Leiterman v. Napolitano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MICHAEL LEITERMAN,

Plaintiff,

v.
Civil Action No. 13-394 (CKK)
JEH JOHNSON, SECRETARY,
DEPARTMENT OF HOMELAND
SECURITY, et al.,

Defendants.

MEMORANDUM OPINION
(July 28, 2014)

Plaintiff Michael Leiterman brings this action against Defendant Jeh Johnson 1, in his

official capacity as Secretary of Homeland Security, and Defendant David Aguilar, in his official

capacity as Deputy Commissioner, U.S. Customs and Border Patrol, alleging violations of the

Rehabilitation Act of 1973. Presently before the Court is Defendants’ [24] Motion to Dismiss,

or, in the Alternative, Motion for Summary Judgment. Upon consideration of the pleadings 2, the

relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND

DENIES IN PART Defendants’ [24] Motion to Dismiss or, in the Alternative, for Summary

Judgment. Specifically, the Court grants Defendants’ motion with respect to (1) Plaintiff’s

1
Pursuant to Fed. R. Civ. P. 25(d), Jeh Johnson has been automatically substituted for
Janet Napolitano, whom the parties’ pleadings name as Defendant.
2
Complaint, ECF No. [1] (“Compl.”); Defs.’ Mot. to Dismiss, or in the Alternative, for
Summ. J., ECF No. [24] (“Defs.’ Mot.”); Ex. To Defs.’ Mot. to Dismiss, or in the Alternative,
for Summ. J., ECF No. [28]. Pl.’s Opp’n to Defs.’ Mot. to Dismiss, or in the Alt., for Summ. J.,
ECF No. [31] (“Pl.’s Opp’n”); Pl.’s Resp. to Defs.’ Stmt. of Material Facts Alleged Not to Be in
Dispute and Counter Statement of Undisputed Material Facts, ECF No. [31-1] (“Pl.’s Stmt.”);
Defs.’ Reply in Support of Mot. to Dismiss, or in the Alt., for Summ. J., ECF No. [32] (“Defs.’
Reply”); Defs.’ Resp. to Court’s July 17, 2014 Order, ECF No. [34] (“Defs.’ Suppl.”).

1
failure to promote claim, and (2) Plaintiff’s claim under Section 508 of the Rehabilitation Act.

In all other respects, Defendants’ motion is denied.

I. BACKGROUND

A. Factual Background

Plaintiff Michael Leiterman is a blind attorney who has worked at the U.S. Customs and

Border Protection Agency (“CBP” or “Agency”), a division of the Department of Homeland

Security, since August 2006. Compl. ¶ 1. Plaintiff alleges that he has experienced various issues

with information technology utilized by CBP and that CBP has failed to reasonably

accommodate his disability in several respects. See generally id.

By way of background, Plaintiff uses several assistive technologies that allow him to

perform his responsibilities as an attorney. As a blind computer user, Plaintiff utilizes “JAWS”,

a screen access software that converts digital information to synthesized speech. Id. ¶ 12.

JAWS can read aloud information presented on a computer screen, including text in documents,

websites, e-books, and other formats. Id. In order for JAWS to successfully “read” computer

screens, the information on the screen must be coded so it is accessible to screen readers. Id. ¶

17. In order for JAWS to successfully “read” information from a typed document that is e-

mailed to a JAWS user, the document must be either a properly formatted Microsoft Word

document or a properly formatted document that is converted to an accessible PDF. Pl.’s Opp’n,

Ex. 3 (Suppl. Decl. of Michael Leiterman) ¶ 7. If there are images or links on a computer screen

to be read by JAWS those images and links must have what are known as “alt tag” descriptions,

which JAWS will read to inform the blind user of the content of the image. Id. ¶ 8. Because

using a mouse is an inherently visual task, JAWS is operated through keyboard instructions that

2
allow blind users to move through a document or a website and to activate links or buttons or

highlight text much as a sighted user would do. Id.

Yet, despite the provision of assistive software such as JAWS, Plaintiff has experienced

substantial issues with the office technology he utilizes on a daily basis. First, Plaintiff alleges

significant problems with his office computer. Plaintiff contends that in 2007, CBP began to

“push” frequent software updates that resulted in computer “crashes” that required Plaintiff to

reconfigure his computer every time he received a new update. Id. ¶ 10. The crashes required

significant amounts of time to fix and prevented Plaintiff from accessing his computer for large

portions of time. Id. Although CBP’s information technology (“IT”) department suspended the

problematic software updates from November 2009 to July 2010, the technology issues have

resumed since this time. Id. Accordingly, Plaintiff alleges that he has been required to

troubleshoot his inaccessible technology from his cubicle, where his coworkers can hear his

discussions with supervisors and IT personnel. Id. Compl. ¶ 47. Because of this lack of

confidentiality, Plaintiff alleges that his colleagues have come to see him as a problem employee.

Compl. ¶¶ 47-50.

In addition, in the Summer of 2011 CBP switched all Agency computers to the Windows

7 operating system, which Plaintiff contends has exacerbated the issues with his office computer.

Id. ¶ 22. Plaintiff states that because of unresolved accessibility issues for blind users of

Windows 7, he has been required to spend substantial amounts of work time testing the new

operating system and identifying accessibility issues, which further interferes with his ability to

complete his legal work. Compl. ¶ 23. In response, Defendants describe the Windows 7

operating system as the product that “best meets” both the Agency’s business needs and

accessibility standards. Defs.’ Mot., Ex. 4 (Brooke Aiken Affidavit) ¶ 22. Defendants further

3
state that, in response to Plaintiff’s concerns regarding his computer, the Agency, through

Plaintiff’s supervisors, as well as numerous IT personnel, engaged in extensive discussions, with

and without Plaintiff, attempting to determine the cause of the computer issues, possible

resolutions, and implementation of solutions that are in keeping with the Agency’s IT security

requirements. Id. ¶¶ 6-10, 12. Until a full remedy could be determined, Plaintiff was provided

with an additional computer for the office and a new laptop for his home. Id. ¶¶ 7-8, 13. In

addition, Defendants state that Plaintiff requested and was approved to have the Windows 7

system installed on his computers as an Agency tester. Id. ¶ 7.

Plaintiff also experiences issues relating to other office technology, specifically his office

telephone. Pl.’s Opp’n, Ex. 1 (Leiterman Declaration) ¶ 42 & Response. Plaintiff is unable to

use the telephone’s visual caller ID function. Id. In addition, he is unable to tell when there is a

voicemail message because the voicemail indicator is purely visual. Plaintiff is also unable to use

the internal CBP telephone directory stored in the telephone. Id. Defendants respond that the

Agency has offered to replace Plaintiff’s current telephone with his previous telephone or to

provide him a new phone that would allow him to use functions such as hold and conference call.

Defs.’ Mot., Ex. 4 ¶ 18. Defendants state that Plaintiff has rebuffed these offers, insisting instead

that the Agency make his current telephone’s functions accessible. Id. However, Defendants do

not specify whether Plaintiff’s previous telephone made accessible all of the features that are

inaccessible on Plaintiff’s current telephone.

In addition, Plaintiff alleges that he continues to receive e-mailed documents that are

inaccessible because, rather than requiring other CBP employees to follow Agency policy, CBP

has Plaintiff devote his time to making the inaccessible documents accessible. Pl.’s Opp’n, Ex. 3

¶ 19. Plaintiff states that the general CBP Intranet has many pages that are inaccessible to blind

4
users because they contain unlabeled or mis-labeled links, unlabeled graphics, unidentified Flash

content, and video content that cannot be navigated using a screen reader. Id. He also alleges

that documents produced by CBP’s Office of Diversity and Civil Rights are inaccessible because

they contain content incompatible with JAWS. Compl. ¶¶ 54-58.

Plaintiff also previously experienced problems with CBP’s technology for

telecommuting. In 2007, Plaintiff requested and was approved to telework two days a week as a

reasonable accommodation. Pl.’s Opp’n, Ex. 1 ¶ 26 & Response; Pl.’s Opp’n, Ex. 8

(Memorandum of William Rosoff). Plaintiff began telecommuting two days a week in the

Spring of 2007. Id. Plaintiff was initially able to access the CBP network remotely using an

accessible access method known as a “secure card.” Pl.’s Opp’n, Ex. 1 ¶ 26 & Response.

However, in 2009, CBP switched to two alternative systems for remote access – a “MobiKey”

and a keyfob security device. Id. ¶ 31 & Response; Pl.’s Opp’n, Ex. 3 ¶ 9. Both were

inaccessible to blind users like Plaintiff. Pl.’s Opp’n, Ex. 1 ¶ 35 & Response. The keyfob

security device, for example, generated and visually displayed a periodically changing random

set of numbers required for remote access to CBP’s network. Pl.’s Stmt. ¶ 37. Plaintiff alleges

that the combination of these two inaccessible devices left him unable to access the CBP network

while telecommuting. Pl.’s Opp’n, Ex. 3 ¶ 9. He states that when he wanted to e-mail his

colleagues or supervisors on the days when he was telecommuting, he needed to do so from his

personal Hotmail account. Id. Plaintiff brought this issue to the attention of his supervisors as

early as 2010, and over the course of the next several years, he requested a series of

accommodations. Pl.’s Opp’n, Ex. 11 (November 2010 E-mails). For example, Plaintiff

requested a Blackberry or other smartphone that would allow him to access his e-mail remotely.

Pl.’s Opp’n, Ex. 1 ¶¶ 36-37 & Responses. The possibility of installing a secure desktop

5
computer in Plaintiff’s home was also proposed. Id. ¶ 44 & Response. Although CBP officials

told Plaintiff they were exploring alternative methods for him to access the Agency network, a

solution that allowed Plaintiff to enjoy remote access was not adopted until approximately

February 2012. Defs.’ Mot., Ex. 4 ¶ 16.

On account of his disability, Plaintiff has also experienced issues with CBP’s system for

booking work-related travel, a program known as “FedTraveler.” Pl.’s Opp’n, Ex. 1 ¶ 5 &

Response. On June 8, 2011, and again on August 2, 2011, Plaintiff’s supervisor offered him an

opportunity to attend a CBP seminar in Philadelphia on September 12-16, 2011. Defs.’ Mot.,

Ex. 3 (Ieva O’Rourke Affidavit) ¶ 15. In accordance with federal travel regulations, 41 C.F.R. §

301-73.101, the Agency uses the FedTraveler travel system to plan, book, track, approve, and

request reimbursement for travel services for managing federal employees’ official travel. Id. ¶

16. Due to Plaintiff’s inability to independently access FedTraveler’s functions because of his

disability, his supervisor, Ieva O’Rourke, in addition to also assisting Plaintiff, tasked another

employee with assisting Plaintiff in planning and booking his upcoming travel. Id. ¶ 18. In

addition, as Plaintiff did not have a government credit card, he was provided with a cash advance

of $648.48 to cover hotel, meals, and incidental expenses. Id. ¶ 19. Ultimately, Plaintiff did not

attend the September 12-16 seminar. Id. ¶ 22. Defendants contend that this was Plaintiff’s

decision. Id. Plaintiff offers a slightly different account, alleging that because he was required

to rely on other employees to make travel arrangements for him, he was unable to have his travel

arrangements booked in time and with sufficient certainty to make it to the seminar. Pl.’s Opp’n,

Ex. 3 ¶ 3. Subsequently, Plaintiff was provided with assistance to use the Agency’s FedTraveler

system and attended an out-of-town training on a different topic on September 19-23, 2011.

Defs.’ Mot., Ex. 3 ¶ 23; id., Attachment C (June 8 and August 2, 2011 E-mails). Plaintiff

6
contends that, although he requested the written materials associated with this training in an

accessible format prior to his attendance, not all of the materials were accessible to him and he

was thus unable to fully benefit from this training. Pl.’s Opp’n, Ex. 3 ¶ 4.

Plaintiff also experienced problems with CBP’s online training software. The Agency’s

online training system is known as the Virtual Learning Center (“VLC”). Defs.’ Mot., Ex. 3 ¶¶

24. Examples of VLC courses include “Safeguarding Classified National Security Information”,

“Privacy at DHS: Protecting Personal Information”, “IT Security Awareness”, and “Annual

Integrity Awareness.” Pl.’s Stmt. ¶ 19. Although not able to access VLC courses directly

through the online software, Plaintiff received information from VLC training courses through a

PDF file of the training materials. Pl.’s Stmt. ¶ 20; Pl.’s Opp’n, Ex. 3 ¶ 5. Employees who are

not able to access the VLC are not penalized or otherwise disciplined for failing to take the

required courses and Defendants state that the courses are not career-enhancing. Defs.’ Mot.,

Ex. 3 ¶¶ 25-26. On this point, Plaintiff states that he has never been disciplined for failing to

complete a required training. Pl.’s Stmt. ¶ 49; Pl.’s Opp’n, Ex. 1 ¶ 7 & Response. However, he

contends that the provision of PDF files does not provide the full VLC experience enjoyed by his

sighted counterparts, as he cannot utilize the software’s testing feature or view videos and

graphics in the courses. Pl.’s Stmt. ¶ 49; Pl.’s Opp’n, Ex. 3 ¶ 5. Yet, while Plaintiff cannot

himself use the software’s testing feature, he has received certificates for completion of VLC

courses. Defs.’ Mot., Ex. 2 (Laurence Castelli Affidavit), Attachment B (Certificates of

Training).

Plaintiff also alleges that he has been denied a promotion because of his disability.

Plaintiff applied for a promotion from the GS 13 pay level to the GS 14 level in April 2010. Pl.’s

Opp’n, Ex. 1 ¶ 51 & Response. According to Plaintiff, this promotion is typically automatic,

7
with most attorneys receiving the promotion to GS 14 one year after reaching GS 13. Id. ¶ 50 &

Response. Even before Plaintiff submitted his application, it seems, the human resources and

payroll divisions of the Agency gave Plaintiff the salary increase associated with the promotion.

Id. ¶ 70 & Response. Plaintiff began receiving the salary increase in March 2010. Id. After he

notified the payroll office, he continued to receive the higher salary for three pay periods before

the error was corrected. Id. Plaintiff withdrew his application for promotion to the GS 14 level

in May 2010 after being informed by his supervisors that he would not be promoted because he

had not completed enough cases to advance to the GS 14 level. Id. ¶¶ 52-53 & Responses.

Plaintiff contends that he was unable to meet these productivity thresholds because of his

disability and CBP’s failure to provide him with adequate adaptive technology. Id. ¶ 56 &

Response. Although Plaintiff’s supervisors indicated that he would not be given a promotion,

Plaintiff was offered the opportunity to transfer to another branch of CBP where he would have

the chance to reapply for promotion with a “clean slate.” Id. ¶ 58 & Response. Plaintiff states

that he did not file a grievance because he believed he would be eligible for promotion in the

near future. Id. However, Plaintiff alleges that because his accessibility issues persisted even

after his transfer, he understood that he would not be promoted by his new supervisor, Ieva

O’Rourke, and did not reapply. Id. ¶ 59 & Response. In addition, because Plaintiff erroneously

received the pay increase associated with the promotion, he has subsequently been required to

pay back the overpayment with interest. Compl. ¶ 46.

On June 3, 2011, Plaintiff contacted an EEO counselor alleging that he had been

discriminated against on the basis of his physical disability in several respects, including: the

Agency’s failure to provide accessible electronic and information technology; CBP’s denying his

request for a Blackberry and desktop for his home use; the denial of a promotion to the position

8
of CBP Attorney Advisor, GS 14 and the requirement that Plaintiff repay an erroneous pay

increase; CBP employees requiring Plaintiff to troubleshoot computer issues, addressing his

reasonable accommodation needs in his cubicle, and discussing the possibility that he would file

an EEO complaint with employees who did not have a need to know; the denial of the

opportunity to attend a training seminar during the week of September 12, 2011; and the

provision of inaccessible seminar training materials. Compl. ¶ 5; Defs.’ Mot., Ex. 6 (EEO

Acceptance Letter).

B. Procedural Background

Plaintiff filed suit in this Court on March 26, 2013, alleging violations of Sections 501

and 508 of the Rehabilitation Act of 1973. See Compl. ¶ 1. He alleges that Defendants have

failed to accommodate his disability in violation of Section 501, id. ¶¶ 64-68, have failed to

promote him because of his disability in violation of Section 501, see id. ¶¶ 69-70, and have

failed to provide accessible information technology in violation of Section 508, see id. ¶¶ 60-63.

In lieu of an Answer to Plaintiff’s Complaint, and before the parties engaged in formal discovery

in this matter, Defendants filed their [24] Motion to Dismiss, or, in the Alternative, Motion for

Summary Judgment. Plaintiff subsequently filed an opposition, and Defendants have filed a

reply. Accordingly, the motion is now ripe for review.

II. LEGAL STANDARD

A. Rule 12(b)(1)

With respect to Plaintiff’s failure to promote claim, Defendants seek dismissal pursuant

to Rule 12(b)(1) because Plaintiff has failed to timely exhaust his administrative remedies. See

Rosier v. Holder, 833 F.Supp.2d 1, 5 (D.D.C. 2011) (“the proper method for challenging

exhaustion under the Rehabilitation Act is a Rule 12(b)(1) motion to dismiss for lack of subject

9
matter jurisdiction.”). To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff

bears the burden of establishing that the court has subject matter jurisdiction over its claim.

Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether

there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts

evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (citations omitted). “At the motion to dismiss stage, counseled complaints, as

well as pro se complaints, are to be construed with sufficient liberality to afford all possible

inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429

F.3d 1098, 1106 (D.C. Cir. 2005). “Although a court must accept as true all factual allegations

contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the

factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than

in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance

Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).

B. Rule 56

The remainder of Defendants’ motion seeks dismissal for failure to state a claim, or in the

alternative, summary judgment. Pursuant to Fed. R. Civ. P. 12(d), “if, on a motion under Rule

12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the

motion must be treated as one for summary judgment under Rule 56” and “[a]ll parties must be

given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R.

Civ. P. 12(d); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Here, both

parties have presented matters outside of the pleadings in support of their positions.

Accordingly, the Court will review the remainder of Defendants’ motion under the summary

10
judgment standard, because “the [defendant’s] motion[] [was] in the alternative for summary

judgment and . . . the parties had the opportunity to submit and submitted materials in support

and in opposition.” Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1273 n. 5 (D.C. Cir.

1997) (determining that it would not be “unfair” to treat such a motion as one for summary

judgment).

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that he] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of his position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.

Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to

11
properly address another party’s assertion of fact,” the district court may “consider the fact

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

III. DISCUSSION

Plaintiff raises three claims under the Rehabilitation Act. First, Plaintiff argues that

Defendants violated Section 508 of the Rehabilitation Act by failing to ensure that the

information technology they use allows Plaintiff comparable access to information and data as

enjoyed by non-disabled employees. Second, Plaintiff argues that, at various times during his

employment, Defendants have failed to accommodate his disability in violation of Section 501 of

the Rehabilitation Act. Finally, Plaintiff contends that Defendants’ failure to promote him to the

12
GS 14 pay level constitutes discrimination on the basis of his disability in violation of Section

501 of the Rehabilitation Act. The Court addresses each of these claims below.

A. Plaintiff’s Section 508 Claim

Pursuant to Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d:

When developing, procuring, maintaining, or using electronic and information
technology, each Federal department or agency, including the United States Postal
Service, shall ensure, unless an undue burden would be imposed on the
department or agency, that the electronic and information technology allows,
regardless of the type of medium of the technology –

(i) individuals with disabilities who are Federal employees to have access to
and use of information and data that is comparable to the access to and use
of the information and data by Federal employees who are not individuals
with disabilities . . . .

29 U.S.C. § 794d(a)(1)(A)(i). Plaintiff seeks to bring a claim for violation of this provision,

arguing that “CBP has failed to ensure that the information technology it uses allows individuals

with disabilities who are Federal employees to have access to and use of information and data

that is comparable to the access to and use of information and data by Federal employees who

are not individuals with disabilities.” Compl. ¶ 62. Defendants respond that this claim should be

dismissed, arguing, inter alia, that Section 508 does not contain a non-administrative private

right of action permitting enforcement by a federal employee such as Plaintiff. Defs.’ Mot. at 5-

12.

As both parties note, Section 508(f), titled “Enforcement”, permits “any individual with a

disability [to] file a complaint alleging that a Federal department or agency fails to comply with

subsection(a)(1) of [Section 508] in providing electronic and information technology.” 29

U.S.C. § 794d(f)(1)(A). The remainder of Section 508(f) sets out two methods of enforcement,

with Section 508(f)(2) titled “Administrative complaints” and Section 508(f)(3) labeled “Civil

actions.” See 29 U.S.C. § 794d(f)(2), (3). Apparently agreeing that Section 508(f)(3) is not

13
applicable to Plaintiff’s claim 3, the parties focus their attention on Section 508(f)(2) – the

“Administrative complaints” provision – which states “[c]omplaints filed under paragraph (1)

shall be filed with the Federal department or agency alleged to be in noncompliance. The

Federal department or agency receiving the complaint shall apply the complaint procedures

established to implement section 794 of this title for resolving allegations of discrimination in a

federally conducted program or activity.” 29 U.S.C. § 794d(f)(2). As both parties agree, 6

C.F.R. § 15.70 is the relevant Department of Homeland Security regulation implementing section

794, alternately referred to as Section 504 of the Rehabilitation Act. See Defs.’ Mot. at 7 n. 1;

Pl.’s Opp’n at 8.

In his Opposition, Plaintiff notes that this regulation states, inter alia, that “[t]he

Department shall process complaints alleging violations of section 504 with respect to

employment according to the procedures established by the Equal Employment Opportunity

Commission in 29 CFR part 1614.” 6 C.F.R. § 15.70(b). Pl.’s Opp’n at 8. Plaintiff also notes

another provision contained in the referenced section of the Code of Federal Regulations states

3
Pursuant to Section 508(f)(3), “[t]he remedies, procedures, and rights set forth in
sections 794a(a)(2) and 794a(b) of this title shall be the remedies, procedures, and rights
available to any individual with a disability filing a complaint under paragraph (1).” 29 U.S.C. §
794d(f)(3). For its part, 29 U.S.C. § 794a(a)(2) states that “[t]he remedies, procedures, and rights
set forth in title VI of the Civil Rights Act of 1964 (and in subsection (e)(3) of section 706 of
such Act, applied to claims of discrimination in compensation) shall be available to any person
aggrieved by any act or failure to act by any recipient of Federal assistance of Federal provider
of such assistance under section 794 of this title.” 29 U.S.C. § 794a(a)(2). Plaintiff does not
argue that this provision provides Plaintiff, as a federal employee, an avenue by which to enforce
Section 508 against Defendants. In fact, he concedes the opposite. See Pl.’s Opp’n at 9 (“It
would be manifestly unjust to interpret Section 508 . . . to provide a right for federal employees
that could not be enforced past the administrative level when all other disability discrimination
claims can be brought in a civil action. This would be an even more absurd result because
Section 508, as the Agency concedes, expressly provides a right of civil action to non-employees
who find themselves faced with inaccessible technology used by federal agencies.”) (emphasis
added and internal citations omitted). Accordingly, because the parties do not argue that Section
508(f)(3) is a potential basis for Plaintiff’s private cause of action, the Court does not address
this issue.

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that “[a] complainant who has filed an individual complaint . . . is authorized under . . . the

Rehabilitation Act to file a civil action in an appropriate United States District Court [within

certain time limits].” 29 C.F.R. § 1614.407. Pl.’s Opp’n at 9. Plaintiff argues that “[a] plain

reading of this portion of the regulation demonstrates that any individual who is authorized to

file an individual complaint under the administrative scheme is also ‘authorized’ ‘to file a civil

action in an appropriate United States District Court.’” Pl.’s Opp’n at 9 (emphasis in original). 4

The Court understands Plaintiff to be arguing the following: (1) Section 508 permits the

filing of administrative complaints according to the complaint procedures applicable to Section

504; (2) the regulatory complaint procedures for Section 504 state that in disputes related to

employment, complaints shall be processed according to 29 C.F.R. part 1614; and (3) a provision

of 29 C.F.R. part 1614, specifically 29 C.F.R. § 1614.407, authorizes the filing of a civil

complaint under the Rehabilitation Act in certain circumstances. Accordingly, Plaintiff contends

that he is authorized to file a civil complaint to enforce the provisions of Section 508.

Plaintiff’s reliance on regulatory language to create a private cause of action that would

allow him to enforce Section 508 through civil suit is unavailing. In Alexander v. Sandoval, 532

U.S. 275 (2001), the Supreme Court rejected a similar attempt to find a private cause of action in

regulatory, rather than statutory, language. As the Court there noted, “[l]anguage in a regulation

may invoke a private right of action that Congress through statutory text created, but it may not

create a right that Congress has not.” Id. at 291. For this reason, Plaintiff’s argument here “that

the regulations contain rights-creating language and so must be privately enforceable . . . skips

an analytical step.” Id. (emphasis in original). To be sure, “when a statute has provided a

4
Defendants, for their part, argue that the relevant statutes and regulations set forth a
process for administrative review of complaints regarding Section 508 non-compliance which is
ultimately reviewable under the Administrative Procedure Act. Defs.’ Mot. at 8-9.

15
general authorization for private enforcement of regulations, it may perhaps be correct that the

intent displayed in each regulation can determine whether or not it is privately enforceable.” Id.

Here, however, Plaintiff points to no statutory language providing such “a general authorization

for private enforcement of regulations.” Rather, the statutory language invoked by Plaintiff

simply refers to these regulations as the method for processing administrative complaints,

without any mention of private enforcement through civil action. The language permitting a

civil action is solely in the regulation and, without more, Alexander compels the Court to find

against Plaintiff. 532 U.S. at 291 (“[I]t is most certainly incorrect to say that the language in a

regulation can conjure up a private cause of action that has not been authorized by Congress.

Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”). In making this

determination, the Court notes that the only other court to directly address the question of

whether Section 508 creates a private, non-administrative right of action for federal employees

has reached the same conclusion. See Latham v. Brownlee, No. 03CA0933, 2005 WL 578149, at

*9 (W.D. Tex. 2005) (concluding that Section 508 “does not authorize a private, non-

administrative right [of] action.”). 5 Accordingly, the Court finds that Plaintiff may not bring suit

directly under Section 508.

Failing in the argument that Section 508 is privately enforceable by federal employees

through a non-administrative civil action, Plaintiff argues that Section 501 incorporates Section

508’s specific requirement of equal access to electronic and information technology for federal

5
Plaintiff cites to Pantazes v. Jackson, 366 F.Supp.2d 57 (D.D.C. 2005), for the
proposition that “this Court has recognized an independent cause of action under Section 508 in
the past.” Although Pantazes permitted a claim under Section 508, the opinion appears to have
assumed, without directly addressing, that such a private right of action exists. Indeed, a review
of the briefing in the case reveals that defendant never made the argument made by Defendants
here – that no private right of action exists for federal employees to directly enforce Section 508
in a civil action. See Mem. of P. & A. in Support of Def.’s Mot. to Dismiss and for Summ. J.,
Pantazes v. Jackson, No. 04-1056 (D.D.C. Nov. 5, 2014), ECF No. 11-2.

16
employees with disabilities. Pl.’s Opp’n at 10-16. On this point, Plaintiff contends that Section

508 provides a specific gloss on the general prohibition on disability discrimination in Section

501. See Pl.’s Opp’n at 13 (“In situations where Section 501 and Section 508 both apply, the

only reasonable accommodation under Section 501 is accessible technology that complies with

Section 508.”) (emphasis added). Plaintiff analogizes to the tort principle of negligence per se,

in which a specific statutory provision provides a standard by which to gauge negligence. Pl.’s

Opp’n at 13-14. Plaintiff’s argument has some surface appeal. See HCSC-Laundry v. United

States, 450 U.S. 1, 6 (1981) (noting that “it is a basic principle of statutory construction that a

specific statute . . . controls over a general provision . . ., particularly when the two are

interrelated and closely positioned, both in fact being parts of [the same provision]”). However,

the Court is concerned that Plaintiff’s argument would constitute an end-run around the scheme

for enforcement of Section 508 set up by Congress. If a federal agency’s failure to comply with

the requirements of Section 508 created per se liability under Section 501, then the statutory

enforcement provisions of Section 508 would be rendered superfluous. See Loughrin v. United

States, 134 S.Ct. 2384, 2390 (2014) (noting “the ‘cardinal principle’ of interpretation that courts

‘must give effect, if possible, to every clause and word of a statute.’”) (quoting Williams v.

Taylor, 529 U.S. 362, 404 (2000)). Moreover, such a conclusion would create a de facto private

cause of action under Section 508 for federal employees, allowing the requirements of this

provision to be enforced indirectly through the general provisions of Section 501. The argument

that failure to comply with Section 508 constitutes a per se violation of Section 501 goes too far.

Accordingly, Plaintiff’s attempt to incorporate his Section 508 claim into his Section 501 claim

is rejected.

B. Plaintiff’s Failure to Accommodate Claim

17
 Plaintiff alleges that Defendants failed to accommodate his blindness in a number of

ways. Specifically, Plaintiff contends that Defendants failed to provide him with a means of

accessing Agency documents and e-mails while teleworking, see Compl. ¶¶ 30-38, failed to

provide him with an appropriate means to attend out-of-town training conferences, id. ¶¶ 28-29,

failed to make the Agency’s online training materials accessible, id. ¶¶ 39-43, failed to remedy

issues relating to his office computer, id. ¶¶ 19-24, failed to provide him with an accessible

office telephone, id. ¶ 25, and failed to make documents produced and used by CBP accessible,

id. ¶¶ 26, 54-59. Plaintiff also alleges that CBP employees violated his confidentiality rights in

disclosing discussions related to accommodation of his disability, id. ¶¶ 47-50. After setting out

the standard for such claims, the Court addresses each of these instances of alleged failure to

accommodate below.

The Rehabilitation Act, which incorporates the standards of the Americans with

Disabilities Act, requires employers to provide “reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a disability . . . unless

[the employer] can demonstrate that the accommodation would impose an undue hardship on the

operation of the [employer’s] business[.]” 42 U.S.C. § 12112(b)(5)(A). “To establish that the

defendant failed to provide a reasonable accommodation, the plaintiff must show that: (1) [he]

has a disability within the meaning of the statute; (2) the defendant had notice of [his] disability;

(3) [he] could perform the essential functions of the employment position with or without

reasonable accommodation; and (4) the defendant refused to make the accommodation.”

Bonnette v. Shinseki, 907 F.Supp.2d 54, 77 (D.D.C. 2012). “If the plaintiff establishes a prima

facie case of failure to provide reasonable accommodation, then it is up to the employer to

demonstrate that the accommodation would have imposed an undue burden on its business; the

18
ultimate burden, however, remains with the plaintiff.” Id. See also Barth v. Gelb, 2 F.3d 1180,

1185-86 (D.C. Cir. 1993) (explaining that the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), does not apply to reasonable accommodation claims and

that such claims should be tested through the “application of traditional burdens of proof.”).

In order “[t]o determine what an appropriate, reasonable accommodation would be, an

agency should ‘initiate an informal, interactive process with the qualified individual with a

disability in need of accommodation.’” Morris v. Jackson, --- F.Supp.2d ----, 2013 WL

5943519, at *3 (D.D.C. Oct. 30, 2013) (quoting 29 C.F.R. § 1630.2(o)(3)). “[A]n employer is

not required to provide an employee that accommodation he requests or prefers, the employer

need only provide some reasonable accommodation.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1305 (D.C. Cir. 1998) (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996)).

The D.C. Circuit has defined a “reasonable accommodation” as one “employing a method of

accommodation that is reasonable in the run of cases . . . .” Barth, 2 F.3d at 1187 (emphasis

omitted). “[A]ccommodations are reasonable if they allow the employee to perform the essential

functions of the job without imposing undue hardship on the employer.” Norden v. Samper, 503

F.Supp.2d 130, 145 (D.D.C. 2007). “The plaintiff bears the burden to show that the requested

accommodation is reasonable on its face – the sort of accommodation that normally occurs.”

Morris, 2013 WL 5943519, at *5. “When a plaintiff can make that showing, the defendant must

demonstrate special circumstances that the accommodation would impose an undue hardship.”

Id. “Undue hardship” constitutes “an action requiring significant difficulty or expense.” 42

U.S.C. § 12111(10)(A). “To survive summary judgment, [a plaintiff] must demonstrate that [a

defendant] failed to provide reasonable accommodations that would have allowed [him] to

19
perform [his] essential employment functions, and [a defendant] must show that such

accommodations would have caused an undue burden.” Bonnette, 907 F.Supp.2d at 78.

1. Teleworking

Plaintiff first contends that Defendants failed to accommodate his disability because he

was unable to access the CBP computer network or e-mail his colleagues while working

remotely. As noted, in 2007, Plaintiff requested and was approved to telework two days a week

as a reasonable accommodation. Pl.’s Opp’n, Ex. 1 ¶ 26 & Response. Until 2009, Plaintiff was

able to access the CBP computer network remotely through the use of a “secure card.” Id.

However, after this time, the Agency moved to remote access technology that was inaccessible to

Plaintiff. Id. ¶ 31 & Response; Pl.’s Opp’n, Ex. 3 ¶ 9. Plaintiff requested several

accommodations over the course of the next several years, including a Blackberry or other

smartphone that would allow him access to his government e-mail, as well as the possibility of

installing a desktop computer at his home. Pl.’s Opp’n, Ex. 1 ¶¶ 36-37, 44 & Responses. These

solutions were not implemented, apparently due to various security and logistical concerns. Id.

Ultimately, however, in February 2012, CBP’s Office of Information Technology identified a

way to provide remote access to the Agency’s network in a manner that met the Agency’s IT

security requirements and was accessible. Defs.’ Mot., Ex. 4 ¶ 16.

In their present motion, Defendants argue that this portion of Plaintiff’s failure to

accommodate claim should be rejected because he was ultimately provided an acceptable

accommodation. Defs.’ Mot. at 13-14. Defendants raise no other argument as to why this claim

should be dismissed, asserting simply that because this issue has been remedied, Plaintiff’s claim

is moot. Defendants have not argued, for example, that the Agency engaged in an ultimately

successful interactive process with Plaintiff in order to accommodate his disability, which might

20
show that the Agency lacks culpability. Rather, Defendants rest their entire argument on the fact

that Plaintiff’s allegations have been cured.

Defendants’ present, limited argument is insufficient to defeat Plaintiff’s claim.

Although Plaintiff’s issues related to teleworking were ultimately accommodated, the D.C.

Circuit has noted that “there are certainly circumstances in which a ‘long-delayed

accommodation could be considered’ unreasonable and hence ‘actionable under the ADA.’”

Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir. 2010) (quoting Mayers v. Laborers’

Health & Safety Fund of North Am., 478 F.3d 364, 368 (D.C. Cir. 2007). See also Mayers, 478

F.3d at 368 (“we doubt that a three-year delay in accommodating a plaintiff’s disability is not

actionable under the ADA. ADA accommodations must be ‘reasonable,’ and we are unsure how

a long-delayed accommodation could be considered reasonable.”). Here, Plaintiff’s issues with

remote access began in 2009, and there is evidence that he sought an accommodation soon after

the problems began. However, an accommodation was not provided until 2012. In light of this

delay, extending over several years, Defendants’ unadorned “no harm, no foul” argument is

rejected. Since Defendants raise no other argument for dismissing this facet of Plaintiff’s claim,

the Court will allow Plaintiff to pursue his allegations relating to a failure to accommodate with

respect to teleworking.

2. Out-of-Town Travel

Plaintiff next contends that Defendants failed to accommodate his disability in booking

his travel to a work-related seminar in September 2011. As noted, in June and August 2011,

Plaintiff’s supervisor offered him an opportunity to attend a CBP seminar in Philadelphia on

September 12-16, 2011. Defs.’ Mot., Ex. 3 ¶ 15. Due to Plaintiff’s disability, he is unable to

independently access the FedTraveler software’s functions and therefore, his supervisor, Ieva

21
O’Rourke assisted, and asked another employee to assist, Plaintiff in planning and booking his

travel to the seminar. Id. ¶¶ 16, 18. Plaintiff, however, did not ultimately attend the seminar. Id.

¶ 22. According to Defendant, Plaintiff chose not to attend the seminar, but instead, again with

the assistance of other CBP staff, used the FedTraveler system to attend a different out-of-town

training September 19-23, 2011. Id. ¶ 23. Plaintiff tells a different story, stating that because he

was required to rely on other employees to book his travel, as of the date of his planned journey

“I still did not have confirmed travel arrangements and had not received any assurance that the

cash advance I needed for the trip would be paid in time for me to use it.” Pl.’s Opp’n, Ex. 3 ¶ 3.

Plaintiff also states that prior to the September 19-23, 2011 training, he requested materials

associated with the presentation. Pl.’s Opp’n, Ex. 3 ¶ 4. Although these materials were provided

to Plaintiff in advance, he contends that they were not usable because of his disability. Id.

In arguing that this component of Plaintiff’s failure to accommodate claim should be

dismissed, Defendants appear to contend that they provided Plaintiff with an alternative

reasonable accommodation. Defs.’ Mot. at 15-16. Although they did not make the FedTraveler

software accessible to Plaintiff, they provided him the assistance of another employee, who

could aid him in booking his travel. As noted, “[a]n employer is not required to provide an

employee that accommodation he requests or prefers, the employer need only provide some

reasonable accommodation.” Aka, 156 F.3d at 1305 (quoting Gile, 95 F.3d at 499). Therefore

“an employer need not offer the particular accommodation preferred by the employee so long as

a reasonable alternative is provided.” Woodruff v. LaHood, 777 F.Supp.2d 33, 43 (D.D.C. 2011).

“Once an employee has established that his proposed accommodation is reasonable, the burden

shifts to the employer to show that any proposed alternative accommodation is also reasonable.”

Id. at 44. Here, however, the present record reveals disputes of fact as to whether the

22
accommodation provided by Defendants was successful, much less reasonable. Plaintiff states

that he did not attend the September 12-16, 2011 training because his reservations were not

properly booked. See Pl.’s Opp’n, Ex. 1 at ¶ 82 & Response (“Ms. Bynum originally made the

travel plans without consulting me about travel times or locations and I was not available at the

times she chose.”). Furthermore, Defendants do not respond to Plaintiff’s argument that the two

training courses concerned different subject matter, and that Plaintiff primarily sought the

training associated with the September 12-16, 2011. Pl.’s Opp’n at 21-22. In addition,

Defendants provide no rejoinder to Plaintiff’s claim that the conference materials for the course

actually attended by Plaintiff, although provided in advance, were inaccessible to a blind

individual like Plaintiff. Accordingly, on the present record, the Court is not prepared to

conclude that Defendants’ actions with respect to out-of-town training seminars constitute a

reasonable accommodation of Plaintiff’s disability. Therefore, summary judgment is denied as

to this component of Plaintiff’s failure to accommodate claim.

In denying summary judgment as to this issue, the Court notes that Defendants present no

argument that out-of-town training is not an essential function of Plaintiff’s position. As

previous cases have noted, “[t]he government is not obligated under the [Rehabilitation Act] to

provide plaintiff with every [requested] accommodation, but only with reasonable

accommodation as is necessary to enable [him] to perform [his] essential functions.” Goodman

v. Potter, 412 F.Supp.2d 11, 17 (D.D.C. 2005) (quoting Carter v. Bennett, 651 F.Supp. 1299,

1301 (D.D.C. 2007), aff’d, 840 F.3d 63 (D.C. Cir. 1988)). The Court notes that other courts have

concluded that travel is not an essential function of certain jobs. See, e.g., O’Brien v. Int’l

Business Machines, Inc., No. 06-4864, 2009 WL 806541, at *25 n. 53 (D.N.J. 2009) (“Plaintiff

does not, and cannot, contend that driving is an essential function of her job, and thus, IBM did

23
not have to accommodate such a request.”). However, Defendants make no serious argument on

this point and therefore the Court does not consider this question in this opinion. See Howard v.

Gray, 821 F.Supp.2d 155 (D.D.C. 2011) (“In determining whether a particular function is

‘essential,’ [c]ourts look to a number of factors, including, among others, (1) the employer’s

judgment; (2) the written job description; (3) the amount of time spent on the job performing the

function; (4) the consequences of not requiring performance of that function; and (5) the work

experience of past incumbents in that job.”) (quoting 29 C.F.R. § 1630.2(n)(3)).

3. Online Training Materials

Plaintiff next argues that Defendants have failed to accommodate his disability with

respect to the Agency’s online training materials. Defendants appear to concede that the VLC

contains some inaccessible elements, but argue that Plaintiff has been provided a reasonable

alternative accommodation because he has been provided PDF versions of the courses. Defs.’

Mot. at 16. Plaintiff argues that the PDF files do not constitute a reasonable accommodation, as

he is unable to test his knowledge and enjoy interactive elements of the online courses, such as

graphics and videos. Pl.’s Opp’n at 20-21. However, Plaintiff concedes that he has not been

disciplined for failure to complete courses on the VLC and that such courses are not related to

promotion opportunities. Pl.’s Stmt. ¶ 49.

Plaintiff contends that this accommodation is unreasonable because he is “deprived of the

benefit of the training that CBP seems to think is valuable for sighted employees. The only

accommodation that is reasonable for the inaccessible VLC is to make it fully accessible.” Pl.’s

Opp’n at 21. While the Court is not yet prepared to adopt Plaintiff’s proposed accommodation –

making the VLC fully accessible – as the only reasonable accommodation, it will not grant

summary judgment to Defendants at this time and on the present record. The Court notes that

24
Defendants appear to have made portions of the VLC accessible. Defs.’ Mot. at 16. For

example, although Plaintiff cannot formally test his knowledge, he is able to obtain certificates

for completion of VLC courses. Defs.’ Mot., Ex. 2, Attachment B. In addition, Plaintiff does

not allege that his failure to complete the training in the exact manner of his sighted counterparts

has resulted in his being demoted or passed over for promotion. Certainly, Plaintiff speculates

that he might someday make a mistake due to ineffective training that might lead to discipline.

Pl.’s Stmt. ¶ 21. Pl.’s Opp’n, Ex. 3 ¶ 6. But such speculation is likely insufficient to raise a

genuine issue of material fact and preclude summary judgment.

Nevertheless, the Court believes summary judgment on this claim, at this early stage of

this litigation, would be premature. The parties do not explain the content of the inaccessible

features of the VLC courses. To the extent this information contained in videos and graphics is

crucial to the training, and without such training Plaintiff cannot perform the essential functions

of his position, he may have a viable failure to accommodate claim.

4. Plaintiff’s Office Technology

Plaintiff also raises Section 501 concerns regarding his office technology, specifically

CBP’s failure to remedy computer crashes, Plaintiff’s loss of work associated with updates to

his computer, and Plaintiff’s accessibility problems with the Windows 7 operating system.

Defendants state that they attempted to accommodate Plaintiff’s concerns by testing his

workplace computer for problems. Defs.’ Mot. at 16-18. Defendants also assert, in response to

Plaintiff’s complaints regarding accessibility issues, that Windows 7 has been determined to be

the product which “best meets” the Agency’s business needs and accessibility standards. Defs.’

Mot. Ex. 4 ¶ 22. Defendants thus appear to be asserting that Windows 7 constitutes a reasonable

accommodation.

25
 Plaintiff responds that, on the present record, he lacks a basis to evaluate whether

Windows 7 constitutes a reasonable accommodation. Pl.’s Opp’n at 16-17. Therefore, Plaintiff

seeks discovery into what programs other than Windows 7 have been considered and how these

products were evaluated for accessibility. Id. As of the filing of Plaintiff’s motion, the parties

had not engaged in any formal discovery in this matter. Rather, in support of their motion, in the

alternative, for summary judgment, Defendants appear to have relied entirely on materials

produced during the EEO investigation as well as affidavits from Plaintiff’s supervisors and co-

workers. Other courts of this district, following D.C. Circuit precedent, have concluded that

“[i]n general, summary judgment in Title VII cases should be avoided where discovery has not

taken place.” Hicks v. Gotbaum, 828 F.Supp.2d 152, 159 (D.D.C. 2011) (citing Ikossi v. Dep’t of

Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008)). The same logic would appear to apply to claims

under the Rehabilitation Act where, as here, a plaintiff argues that discovery is necessary to

assess whether an accommodation offered by a defendant is reasonable.

Pursuant to Federal Rule of Civil Procedure 56(d), a court may deny a motion for

summary judgment, order discovery, or “issue any other appropriate order” if the nonmoving

party “shows by affidavit or declaration that, for specified reasons, it cannot present facts

essential to justify its opposition.” Fed. R. Civ. P. 56(d). The affidavit or declaration “cannot be

a generalized, speculative request to conduct discovery but must demonstrate that further

specified discovery will defeat a summary judgment motion,” Estate of Parsons v. Palestinian

Auth., 715 F.Supp.2d 27, 35 (D.D.C. 2010) (quoting Maduforo v. Urban Serv. Sys. Corp., No.

09-0287, 2009 WL 2378743, at *1 (D.D.C. July 31, 2009)), and “show what facts [the

nonmoving party] intend[s] to discover that would create a triable issue and why he could not

produce them in opposition to the motion.” Byrd v. E.P.A., 174 F.3d 239, 248 n. 8 (D.C. Cir.

26
1999). Here, Plaintiff has included with his Opposition a declaration stating, inter alia, that

“[w]ithout discovery I can’t respond to CBP’s claim that non-508 compliant software “best

meets” the government’s needs . . . .” Pl.’s Opp’n, Ex. 3 ¶ 13. Although Plaintiff’s statement is

brief, the Court concludes that he does satisfy the standard for Rule 56(d), albeit barely. If

through discovery Plaintiff is able to find evidence that other programs were considered that

were more accessible to blind users than Windows 7, such evidence would undercut Defendants’

argument that Windows 7 is a reasonable accommodation here. In addition, Defendants fail to

respond to Plaintiff’s request for discovery, and thus provide no reason for the Court to deny the

request. Accordingly, the Court will deny summary judgment as to Plaintiff’s failure

accommodate claim relating to his office computer, permitting the parties to engage in further

discovery in this matter.

5. Plaintiff’s Office Telephone

Plaintiff also contends that his office telephone is inaccessible. Specifically, the

telephone’s caller ID function is entirely visual, as is its voicemail message indicator. Pl.’s

Opp’n, Ex. 1 ¶ 42 & Response. In addition, Plaintiff contends that he is unable to use the

internal CBP telephone directory stored in the phone, which also apparently relies on sight. Id.

Defendants concede that certain functions of Plaintiff’s office telephone are inaccessible.

However, they state that they have offered to provide him with a previous version of his

telephone or to provide him a new phone that would allow him to use functions such as hold and

conference call. Defs.’ Mot. at 18. Defendants state that Plaintiff has refused these efforts on

the ground that the Agency must make all of his present telephone’s functions accessible to him.

Id.

27
 Defendants appear to contend that they have offered Plaintiff an alternative, reasonable

accommodation which he has refused. Yet, on the present record, the Court is not prepared to

agree with Defendants. Defendants do not explain whether Plaintiff’s previous telephone had

accessible caller ID, voicemail, and directory functions, leaving unanswered the question of

whether Plaintiff’s previous phone constitutes a reasonable accommodation. Furthermore, the

offer to provide Plaintiff a telephone with accessible hold and conference call functions appears

to be a non sequitur to Plaintiff’s complaints, as he takes issue with other, allegedly inaccessible

features of his current phone. Accordingly, the Court will deny summary judgment as to this

issue on the present record.

6. Remaining Failure to Accommodate Issues

Plaintiff’s Complaint raises several failure to accommodate issues that go unaddressed in

Defendants’ motion. Specifically, Defendants’ motion does not address Plaintiff’s claim that

many pages on the CBP intranet are inaccessible to blind users because they contain unlabeled or

mislabeled links, unlabeled graphics, unidentified Flash content, and video content that cannot be

navigated using a screen reader. Compl. ¶ 26. In addition, Plaintiff contends that CBP’s Office

of Diversity and Civil Rights utilizes inaccessible materials, such as a website that is inaccessible

to JAWS users and visual flow charts for individuals interested in filing EEO complaints. Id. ¶¶

54-58. Because Defendants’ filings do not respond to these issues – or do so only in the most

passing fashion – the Court will allow these portions of Plaintiff’s claim to proceed.

The Court also notes that Plaintiff’s Complaint appears to allege violations of his

confidentiality rights under the Rehabilitation Act. Id. ¶¶ 47-50. Plaintiff provides no statutory

basis for this contention. However, the Court notes that “[i]n addition to prohibiting

discrimination and retaliation in connection with an employee’s disabilities, the Rehabilitation

28
Act provides protections against the unauthorized disclosure of an employee’s medical

information. Among these protections, the Act prohibits employers from inquiring into

employees’ medical conditions, although an exception is made for ‘inquiries into the ability of an

employee to perform job-related functions.’” Koch v. Walter, 935 F.Supp.2d 164 (citing 42

U.S.C. § 12112(d)(4)(B)). “Medical records obtained as a result of such an inquiry must be kept

confidential.” Id. (citing 42 U.S.C. § 12212(d)(4)(C)). Although the Court is skeptical that

Plaintiff has appropriately invoked the provision cited above, Defendants have not presented any

argument in their present motion regarding Plaintiff’s confidentiality claims. Accordingly, the

Court does not dismiss this claim at this time.

C. Plaintiff’s Failure to Promote Claim

Finally, Plaintiff alleges that CBP discriminated against him in violation of Section 501

of the Rehabilitation Act by failing to promote him to the GS 14 pay level because of his

disability, and by requiring him to repay the erroneously granted raise with interest. Plaintiff

states that he applied for a promotion from GS 13 to GS 14 in April 2010. Pl.’s Opp’n, Ex. 1 ¶

51 & Response. According to Plaintiff, this promotion is typically automatic, with most

attorneys receiving the promotion to GS 14 one year after reaching GS 13. Id. ¶ 50 & Response.

Indeed, despite CBP’s failure to act on Plaintiff’s application, the human resources and payroll

divisions of the Agency gave Plaintiff the salary increase associated with the promotion anyway.

Id. ¶ 70 & Response. Plaintiff began receiving the salary increase in March 2010. Id. After he

notified the payroll office, he continued to receive the higher salary for three pay periods before

the error was corrected. Id. Since then he has been required to pay back the overpayment with

interest. Compl. ¶ 46. However, Plaintiff did not actually receive the promotion, withdrawing

his application in May 2010 after being informed by his supervisors that he would not be

29
receiving the promotion. Pl.’s Opp’n, Ex. 1 ¶¶ 52-53 & Responses. Plaintiff was then

transferred to another division, with the understanding that he would enjoy a “clean slate” and be

eligible to reapply for promotion again. Id. ¶ 58 & Response. Plaintiff contends that, because

discrimination with respect to his disability continued in his new division, his productivity did

not improve, and he did not reapply for the promotion. Id. ¶ 59 & Response.

Defendants argue that this claim should be dismissed because Plaintiff has failed to

timely exhaust his administrative remedies. Defs.’ Mot. at 3-5. In order to bring a Rehabilitation

Act claim, a plaintiff must timely exhaust his administrative remedies. “Exhaustion of

administrative remedies is a jurisdictional requirement for Rehabilitation Act claims.” Porter v.

Sebelius, 944 F.Supp.2d 65, 68 (D.D.C. 2013). See also Sataki v. Broadcasting Bd. Of

Governors, 733 F.Supp.2d 1, 13 n. 14 (D.D.C. 2010) (“administrative exhaustion under the

Rehabilitation Act, but not Title VII, is jurisdictional”); Carty v. Dist. of Columbia, 699

F.Supp.2d 1, 2 n. 2 (“under the Rehabilitation Act, exhaustion is a jurisdictional requirement that

a plaintiff has the burden to plead and prove.”); Ragsdale v. Holder, 668 F.Supp.2d 7, 16-17

(D.D.C. 2009) (“The District of Columbia Circuit has interpreted the exhaustion requirement of

section 501 of the Rehabilitation Act as presenting a strict jurisdictional barrier to the filing of

judicial complaints that fail to comply with that provision.”) (citing Spinelli v. Goss, 446 F.3d

159, 162 (D.C. Cir. 2006)). Pursuant to 29 C.F.R. § 1614.105(a)(1), in order to bring a claim

under the Rehabilitation Act, “[a]n aggrieved person must initiate contact with a [EEO]

Counselor within 45 days of the date of the matter alleged to be discriminatory, or in the case of

personnel action, within 45 days of the effective date of the action.”). See Drewrey v. Clinton,

466 Fed. Appx. 9, 10 (D.C. Cir. 2012) (characterizing failure to comply with this provision as

“fail[ure] to exhaust [] administrative remedies.”). Here, Plaintiff withdrew his application for

30
promotion in May 2010. However, Plaintiff did not contact an EEO counselor until June 3,

2011. Compl. ¶ 5. Accordingly, because Plaintiff’s first contact with an EEO counselor

occurred more than 45 days after the alleged discriminatory action, Defendants seek dismissal of

Plaintiff’s failure to promote claim pursuant to Federal Rule of Civil Procedure 12(b)(1). See

Rosier, 833 F.Supp.2d at 5 (“the proper method for challenging exhaustion under the

Rehabilitation Act is a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.”).

Plaintiff raises two arguments in response. First, Plaintiff argues that his failure to

promote claim was not an isolated incident, but rather represented ongoing discrimination. Pl.’s

Opp’n at 26-27. Plaintiff states that after he was discouraged by his then-supervisors from

seeking the GS 14 promotion and when he withdrew his application he believed that he would be

given a good-faith opportunity to start over in a different division and enjoy another opportunity

to advance to the GS 14 level. 6 However, as noted, because the alleged discrimination with

respect to Plaintiff’s disability continued in his new division, his productivity did not improve,

and he did not reapply for promotion, apparently based on the conclusion that he remained

ineligible for promotion. Plaintiff thus argues that Defendants’ failure to promote him to the GS

14 level constitutes a continuing violation, rather than a single incident in early 2010.

While noting that, “[t]he continuing violation doctrine is intricate and somewhat

confusing,” the D.C. Circuit has summarized the doctrine as follows: “[A] continuing violation

‘is one that could not reasonably have been expected to be made the subject of a lawsuit when it

first occurred because its character as a violation did not become clear until it was repeated

during the limitations period, typically because it is only its cumulative impact (as in the case of

a hostile work environment) that reveals its illegality.’” Keohane v. United States, 669 F.3d 325,

6
Plaintiff does not argue that the continued repayment of the erroneous pay increase
renders his claim timely.

31
329 (D.C. Cir. 2012) (quoting Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997)). Similarly,

in analyzing the applicability of the continuing violation doctrine in the Title VII context, the

Supreme Court has stated, “discrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002). “Discrete acts such as termination, failure to promote, denial

of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment

practice.’” Id. at 114 (emphasis added). The continuing violation doctrine does not “make

actionable either a discrete unlawful act [occurring outside the limitation period] or the ‘lingering

effect of an unlawful act.’” Earle v. Dist. of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012)

(quoting Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)). “Moreover, the ‘mere

failure to right a wrong . . . cannot be a continuing wrong . . . for that is the purpose of any

lawsuit and the exception would obliterate the rule.’” Id. (quoting Fitzgerald v. Seamans, 553

F.2d 220, 230 (D.C. Cir. 1977)). Accordingly, “the continuing violation doctrine thus applies if

the fact of the violation becomes apparent only by dint of the cumulative effect of repeated

conduct.” Id. 7

7
The D.C. Circuit has “occasionally recognized a second application of the continuing
violation doctrine if the text of the pertinent law imposes a continuing obligation to act or refrain
from acting.” Id. at 307. “[W]here a . . . statute [] imposes a continuing obligation to act, a party
can continue to violate it until that obligation is satisfied and the statute of limitations will not
begin to run until it does.” AKM LLC v. Sec’y of Labor, 675 F.3d 752, 763 (D.C. Cir. 2012)
(Garland, J., concurring). “Whether the obligation is continuing is question of statutory
construction.” Earle, 707 F.3d at 307. Here, Plaintiff makes no argument that this version of the
continuing violation doctrine applies, and offers no analysis of how the text of the Rehabilitation
Act imposes a continuing obligation on Defendants to act with respect to Plaintiff’s promotion.
Therefore, the Court considers only the first, and more common, application of the continuing
violation doctrine, discussed above.

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 Here, the continuing violation doctrine does not save Plaintiff’s claim related to the

denial of his promotion. The denial of Plaintiff’s promotion, although ostensibly part of a

sequence of events, constitutes a discrete employment action. As the D.C. Circuit has held, the

continuing violation “doctrine has no applicability to “[d]iscrete acts such as termination, failure

to promote, denial of transfer, or refusal to hire’ because ‘[e]ach incident of discrimination . . .

constitutes a separate actionable unlawful employment practice.’” Mayers, 478 F.3d at 36

(quoting Morgan, 536 U.S. at 114). Indeed, the “character” of the denial of Plaintiff’s promotion

was clear at the time he withdrew his application, and no “cumulative effect” was necessary to

reveal its supposed illegality. Keohane, 669 F.3d at 329. See also Dziura v. United States, 168

F.3d 581, 583 (1st Cir. 1999) (continuing violation doctrine “is generally thought to be

inapposite when an injury is definite, readily discoverable, and accessible in the sense that

nothing impedes the injured party from seeking to redress it.”). Nor can the mere allegation that

Plaintiff continued in his position without the promotion he believed was due save Plaintiff’s

claim. The D.C. Circuit has “stated in no uncertain terms that the ‘lingering effect of an

unlawful act is not itself an unlawful act,’ and that the ‘mere failure to right a wrong . . . cannot

be a continuing wrong which tolls the statute of limitations,’ for if it were, ‘the exception would

obliterate the rule.’” AKM LLC, 675 F.3d at 757 (quoting Felter, 473 F.3d at 1260, and

Fitzgerald, 553 F.3d at 230).

Failing to persuade the Court of a continuing violation, Plaintiff also raises an alternative

argument, contending that Defendants misled him and thus prevented him from timely filing his

administrative complaint. Pl.’s Opp’n at 27. On this point, Plaintiff argues that Defendants led

him to believe that, although his present application for a promotion would not be approved, he

would be given a fresh start in a new division where he would again be eligible for promotion to

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GS 14. However, because Plaintiff’s technology access issues persisted after his transfer, he was

never made eligible for the promotion.

Plaintiff appears to be asserting an equitable estoppel argument. “Equitable estoppel in

the statute of limitations context ‘comes into play if the defendant takes active steps to prevent

the plaintiff from suing on time, as by promising not to plead the statute of limitations.’” Smith-

Haynie v. Dist. of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998) (quoting Cada v. Baxter

Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990)). This argument fails for several

reasons. First, “[t]he D.C. Circuit has held that the Rehabilitation Act makes exhaustion of

administrative remedies jurisdictional, and that equitable estoppel may not be invoked to

undercut a jurisdictional exhaustion requirement.” Int’l Union v. Clark, No. 02-cv-1484, 2006

WL 2598046, at *12 (D.D.C. Sept. 11, 2006) (citing Spinelli, 446 F.3d at 162, and Deaf Smith

County Grain Processors, Inc. v. Glickman, 162 F.3d 1206, 1214 (D.C. Cir. 1998)). See also

Moore v. Schafer, 573 F.Supp.2d 216, 220 (D.D.C. 2008) (noting that the “the D.C. Circuit has

expressed skepticism that the doctrine may be used ‘to undercut statutory exhaustion

requirements.’”) (quoting Rann v. Chao, 346 F.3d 192, 197 (D.C. Cir. 2003)); Ragsdale v.

Holder, 668 F.Supp.2d 7, 17 (D.D.C. 2009) (“because the Rehabilitation Act’s exhaustion

requirement is jurisdictional, the Court may ‘not read futility or other exceptions into [the]

statutory exhaustion requirements where Congress has provided otherwise.’”) (quoting Spinelli,

446 F.3d at 162) (emphasis added in original).

Yet, even if there were no jurisdictional bar here, Plaintiff’s equitable estoppel argument

would still fail. “[T]olling on estoppel grounds is proper where ‘a claimant has received

inadequate notice, . . . where the court has led the plaintiff to believe that she had done

everything required of her, . . . [or] where affirmative misconduct on the part of a defendant

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lulled the plaintiff into inaction.’” Smith-Haynie, 155 F.3d at 580 (quoting Mondy v. Sec’y of the

Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). See also Broome v. West, No. 95-3587, 1995 WL

855450, at *4 (D. Md. Apr. 30, 1996) (“Estoppel may be raised where the defendant

affirmatively misled a claimant, or culpably prevented the plaintiff from filing an administrative

charge in a timely fashion.”). The D.C. Circuit has characterized equitable estoppel as a “high”

“hurdle”, Smith-Haynie, 155 F.3d at 579, holding that “[t]he court’s equitable power to toll the

statute of limitations will be exercised only in extraordinary and carefully circumscribed

instances.” Mondy, 845 F.2d at 1057. Indeed, “[e]quitable estoppel requires active steps

amounting ‘to a deliberate design by the employer or actions that the employer should

unmistakably have understood would cause the employee to delay filing his charge, . . . such as

hiding evidence or promising not to rely on a statute of limitations defense.’” Chennareddy v.

Dodaro, 698 F.Supp.2d 1, 19 (D.D.C. 2009) (quoting Hedrich v. Bd. of Regents of Univ. of Wis.

Sys., 274 F.3d 1174, 1182 (7th Cir. 2001)). In addition, “there is a clear presumption in this

Circuit against invoking the doctrine against government actors in any but the most extreme

circumstances.” Int’l Union, United Gov’t Security Officers of Am. v. Clark, 704 F.Supp.2d 54,

59 (D.D.C. 2010) (citation omitted). See also Rann, 346 F.3d at 197 (interpreting “the Supreme

Court’s powerful cautions against application of the [equitable estoppel] doctrine to the

government . . . as normally barring its use to undercut statutory exhaustion requirements.”)

(citing Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 419-24 (1990)).

Here, Plaintiff has failed to show the sort of affirmative misconduct by Defendants that

would justify application of equitable estoppel. Plaintiff merely contends that his supervisors

transferred him to a new division after rejecting his application for promotion, suggesting to him

that he could re-apply with a clean slate in his new division. This does not rise to the level of

35
affirmative misconduct that triggers equitable estoppel. Indeed, other courts of this district have

rejected attempts to cast informal dispute resolution as affirmative misconduct under the

equitable estoppel doctrine. See Johnson v. Dist. of Columbia, 572 F.Supp.2d 94, 103 (D.D.C.

2008) (“even if [plaintiff’s] supervisors’ assurance could be construed as a commitment to

resolve his grievance informally, an employer’s attempt to resolve a dispute raised by an

employee does not rise to the level of ‘affirmative misconduct.’”); Cristwell v. Veneman, 224

F.Supp.2d 54, 60 (D.D.C. 2002) (holding that “participation in [a] settlement process” cannot by

itself constitute “affirmative misconduct”). This conclusion is further supported by the fact that

Defendants are government officials, making the invocation of the equitable estoppel doctrine

inappropriate in the absence of extreme circumstances. See United States v. Philip Morris et al.,

300 F.Supp.2d 61, 70 (D.D.C. 2004) (noting that “neither the Supreme Court nor this Circuit has

ever upheld a finding of equitable estoppel against the Government.”).

In addition, with respect to Plaintiff’s repayment of the erroneous pay increase, Plaintiff

appears to merely use this allegation as factual support for the conclusion that he should have

been promoted. The Court notes that Plaintiff provides no argument or legal support for the

proposition that this repayment either renders his claim timely or itself constitutes discrimination

on the basis of his disability. However, to the extent Plaintiff is attempting to argue something

broader, his argument is rejected. Other than the failure to promote arguments discussed above,

Plaintiff offers no argument for the proposition that he should be entitled to keep these

erroneously disbursed funds.

Accordingly, because neither the continuing violation doctrine nor principles of equitable

estoppel apply here, Plaintiff’s failure to promote claim is dismissed for failure to timely exhaust

administrative remedies.

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 IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

Defendants’ [24] Motion to Dismiss or, in the Alternative, for Summary Judgment. Specifically,

the Court grants Defendants’ motion with respect to (1) Plaintiff’s failure to promote claim, and

(2) Plaintiff’s claim under Section 508 of the Rehabilitation Act. In all other respects,

Defendants’ motion is denied. An appropriate Order accompanies this Memorandum Opinion.

Dated: July 28, 2014

____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge

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