Harkum v. Jacobs Tech.

WILLIAM B. HARKUM, Plaintiff, v. JACOBS TECHNOLOGY, INC., Defendant.

Civil Action No. GLR-22-479

United States District Court, D. Maryland

February 22, 2023

MEMORANDUM OPINION

George L. Russell, III United States District Judge

THIS MATTER is before the Court on Defendant Jacobs Technology Inc.'s (“Jacobs”) Motion to Dismiss Amended Complaint (ECF No. 25). The Motion is ripe for disposition and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021). For the reasons set forth below, the Court will grant the Motion.

I. BACKGROUND^[1]

A. Factual Background

1. Employment and Accommodation Requests

Plaintiff William B. Harkum has worked as a technical photographer for Jacobs at Aberdeen Proving Ground (“APG”), a secure facility, since August 19, 2002. (Am. Compl. ¶ 7, ECF No. 21). When the COVID pandemic hit, Harkum worried that his diabetes, obesity, and cirrhosis placed him at great risk during the early, pre-vaccine days of the pandemic. So, in late 2020, his physician wrote a letter requesting that Harkum be permitted to work from home indefinitely. (Id. ¶¶ 10, 12). Jacobs declined, and Harkum claims that he was denied reasonable accommodations and subjected to harassment and a hostile work environment. (Id. ¶ 15).

On March 29, 2020, like many employers, Jacobs initially allowed all its employees to work from home. (Id. ¶ 16). Over the coming months, Jacobs began to bring employees back into the office on a staggered basis based on their seniority. (Id. ¶ 17). Jacobs had Harkum report back to work on April 20, 2020, to work on a video project. (Id.). Jacobs did not have many employees on site, so Harkum was able to safely distance himself. (Id.).

Throughout 2020, Jacobs brought more employees back in-person. (Id. ¶ 18). Harkum alleges that he was exposed to COVID and had to quarantine under the Centers for Disease Control and Prevention guidelines. (Id. ¶ 18). He does not allege that he ever contracted COVID. (See generally id.).

On December 18, 2020, his physician, Dr. Steve Pondek, wrote a letter to Jacobs' Human Resources Manager, Christopher Catterton, explaining that Harkum was at high risk of complications should he contract COVID. (Id. ¶ 21). Pondek recommended that he be permitted to work remotely. (Id.). Harkum alleges that Jacobs “did nothing to accommodate this request” and continued to assign him to perform in-person photography work. (Id. ¶ 26).

On December 21, 2020, Harkum reported to a worksite but remained outside to avoid being exposed to COVID. (Id. ¶ 27). Harkum informed a technologist at the site that he had high exposure risks and had a letter from his doctor regarding accommodations.

(Id.). Throughout the course of the day, Harkum spoke with Jacobs Contract Support Manager Steve Tapp, United States Government Lead Brad Lewis, and Jacobs Human Resources Specialist Laurie Bodway regarding his accommodations request. (Id. ¶¶ 2730). Lewis indicated that there was no telework option available for the project that day. (Id. ¶ 29). Harkum alleges that “[r]ather than finding an actual solution,” Human Resources placed Harkum on FMLA leave starting on December 22, 2020 and began to process a short-term disability claim for him. (Id. ¶ 30).

On December 31, 2020, Harkum reached out to Bodway to see whether he could telework “as other similarly situated non-disabled, non-veteran employees . . . were permitted to do.” (Id. ¶ 31). Jacobs informed Harkum that it would revisit his request. (Id.). On January 4, 2021, Harkum completed his short-term disability paperwork. (Id. ¶ 32). He claims that Jacobs “did nothing for weeks to provide a reasonable accommodation,” so on January 11, 2021, Harkum followed up with Bodway. (Id. ¶ 33). On January 12, 2021, Harkum, Tapp, and Catterton had a teleconference to discuss Harkum's accommodations request. (Id. ¶ 34). Tapp asked “what tasks [Harkum] could do that were essentially the same tasks he would perform if he were able to report in-person to work.” (Id. ¶ 35). Harkum indicated that he could telework on his projects “within the scope of his position.” (Id. ¶ 36). Specifically, he could conduct “data analysis, range diagrams, updat[e] and moderniz[e] Job Safety Analysis [] working documents, high speed camera processing, normal still photography,^[2]and video editing.” (Id.).

Catterton responded that he would continue to review the situation, and Tapp stated that the Government Lead still objected to Harkum's request to telework on that particular contract. (Id. ¶ 37). Harkum claims that Tapp “did not in any way address that [Harkum's] work could be completed remotely.” (Id.). Harkum claims that Jacobs discriminated against him on the basis of his disability by “refus[ing] any reasonable accommodations” and later denying his request for short-term disability. (Id. ¶¶ 38, 39).

On January 19, 2021 and February 16, 2021, Harkum underwent surgery relating to his cirrhosis. (Id. ¶ 40). Dr. James Hamilton, a hepatologist, agreed with Pondek's accommodation request, but it is unclear whether Hamilton provided any written recommendations. (Id.).

On February 18, 2021, Harkum, Catterton, and Tapp held another teleconference regarding his accommodation request, and Catterton stated that Harkum's accommodation request was denied. (Id. ¶ 41). Harkum claims that Jacobs and Lewis “stifled the interactive process and refused to provide reasonable accommodation or even any other suitable alternative to his request.” (Id. ¶ 42). Rather, Jacobs directed Harkum to report in-person to work. (Id.). Harkum states that “[s]everal other non-disabled photographers[] were allowed to telework,” and further that Jacobs had a backlog of data analysis work that he could have performed remotely. (Id. ¶¶ 43, 51). Harkum indicates that he gave Jacobs “a non-exhaustive 39 bullet-point list of critical duties within his position he could safely perform remotely.” (Id. ¶ 44). Harkum does not, however, provide that list in his Amended Complaint. (See generally id.). He further acknowledges that “[t]he only arguably in person duty” that he needed to perform as a technological photographer is actually “snapping the photograph.” (Id. ¶ 49). He reaffirms that Jacobs still refused to let him work remotely, move him to another project, give him a new position, or allow another photographer to take the pictures in person. (Id. ¶¶ 48-49).

2. Internal Grievance Process

On February 25, 2021, Harkum filed a grievance with Jacobs through his union, under its Collective Bargaining Agreement (“CBA”). (Id. ¶ 52; Collective Bargaining Agreement [“CBA”] at 9, ECF No. 25-2).^[3]Harkum claims that his grievance was denied at each stage of the complaint process, so he took FMLA leave and worked in-person at times. (Am. Compl. ¶ 53, 55).

Jacobs attaches copies of Harkum's grievance documents to its Motion. (See generally ECF No. 25-2). In a decision dated March 15, 2021, labeled as the “Step 2” response to Harkum's grievance, Jacobs indicated that it reviewed Harkum's list of tasks that he could perform, presumably the list of 39 tasks that he references but does not provide in his Amended Complaint. (Mar. 15, 2021 Grievance Decision at 47, ECF No. 25-2).^[4] Jacobs stated that “[i]n looking at the tasks submitted by Mr. Harkum and looking at the job description of a Photographer IV, it was determined that the work suggested by Mr. Harkum,” fully remote work, “was not a reasonable accommodation due to the fact that it was not in line with the essential functions of the position of a Photographer IV.” (Id.). Jacobs stated that the “list was reviewed in detail on the call and it was determined that the majority of the tasks were not relevant to the essential functions of the Photographer IV.” (Id.). Jacobs stated that it “put together another attempt to a reasonable accommodation[] that would enable Mr. Harkum to come on site with the intentions of reducing his exposure to COVID-19,” specifically:

Safety Precautions:

• Mr. Harkum will be assigned a GOV vehicle to operate during work hours. The vehicle can be cleaned by Mr. Harkum and no one else will be granted access to the vehicle.

• We have in place the COVID 19 SOP provided.

• All PPE is on site for use to include rubber gloves, hand sanitizer, masks and cleaning supplies.

• Mr. Harkum will be issued camera equipment for him to use and maintain. This equipment can be sanitized and no other photographer would have access to the equipment.

• We can make accommodations (cleared through the customer) to allow Mr. Harkum to obtain an office space in the photo tool crib. This will allow him to be in an area that has minimum foot traffic and would allow the most social distancing. This space can be cleaned and sanitized by Mr. Harkum and kept so by Mr. Harkum.

(Mar. 15, 2021 Grievance Decision at 47-48).

Jacobs also supplied its Step 3 grievance decision dated April 15, 2021. (Apr. 15, 2021 Grievance Decision at 50, ECF No. 25-2).^[5]In it, Jacobs denied the grievance again because Harkum was “unwilling to accept any accommodation beyond that of an indefinite telework scenario whereby an essential function of the position cannot be met.” (Id.). Jacobs wrote that it had already offered accommodations that would mitigate the COVID exposure risk, presumably those outlined in the Step 2 grievance decision. (Id.). Additionally, it noted that it proposed a new accommodation where Harkum could come onto the worksite in a “more isolated manner than previously proposed.” (Id.). Specifically, it indicated that Harkum could work a later shift from 2:30 p.m. until midnight to allow him to work around fewer people. (Id. at 51).

3. MCCR and EEOC Complaints

On March 23, 2021, Harkum filed a charge of disability discrimination with the Maryland Commission of...