Opp’n &
Mot. at 10. Based on Geter’s EEOC filing, he can only bring
claims of failure to accommodate, retaliation, and harassment.
Geter’s complaint and opposition contain nebulous and
equivocating language that fails to clearly set forth his
reasonable accommodation claim. The language vacillates between
two different arguments: that the GPO discriminated against
Geter based on the GPO’s failure to give him any accommodation;12
or, the GPO did provide Geter some reasonable accommodation but
failed to adhere to it.13 In any event, the most logical reading
of plaintiff’s factual allegations is that the GPO gave Geter a
reasonable accommodation by placing him on light duty but the
GPO failed to adhere to it.
that the Rehabilitation Act, by its own terms, does not apply to
the GPO[.]”) (citations omitted).
12
Plaintiff uses language such as, “[t]hus, Geter alleged
in his complaint discrimination based upon violations of the ADA
because he was not reasonably accommodated for his March 25,
2009 injury, when he was ordered to drive the GPO truck.” Pl.’s
Opp’n & Mot. at 16.
13
Plaintiff uses language such as, the discriminatory act
was “failing to maintain his requested reasonable
accommodation,” Pl.’s Opp’n & Mot. at 10, or “that GPO had
discriminated against him because his supervisor’s [sic] ignored
the medical lifting restrictions imposed by two of Geter’s
doctor’s,” Id. at 9, or “[t]he mere fact that Geter was placed
on light duty is a clear indication that he requested and was
given reasonable accommodations because of his back disability.”
Id. at 6.
-21-
The Americans with Disabilities Act14 prohibits any covered
employer from discriminating “against a qualified individual on
the basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C.A. § 12112(a).
Discrimination is defined as, “not making reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered
entity.” 42 U.S.C.A. § 12112(b)(5)(A) (emphasis added). A
reasonable accommodation
may include (A) making existing facilities used by
employees readily accessible to and usable by
individuals with disabilities; and (B) job
restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate
adjustment or modifications of examinations, training
materials or policies, the provision of qualified
readers or interpreters, and other similar
accommodations for individuals with disabilities.
14
Although plaintiff’s complaint alleges a violation of
Title VII of the ADA, the claim will be treated as a violation
of Title I of the ADA. See Compl. at 1 & ¶¶ 2-3. It will be
treated as such, because Title VII of the ADA does not exist --
the ADA only includes four subchapters.
-22-
42 U.S.C.A. § 12111(9). A “qualified individual” as used in the
statute is one who
with or without reasonable accommodation, can perform
the essential functions of the employment position
that such individual holds or desires. For the
purposes of this subchapter, consideration shall be
given to the employer's judgment as to what functions
of a job are essential, and if an employer has
prepared a written description before advertising or
interviewing applicants for the job, this description
shall be considered evidence of the essential
functions of the job.
42 U.S.C.A. § 12111(8). A person is considered disabled if,
“with respect to an individual—[he has] (A) a physical or mental
impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment
(as described in paragraph (3)).” 42 U.S.C.A. § 12102(1).
Major life activities include, among other things, lifting. See
42 U.S.C. § 12102(2)(A).
To withstand summary judgment on his failure-to-
accommodate claim, Geter must “come forward with sufficient
evidence to allow a reasonable jury to conclude that (i) [he]
was disabled within the meaning of the [ADA]; (ii) [his]
employer had notice of her disability; (iii) [he] was able to
perform the essential functions of [his] job with or without
reasonable accommodation; and (iv) [his] employer denied [his]
request for a reasonable accommodation of that disability.”
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Doak, 798 F.3d at 1105 (citing Solomon v. Vilsack, 763 F.3d 1, 9
(D.C. Cir. 2014)); see also Ward v. McDonald, 762 F.3d 24, 31
(D.C. Cir. 2014); Elzeneiny v. District of Columbia, 125 F.
Supp. 3d 18, 37 (D.D.C. 2015); Adams v. District of Columbia, 50
F. Supp. 3d 47, 53 (D.D.C. 2014). Because Geter fails to
satisfy the standard required for a reasonable accommodation
claim, the Court grants summary judgment in the GPO’s favor.
Regarding the first element, the GPO claims that Geter is
not a qualified individual with a disability, because Geter’s
disability “was not permanent, and is not enough to find that
[Geter] was, at the time of the incident.” Def.’s Summ. J. Mot.
at 11; Def.’s Reply at 2. Congress reacted to earlier case law
that restricted ADA coverage to only permanent disabilities as
the government is attempting to do so here, Toyota Motor Mfg.,
Ky. v. Williams, 534 U.S. 184, 185 (2002) (“The impairment’s
impact must also be permanent or long term.”), by passing the
Americans with Disabilities Act Amendments Act (“ADAAA”) which
added to the ADA that “[a]n impairment that is episodic or in
remission is a disability if it would substantially limit a
major life activity when active.” 42 U.S.C. § 12102(4)(D); see
also Summers v. Altarum Institute, Corp., 740 F.3d 325, 333 (4th
Cir. 2014) (“Under the ADAAA and its implementing regulations,
an impairment is not categorically excluded from being a
disability simply because it is temporary.”); Hodges v. ISP
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Techs., Inc., 427 F. App’x 337, 340 n.2 (5th Cir. 2011) (The
ADAAA “effectively superceded the Supreme Court's narrow
construction of ‘disability’ . . . and subsequent cases.”);
Allen v. Baltimore County, 91 F. Supp. 3d 722, 731 (D. Md. 2015)
(finding that occasional flare ups qualify as a disability);
Tyler v. Comprehensive Health Mgmt., Inc., Civil Action No.
11C9296, 2015 WL 122754, at *4 n.5 (N.D. Ill. Jan. 6, 2015)
(“Toyota was overturned legislatively with the passage of the
ADA Amendments Act[.]”), Nichols v. City of Mitchell, 914 F.
Supp. 2d 1052, 1057 (D.S.D. 2012) (“The . . . (ADAAA), which was
passed in 2008, explicitly rejects several Supreme Court
decisions that defined ‘disability’ more narrowly than many of
the ADA’s original Congressional proponents had intended.”
(citing H.R. Rep. No. 110-730, at 5 (2008))). Therefore, there
is nothing on the face of the ADA, or included in the case law,
that requires the injury to be permanent for purposes of
bringing a claim under the ADA as the GPO suggests. Rather, the
ADA covers non-permanent disabilities.
The ADA specifically includes lifting as a major life
activity. 42 U.S.C. § 12102(2)(A). Geter had two different
doctors place restrictions on his lifting due to his March 25,
2009 incident when he injured his lower back.15 See Hanley Rep.;
15
Both parties agree that Geter was placed on a lifting
restriction. See Def.’s Summ. J. Mot. at 11-12; Pl.’s Opp’n &
-25-
First Jackson Rep. at 1; Second Jackson Rep. at 1. Accordingly,
Geter has shown that he is disabled within the meaning of the
statute because his physical impairment substantially limits his
ability to lift.
Regarding the second factor -- whether the GPO had notice
of Geter’s disability -- neither party asserts that the GPO did
not have notice of Geter’s back injury, weight lifting
restriction, or body weight. In fact, the record supports the
fact that the GPO had its own doctor, Dr. Hanley, examine Geter,
and Dr. Hanley concluded that Geter’s lifting of weights should
be restricted because of his back injury. See Hanley Rep. at 2.
In a footnote, however, the GPO disputes whether it received one
of Dr. Jackson’s reports. See Def.’s Reply at 3 n.2.16 Geter
argues that Simms’s boss, Gregg Robinson, had notice of the
plaintiff’s weight lifting restrictions, see Robinson Aff. at 2
(“We became aware of Complainant’s restrictions when he came
back to duty on August 5th and 6th of 2010.”), and that the GPO
Mot. at 2. The parties disagree about how much the weight
restriction was because Dr. Hanley and Dr. Jackson set their
weight restriction at two different weight amounts. See Hanley
Rep. at 2 (forty-five pounds); Second Jackson Rep. at 1 (fifteen
pounds).
16
It is unclear to which report the GPO is referring. The
sentence to which the footnote is appended references two of Dr.
Jackson’s reports, one on June 16, 2010 and another on July 27,
2010. However, the phrasing of the footnote appears to refer to
only a single report. Both reports refer to Geter as injured.
See First Jackson Rep.; Second Jackson Rep.
-26-
and Simms had received Dr. Jackson’s July 27, 2010 medical
report by August 2010. See Notice of Decision at 1 (“On the
other hand, your treating physician’s 6/15/10 medical report
stated . . . .”); see also Pl.’s Opp’n & Mot. at 6. Therefore,
Geter has adequately demonstrated that the GPO had notice of his
disability.
Regarding the third prong -- whether Geter could have done
his job with or without a reasonable accommodation -- the GPO
argues that there is no genuine dispute of fact that Geter could
not perform his job of motor vehicle operator with or without a
reasonable accommodation. And the Court agrees.
The ADA requires that, in order for a person to be a
qualified individual under the statute, he or she must be able
to perform the essential functions of his or her job with or
without a reasonable accommodation. See 42 U.S.C. § 12111(8)
(“The term ‘qualified individual’ means an individual who, with
or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires.”); see also Woodruff v. Peters, 482 F.3d 521, 527
(D.C. Cir. 2007) (“[W]e must ‘ask simply whether any reasonable
accommodation would have allowed [Woodruff] to perform all the
essential functions of [his] job without creating an undue
hardship for the agency.’”) (citations omitted) (alterations in
original); Morris v. Jackson, 994 F. Supp. 2d 38, 46 (D.D.C.
-27-
2013) (“An individual who cannot perform the essential duties of
his job, even with an accommodation, is not ‘qualified’ under
the statue.”) (internal quotation marks and citations omitted).
The GPO contends that driving a truck is an essential function
of Geter’s job as a motor vehicle operator. See Def.’s Reply at
4 (“An essential function of a motor vehicle operator position
at the GPO is to drive a truck.”); Job Description at 2; Pl.’s
Opp’n & Mot. at 3; Geter Aff. ¶ 3. The employer’s determination
of the essential functions of the position is afforded
significant deference. See 42 U.S.C. § 12111(8) (“For the
purposes of this subchapter, consideration shall be given to the
employer’s judgment as to what functions of a job are essential,
and if an employer has prepared a written description before
advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential
functions of the job.”), 29 C.F.R. § 1630.2 (n)(1)-(3) (defining
“essential functions” of a job); Saunders v. Galliher & Huguely
Assocs., 741 F. Supp. 2d 245, 248-49 (D.D.C. 2010) (“Courts
frequently defer to the employer’s judgment as to what functions
of a job are essential.”) (citing Kalekiristos v. CTF Hotel
Mgmt. Corp., 958 F. Supp. 641, 660 (D.D.C. 1997)). Geter
contends that his reasonable accommodation included a complete
ban on him driving any trucks. See Pl.’s Opp’n & Mot. at 3
(“When his doctor put him on light duty with lifting
-28-
restrictions of less than 10-15 pounds, Plaintiff could not
drive a GPO truck . . . .”); id. at 5 (“When Simms directed
Geter to go retrieve a truck he violated the light duty
restrictions and the reasonable accommodations given to Geter by
GPO.”).
For Geter to be qualified under the statute, Geter must be
able to drive a truck -- an essential function of his job --
with or without his reasonable accommodation. If Geter’s
proposed reasonable accommodation -- not driving any trucks --
prohibits him from doing the essential function of his job --
driving trucks, then he cannot perform the essential functions
of his job with a reasonable accommodation. Geter contends that
he could not perform the essential functions of his job even
without the reasonable accommodation, because he could not drive
a truck at all. See Pl.’s Opp’n & Mot. at 3 (“When his doctor
put him on light duty with lifting of less than 10-15 pounds,
[Geter] could not drive a GPO truck. . . .”) (emphasis added);
see also Geter Aff. ¶ 9 (“I . . . could not . . . drive.”).
Therefore, Geter is not a qualified individual under the ADA.
Although Geter could not perform his job with or without a
reasonable accommodation, Geter now contends that, “he should
have been given a desk job to accommodate his disability and not
[have been] required to drive a truck.” Pl.’s Opp’n & Mot. at
20. “[A]n employer is not required to provide an employee that
-29-
accommodation he requests or prefers, the employer need only
provide some reasonable accommodation.” Aka v. Washington Hops.
Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (citations omitted).
To determine the appropriate reasonable accommodation
it may be necessary for the covered entity to initiate
an informal, interactive process with the individual
with a disability in need of the accommodation. This
process should identify the precise limitations
resulting from the disability and potential reasonable
accommodations that could overcome those limitations.
29 C.F.R. § 1630.2 (o)(3)(emphasis added); see also Lenkiewicz
v. Castro, Civil Action No. 13-0261 (RCL), 2015 WL 7721203, at
*3 (D.D.C. Nov. 30, 2015) (“In determining the appropriate
reasonable accommodation, the government has the burden,” under
the Rehabilitation Act, to initiate this conversation.)
(citations omitted). “The process contemplated is a ‘flexible
give-and-take’ between employer and employee ‘so that together
they can determine what accommodation would enable the employee
to continue working.’” Stewart v. White, 118 F. Supp. 3d 321,
324-25 (D.D.C. 2015) (quoting Ward v. McDonald, 762 F.3d 24, 32
(D.C. Cir. 2014)) (emphasis added).
It is unclear whether the GPO considered reassignment to
another position as a reasonable accommodation. See generally,
Def.’s Summ. J. Mot.; Def.’s Reply. The D.C. Circuit has
interpreted the ADA to require employers to consider whether
reasonable accommodation could include reassignment. See 29
C.F.R. 1630.2(o)(1)(2)(ii) (“Reasonable accommodation may
-30-
include but is not limited to . . . reassignment to a vacant
position.”); see also Aka, 156 F.3d at 1301 (“An employee
seeking reassignment to a vacant position is thus within the
definition if, with or without reasonable accommodation, she can
perform the essential functions of the employment position to
which she seeks reassignment.”). The GPO claims that it
provided Geter a reasonable accommodation by adhering to the
doctor’s orders by putting him on light duty, restricting his
weight lifting, “letting his supervisors know that he had a 45lb
weight limit,” having “him mostly standing in the platform,” and
“reporting to the Safety Department for classes.” Def.’s Summ.
J. Mot. at 12; see also Def.’s Reply at 4. If reassignment to a
desk job was a reasonable accommodation for Geter, then the test
is not only whether Geter can perform the essential functions of
his original position as a motor vehicle operator, but whether
Geter can perform the essential functions of a vacant desk job.
However, the record is devoid of any request by Geter for
reassignment to another position, let alone a vacant desk job.
“An underlying assumption of any reasonable accommodation claim
is that the plaintiff-employee has requested an accommodation
which the defendant-employer has denied.” Flemmings v. Howard
Univ., 198 F.3d 857, 862 (D.C Cir. 1999) (denying a claim that
Howard University failed to accommodate plaintiff when it
refused to allow plaintiff to work on a revised work schedule,
-31-
because plaintiff failed to provide evidence of her request for
the revised work schedule). So, “‘[t]o create an issue for the
jury’ plaintiff must point to ‘sufficient evidence’ in the
record showing that []he requested an accommodation and ‘that,
after the request, [defendant] refused to make an
accommodation.’” Stewart, 118 F. Supp. 3d at 325 (quoting
Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1308 (D.C. Cir.
2010)); see also Badwal v. Bd. of Trs. of Univ. of D.C., Civil
Action No. 12-cv-2073 (KBJ), 2015 WL 5692842, at *10 (D.D.C.
Sept. 28, 2015) (“While plaintiff is correct in that an employer
has an obligation to engage in an interactive process to
determine a reasonable accommodation, such an obligation is only
triggered where the employee has actually requested a reasonable
accommodation.”) (citations omitted); Evans v. Davis Mem’l
Goodwill Indus., 133 F. Supp. 2d 24, 28 (D.D.C. 2000) (“While
plaintiff cites an obligation to engage in an ‘interactive
process’ with a disabled employee, this obligation is generally
only triggered by an affirmative request.”) (citing Flemmings,
198 F.3d 857).
Because Geter never requested to be reassigned to a vacant
desk job as a reasonable accommodation, it cannot be said that
the GPO failed to provide Geter the reasonable accommodation of
reassignment to a vacant desk job. Therefore, because Geter has
admitted that he cannot perform the essential functions of his
-32-
job as a motor vehicle operator even with a reasonable
accommodation -- let alone without, the GPO will be granted
summary judgment on his accommodation claim.
IV. RETALIATION
Geter also alleges that his supervisor retaliated against
him. See Compl. ¶ 8. Geter does not clarify whether he is
bringing a retaliation claim under Title VII of the Civil Rights
Act or the ADA. See id. Because Geter referenced Title VII of
the Civil Rights Act by statute number in his complaint and the
elements of a retaliation claim are the same under both
statutes, his claim will be construed as retaliation in
violation of Title VII of the Civil Rights Act. “Courts analyze
retaliation claims under the McDonnell Douglas framework.”
Banks v. Vilsack, 932 F. Supp. 2d 185, 192 (D.D.C. Mar. 26,
2013) (citing Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.
2009)). Under the McDonnell Douglas burden-shifting framework
the plaintiff carries the initial burden to establish a prima
facie case of retaliation. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973); see also Wiley v. Glassman, 511 F.3d
151, 155 (D.C. Cir. 2007). In order to establish a retaliation
claim, Geter has to show: he “1) engaged in a statutorily
protected activity; 2) suffered a materially adverse action by
[his] employer; and that 3) a causal connection existed between
-33-
the two.” Nurriddin v. Bolden, 818 F.3d 751, 758 n.6 (D.C. Cir.
2016) (citing Wiley, 511 F.3d at 155)). If “the employer
proffers a non-retaliatory reason for the challenged employment
action, the burden-shifting framework falls away, and the
‘central question’ becomes whether ‘the employee produced
sufficient evidence for a reasonable jury to find that the
employer's asserted nondiscriminatory [or non-retaliatory]
reason was not the actual reason and that the employer
intentionally discriminated [or retaliated] against the
employee.’” Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015)
(quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008) (alterations in original). “‘[A] court
reviewing summary judgment looks to whether a reasonable jury
could infer . . . retaliation from all the evidence,’ which
includes not only the prima facie case but also the evidence the
plaintiff offers to ‘attack the employer's proffered explanation
for its action’ and other evidence of retaliation.” Jones, 557
F.3d at 676-77 (quoting Carter v. Geo. Wash. Univ., 387 F.3d
872, 878 (D.C. Cir. 2004)).
Geter contends that he “can show that his firing for AWOL
by Simms and Robinson,” presumably in August 6, 2009, “and his
filing with the MSPB and its decision to reinstate him in
November 2009 is the reason why Simms tried to hurt him and
force him to get a truck while he was on light duty” on August
-34-
17, 2010. Pl.’s Opp’n. & Mot. at 12. But, because Geter cannot
show that the GPO retaliated against him, his claim fails.
The Court assumes without deciding that Geter can satisfy
the first prong of a prima facie case of retaliation -- that he
has engaged in statutorily protected activity. “[I]nitiation of
litigation to vindicate claims of employment discrimination or
retaliation” is statutorily protected activity. Teliska v.
Napolitano, 826 F. Supp. 2d 94, 98 (D.D.C. 2011) (citations
omitted). Geter filed an appeal of his August 6, 2009
termination with the MPSB. See Settlement Agreement. In order
for Geter’s appeal to the MSPB to constitute protected activity
for purposes of Title VII of the Civil Rights Act, it “must in
some way allege discrimination made unlawful by Title VII.”
Hunter v. District of Columbia, 905 F. Supp. 2d 364, 379 (D.D.C.
2012); see also 42 U.S.C. § 2000e-2(a)(1) (“. . . because of
such individual’s race, color, religion, sex, or national
origin”). Because the record fails to include the basis of
Geter’s appeal to the MSPB, the Court cannot say definitively
that it was protected activity. But the Court assumes without
deciding that it was, because Geter’s retaliation claim fails on
the causation element. Accommodation requests are also
considered protected activity. Solomon, 763 F.3d at 15 (“[W]e
join our sister circuits in holding that the act of requesting
in good faith a reasonable accommodation is a protected
-35-
activity.”). Geter also asserts that he sought reasonable
accommodation during the August 17, 2010 incident, which would
be statutorily protected activity. See Pl.’s Opp’n & Mot. at 4
(“On August 17, 2010 before driving the truck, Geter informed
Simms that he was on light duty and not supposed to drive a
truck.”); Geter Aff. ¶ 10 (“I informed Mr. Simms that I was on
light duty and could not and was not supposed to drive.”).
Similarly, Because Geter’s claim fails on the causation
element, the Court assumes without deciding that Geter can
satisfy the second prong of a prima facie case of retaliation --
that he suffered a materially adverse action. A materially
adverse action is any employer action that “might have
‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.’” Gray v. Foxx, Civil Action No. 14-
5306, 2015 WL 9309101, at *4 (D.C. Cir. Dec. 18, 2015) (per
curiam) (quoting Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.
Cir. 2011)). Geter argues that Simms’s requiring Geter to lift
himself into a truck and drive the truck is a materially adverse
action. See Pl.’s Opp’n & Mot. at 12. Although asking an
employee to do his job is seemingly not a materially adverse
action, Geter argues that Simms’s request to have Geter drive
the GPO truck and lift his 300 pound body into the truck,
despite being on a 10 pound lifting restriction, was a
materially adverse action. Because Geter’s claim fails
-36-
nonetheless, the Court assumes without deciding that Simms’s
request was materially adverse.
Geter cannot satisfy the third prong of a prima facie case
of retaliation because he cannot show a causal connection
between the statutorily protected activity and the materially
adverse action. With respect to the causation element of a
retaliation claim, a plaintiff can overcome the absence of
direct evidence of retaliation by demonstrating “that the
employer had knowledge of the employee’s protected activity, and
that the adverse personnel action took place shortly after that
activity.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 76 (D.D.C.
2007) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.
1985)). A plaintiff can rely on temporal proximity to establish
a prima facie case of retaliation, “but only where the two
events are very close in time.” Hamilton v. Geithner, 666 F.3d
1344, 1357 (D.C. Cir. 2012) (emphasis added) (citations
omitted); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001). Geter failed to provide adequate support for
his claim that his challenge of his termination before the MSPB
and its decision to reinstate him in November 2009 caused Simms
and Robinson to retaliate against him by requiring him to drive
a GPO truck in August 2010.17 Geter relies exclusively on the
17
To the extent that Geter claims that Simms requested that
he drive the delivery truck in retaliation for his request for
-37-
bald assertion that the two events are related, despite the
reinstatement and the August 17, 2010 incident occurring nearly
a year apart. See Mayers v. Laborers’ Health & Safety Fund of
N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (holding that an
eight- or nine-month gap between the final protected activity
and the alleged retaliation as too long a period of time to
infer causation). To buttress this bald assertion, Geter
attempts to offer Simms’s and Robinson’s comments to support his
claim of retaliation. Pl.’s Opp’n & Mot. at 10 (“This action is
also based on the retaliation by Robinson and Simms against
Geter which is evidenced by them making statements that Geter
reasonable accommodation, that claim would fail because Geter’s
request occurred after Simms gave the instruction to Geter for
him to drive the truck. See Pl.’s Opp’n & Mot. at 4 (First,
“Simms directed Geter to go drive a truck from the lower lot up
to the [p]latform and return a truck from the [p]latform to the
lower lot, [then] Geter told Simms that he was on light duty.”);
Geter Aff. ¶¶ 9-10 (First, Geter “was ordered to go get a truck
from the lower lot to drive it to the [p]latform [then Geter]
informed Mr. Simms that [he] was on light duty and could not and
was not supposed to drive.”). It is axiomatic that if an
alleged retaliatory act preceded the protected activity, there
is no causal connection to support a retaliation claim. See
Payne v. Salazar, 899 F. Supp. 2d 42, 53 (D.D.C. 2012) (“For
obvious reasons . . . a plaintiff cannot base a retaliation
claim on events that took place prior to the time she first
engaged in EEO activity.”); Duberry v. Inter-Con Sec. Sys. Inc.,
898 F. Supp. 2d 294, 299 (D.D.C. 2012) (“[A]s a matter of law
and logic, the subsequent event could not have caused the
preceding event.”); Lewis v. District of Columbia, 653 F. Supp.
2d 64, 79 (D.D.C. 2009) (“The fact that the allegedly
retaliatory actions preceded the protected activity precludes a
determination that the protected activity caused the defendant
to retaliate against the plaintiff.”).
-38-
was not hurt and that he was faking.”); id. at 11 (“After his
reinstatement Simms and Robinson started stating that Geter was
not hurt and was faking.”); id. at 16 (“Simms told many persons
that he did not believe that Geter was hurt and therefore
believed that he was faking.”). But their comments mention
nothing of Geter’s MSPB challenge or the November 2009
reinstatement as the basis for any of their actions.18
Thus, plaintiff has failed to state a prima facie case of
retaliation. And plaintiff provides no other evidence of
retaliation. Hence, based on the entire record, because there
is no causal connection between Geter’s claimed materially
adverse personnel action and Geter engaging in statutorily
protected activity, no reasonable juror could conclude that the
GPO retaliated against Geter. Accordingly, the GPO is granted
summary judgment for the retaliation claim.
IV. HARASSMENT
Geter further claims that the GPO harassed him. See Compl.
¶ 8, 10; Def.’s Summ. J. Mot. at 8; EEO Decision at 2; EEO
Acceptance Letter; Pl.’s Opp’n & Mot at 9, 11, 17. Geter does
not clarify what type of harassment cause of action he is
18
In fact, at least portions of the medical records would
support Simms’s and Geter’s skepticism concerning Geter’s
ability to drive a truck.
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bringing. See Park, 71 F.3d at 908 (barring claim for
harassment from a hostile work environment because the
plaintiff’s EEOC complaint “not only lacks the words ‘hostile
work environment,’ but also lacks any factual allegations
supporting such a claim”). Reviewing the record and briefings,
Geter’s claim will be construed as a claim of harassment
creating a retaliatory hostile work environment under Title VII
of the Civil Rights Act and harassment because of his alleged
disability under the ADA.
Although Geter has not alleged claims based on being a
member of a protected class enumerated under Title VII of the
Civil Rights Act, this Circuit has “recognized a special type of
retaliation claim based on a hostile work environment” where the
plaintiff suffers harassment because of his or her having
engaged in a statutorily protected activity. Baird, 792 F.3d at
168-69 (assuming without confirming that “Baird[’s] claim[]
that, in retaliation for her Title VII activities, the PBGC made
her work environment a hostile one” is a cognizable cause of
action under Title VII of the Civil Rights Act); see also 42
U.S.C. § 2000e-2(a) (“It shall be an unlawful employment
practice for an employer to . . . discriminate against any
individual . . . because of such individual’s race, color,
religion, sex, or national origin.”). Even though Geter has not
formally alleged a retaliatory hostile work environment charge,
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the Court will assume that it is properly before the Court as a
claim that is “‘like or reasonably related to the allegations of
the [administrative] charge and growing out of such
allegations.’” Jones v. Billington, 12 F. Supp. 2d 1, 7 (D.D.C.
1997) (citations omitted); see also Roberson v. Snow, 404 F.
Supp. 2d 79, 95-96 (D.D.C. 2005).
Title VII of the Civil Rights Act prohibits employers from
“requiring people to work in a discriminatorily hostile or
abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (quoting Meritor Savs. Bank, FSB v. Vinson, 477
U.S. 57, 64 (1986)); see also 42 U.S.C. § 2000e et seq.; Vance
v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). “Under Title
VII, harassing an employee on the basis of [his] membership in a
protected class is unlawful when it amounts to discrimination
that expressly or constructively alters the employee’s ‘terms,
conditions, or privileges of employment.’” Banks, 932 F. Supp.
2d at 193 (quoting 42 U.S.C. § 2000e-2(a)(1)) (other citations
omitted). “To determine whether a hostile work environment
exists, 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 v. Kempthorne, 550 F.3d
1191, 1201 (D.C. Cir. 2008) (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)).
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Essentially, “[w]hen the workplace is permeated with
‘discriminatory intimidation, ridicule, and insult . . . that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment
. . . Title VII is violated.” Harris, 510 U.S. at 21 (citations
omitted); see also Brooks v. Grundmann, 748 F.3d 1273, 1276
(D.C. Cir. 2014). Title VII does not permit the court to be the
enforcer of a “general civility code” but, instead, if the
standard is “properly applied, [the standard] will filter out
complaints attacking ‘the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-
related jokes, and occasional teasing.’” Faragher, 524 U.S. at
788 (citations omitted). To amount to a change in the terms and
conditions of employment, the hostile “conduct must be extreme”.
Id.
To “state a [retaliatory] hostile work environment claim, a
plaintiff has to show that [he] suffered harassment because of
[his] protected activity . . ., ‘that [his] employer knew or
should have known of the alleged harassment and failed to take
remedial action, and that the hostile environment interfered
with [his] work.’” Banks, 932 F. Supp. 2d at 193 (citations
omitted); see also Napolitano, 826 F. Supp. 2d at 98. The prima
facie elements of
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[a] claim for harassment based on disability, . . .
would require a showing that: (1) [plaintiff] is a
qualified individual with a disability . . .; (2) [he]
was subject to unwelcome harassment;(3) the harassment
was based on [his] disability or a request for an
accommodation; (4) the harassment was sufficiently
severe or pervasive to alter the conditions of [his]
employment and to create an abusive working
environment; and (5) that [GPO] knew or should have
known of the harassment and failed to take prompt
effective remedial action.
Brown v. Small, Civil Action No. 02-1268 (RWR), 2005 WL 736530,
at *3 (D.D.C. 2005) (quoting Walton v. Mental Health Ass’n of
Se. Pa., 168 F.3d 661, 667 n.2 (3d Cir. 1999)) (alterations in
original).
But the GPO asserts that plaintiff’s harassment claims fail
because he cannot establish that GPO created a retaliatory
hostile work environment or that the GPO harassed Geter because
of his disability. The GPO contends that Geter’s “unwelcome[d]
harassment” was merely “workplace dissatisfaction, which the
Courts have made clear [does] not amount to a hostile work
environment.” Def.’s Summ. J. Mot. at 17. Plaintiff’s claims
of retaliatory hostile work environment and harassment because
of his disability are based solely on his contention that the
GPO retaliated against him by forcing him to drive a GPO truck
because he filed with the MSPB in August 2009 and the GPO and
Geter reached a settlement agreement to reinstate him in
November 2009. Pl.’s Opp’n & Mot. at 10-12; see also id. at 11
("On August 17, 2010 when Simms ordered Geter to drive a truck
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while he was on light duty, was a clear act of harassment
. . . .”).
The GPO’s request for Geter to drive the GPO truck on
August 17, 2010 was essentially the GPO requesting that Geter do
his job. Asking someone to do their job cannot form the basis
of retaliatory hostile work environment because it does not
amount to the level of “intimidation, ridicule, and insult . . .
that is sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.” Harris, 510 U.S. at 21 (internal quotation marks
and citations omitted); see also Faragher, 524 U.S. at 788
(citations omitted) (“[I]solated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms
and conditions of employment’”); Hussain v. Nicholson, 435 F.3d
359, 367 (D.C. Cir. 2006) (citing Singletary v. District of
Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003)) (exploring a case
where the court declined “to grant summary judgment against an
employee claiming hostile work environment where, for over a
year and a half, the employee was forced to work in a poorly
lit, unheated, and unventilated storage room full of brooms and
boxes of debris”); Houston v. SecTek, Inc., 680 F. Supp. 2d 215,
224 (D.D.C. 2010) (surveying D.C. Circuit cases where the court
did not find sufficient evidence to support a hostile work
environment claim).
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Geter also complains of harsh comments from his
supervisors. Pl.’s Opp’n & Mot. at 16-17 (“Simms retaliated
against Geter by ordering him to drive the truck or be placed
off the clock and be escorted out of the building by GPO police.
This action is nothing short of harassment and retaliation.”);
id. at 16 (“There is no question that Simms told many persons
that he did not believe that Geter was hurt and therefore
believed that he was faking.”). The Court, however, is not the
police of a “general civility code.” Faragher, 524 U.S. at 788.
Because Geter fails to establish a factual basis that he was
subjected to severe or pervasive harassment, the GPO is granted
summary judgment on Geter’s claim of a retaliatory hostile work
environment or harassment because of plaintiff’s alleged
disability.
CONCLUSION
For the foregoing reasons, the Government Publishing
Office’s motion for summary judgment (ECF No. 35) will be
GRANTED. Mr. Geter’s motion for summary judgment (ECF No. 40)
will be DENIED. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: June 23, 2016 RUDOLPH CONTRERAS
United States District Judge