UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY HARLEY,

Plaintiff, Case No. 20-cv-857 (JMC)

v.

VERIZON WASHINGTON, D.C. INC.,

Defendant.

MEMORANDUM OPINION

Plaintiff Gregory Harley worked as a services technician at Verizon. That physically

demanding job required him to install and maintain equipment. After he injured his shoulder while

working, he was unable to do what the job required of him. Verizon then spent months trying to

find Harley another job at the company. But the company was ultimately unable to match Harley

with an available position for which he was qualified. So, at the end of the period of unpaid leave

Harley was guaranteed by his collective bargaining agreement, he was fired. Harley then sued

Verizon under the Americans with Disabilities Act (the ADA) alleging Verizon failed to provide

him with reasonable accommodations. Because there is no dispute that Verizon fulfilled its

obligations under the ADA, the Court GRANTS Verizon’s motion for summary judgment. 1

1 Unless otherwise indicated, the formatting of quoted materials has been modified throughout this opinion, for example, by omitting internal quotation marks and citations, and by incorporating emphases, changes to capitalization, and other bracketed alterations therein. All pincites to documents filed on the docket are to the automatically generated ECF Page ID number that appears at the top of each page.

1 I. BACKGROUND

Gregory Harley began working at Verizon as a services technician in 1997. ECF 24-2 ¶ 1;

ECF 25-1 at 1. Services technicians “are responsible for installing and maintaining residential and

business telecommunications services.” ECF 24-2 ¶ 3; ECF 25-1 at 1. That requires “[c]onnecting,

disconnecting, reconnecting, testing, repairing, maintaining, installing, rearranging company and

customer provided telephones and equipment, inside wiring, and wires at poles, underground or

building terminals.” ECF 24-2 ¶ 3; ECF 25-1 at 1. To work as a services technician, applicants

must pass a test and “be able to perform [the] physical requirements of the job.” ECF 24-2 ¶¶ 1, 3;

ECF 25-1 at 1. Those physical requirements include “moving and/or lifting items such as ladders,

tools, cable, test equipment and other objects weighing up to 100 pounds, working aloft; climbing

ladders and poles, and entering tunnels, buildings, trenches, crawl spaces, manholes, and other

confined spaces.” ECF 24-2 ¶ 3; ECF 25-1 at 1.

Between 2013 and 2015, Harley suffered three job-related injuries, each of which rendered

him—at least temporarily—unable to perform his duties as a services technician. ECF 24-2 ¶¶ 19–

29; ECF 25-1 at 6–8. The last of those injuries gave rise to this case. In December 2015, Harley

injured his shoulder. ECF 24-2 ¶ 26; ECF 25-1 at 8. That left him unable to perform the essential

functions of the services technician position. ECF 24-2 ¶ 27; ECF 25-1 at 8. Harley then took a

period of “short-term disability leave” before returning to work at Verizon. ECF 24-2 ¶ 26; ECF

25-1 at 8. When Harley returned in early February 2016, he still could not do the tasks required of

a services technician, so Verizon placed him in the medical leave program it had negotiated with

his union. ECF 24-2 ¶ 27; ECF 25-1 at 8.

Under the medical leave program, Harley was initially provided with “light duty work.”

ECF 24-2 ¶ 27; ECF 25-1 at 8. But, per the program’s terms, that period of “light duty work”

would end in April 2016. ECF 24-2 ¶ 29; ECF 25-1 at 8. While employees were entitled to a total

2 of 52 weeks of light duty work over a two-year period, Harley had already used up the majority of

his time while recovering from his previous injuries. ECF 24-2 ¶ 28; ECF 25-1 at 8. So, after

around two months of paid light duty work, Harley was put on unpaid leave. ECF 24-2 ¶ 31; ECF

25-1 at 8. Harley could then remain on unpaid leave for up to 52 weeks, less the 150 days he had

already spent on light duty, which counted towards the 52 weeks. ECF 24-2 ¶ 14; ECF 25-1 at 4.

In June 2016, around two months after he went on unpaid leave, Harley had surgery to

repair his shoulder. ECF 24-2 ¶ 32; ECF 25-1 at 8. Harley claims that surgery “was delayed by

Verizon for over two months based on non-medical considerations.” ECF 25-1 at 7; see id. at 27

¶ 8. Verizon says otherwise, relying on e-mails in which the surgery was approved. Those emails

show that in May 2016 Harley’s treating physician sent Verizon’s third-party workers’

compensation vendor a request to approve his surgery scheduled for June 2016. See ECF 26-1 ¶ 3;

ECF 26-1 at 5–12 (e-mail exchanges regarding surgery claim). Verizon then approved the surgery

and it occurred, as scheduled, on June 16. ECF 26-1 at 5–12.

As the Court will explain below, there is no need to decide whether there is a genuine

dispute about the timing of Harley’s surgery. What is undisputed is that Harley had surgery in June

2016, and that after his surgery he went back onto short-term disability leave for around four

months. ECF 24-2 ¶¶ 32–35; ECF 25-1 at 8–9. When Harley returned to work in October, he was

then placed back on unpaid leave. ECF 24-2 ¶¶ 35–36; ECF 25-1 at 9. He now had about 150 days

left of his 52 total weeks on the medical leave program. ECF 24-2 ¶ 36; ECF 25-1 at 9.

Throughout the time that Harley was on that program—first on light work duty, and then

on unpaid leave—he was entitled to “priority placement” into any vacant lateral or downgrade

position within a certain geographical radius that he could perform with or without reasonable

accommodations and—if the position required passing a test—for which he was (or could become)

3 test-qualified. ECF 24-2 ¶¶ 15, 18; ECF 25-1 at 4, 6. “Priority placement” meant that Harley would

be automatically offered any vacant position for which he was qualified, except that other

medically restricted employees would jump him in line if they were more senior. ECF 24-2 ¶ 16;

ECF 25-1 at 4.

In total, Verizon matched Harley with more than 40 “priority placement” positions at the

company, see ECF 24-5 at 56, though for various reasons he was not ultimately placed into any of

them. For many of the positions, the same physical limitations that prevented Harley from working

in his current position meant that he could not perform the essential functions of the new job either.

See ECF 24-2 ¶¶ 38, 39, 40; ECF 25-1 at 10. For two other categories of positions, Harley was

provided the opportunity to take a written assessment test to become “test-qualified,” but failed

the exam and was not eligible to retake it for six months (which would not come until after his 52

weeks on the medical leave program ran out). See ECF 24-2 ¶¶ 42–44; ECF 25-1 at 10. Near the

end of his 52 weeks, Harley was matched with two maintenance administrator positions, one of

which was cancelled before it was filled, the other of which was filled by a more senior medically

restricted employee. See ECF 24-2 ¶ 48; ECF 25-1 at 11. Finally, Verizon offered Harley the

opportunity to test for two out-of-state customer support positions, but Harley declined because

the positions were too far away. See ECF 24-2 ¶ 47; ECF 25-1 at 11. 2

So Harley did not find another position while he was in the medical leave program, and on

April 4, 2017, Verizon informed him that he had exhausted his allotment of unpaid leave. ECF 24-

2 ¶ 49; ECF 25-1 at 11. Harley was terminated the next day. ECF 24-2 ¶ 50; ECF 25-1 at 11. After

2 The parties note that Harley’s union went on strike for approximately seven weeks during the spring of 2016, during which time the company took down all job postings and there were “very few” vacant positions at the company. ECF 24-2 ¶ 30; ECF 25-1 at 8. At one point in the briefing on the motion for summary judgment, Harley intimates that the company’s failure to place him into a new position was partially attributable to that strike. ECF 25 at 2–3. Because the claims before the Court are solely under the ADA, that possibility is beyond the purview of this case. Moreover, Harley cites to no evidence that would support that contention.

4 filing a grievance with his union (which was denied, and which his union chose not to appeal), see

ECF 24-2 ¶ 51; ECF 25-1 at 11, Harley filed this suit, contending that Verizon violated the ADA

when it failed to provide reasonable accommodations for his disability, resulting in his wrongful

termination. ECF 1. Verizon moved for summary judgment, arguing that it fulfilled its obligations

under the ADA. See ECF 24.

II. LEGAL STANDARD

The Court will grant a motion for summary judgment only “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of the suit under

the governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). In evaluating a

motion for summary judgment, “[t]he evidence is to be viewed in the light most favorable to the

nonmoving party and the court must draw all reasonable inferences” in that party’s favor. Talavera

v. Shah,

(D.C. Cir. 2011).

III. ANALYSIS

The ADA prohibits employers from discriminating “against a qualified individual on the

basis of disability.”

(a). Harley contends that Verizon violated this provision by

failing to provide him with a reasonable accommodation that would have allowed him to continue

working at the company either (1) as a services technician or (2) in another position to which he

could have been reassigned. Harley also protests that Verizon failed to engage in an “interactive

dialogue” with him for the purpose of identifying a reasonable accommodation. ECF 25 at 6.

Because it is undisputed that there was no accommodation with which Harley could perform the

essential functions of the services technician role and no position to reassign him to for which he

was qualified, Verizon is entitled to summary judgment.

5 A. Verizon did not violate the ADA by failing to retain Harley as a services technician.

Verizon says there is no evidence that any accommodation would have made it possible

for Harley to “perform the essential functions” of the services technician role.

(8). Because an employer need not retain someone in a job unless they are able to “perform

[its] essential functions,” the company concludes, it did not violate the ADA by refusing to allow

Harley to remain in that role. See Stanley v. City of Sanford,

, 2071 (2025) (a

plaintiff can only prevail on ADA claim if she can “prove that she . . . c[an] perform [a job’s]

essential functions”). The Court agrees.

In determining the “essential functions” of an employment position, the ADA directs courts

to “consider[] . . . the employer’s judgment as to what functions of a job are essential.”

(8). And “if an employer has prepared a written description before advertising or

interviewing applicants for the job, th[at] description shall be considered evidence of the essential

functions of the job.”

Verizon had prepared a written description for the job, which lists its

“basic qualifications.” ECF 24-4 at 47–48. These include, “but [are] not limited to”:

moving and/or lifting items such as ladders, tools, cable, test equipment and other objects weighing up to 100 pounds, working aloft; climbing ladders and poles, and entering tunnels, buildings, trenches, crawl spaces, manholes, and other confined spaces to accomplish job tasks.

. For his part, Harley concedes that these were requirements of the role. See ECF 24-2 ¶ 4;

ECF 25-1 at 1. Given the job description and the parties’ agreement that these tasks were required

of services technicians, the Court has little trouble in concluding that they constitute “essential

functions” of the role for purposes of the ADA. Both parties also agree that, due to his shoulder

injury, Harley could not meet the 100-pound lifting requirement. See ECF 24-2 ¶ 34; ECF 25-1 at

9. That means that, unless Harley has identified some “reasonable accommodation” that would

6 have made it possible for him to lift the required amount, he cannot prove he was qualified for the

services technician role.

In his opposition to Verizon’s motion for summary judgment, Harley insists that there was

such an accommodation: Verizon, he says, could have provided him with a “workvan with Ladder

Assist equipment.” ECF 25 at 6. Ladder Assist, he explains, uses “pressurized gas shocks [that]

support the weight of the ladder” and therefore “assist[s] in lifting and lowering the ladder.” ECF

25-1 at 26. Harley argues that this technology would have obviated the need “to make extreme lifts

of heavy equipment such as ladders onto the top of a van,” and therefore would have rendered him

qualified to perform the essential functions of the job despite his inability to lift 100-pound ladders.

ECF 25 at 6; see also ECF 25-1 at 27 (Harley’s declaration claims he can “currently . . . carry and

lift up to 100 pounds,” but still cannot “lift extremely heavy items, such [as] 100-pound ladders,

onto the top of vans without the use of Ladder Assist”).

The problem for Harley, however, is that he needs to prove he “could perform [the]

essential functions” of the services technician role with a reasonable accommodation “at the time

of [Verizon’s] alleged act of disability-based discrimination.” Stanley, 145 S. Ct. at 2071; see also

Minter v. District of Columbia,

(D.C. Cir. 2015) (“The plaintiff must establish her

ability to perform those functions . . . at the time the employer denied her request for

accommodation.”). That means Harley needs to identify a reasonable accommodation with which

he could have done the job between December 2015—when he was injured—and April 2017—

when he was terminated. That is the period in which he claims Verizon discriminated against him

by failing to accommodate him in the services technician role and, ultimately, firing him.

But Harley never claims, and there is nothing in the record to suggest, that Ladder Assist

was in use or available to Verizon in that time period. Instead, Harley’s declaration—which is the

7 only mention of Ladder Assist anywhere in the record—claims only that “all vans that are

purchased by Verizon now have Ladder Assists.” ECF 25-1 at 26 (emphasis added); see also id. at

27 (describing his inability to do certain tasks “without the use of Ladder Assist equipment that is

now in place at Verizon” (emphasis added)). That declaration was signed in April 2022—five years

after Harley was fired. Because neither the declaration nor anything else in the record suggests

there was an accommodation available between 2015 and 2017 with which Harley could have

performed the essential functions of the services technician job, Verizon did not violate the ADA

by failing to retain Harley in that job. 3

Harley also suggests that Verizon delayed in approving his shoulder surgery and that, had

it not done so, he may have been able to perform the essential functions of the job before his unpaid

leave ran out and he was terminated. See ECF 25 at 5. But even assuming Verizon did cause some

delay in his procedure, he has not explained how that claim is cognizable under the ADA. 4 Title I

of the ADA prohibits discrimination in the provision of “employee compensation . . . and other

terms, conditions, and privileges of employment,” which could perhaps cover discrimination in

the approval of the surgery.

(a). But Harley has completely failed to develop

any argument to that effect. See Gov’t of Manitoba v. Bernhardt,

(D.C. Cir.

2019) (“A party forfeits an argument by mentioning it only in the most skeletal way, leaving the

court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.”).

3 Verizon also argues that Harley’s declaration “contradicts his sworn deposition testimony” and should therefore be disregarded. ECF 26 at 1. Because, even taking the declaration at face value, it does not create a genuine dispute about the relevant material fact—whether there was a reasonable accommodation with which Harley could have done the job at the time he claims to have been discriminated against—the Court need not decide whether that’s right. 4 The record suggests that Verizon did not in fact cause any delay. Although there was some confusion about the scheduled date of the surgery within the third-party company that Verizon used to process the approval, that company ultimately approved the surgery for June 16, the same day that the orthopedic surgeon said it was “set for.” ECF 26-1 at 8. And the request for approval was submitted to that third-party company on May 19, so Harley’s surgery was approved and completed within one month of the request. Id. at 12.

8 Even if Harley had tried to develop that argument, it would likely have amounted to an

improper amendment of his complaint. The only claim in his single-count complaint is that

“Verizon terminated and disqualified” him from “employment” based on his disability. ECF 1 at

7. He did not say a word about any delay to his surgery, and certainly did not bring a claim alleging

any such delay amounted to illegal discrimination. To allow Harley to press that claim now would

be to allow him to impermissibly “amend his complaint in an opposition to a defendant’s motion

for summary judgment.” Thorp v. District of Columbia,

(D.D.C. 2018).

There is therefore no genuine dispute of fact: No reasonable accommodation would have

enabled Harley to perform the essential functions of the services technician position at the time he

was fired. That means Verizon did not violate the ADA by failing to retain Harley in that position.

B. Verizon did not violate the ADA by failing to reassign Harley to a different position.

Harley’s second theory is that Verizon violated the ADA by failing to reassign him to

another position. The company says it is undisputed that no vacant position for which Harley was

qualified was available, so this claim fails too. Once again, the Court agrees.

Providing reasonable accommodations can mean “reassignment to a vacant position.”

McFadden v. Ballard Spahr Andrews & Ingersoll, LLP,

(D.C. Cir. 2010) (quoting

(9)). But the ADA does not require “that a disabled employee be reassigned to

a position for which he is not otherwise qualified,” and “[a]n employee need not be reassigned if

no vacant position exists.” Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998).

Applying those rules, Verizon argues that no reassignment was possible here because, despite

months of searching, it could not identify any available positions for which Harley was qualified.

See ECF 24-1 at 12. Harley, in response, insists that Verizon’s reassignment efforts were

insufficient. See ECF 25 at 7.

9 Harley is right that Verizon had an “obligation to help him identify appropriate job

vacancies.” Aka,

n.27. But no reasonable jury could conclude that Verizon failed

to fulfill that obligation here. Verizon placed Harley in its “priority placement” process. See ECF

24-2 at ¶¶ 29, 37; ECF 25-1 at 8–9. As part of that process, Verizon matched Harley with a number

of positions under six job titles: (1) automotive equipment technician, (2) services technician,

(3) service representative, (4) consultant, (5) storekeeper, and (6) maintenance administrator. ECF

24-2 ¶ 37. Given Harley’s physical restrictions, it is undisputed that he was not qualified for the

automotive equipment technician, storekeeper, or services technician roles. See ECF 24-2 ¶¶ 37,

38–40; ECF 25-1 at 9–10. As for the service representative and consultant positions, both required

Harley to pass a test. ECF 24-2 ¶¶ 37, 41–44. It is undisputed that Verizon arranged for Harley to

take that test, but Harley did not pass. ECF 24-2 ¶¶ 42–43; ECF 25-1 at 10. Verizon thus had no

legal obligation to reassign Harley to any of these five titles for which he was not qualified. See

Aka,

.

Verizon continued to work with Harley to identify open positions right up until the end of

his employment. In February 2017—at Harley’s request—Verizon identified two out-of-state

customer support positions that Harley declined to pursue because they were too far away. See

ECF 24-2 ¶ 47; ECF 25-1 at 11. And in March 2017, the month before his leave expired, Verizon

matched Harley with two maintenance administrator positions, but the company opted not to hire

anyone for one of the roles and the other was filled with a more senior employee on medical leave

who was also searching for a new role. ECF 24-2 at ¶¶ 37, 48; ECF 25-1 at 9–11. See Harris v.

Chao,

(D.D.C. 2017) (“[R]eassignment can only be to an existing, vacant

job for which the plaintiff is qualified, and positions to which other employees have a legitimate

10 contractual or seniority right are not considered vacant.”). Verizon’s efforts, in terms of both

diligence and duration, were enough to satisfy its obligations under the ADA.

In the face of this undisputed evidence of Verizon’s diligence in trying to reassign him,

Harley identifies three would-be disputes of fact: 1) that Verizon never informed him of a

preparation course that could have improved his ability to pass qualifying tests; 2) that Verizon

only gave him the opportunity to test for certain customer support positions; and 3) that Verizon’s

delay in approving his surgery excluded him from consideration for 40 vacant positions available

during the summer of 2016. See ECF 25 at 4. None of these creates an issue that precludes

summary judgment.

First, Harley claims that Verizon did not proactively provide him with home study

materials for a “Universal Test Battery,” which “could have prevented him from failing the first

and only assessment test that he was given almost a full year after his injury.” ECF 25 at 7. But a

Verizon employee explains in a declaration that Verizon “stopped using the Universal Test

Battery . . . in 2009,” and Harley has not pointed to anything in the record that undermines that

claim. 5 ECF 26-2 at 3. As that same declaration also explains, Verizon did offer training for the

test it actually administered at the time Harley was seeking reassignment, but it was Harley’s

“responsibility” to access that training on the “internal website” where it was posted.

Most

fundamentally, Harley has cited no authority for the proposition that Verizon had a legal duty—in

addition to identifying vacant positions and making available training resources—to remind him

that he should make use of the test preparation resources it provided.

5 Where Harley claims his supervisors should have “encourage[d]” him to “take a home study course,” his only citation is to a 1998 version of Verizon’s medical leave plan. See ECF 25 at 7 (citing ECF 25-1 at 15). What Verizon did in 1998 cannot create a dispute about whether it changed its policies 11 years later.

11 Second, Harley contends he “was not offered Fiber Customer Support Analyst positions in

New Jersey and Delaware, he was only offered the option to test for those positions.” ECF 25 at 7.

But Harley has not pointed to any evidence that the tests were not prerequisites for those roles. In

making this offer, then, Verizon was doing exactly what the ADA requires. See Aka,

(“[T]he ADA does not require that a disabled employee be reassigned to a position for which

he is not otherwise qualified.”). Moreover, Harley declined to pursue the New Jersey and Delaware

openings because “both locations [were] too [far] for [him].” ECF 24-4 at 117; see also ECF 24-2

¶ 47; ECF 25-1 at 11. Having declined to pursue these positions altogether, Harley cannot now

claim that Verizon’s failure to put him in either position violated the ADA.

Finally, Harley’s reliance on the purported delay in his surgery fails for the same reasons

it cannot rescue his claim that he should have been retained as a services technician. Once more,

Harley has not explained how—even were it true that Verizon delayed his surgery—that would be

actionable in this ADA case. Because Harley has failed to create a genuine dispute about whether

there was a vacant position at Verizon for which he was qualified, and because the undisputed

evidence shows that Verizon made an “active effort” to identify any such positions, Aka,

, Harley’s claim that Verizon violated the ADA by failing to reassign him fails.

C. Harley cannot make out a claim that Verizon failed to engage in an interactive process to identify an appropriate accommodation.

Finally, Harley asserts that Verizon violated the ADA by failing to engage in an

“interactive process” to assist him in identifying a reasonable accommodation. ECF 25 at 3–4, 6.

But Harley’s failure to create a genuine dispute about his first two theories dooms this third one.

“To determine the appropriate reasonable accommodation[,] it may be necessary for [an

employer] to initiate an informal, interactive process with the individual with a disability in need

of the accommodation.” Ward v. McDonald,

(D.C. Cir. 2014) (quoting 29 C.F.R.

12 § 1630.2(o)(3)). This process is a “procedural means” to meet the “substantive accommodation

ends” of the ADA. Ali v. Regan,

(D.C. Cir. 2024). But the “interactive

process . . . is not an end in itself.”

That’s why “there is no independent cause of action for

failure to engage in the interactive process,” but instead “there is only a cause of action for failure

to accommodate generally.” Husain v. Power,

, 200 (D.D.C. 2022) (collecting

cases). Thus, “there can be no failure to accommodate where no accommodation was available

(e.g., where there was no suitable vacancy) at the relevant time.”

As the Court has explained, Harley has failed to create a genuine dispute about whether

there was such an accommodation available. Because Harley “has not—even after a full

opportunity for discovery—made any showing of a vacant position to which [he] could have been

reassigned” or any accommodation with which he could have performed the essential functions of

his prior position, Harley cannot prove his ADA claim. Husain, 630 F. Supp. 3d at 201; see also

Jones v. Univ. of D.C.,

(D.D.C. 2007) (“[A] defendant can still prevail on

summary judgment despite its failure to engage in the interactive process if the plaintiff fails to

show that a reasonable accommodation was possible.”).

* * *

Verizon’s motion for summary judgment, ECF 24, is GRANTED. A separate order

accompanies this memorandum opinion.

SO ORDERED.

Jia M. Cobb U.S. District Court Judge

Date: September 29, 2025

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