Mitchell v. Pompeo

LA RUFUS MITCHELL, Plaintiff, v. MICHAEL POMPEO,United States Secretary of State, Defendant.

No. 1:15-cv-1849 (KBJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2019

MEMORANDUM OPINION

When la' Rufus Mitchell failed to complete a 1.5-mile-run training requirement for the sixth time, the United States Department of State ("State" or "Defendant") terminated Mitchell from her status as a Special Agent candidate for the Bureau of Diplomatic Security. Mitchell is asthmatic, and in the instant lawsuit, she maintains that State unlawfully refused to accommodate her disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (See Compl., ECF No. 1, ¶¶ 105-117.) Before this Court at present are State's motion for summary judgment and Mitchell's cross-motion for summary judgment. (See Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF No. 58); Pl.'s Cross-Mot. for Summ. J. & Opp'n to Def.'s Mot. ("Pl.'s Cross-Mot."), ECF No. 60). State argues that Mitchell's request for waiver of the 1.5-mile run requirement was not a reasonable accommodation, because "it would have eliminated an essential function of the Special Agent job: physical fitness." (Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 58-1, at 14.)¹ Mitchell asserts that waiver of the run requirement was but one of "nine different accommodation requests" that she made to various State officials, each of which was directly or constructively denied. (Pl.'s Mem. in Supp. of Pl.'s Cross-Mot. ("Pl.'s Mem."), ECF No. 60-8, at 6.) Mitchell further contends that State not only failed to accommodate her disability with respect to the run requirement (see id. at 19), but also refused to "engage in a meaningful dialogue, in good faith, to discuss alternative reasonable accommodations" (id. at 21).

For the reasons explained below, this Court concludes that Mitchell has not presented any evidence from which a reasonable jury could infer that Mitchell could have performed the essential functions of the Special Agent position even with accommodation, but that the record evidence does give rise to a genuine issue of fact regarding whether or not another position existed within State that Mitchell could have performed. Consequently, neither State nor Mitchell is entitled to judgment as a matter of law, and both parties' cross-motions for summary judgment must be DENIED.

I. BACKGROUND

A. Basic Facts²

Mitchell began her employment with State in January of 2013. (See Ex. 1 to Pl.'s Cross-Mot., ECF No. 60-1, at 7; see also Pl.'s Mem. at 8; Def.'s Mem. at 9.) There are many "Civil Service" and "Foreign Service" employment positions within State, and the positions are divided between numerous bureaus and offices.³ Stateinsists that "Mitchell applied to be a Special Agent[,]" (Def.'s Mem. at 6) and that she "was hired as a Special Agent candidate" (id. at 9), while Mitchell claims she that was hired "as a Foreign Service Officer and placed into the special agent candidacy program[,]" (Pl.'s Mem. at 7). Mitchell asserts, in particular, that after State hired her as a Foreign Service Officer, she was "assigned to the Bureau of Diplomatic Security[,]" and that the Bureau of Diplomatic Security comprises "nearly 34,000 employees[,]" of which "2400 are Special Agents[.]" (Id. at 5 (emphasis added) (footnotes omitted).) Mitchell maintains that the Diplomatic Security Services division of the Bureau of Diplomatic Security "consists of special agents, security engineering officers, security technical specialists, diplomatic couriers, support personnel, and numerous other security professionals." (Id. at 6 (footnote omitted).)

In support of her assertion that she was hired "as a Foreign Service Officer" (id. at 5), Mitchell has attached to her cross-motion various "Agency Hiring Letters" and related records (id. at 5 n.1; see also Ex. 1 to Pl.'s Cross-Mot.). One of these attachments confirms that various "Foreign Service Specialist jobs" exist within State, including the position of "Special Agent" (Ex. 1. to Pl.'s Cross-Mot. at 17, 20; see also id. at 17-20 (providing "Brief Position Descriptions" for "Foreign Service Specialist jobs"), while another suggests broadly that Mitchell's appointment was as "a Foreign Service Specialist" (id. at 2 (letter of May 25, 2011, from the Staff Director of the Board of Examiners for the Foreign Service to Mitchell, stating that "I am pleased toextend to you a Conditional Offer of appointment as a Foreign Service Specialist Career Candidate").) However, other correspondence plainly indicates that Mitchell was hired specifically as a "Special Agent" candidate. (See id. at 7 (correspondence from a Human Resources Specialist at the Registrar Office of the Bureau of Human Resources to Mitchell, stating that "[t]he Registrar's Office is pleased to extend an appointment offer for the January 28, 2013—Diplomatic Security Special Agent Class." (emphasis omitted)); id. at 11 (letter of December 27, 2012, from a Human Resources Specialist at the Office of Recruitment, Examination and Employment to Mitchell, stating that "[b]y this letter, the Registrar of the Board of Examiners confirms to you an offer of appointment as an untenured Diplomatic Security Special Agent Career Candidate" (emphasis omitted)); see also Ex. 6 to Pl.'s Cross-Mot., ECF No. 60-1, at 37 (Foreign Service Grievance Board decision describing Mitchell as "an untenured FS-06 Diplomatic Security (DS) Special Agent Candidate, at the Department of State").)

There is no dispute that Foreign Service Special Agents "are specially trained Foreign Service security professionals" who are "sworn Federal law enforcement officers." (Ex. 1 to Pl.'s Cross-Mot. at 20; see also Ex. 19 to Pl.'s Cross-Mot., ECF No. 60-4, at 2-3 (State Department vacancy announcement, describing "Duties" of Diplomatic Security Special Agents); Def.'s Mem. at 6.) State "requires all Special Agent candidates to pass a physical fitness test to successfully complete training—including push-ups, sit-ups, and a timed 1.5-mile run" (Def.'s Mem. at 5; see also Ex. 1 to Bearden Decl., ECF No. 58-3, at 3-13), and Mitchell apparently did quite well during training (see Ex. 10 to Pl.'s Cross-Mot., ECF No. 60-2, at 18), with the exception of certain physical fitness tests. In particular, Mitchell failed to meet the minimum timerequirement for her 1.5-mile run, which, for her age and gender, was 16 minutes and 15 seconds. (See Ex. 2 to Coyle Decl., ECF No. 58-4, at 19.)

The first time Mitchell attempted the 1.5-mile run, on February 19, 2013, it took her 22 minutes and 10 seconds to complete the course. (See Ex. 2 to Bearden Decl., ECF No. 58-3, at 28.) Mitchell attempted the run again on April 23, 2013, this time taking 22 minutes and 38 seconds to finish the task. (See Excerpts from Mitchell Dep., ECF No. 58-9, at 15 (99:9-20).) On May 17, 2013, Mitchell ran for a third time, taking 20 minutes and 53 seconds to finish. (See Ex. 2 to Bearden Decl. at 28.) Her fourth attempt took place on May 31, 2013, but she again failed to meet the requirement, finishing in 20 minutes and one second. (See id.) Mitchell alleges that "[e]ach time [she] failed to meet the set time for her age and gender because of her asthma." (Pl.'s Mem. at 8.)

After Mitchell failed to meet the minimum run-time standard four times, she was "referred to the Student Performance Review Committee for further review and action up to, and including, a recommendation for dismissal from training." (Ex. 5 to Horvath Decl., ECF No. 58-5, at 18.) The Committee "considered three options: [t]hat [Mitchell] continue with [her] class; recycle to another BSAC class; or that [she be] removed from training." (Ex. 2 to Shelton Decl., ECF No. 58-10, at 36.) The Committee opted to recommend that Mitchell "be recycled to the next [Special Agent training] class" (id.); thus, Mitchell was able to attempt the 1.5-mile-run test for a fifth time on July 9, 2013. She missed the 16-minute-15-second cut-off on that occasion once again, finishing in 19 minutes and 21 seconds. (See Ex. 2 to Bearden Decl. at 28.) And Mitchell took the run test one last time—her sixth attempt—one week later, taking20 minutes and 42 minutes to run the 1.5-mile course. (See id.)

Mitchell was referred once more to the Student Performance Review Committee, which this time recommended that she be dismissed from the training program. (See Ex. 3 to Shelton Decl., ECF No. 58-10, at 39.) "The committee's recommendation was accepted by the Assistant Director for Training and approved by the Director of the Diplomatic Security Service." (Ex. 7 to Horvath Decl., ECF No. 58-5, at 22.) The Acting Director General of the Foreign Service and Acting Director of Human Resources then approved the recommendation to terminate Mitchell from "appointment to the Foreign Service" on September 20, 2013. (Ex. 1 to Klemm Decl., ECF No. 58-8, at 3). Mitchell was thus notified that her employment would be terminated "effective October 4, 2013[,] . . . because you are unable to meet the basic conditions of employment." (Ex. 2 to Klemm Decl., ECF No. 58-8, at 6.)

Mitchell asserts that she "struggled during some of the physical fitness [training] due to her asthma[,]" (Pl.'s Mem. at 8), and insists that she had specifically "informed Defendant that she suffered from asthma" before she was hired as a Special Agent candidate (id. at 7). State maintains that "[t]he medical records [Mitchell] submitted as part of her application materials said that although she had a history of asthma, her asthma was 'completely controlled' and she had not had any symptoms recently." (Def.'s Mem. at 9; see also Ex. 1 to Shelton Decl., ECF No. 58-10, at 11 (showing that Mitchell's doctor circled "completely controlled" when describing Mitchell's "asthma control during the past 4 weeks").) There is no dispute that State knew about Mitchell's asthma before hiring...