Geter v. Gov't Publ'g Office, Civil Action No. 13-916 (RC)

HENRY GETER, Plaintiff, v. GOVERNMENT PUBLISHING OFFICE, Defendant.

Civil Action No. 13-916 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 23, 2016

MEMORANDUM OPINION

Plaintiff Henry Geter, a former employee of the Government Publishing Office ("GPO"), alleges in a one-count complaint that the defendant, the GPO, violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. Specifically, Geter, who purports to weigh nearly 300 pounds and suffers from a back injury, claims that the GPO failed to accommodate his disability, intentionally discriminated against him after he engaged in statutorily protected activity, and harassed him. See Compl. at 1, 3, ECF No. 1. Geter is also suing the GPO for discrimination based on race and age and for intentional infliction of mental harm. See id.

Geter filed his complaint on June 18, 2013. See Compl. The GPO filed a motion for summary judgment on July 8, 2015. See Def.'s Mot. Summ. J. at 1, ECF No. 35. Geter filed a memorandum in opposition to GPO's motion for summary judgment on July 22, 2015. See Pl.'s Opp'n to Def.'s Mot. Summ. J. & in the Alt. Pl.'s Mot. Summ. J. ("Pl.'s Opp'n & Mot.") at 1, ECF No. 40. The GPO filed a reply on August 3, 2015. See Def.'s Reply Pl.'s Opp'n Def.'s Mot. Summ. J. ("Def.'s Reply") at 1, ECF 41. For the reasons set forth below, the GPO's motion for summary judgment will be granted.

The GPO moves for summary judgment on the claims of race and age discrimination, arguing that Geter failed to exhaust administrative remedies and has failed to contradict the fact that he did not exhaust his administrative remedies. Def.'s Mot. Summ J. at 19-20. Because Geter has failed to exhaust all administrative remedies and failed to contradict that fact, the GPO's motion for summary judgment will be granted on these two claims.

The GPO further moves for summary judgment on plaintiff's tort claim of intentional infliction of mental harm. Id. at 18. The GPO argues that Geter failed to properly submit this tort claim to the GPO, an administrative agency, before filing a complaint and that Geter has failed to contradict that fact. Id. Because Geter failed to submit an administrative tort claim of intentional infliction of mental harm to the GPO before filing a complaint in district court and has failed to respond to the GPO's factual assertion that he has failed to do this, the GPO's motion will also be granted on this claim.

The GPO also moves for summary judgment on Geter's claim of retaliatory discrimination. See id. at 10-18. Because the GPO demonstrated that Geter cannot prove retaliatory discrimination, the GPO is granted summary judgment on that claim. Additionally, because Geter failed to show that he is a qualified individual under the ADA, summary judgment will also be granted for Geter's claim of failure to accommodate.

Finally, the GPO moves for summary judgment on Geter's retaliatory hostile work environment claim, arguing that Geter failed to establish that the GPO retaliated against him. Id. at 13-18. Because the GPO has demonstrated that Geter can establish neither a retaliatory hostile work environment claim nor a claim of harassment based on disability, the GPO's motion for summary judgment will also be granted on these two claims.

BACKGROUND

Geter has worked for the GPO on and off since 2002. See Gregory Robinson Dep. Tr. (Aug. 28, 2014) at 13:12, Def.'s Mot. Summ. J. Ex. 3, ECF No. 35-3. Geter started out as a helper to the motor vehicle operator but eventually was promoted to motor vehicle operator himself. See id. at 15:7-8. As a motor vehicle operator, Geter was required to have a valid commercial driver's license and the ability to "load and unload by hand cartons weighing up to 50 pounds." GPO Motor Vehicle Operator Job Description at 2 ("Job Description"), Def.'s Mot. Summ. J. Ex. 1, ECF No. 35-2; see also Aff. Henry Geter ¶ 3 (July 22, 2015), Pl.'s Opp'n & Mot. Ex. 9 ("Geter Aff."), ECF No. 40-3.

On March 25, 2009, Geter injured his back while on the job and eventually stopped working.¹ See Mem. from Gregory Robinson to Office of General Counsel (Sept. 10, 2014), Def.'s Mot. Summ. J. Ex. 6 ("2014 Robinson Mem."), ECF No. 35-5. On June 29, 2009, Gregory Robinson, Chief of the Delivery Section where Geter worked, sent a letter to Geter informing him that he was being fired for being absent without leave ("AWOL") and for violating GPO's leave policy. See Letter from Gregory Robinson to Henry Geter (June 29, 2009), Def.'s Mot. Summ. J. Ex 7, ECF No. 35-6. Geter's termination became effective August 6, 2009. See Settlement Agreement at 1 (Nov. 18, 2009) ("Settlement Agreement"), Def.'s Mot. Summ. J. Ex. 8, ECF No. 35-7. Geter filed an appeal of the August 6, 2009 removal with the Merit Systems Protection Board ("MSPB") Washington Regional Office on September 4, 2009. Id. at 5. The GPO and Geter reached asettlement with the GPO reversing the August 6, 2009 removal and reinstating Geter to his motor vehicle operator position. Id. at 1-2.

The GPO had Dr. Kevin Hanley, a medical examiner for the Department of Labor Office of Workers' Compensation Programs ("OWCP"), evaluate Geter's physical health as a result of his March 25, 2009 injury. Dr. Hanley issued a medical examination report on May 24, 2010 explaining that, due to Geter's March 25, 2009 injury and Dr. Hanley's desire to give Geter the benefit of the doubt, he would restrict Geter's lifting to 45 pounds. See Dr. Kevin Hanley Med. Exam Rep. at 2 (May 24, 2010), Def.'s Mot. Summ. J. Ex. 2 ("Hanley Rep."), ECF No. 44.² On June 7, 2010, Geter and his supervisors had a phone conference, and the GPO asked Geter to return to work on June 21, 2010. See E-mail from Gregory Robinson to Larry Brooks (June 7, 2010), Def.'s Mot. Summ. J. Ex. 9, ECF No. 35-8. Geter refused to return to work. See id.

The GPO sent Geter a job offer on June 14, 2010 for a "motor vehicle operator [position] with a restriction of not lifting more than 45 lbs. for six months." Letter from John Sturniolo to Henry Geter at 1 (June 14, 2010), Def.'s Mot. Summ. J. Ex 11, ECF No. 35-10. Geter believed that he was not yet physically fit to return to work, so he visited his personal doctor, Dr. Hampton Jackson, to treat his back injury. Dr. Jackson issued a report on June 15, 2010 that stated, due to the March 25, 2009 injury, Geter was "not to lift 65 pounds, push or pull 65 pounds" for six months. See Dr. Hampton Jackson Med. Exam Rep. at 1 (June 15, 2010), Def.'s Mot. Summ. J. Ex. 39 ("First Jackson Rep."), ECF No. 47. On June 24, 2010, Geter turned down the June 14, 2010 job offer. See Position Acceptance Form (June 24, 2010), Def.'s Mot. Summ. J. Ex. 13, ECF No. 35-12.

After Geter turned down the June 14 job offer, the OWCP sent a letter to Geter on July 14, 2010 "rejecting [the] June 15, 2010 report from Dr. Jackson" and "giving Geter 30 days to accept the position of truck driver" or face termination. Def.'s Mot. Summ. J. at 5; Letter from John Sturniolo to Henry Geter (July 14, 2010), Def.'s Mot. Summ. J. Ex. 14, ECF No. 35-13. Geter went back to Dr. Jackson to clarify that he was still not yet physically capable and ready to return to work. See Dr. Hampton Jackson Med. Exam Rep. at 1 (July 27, 2010), Def.'s Mot. Summ. J. Ex. 39 ("Second Jackson Rep."), ECF No. 47. Dr. Jackson issued a report on July 27, 2010 that stated, due to the March 25, 2009 injury, Geter should be on "lifting restrictions [of] 10-15 pounds, but in light duty capacity. Fifteen pounds is his absolute limit[.]"³ Id.

On August 3, 2010, the OWCP terminated Geter's benefits because he refused to accept suitable work, which the OWCP contends is prohibited under 5 U.S.C. § 8106(c)(2). See Notice of Decision Letter from John Sturniolo to Henry Geter at 1 (Aug. 3, 2010), Def.'s Mot. Summ. J. Ex. 15 ("Notice of Decision"), ECF No. 35-14. Geter claims that he returned to work on August 6, 2010, see Pl.'s Opp'n & Mot. at 2, however, the GPO claims that he returned to work on August 16, 2010, see Def.'s Mot. Summ. J. at 5.⁴

Geter and the GPO differ slightly as to the events on August 17, 2010 that give rise to Geter's current claims. Geter's immediate supervisor is Gerald Simms. Def.'s Mot. Summ. J. at 4; Pl.'s Opp'n & Mot. at 2. Both parties agree that Simms ordered Geter to drive a GPO truck from the "lower lot up to the [p]latform." Pl.'s Opp'n & Mot. at 3; see also Def.'s Mot. Summ. J. at 5 ("from the loading dock to the parking lot at GPO and to bring back another vehicle."); Mem. from Gregory Robinson to Henry Geter at 1 (Sept. 10, 2010), Def.'s Mot. Summ. J. Ex. 17 ("2010 Robinson Mem."), ECF No. 35-16. In order to drive the truck, Geter claims that he had to "pull himself up to get into the truck." Pl.'s Opp'n & Mot. at 3. Geter claims that part of the restriction that he lift no more than 10-15 pounds (light duty) is that Geter never pull himself up into the truck, because Geter weighs nearly 300 pounds which is more than 10-15 pounds. Id. Geter claims that when he informed Simms that he was on light duty because of his March 25, 2009 injury and that driving a truck violated his light duty restriction, Simms "ordered him to drive the truck or clock out of work." Id. at 4. Geter claims that he then asked for a back brace but was denied by Simms.⁵ Id. "Simms then told him to go drive the truck or be escorted out of the building by the GPO police." Id. at 4. When Geter eventually

went to drive the truck [he] heard and felt a crack in his back when he pulled himself up by the truck handle. Geter immediately felt severe back pain and spasms in his back. When Geter informed Simms what happen [sic] and that he needed to go to the doctor to check his back Simms denied his request. Simms told him that he had no leave or annual leave and that he was not hurt and to get back to work or he would be considered LOWP. Geter continued to work in pain.

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