UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HENRY GETER, : : Plaintiff, : Civil Action No.: 16-482 (RC) : v. : Re Document No.: 55 : UNITED STATES GOVERNMENT : PUBLISHING OFFICE, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff, Mr. Henry Geter, is a former employee of Defendant, the United States

Government Publishing Office (GPO). This Court has previously resolved one employment-

related lawsuit by Mr. Geter against the GPO. See generally Geter v. Gov’t Publ’g Office

(Geter I), No. 13-916,

(D.D.C. June 23, 2016). In the current case,

Mr. Geter claims that the GPO failed to accommodate his disability and retaliated against him for

engaging in protected activities. The GPO has now moved for summary judgment as to both

claims. Because Mr. Geter has not advanced evidence from which a jury could reasonably find

in his favor on either claim, the Court will grant the motion in full.

II. BACKGROUND

Mr. Geter and the GPO have had a long and contentious relationship, not all of which is

relevant to the pending motion. But because Mr. Geter claims here that he faced retaliation in

part for filing a complaint in Geter I, it is worth reviewing the facts and procedural history of that

case. A. The Prior Case: Geter I

Mr. Geter began working at the GPO in 2002 and was eventually promoted to motor

vehicle operator. See Geter I,

, at *2. In that position, he was required to

have a valid commercial driver’s license (CDL) and the ability to lift loads of up to 50 pounds.

In March of 2009, Mr. Geter injured his back at work and stopped working.

After

some negotiations and disputes with the GPO (and medical evaluations by both a Department of

Labor medical examiner and Mr. Geter’s private physician), he eventually returned to work in

August 2010.

at *2–3.

The events giving rise to Geter I took place shortly after Mr. Geter’s return to duty. See

id. at *3. Without endorsing either side’s version of events, the basic gist is that Mr. Geter was

asked by his supervisor to drive a truck, even though Mr. Geter maintained that doing so would

violate medical restrictions imposed in the wake of his 2009 injury. Id. But facing a skeptical

boss, Mr. Geter ultimately complied and suffered (or at least claimed to have suffered) an injury

as he was lifting himself into his vehicle. Id. at *3–4. Shortly thereafter, after refusing to drive

due to his (claimed) injury, Mr. Geter was fired. Id. at *4. Based on these events, Mr. Geter

sought counseling with the GPO’s equal employment opportunity office, filed a formal

complaint of discrimination that was ultimately dismissed by the Equal Employment

Opportunity Commission (EEOC), and finally, on June 18, 2013, filed the Geter I complaint. Id.

at *4–5.

Geter I put forward a variety of claims, namely race and age discrimination, intentional

infliction of mental harm, creation of a retaliatory hostile work environment, failure to

accommodate, and retaliatory discrimination. See generally id. Many of these claims, this Court

2 ultimately found, were not viable because Mr. Geter had failed to exhaust the relevant

administrative remedies. See id. at *6–7. As to those remaining, this Court found that Mr. Geter

had failed to set forth evidence sufficient to survive summary judgment. See id. at *7–16.

B. The Current Case

While Geter I was being litigated, the relationship between Mr. Geter and the GPO

remained contentious. We take up the narrative in 2013. By that time, for reasons not relevant

here, Mr. Geter had been terminated from his position at the GPO, but the Merit Systems

Protection Board (MSPB) had ordered his reinstatement; he remained on a period of

administrative leave. See Pl.’s Statement of Material Facts (“Pl.’s SOF”) at 11–12, ECF No. 59;

Def.’s Statement of Material Facts (“Def.’s SOF”) at 4, ECF No. 55-2. 1

1. The November 25 Meeting

In a November 21, 2013 letter, the GPO recalled Mr. Geter from leave and instructed him

to report to work on November 25, “ready, willing and able to perform all of the duties and

responsibilities of your position.” Ltr. from G. Thomas to H. Geter (Nov. 21, 2013) at 2, ECF

No. 55-14. The letter added that “you will need to bring with you when you report your valid

commercial driver’s license (CDL).” Id. Mr. Geter reported to work as instructed—though

without a valid CDL. Pl.’s SOF at 13. As he explained to his supervisor, Mr. Gregory

Robinson, he had not been able to obtain such a license due to continuing medical restrictions.

Id.; see also Def.’s SOF at 4 (“Geter . . . claimed that he could not obtain a valid CDL because a

doctor would not clear him.”). He requested that Mr. Robinson transfer him “to a desk position

until his doctor cleared him with no restrictions and he was able to obtain a CDL.” Pl.’s SOF at

1 Except where specifically noted, the facts recited here are uncontested by the parties. All page numbers refer to the ECF page numbers.

3 13; see also Def.’s SOF at 5 (“According to Geter, he also requested an accommodation during

this meeting—specifically, a transfer to a desk position.”).

According to the GPO, Mr. Robinson explained to Mr. Geter that there were no vacant

positions and then—because Mr. Geter was lacking the CDL required for his actual position—

sent him home to remain on administrative leave. Def.’s SOF at 5. According to Mr. Geter,

however, Mr. Robinson did not tell him that there were no vacant positions; instead, Mr.

Robinson informed him that “we aren’t here to talk about your reasonable accommodation”

before sending him home. Pl.’s SOF at 6.

2. The December 16 Letter

On December 16, the GPO sent Mr. Geter another letter. See Def.’s SOF at 5; Ltr. from

G. Robinson to H. Geter (Dec. 16, 2013) (“Dec. 16 Letter”), ECF No. 55-19.

The letter began by acknowledging that Mr. Geter had returned to duty on November 25,

though without a valid CDL. Dec. 16 Letter at 2. Under the apparent impression that Mr. Geter

might be able to obtain a medical clearance and license in short order, it directed him to report to

work by January 2, 2014, “ready and able to work with a valid CDL in your possession.” Id. At

the same time, it acknowledged Mr. Geter’s injury and transfer request. See id. (“[I]n your return

to duty meeting you alleged that you had suffered injury to your back and also that you would

like to request a transfer. If it is in fact your desire to seek a reasonable accommodation, you

need to inform me specifically what accommodation/s you are seeking.”). It concluded with a

warning:

[I]f . . . you are not able to perform the functions of your position with your valid CDL, and you have not submitted a valid documented request for reasonable accommodation by . . . [January 2, 2014], I will be forced to propose your removal from Federal service for your inability to perform the essential functions of your position due to the loss of your CDL.

4 Id. at 3.

Mr. Geter maintains that he did not receive a copy of this letter. Pl.’s SOF at 8

(“Although Geter’s elderly mother may have signed [for] the letter, the letter was not given to

Mr. Geter.”).

3. The December 23 Phone Call

On December 23, Mr. Geter called Mr. Robinson directly to discuss his return to duty.

Id. at 14. Mr. Geter maintains that he renewed his request for an accommodation during this

call, see id., whereas the GPO claims that he did not, see Def.’s Response to Pl.’s Statement of

Genuine Issues at 5, ECF No. 61-1. Specifically, the GPO relies on a memorandum drafted by

Mr. Robinson a couple of weeks after the call:

Mr. Geter inquired about the Request for Reasonable Accommodations. As I explained the process to him, Mr. Geter informed me that he was not going to apply for Reasonable Accommodations. I asked Mr. Geter if he was sure about this and he replied “I’m not going to put in for it; all I want is a chair”. I replied “a chair”. Mr. Geter said “a chair for my back”. I informed him to contact his doctor and request for a chair.

Robinson Mem. (Jan. 8, 2014) at 2, ECF No. 55-20.

4. The January 3 Meeting

On January 3, 2014, 2 Mr. Geter again reported to Mr. Robinson for duty, still lacking a

valid CDL. Def.’s SOF at 6. And again, Mr. Geter was sent home to stay on administrative

leave. See id. According to Mr. Geter, he reiterated (now for the third time) his request for an

accommodation at this meeting, but Mr. Robinson declined to respond. Pl.’s SOF at 9; see also

Geter Aff. (Apr. 7, 2017) at 3, ECF No. 55-16 (“I told Mr. Robinson that I still had lifting

2 Mr. Geter had reported as instructed on January 2, but was denied entrance to his building due to an “administrative oversight with building security.” Proposal to Remove (Jan. 29, 2014) at 3, ECF No. 55-18. He then contacted Mr. Robinson and was instructed to report the next day. Id.

5 restrictions, could not return to full duty and could not obtain a CDL. . . . Mr. Robinson did not

respond to any of my reasonable accommodation requests.”).

5. Removal

On January 16, Mr. Robinson initiated a proposal for Mr. Geter’s removal; on January

29, the GPO sent Mr. Geter the formal proposal to remove. See Pl.’s SOF at 15; see also Def.’s

SOF at 7. The proposal cited as justification the “[f]ailure to possess a valid Commercial

Driver’s License and . . . [the] failure to perform the essential functions of your position.”

Proposal to Remove (Jan. 29, 2014) at 2, ECF No. 55-18. Mr. Geter objected to the proposed

removal on March 10, but the GPO ultimately decided to accept the proposal on April 10. See

Def.’s SOF at 7–8. Consistent with the proposed removal, the final removal decision charged

that “[y]our actions have prohibited you from performing the essential functions of your position

because you do not possess a valid Commercial Driver’s License.” Removal Decision (Apr. 10,

2014) at 3, ECF No. 55-26. Mr. Geter challenged his removal administratively, but the MSPB

and EEOC both affirmed the GPO’s decision. See Final Order of MSPB (July 15, 2015), ECF

No. 16-7; Decision of EEOC (Feb. 10, 2016), ECF No. 16-8.

6. Filing and Subsequent Procedural History

After the unfavorable EEOC decision, Mr. Geter brought this action. His initial

complaint alleged discrimination claims under Title VII of the Civil Rights Act of 1964,

retaliation and failure to accommodate claims under Title VII and the Rehabilitation Act, and

failure to accommodate claims under the Americans with Disabilities Act (ADA). See generally

Compl., ECF No. 1. Mr. Geter subsequently amended his complaint to allege violations of the

Rehabilitation Act and Title VII instead of ADA claims. See generally Am. Compl., ECF No. 3.

6 At this point, the GPO moved for the Court to either dismiss the case or grant summary

judgment. See Geter v. United States Gov’t Publ’g Office (Geter II),

(D.D.C. 2017). As a technical matter, the GPO argued in part that the claims should have been

brought under the ADA; more substantively, it argued that the claims were barred by the doctrine

of claim preclusion (based on Geter I). See generally Def.’s Mot. Dismiss or Mot. Summ. J.,

ECF No. 15. For his part, Mr. Geter sought leave to amend a second time in order to clarify that

his claims were actually ADA claims. See Geter II,

. Ruling on these

motions, this Court found that claim preclusion did not bar Mr. Geter’s proposed claims and

granted him leave to file another complaint. See

. That amended complaint—the

operative complaint here—solely brought failure to accommodate and retaliation claims under

the ADA. 3 See Second Am. Compl. at 9, ECF No. 40. After discovery closed, the GPO brought

the pending motion for summary judgment.

III. LEGAL STANDARD

Summary judgment is proper when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation, see

Anderson v. Liberty Lobby, Inc.,

(1986), while a dispute is “genuine” if there

is enough evidence for a reasonable finder of fact to decide in favor of the non-movant, see Scott

v. Harris,

(2007).

In considering a motion for summary judgment, a court must “eschew making credibility

determinations or weighing the evidence[,]” Czekalski v. Peters,

(D.C. Cir.

3 As the parties now agree, the ADA—not the Rehabilitation Act—is the proper vehicle for discrimination claims brought by GPO employees against their employer. See Geter II,

n.11.

7 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the

non-movant, see Anderson,

. Nevertheless, conclusory assertions offered without

any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999). And because the nonmovant’s evidence must allow a reasonable jury

to find in its favor, “merely colorable” or “not significantly probative” evidence will not preclude

summary judgment. Potter v. District of Columbia,

(D.C. Cir. 2009) (quoting

Anderson, 477 U.S. at 249–50).

IV. ANALYSIS

A. Failure to Accommodate

Mr. Geter’s basic argument is that the GPO violated its duty to accommodate by ignoring

his repeated requests (on November 23, December 23, and January 3) for a temporary

reassignment to a desk position. See Pl.’s Mem. in Support of Opp’n Mot. Summ. J. at 9 (“Pl.’s

Opp’n Mot. Summ. J.”), ECF No. 58-1. For its part, the GPO maintains that Mr. Geter failed his

obligations under the ADA to adequately engage in the accommodation process and to

demonstrate that there was an available desk job to which he could be reassigned. See Def.’s

Mem. in Support of Mot. Summ. J. at 19, ECF No. 55-1.

1. Legal Framework

Under the ADA, a covered employer discriminates when it fails to make “reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability.”

(b)(5)(A). A “reasonable accommodation” can include a

variety of actions by the employer, including “reassignment to a vacant position.”

§

12111(9)(B). However, as our Circuit has explained, an employee is not automatically entitled

to reassignment. Most fundamentally, “[a]n employee need not be reassigned if no vacant

8 position exists”—that is, “employers are not required . . . to create a new position” in order to

accommodate an employee. Aka v. Washington Hosp. Ctr.,

(D.C. Cir.

1998) (internal citations omitted); see also U.S. Equal Emp’t Opportunity Comm’n, No. 915.002,

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act (Oct. 17, 2002),

, at *21 (“The employer does not have

to bump an employee from a job in order to create a vacancy; nor does it have to create a new

position.”). Relatedly, “[r]easonable accommodation does not require an employer to restructure

an existing job to remove some of its essential functions.” Jones v. Univ. of D.C.,

(D.D.C. 2007).

At the same time, employers are not completely off the hook: they have a duty to help

identify suitable vacancies as part of the overall accommodation process. See Aka,

n.27 (noting that the employer “had a corresponding obligation to help him identify

appropriate job vacancies (since plaintiffs can hardly be expected to hire detectives to look for

vacancies)”).

Generally speaking, then, “an employee’s obligation to seek reassignment and the

employer’s obligation to assist or consider reassignment must be weighed against each other

based on the circumstances of each case.” Ward v. District of Columbia,

(D.D.C. 2016). But once a case reaches litigation, 4 it falls to the plaintiff to “demonstrate that

there existed some vacant position to which he [or she] could have been reassigned.” Aka,

n.27 (internal citations omitted); see also Faison v. Vance-Cooks,

See Jackan v. New York State Dep’t of Labor,

, 568 n.4 (2d Cir. 2000) (“The question whether an employer bears a legal duty to assist an employee in identifying appropriate vacant positions in the immediate aftermath of a request for reasonable accommodation is analytically distinct from the question of which party bears the burden of persuasion on the existence of a vacancy in litigation.”).

9 37, 60 (D.D.C. 2012) (“[I]t is the plaintiff’s burden to identify available positions and to

demonstrate that she was qualified for those positions.” (citations omitted)).

2. Analysis

Here, the parties agree that there were no formal or official vacancies—no agency job

posting or the like. Compare Aka, 156 F.3d at 1286–87 (discussing defendant’s job postings and

plaintiff’s applications to various vacant positions). But Mr. Geter argues that it is sufficient that

there were de facto vacancies, regularly created by Mr. Robinson “regardless of whether there

was an official ‘vacancy.’” Pl.’s Opp’n Mot. Summ. J. at 12. There is undeniably strong

evidence for such a practice at the GPO. Mr. Robinson himself stated that certain “employees

were accommodated by me, Gregory Robinson, assisting primarily with clerical duties,” even

though “[t]here were no vacant positions that were filled and no temporary positions created for

these employees.” Robinson Decl. at 1, ECF No. 58-13. And at least one employee confirmed,

via affidavit, that other employees were reassigned by Mr. Robinson to “light duty” or “office

work” when they were injured. See Pl.’s Opp’n Mot. Summ. J. at 14 (citing Arthur Aff. at 1,

ECF No. 58-12).

The key question, then, is whether Mr. Geter can carry his burden of identifying a

vacancy by pointing to the GPO’s past practice of creating temporary positions. Mr. Geter does

not cite specific authority on this point, but seems to rely on the general principle that “the

touchstone of the reassignment inquiry is ‘reasonableness.’” Alston v. Washington Metro. Area

Transit Auth.,

(D.D.C. 2008) (quoting Smith v. Midland Brake, Inc., a

Div. of Echlin, Inc.,

(10th Cir. 1999)). That general statement is correct,

but it does not necessarily resolve the question here, especially in light of the specific and

10 clearly-settled rule that an employer is under no obligation to create a new position for an

employee. See Aka, F.3d 1284 at 1305.

Some existing authority suggests that the idea of implied or presumptive vacancy is a

nonstarter. Generally, our Circuit has explained that “[t]he word ‘vacant’ has no ‘specialized

meaning’ in the ADA.” McFadden v. Ballard Spahr Andrews & Ingersoll, LLP,

(D.C. Cir. 2010) (quoting U.S. Airways, Inc. v. Barnett,

(2002)). As a result,

its meaning in ordinary English is simply “not held, filled, or occupied, as a position or office.”

(quoting Webster’s New Twentieth Century Dictionary 2014 (2d ed. 1983)). Against this

straightforward, formalistic definition, it is difficult to see room for Mr. Geter’s constructive

approach. And at least one other Circuit agrees that “vacant” means formally empty, that is,

open for application. See Duvall v. Georgia-Pac. Consumer Prod., L.P.,

(10th Cir. 2010) (“[A] position is ‘vacant’ for the purposes of the ADA’s reassignment duty

when that position would have been available for similarly-situated nondisabled employees to

apply for and obtain.”). Here, in contrast, there is no indication that a nondisabled GPO

employee would be able to apply for the kind of desk position contemplated by Mr. Geter.

Finally, additional support for GPO’s position comes from Lester v. Natsios,

(D.D.C. 2003). There, “[p]laintiff’s proffer of the identity of one individual who received a

transfer” was not enough to “satisf[y] her burden of establishing that other positions were

available.” Id. at 2.

There are, however, cases that tilt the other way. In a case from this District, Judge

Kennedy characterized the test more generally as “whether reassignment is ‘reasonably available

under the employer’s existing policies,’” which in turn could be established by showing that the

employer “has accommodated an employee in a similar situation.” Johnson v. Brown,

Supp. 2d 147, 152 (D.D.C. 1998) (quoting Woodman v. Runyon,

(10th Cir.

1997)). Exactly what is meant by “reasonably available under the employer’s existing policies”

is not completely clear; indeed, it seems to reframe the same basic issue in different terms. That

is, the phrase could encompass a de facto policy of reassignment, which would favor Mr. Geter,

or it could be limited to a written reassignment policy or formal vacancies, which would not.

But it is significant that, in Johnson, it appears there was an available light duty assignment that

was ultimately awarded to a different employee. See

(“Drawing all justifiable inferences in

favor of the plaintiff, a reasonable fact finder could conclude that the Medical Center terminated

Johnson so that another employee, slightly less disabled than Johnson, could work in the light

duty assignment in the pack room.”). One out-of-circuit case supports Mr. Geter’s position more

directly: there, it was enough that, based on other reassignments, “a factfinder could conclude

that [the employer] does have the ability to find new, less strenuous positions for disabled

workers.” Howell v. Michelin Tire Corp.,

(M.D. Ala. 1994); see also

(characterizing a prior reassignment as “evidence of the company’s ability to accommodate

workers without relying on specific vacancies”). This suggests that the proper inquiry concerns

the employer’s capacity to create a new vacancy—rather than existence of the vacancy itself.

Ultimately, in the absence of stronger authority, the Court is hesitant to recognize an

implied vacancy rule. As noted, the statutory language—“reassignment to a vacant position”—

suggests that the vacancy must actually exist.

(9)(B). And deciding otherwise

would create tension with the settled rule that employers do not have to create new positions in

order to facilitate reassignment. See Aka,

. It would also sit uncomfortably with

the proposition that “[r]easonable accommodation does not require an employer to restructure an

existing job to remove some of its essential functions”—essentially what Mr. Geter is requesting

12 here. Jones,

; see also Hancock v. Washington Hosp. Ctr.,

(D.D.C. 2014), aff’d,

(D.C. Cir. 2015) (“[A]n accommodation that

eliminates an essential function of a job is unreasonable under the ADA, even if the employer

voluntarily provided such an accommodation in the past.”). And it would also create difficult

line-drawing problems—what amount of prior reassignment is enough to create a de facto

vacancy?

Thus, regardless of GPO’s past practice as to other employees, it was not the GPO’s

obligation to create a new position for Mr. Geter. And because Mr. Geter cannot otherwise meet

his burden of establishing the existence of a suitable vacancy, his reasonable accommodation

claim fails. That said, the failure to reassign Mr. Geter to temporary desk work—when other

employees were so accommodated—might animate a retaliation claim, as the Court discusses

below, or even other kinds of claims not raised here. 5

B. Retaliation

Mr. Geter claims that he was fired in retaliation for engaging in at least one of three kinds

of protected activities: (1) “making requests for reasonable accommodations,” (2) “pursuing

EEO complaints,” and (3) “filing a lawsuit in [Geter I ].” Second Am. Compl. at 9. In his

briefing here, he makes no mention of the EEO complaints, but focuses on the three

5 For example, Mr. Geter may have also had an argument that the GPO failed its “obligation to help him identify appropriate job vacancies.” Aka,

n.27. But that question—and how it might relate to the underlying ADA claim—was not briefed and the Court declines to address it here. Also possible—but again not presented—would be a discrimination claim, if it were alleged that the GPO selectively provided reassignment on an impermissible basis. See, e.g., Dorchy v. Washington Metro. Area Transit Auth.,

(D.D.C. 1999) (denying summary judgment on a Title VII claim where “other non-minority employees were placed in positions that permitted them to work, notwithstanding their injuries” and defendant’s “only explanation for not modifying [plaintiff’s] job duties or offering him a different job was that it did not have a light-duty program in which to place [him]”).

13 accommodation requests (made in November 2013, December 2013, and January 2014) and the

filing of the Geter I complaint (filed on June 18, 2013). See Pl.’s Opp’n Mot. Summ. J. at 22.

1. Legal Framework

The ADA prohibits employers from retaliating against employees who engage in activity

protected under the statute. See

(a). ADA retaliation claims are analyzed

under the familiar McDonnell Douglas burden-shifting framework. See Smith v. District of

Columbia,

(D.C. Cir. 2005).

Under this framework, a plaintiff must first establish the prima facie elements: that he or

she engaged in a protected activity, that her or she was subjected to an adverse action by the

employer, and that there was a causal link between the two. See

If a plaintiff makes such a

showing, then the burden shifts to the employer to articulate a legitimate, non-retaliatory reason

for its decision. See

(quoting Jones v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 2000)). Once the employer has done so, “the central question at the summary

judgment stage becomes whether the employee has ‘produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-retaliatory reason was not the actual

reason’ and that the employer fired the employee as retaliation.” Johnson v. Interstate Mgmt.

Co., LLC,

(D.C. Cir. 2017) (quoting Hernandez v. Pritzker,

(D.C. Cir. 2013)); see also Brady v. Office of Sergeant at Arms,

(D.C. Cir.

2008) (“[W]here an employee has suffered an adverse employment action and an employer has

asserted a legitimate, non-discriminatory reason for the decision, the district court need not—and

should not—decide whether the plaintiff actually made out a prima facie case under McDonnell

Douglas.”).

14 To “support an inference that the employer’s stated reasons were pretextual, and the real

reasons were prohibited discrimination or retaliation,” a plaintiff can rely on a variety of

evidence, including “the employer’s better treatment of similarly situated employees outside the

plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation from

established procedures or criteria, or the employer’s pattern of poor treatment of other employees

in the same protected group as the plaintiff, or other relevant evidence that a jury could

reasonably conclude evinces an illicit motive.” Walker v. Johnson,

(D.C.

Cir. 2015) (citing Brady,

& n.3).

2. Analysis

Here, the GPO has offered a legitimate and non-retaliatory reason for Mr. Geter’s

termination: that he lacked the CDL required for his position. See Removal Decision (Apr. 10,

2014) at 1-2. For his part, Mr. Geter does not contest that he lacked a valid CDL, or that a CDL

was a required for his role. See Pl.’s SOF at 6 (“Geter had a valid driver’s license, but his CDL

had expired.”); id. at 10 (“Maintaining a valid CDL is a requirement to drive a commercial

vehicle at GPO.”). Instead, Mr. Geter argues that the GPO pretextually seized upon his lack of a

CDL as “an opportunity to rid itself of a complaining employee.” Id. at 11. The question, then,

is whether there is enough evidence for a jury to disbelieve the GPO’s stated rationale and infer

an illicit retaliatory motive.

Mr. Geter first argues that the timing of Mr. Geter’s dismissal suggests pretext. As he

points out, very shortly after Mr. Geter made his multiple requests for reassignment (on

November 25, December 23, and January 3), Mr. Robinson made the initial recommendation for

Mr. Geter’s removal. See Recommendation for Corrective Action (Jan. 16, 2014), ECF No. 58-

16. Speaking in terms of his prima facie case, Mr. Geter argues that “[t]his close temporal

15 proximity satisfies causal connection for the purposes of a motion for summary judgment.” Pl.’s

Opp’n Mot. Summ. J. at 24.

However, our Circuit has recently warned against inferring retaliation from timing alone,

at least at the summary judgment stage when the defendant has proffered a non-retaliatory

explanation:

Mere temporal proximity is not sufficient to [defeat the proffer and support a finding of retaliation], because otherwise “protected activities would effectively grant employees a period of immunity, during which no act, however egregious, would support summary judgment for the employer in a subsequent retaliation claim.” As a result, “positive evidence beyond mere proximity is required to defeat the presumption that the proffered explanations [for the adverse employment action] are genuine.”

Iyoha v. Architect of the Capitol,

(D.C. Cir. 2019) (quoting Woodruff v.

Peters,

(D.C. Cir. 2007)). Applied here, Iyoha makes clear that the timing of

Mr. Geter’s firing, without more, is not enough to defeat summary judgment.

Resisting this conclusion, Mr. Geter maintains that “[o]ne way of demonstrating a causal

connection is ‘by showing a close temporal proximity between the employee’s protected conduct

and the adverse employment action taken by the employe[r].’” Pl.’s Opp’n Mot. Summ. J. at 23

(quoting Badwal v. Bd. of Trustees of Univ. of D.C.,

(D.D.C. 2015)).

But Badwal was discussing the plaintiff’s prima facie case in the context of a motion to dismiss.

See

. Iyoha implies a higher standard. See

(“[E]ven if we

were to adopt Iyoha’s interpretation of the relevant dates and find that he has established a prima

facie case for retaliation using evidence of temporal proximity, there would still be insufficient

evidence to defeat summary judgment.”).

Perhaps anticipating that timing alone would not carry the day, Mr. Geter offers two

“non-temporal factor[s]” that suggest a causal link between his protected activities and his firing.

16 Pl.’s Opp’n Mot. Summ. J. at 24. As a one non-temporal factor, Mr. Geter highlights “the

manner in which [he] was terminated.”

Mr. Geter’s argument here is not very clear; he

suggests, without elaboration, that his dismissal violated his “notice due process rights.” Id. at

24. But Mr. Geter does not develop this analysis any further; in any case, the record suggests

Mr. Geter was given ample notice of his need to acquire a CDL and of his proposed termination.

See, e.g., Ltr. from G. Thomas to H. Geter (Nov. 21, 2013) at 2; Proposal to Remove (Jan. 29,

2014) at 2. Mr. Geter also challenges a single statement in the GPO’s final removal decision: the

observation that Mr. Geter was required to “possess a CDL and a valid state license” as part of

his duties. Removal Decision (Apr. 10, 2014) at 2. In fact, as Mr. Geter points out, federal

regulations prohibit a commercial vehicle driver from possessing more than one driver’s license

at once. See

(“No person who operates a commercial motor vehicle shall at

any time have more than one driver’s license.”). Thus, Mr. Geter suggests, the GPO’s final

decision improperly implied that he was required to maintain two separate licenses—and thereby

violate federal law—in order to maintain his position. Pl’s. Opp’n Mot. Summ J. at 24. The

Court is not convinced that this is a fair reading of the GPO’s language. In any case, no

reasonable juror could infer retaliatory animus from this single imprecise reference. The GPO’s

rationale for firing—the lack of a CDL—was consistently articulated throughout the removal

process; nothing suggests that the GPO was firing Mr. Geter for refusing to violate federal law.

As a separate non-temporal factor, Mr. Geter points to the GPO’s “repeated denial of his

requests for reasonable accommodations.”

Specifically, he suggests that the GPO’s steadfast

refusal to accommodate Mr. Geter—in contrast to its willingness to provide temporary

assignments to others—supports an inference of retaliation. See

(“Defendant had previously

accommodated other CDL drivers with desk positions; sometimes for periods as long as eighteen

17 months.”). The GPO responds that, technically, it did not deny his requests, but simply asked

him to support his request with documentation. Def.’s Reply Pl.’s Opp’n Mot. Summ. J. at 12.

It also argues that, as a matter of logic, it cannot be that “an inference of retaliation is created”

whenever “a federal agency denies a request for an accommodation.”

But of course, Mr. Geter is not suggesting that every denial of an accommodation request

automatically creates an inference of retaliation. Rather, his point is that his unequal treatment—

essentially, having every request for a temporary desk assignment met with delay, obfuscation,

or a request for further documentation, while others similarly situated were accommodated

without question—could suggest to a jury that the GPO was acting with a retaliatory motive. 6

See, e.g., Pl.’s SOF at 8 (“Mr. Geter was sent home because the Agency planned on terminating

his employment as opposed to accommodating him as other similarly situated drivers had been

accommodated. The difference of course, being, Mr. Geter had filed a federal district court

lawsuit alleging Title VII and ADA violations and an MSPB litigation making similar

complaints.”).

To substantiate such a theory, however, Mr. Geter needs to identify employees, otherwise

similarly situated, who had not engaged in protected activities but were, in fact, accommodated.

That would then permit the inference that Mr. Geter was singled out because of his

accommodation requests, 7 his EEO complaints, or his discrimination lawsuit in Geter I. See

Walker,

(noting that an inference of pretext could follow from “the employer’s

6 Note that this theory could survive even if no one was legally entitled to accommodation or reassignment. Cf. supra n.5 (suggesting that selectively providing reassignment on an impermissible basis—even if reassignment was not required under the ADA—could constitute a discrimination claim). 7 To be clear, the argument here would be that the accommodation requests themselves triggered retaliation. That, in turn, would require identifying comparators who were accommodated on light duty without even making an accommodation request.

18 better treatment of similarly situated employees outside the plaintiff’s protected group”). And in

this Circuit, in order for a plaintiff to establish that a comparator is similarly situated, he or she

must establish that the comparator is nearly identical in all relevant respects. See Royall v. Nat’l

Ass’n of Letter Carriers, AFL-CIO,

(D.C. Cir. 2008) (concluding that plaintiff

had failed to show that “all of the relevant aspects of [his] employment were nearly identical to

those of [his comparator]” (quoting Neuren v. Adduci, Mastriani, Meeks & Schill,

(D.C. Cir. 1995) (internal quotation marks and citation omitted))).

In support of such a comparator theory, Mr. Geter’s brief cites the affidavit of Sammie

Arthur, a GPO employee who worked as a clerk in the delivery section from 1996 until 2011.

Pl.’s Opp’n Mot. Summ. J. at 24 (citing Arthur Aff.). Mr. Arthur in turn names “two CDL

drivers, Brandon Debrew and Monique [Jones], that were injured on or off the job” and “were

given light duty office work” for approximately 18 months and 6 months, respectively. Arthur

Aff. at 1. But Mr. Arthur does not specify whether Mr. Debrew and Ms. Jones had or had not

engaged in protected activities (whether requesting an accommodation, making EEO complaints,

or filing lawsuits), which undercuts their value as comparators. 8 See generally

Similarly, in his statement of material facts, Mr. Geter cites additional employee

declarations to show that other employees were treated more favorably, but neither Mr. Geter nor

the statements themselves provide much clarity on the activities of the proposed comparators.

See Pl.’s SOF at 13–14 (“Mr. Robinson has previously created positions for drivers and

transferred them to such positions when drivers request reasonable accommodations and/or are

without a CDL.” (citing, in addition to Mr. Arthur’s affidavit, Graham Aff., ECF No. 58-11,

8 Of course, it is likely that both actually requested accommodations. But the point is that, without knowing exactly what protected activities they did or not undertake, it is difficult for the Court to evaluate their value as comparators.

19 Robinson Decl., ECF No. 58-13, and Mielke Decl., ECF No. 58-14)). For example, Bobby

Graham explained that he was a motor vehicle operator who lost his CDL when he was

prescribed insulin, but was “permitted . . . [by Mr. Robinson] to work on the loading dock (not

driving).” Graham Aff. at 1. Missing here are details indicating whether Mr. Graham actually

requested an accommodation or engaged in other protected activities. 9 Mr. Graham also

identified “[a]nother employee, Rober[t] Courtney, [who] didn’t re-certify his CDL and was

permitted to continue working in the section (not driving trucks) for approximately seven

months.” Id. at 2. Again, there are no details regarding Mr. Courtney’s engagement in any

protected activities. Similarly, the declaration by Dan Mielke—the GPO’s Chief Human Capital

Officer—does not refer to any particular accommodations or reassignments, but states only that

there were no vacant positions in the delivery section office or mail and messenger center.

Mielke Decl. at 1.

Perhaps the most information about potential comparators comes from Mr. Robinson’s

own declaration. He names “[f]our Delivery Sections employees; Monique Jones, Robert

Courtney, Bobby Graham, and Marvin Jones [who] have been accommodated between 2010 and

2018 in administrative or clerical positions.” Robinson Decl. at 1. He notes that each of the four

had filed an EEO complaint. Id. at 2. He also states that “Monique Jones accepted a downgrade

to a Supply Technician position . . . after engaging in the interactive reasonable accommodation

process,” that “Robert Courtney was reassigned to the Warehouse Division,” and that both

Bobby Graham and Marvin Jones were “accommodated.” Id. at 1. The declaration includes a

9 Mr. Graham likely alludes to an actual accommodation request when he explains that “[w]hen I worked on the loading dock I gave my doctor’s slips directly to Mr. Robinson.” Graham Aff. at 2. But he does not provide further details.

20 “U.S. Government Publishing Office Reasonable Accommodation Decision Form” indicating

that Marvin Jones’s accommodation request had been approved. Id. at 3–4.

Considering the proffered evidence as a whole, the Court does not perceive a sufficient

basis for inferring a retaliatory motive. If anything, that Mr. Geter’s coworkers were

accommodated—even after, in some cases, engaging in protected activities like requesting

accommodations and filing EEO complaints—undercuts rather supports a retaliatory theory.

That is, that other employees in a protected group analogous to Mr. Geter’s were treated well

suggests that his protected activities were not the reason for his firing here. Compare Walker,

(noting that an inference of pretext could arise from “the employer’s pattern of

poor treatment of other employees in the same protected group as the plaintiff”). Mr. Geter’s

best argument is that the relevant “difference” was that the others had not specifically filed “a

federal district court lawsuit alleging Title VII and ADA violations and an MSPB litigation

making similar complaints.” Pl.’s SOF at 8. But the record is actually silent in that regard; it is

possible that some of the proposed comparators pursued litigation, but the Court simply cannot

tell from the record presented. 10 And Mr. Geter has had ample time to pursue discovery to

develop such a record if such evidence exists.

Ultimately, given that it is the plaintiff’s burden to provide support for an inference of

pretext (in this case, by identifying otherwise similarly situated employees who are not in the

10 One could imagine further distinctions—for example, that the relevant difference was that Mr. Geter had filed multiple EEO complaints, while the other accommodated employees had filed fewer. But at a certain point, the potential distinctions become less and less suggestive of a hidden retaliatory motive, and it is not clear that those factual distinctions would allow the necessary inference. See Walker,

(“Whether evidence offered to show that an employer’s explanation is false itself suffices to raise an inference of unlawful discrimination or retaliation is a fact-sensitive inquiry.”). In any case, Mr. Geter has not advanced this particular argument or identified the necessary comparators.

21 protected class who were treated more favorably), the Court concludes that no reasonable juror

could infer a retaliatory motive from the comparative treatment of Mr. Geter’s coworkers.

V. CONCLUSION

For the foregoing reasons, the Defendant’s motion for summary judgment is

GRANTED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: January 31, 2020 RUDOLPH CONTRERAS United States District Judge

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