UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRUCE HARRIS, : : Plaintiff, : Civil Action No.: 16-0162 (RC) : v. : Re Document Nos.: 17, 19 : ELAINE L. CHAO, 1 Secretary, : United States Department of Transportation, : : Defendant. :
MEMORANDUM OPINION
D ENYING D EFENDANT ’ S M OTION FOR S UMMARY J UDGMENT ; G RANTING P LAINTIFF ’ S M OTION FOR L EAVE TO F ILE E XHIBITS
I. INTRODUCTION Plaintiff, Mr. Bruce Harris, brin gs Rehabilitation Act claims a gainst his employer, the Department of Transportation. The Department reassigned Mr. Har ris to a different job when his disability prevente d him from completi ng his original job dutie s. Mr. Harris argues that the Department reassigned him into a job for which he was not quali fied instead of other vacant jobs for which he was qualified, thereby d iscriminating against him by failing to provide a reasonable accommodation for his disability. Mr. Harris also argues that h is reassignment constituted retaliation against him because he requested a reasonable accommodation. The Department moves for summary judgment on bot h claims. Because genuine issu es of material fact preclude summary judgment, the Court deni es the Department’s motion.

1 Secretary Chao is substituted a s a defendant in accordance with Federal Rule of Civil Procedure 25(d).2 II. BACKGROUND 2 Mr. Harris is a person with hearin g impairments. Compl. ¶ 7, EC F No. 1; Harris Dep. 5–6, ECF No. 17-4; Harris Decl. ¶ 1, ECF No. 19-26. The Department o f Transportation hired Mr. Harris in 2012 as a Program Offi cer and Grant Manager within th e Federal Motor Carrier Safety Administration (FMSCA). Harri s Decl. ¶ 6, ECF No. 19-26. His Pr ogram Officer and Grant Manager role at FMSCA was a GS-13 position in the 2101 Transportation Specialist series. Harris Decl. ¶ 6, ECF No. 19-26. FMC SA is one of several operat ing administrations, or modes, within the Department. 3 Harris Decl. ¶ 6, ECF No. 19-26. While working as a Program Offi cer and Grant Manager, Mr. Harri s used a variety of accommodations for his hearing impairment, including sign-langu age interpreters a nd a video-phone system. Harris Dep. 18:13–24, ECF No. 17-4; Harri s Decl. ¶ 7–8, ECF No. 19-26. At first, these accommodations were apparently successful in enabling Mr. Harri s to perform his job. However, in early 2014 Mr. Harris began to e xperience difficulties parti cipating in conference calls of twenty-five to thirty-five pe ople. Poarch Aff. at 4–7, ECF No. 19-18; Harris Dep. 27:15–24, ECF No. 17-4; Harris Decl. ¶ 9, ECF No. 19-26. Participation in the se calls was an increasing

2 Some documents relating to this case were released pursuant to a protective order. See Protective Order, ECF No. 13. The C ourt cites excl usively to do cuments which have already been placed into the public rec ord through inclusion in the par ties’ unsealed filings.
3 The Department of Transportati on currently comprises 11 operat ing administrations: the Maritime Administration (MARAD) , the Pipeline and Hazardous Mat erials Safety Administration (PHMSA), the Offi ce of the Secretary of Transportation (OST), the Federal Highway Administration (FHWA), the Saint Lawrence Seaway Develo pment Corporation (SLSDC), the Office of Inspector General (OIG), the Federal Railroad Adm inistration (FRA), the Federal Transit Administration (FTA), the National Highway Traffic Safe ty Administration (NHTSA), the Federal Aviation Admini stration (FAA), and FMCSA. Our Administrations , U.S. Department of Transportation (last upda ted Feb. 2, 2017), https://www.tran sportation.gov/administrations. The Volpe Center, an agency withi n the Department of Transporta tion—but apparently not an operating administration—is also mentioned in this case. Cf. About Us , Volpe: The National Transportation Systems Cente r (last updated May 4, 2017), https ://www.volpe.dot.gov/about-us.3 component of Mr. Harris’s job. H arris Decl. ¶ 9, ECF No. 19-26. Even though sign-language interpreters were active duri ng the conference calls, Mr. Harri s still struggled to fully participate because, among other issues, the interpreters had difficulty wh en multiple people spoke simultaneously or when speakers di d not identify themselves. Ha rris Dep. 27–30, 36, ECF No. 17-4; Harris Decl. ¶ 9, ECF No. 19-26. Mr. Harris and his supervisor di scussed a variety of possible a ccommodations to improve Mr. Harris’s experience w ith the conference calls. See Poarch Dep. 76:18–78:2, ECF No. 17-5; Harris Dep. 34:15–36:6, ECF No. 17- 4. However, Mr. Harris concl uded that none were effective and, in the spring of 2014, requested reassignment to a differe nt job as a reasonable accommodation for his disability. Poarch Aff. at 6–7, ECF No. 1 9-18; Harris Dep. 51, ECF No. 17-4; see also Email from Bruce Harris to B randon Poarch (April 28, 2014, 4:3 7 PM), ECF No. 17-8 (requesting reasonable accommodations due to the conferenc e call issue); Email from Brandon Poarch to Bruce Ha rris (May 28, 2014, 9:35 AM), ECF No. 17-10 (stating that the reassignment process had begun). Before initiating the formal pro cess, the Department searched i nformally for an appropriate reassignment but did no t identify any. Quade Aff. a t 5, ECF No. 21-2. The Department then initiated its f ormal process, known as a reason able accommodation reassignment search. Quade Aff . at 5, ECF No. 21-2. The Departm ent has a procedure for such searches that is memorialized i n Department of Transportation O rder 1011.1A. See generally Procedures for Processing Reasonable Accommodation Requests fro m DOT Job Applicants and Employees with Disabilities (DOT Order 1011.1A) (last updated S ept. 19, 2014), https:// www.transportation.gov/sites/dot.go v/files/docs/Procedures_for_ Processing_Reasonable_4 Accommodation_Requests_by_Job_App licants_and_Employees_with_Dis abilities_2014_0.pdf;
see also Order 1011.1A § 3.4, ECF No. 17-12. In theory, the Department’s pro cess works as follows. First, th e human resources specialist in the employee’s hom e operating administration coll ects application materials, including a résumé and the emplo yee’s areas of interest. Horne Dep. 10:9–12, 14: 4–12, 16:19–22, ECF No. 17-2. Based on those mate rials, human resources identif ies a list of gr ades and series the employee would be qualified for. Horne Dep. 10:9–12, 17:5, ECF No. 17-2. The application materials and qualifications are then sent to the selective pla cement program manager for the entire Department. Horne Dep. 14:19–21, 23:3–6, ECF No. 17-2; W alker Dep. 4:16–19, ECF No. 17-3. The selective placement program manager distributes t he materials to a group consisting of the “selective placement coordinators in each one of the modes for the Department of Transportation.” Walker Dep. 17:6–13, ECF No. 17-3. The sele ctive placement coordinators seek out vacancies for which the employee is qualified, and, if any are found, contact either the selective placement program m anager or the human resource speci alist in the employee’s operating administration. B urnham Dep. 70:10–16, ECF No. 19-12. The Department attempted to use this process to reassign Mr. Ha rris, and accordingly collected Mr. Harris’s applica tion materials. Horne Aff. at 3, ECF No. 18-3. Human resources determined that Mr. Harris was qualified4 for the following ser ies and grade levels:

4 The Court uses the language pr esent in the documents in the re cord, which state “Mr. Harris is qualified for the following series and grade levels.” As discussed infra at Part IV.A.3, the Department disputes whether Mr. Harris wa s truly qualified for all of the grades and series listed here and argues that thi s determination by human resourc es is not a final determination of Mr. Harris’s qualifications.5 Series Grades Title 0343 GS 13 Management / Program Analyst / Supervisory – in either grants, finance, financial 5 505 GS 13 Financial Manager 501 GS 13 Financial Administrator / Supervisory 510 GS 13 Accountant / Supervisory 511 GS 13 Auditor 1109 GS 13 Grants Management S pecialist / Supervisory Email from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28; 6 see also Horne Dep. 32:11–18, ECF No. 18- 5 (“Q: . . . [D]o you have any role in determining whether or not he’s qualified for the position? A: That was already determined. Q: Okay. And when you said that, you w ere pointing to the email that you sent on August 6th, 2014, at 1:55 p.m.? A: Yes.”); Hor ne Aff. at 3, ECF No. 18-3 (“ Michael Barber conducted an analysis of [Mr. Harris’ s] qualifications . . .”). The Department’s selective placement program manager emailed M r. Harris’s materials and qualifications to all of the selective placement coordinato rs. 7 Walker Dep. 16:14–20:10, ECF

5 In the exhibit in the record, aword appears to be missing aft er “financial.” This detail does not appear significant t o the outcome of this case.
6 This list appears to be base d on a separate “HR Evaluation of Skills” performed for Mr. Harris. See HR Evaluation of Skills 6-26-2014, ECF No. 17-14. The list use d by the Department omits the references to GS-14 pos itions included in the HR Eval uation of Skills, likely because of the Department’s policy not t o promote through reasonable ac commodation reassignments. See Horne Dep. 28:4–14, ECF No. 17-2.
7 The record indicates that emails were sent to representatives of the 11 modes listed supra in note 3, and the Volpe Center: M ARAD, PHMSA, OST, FHWA, SLSD C, OIG, FRA, FTA, NHTSA, FAA, FMCSA, and Volpe. See, e.g. , ECF No. 17-15 (search email to selective placement coordinators). Mr. Har ris’s briefing at times refers to 13 modes. See, e.g. , Pl.’s Opp’n at 4, ECF No. 18. Mr. Harris apparently reaches this number by adding the Surface Transportation Board (STB), whic h was part of the Department of Transportation until the end of 2015 but is currently an independent agency. Overview of the STB , Surface Transportation Board (last visited June 12, 2017), http s://www.stb.gov/stb/about/ove rview.html. Although some documents in the rec ord list the STB within the c omponents to be contacted for reassignment sear ches, ECF No. 19-11, it is not c lear that anyone from STB was ever emailed concerning Mr. Harris’s search. See, e.g. , ECF No. 17-15 (search email to selective placement coordinators). Although t he Court notes this inconsis tency, none of Mr. Harris’s arguments rely on the possible omission of the STB search, and the Court thus does not resolve it.6 No. 17-3; Email from Duronne Walker to multiple recipients (Aug . 19, 2014, 7:18 AM), ECF No. 17-15 (search email to selectiv e placement coordinators). T he email requested that all selective placement coordina tors respond within thirty days. Em ail from Duronne Walker to multiple recipients (Aug. 19, 2014, 7:18 AM), ECF No. 17-15. Af ter the thirty-day period had closed, the selective placement manager emailed the selective p lacement coordinators again, stating that each coordinator “absolutely ‘must’ respond to thi s inquiry. Also, keep in mind that in the near future documentati on may be asked of you justifying your responses to this request” and requesting responses within the next day. Email from Duronn e Walker to multiple recipients (Sept. 22, 2014, 11:47 AM), ECF No. 17- 16. It is unclear if anyresponses were received to the first request, and neither party argues that any potential job vacancies were identified. Apparently unsatisfied with the results of the first search, amanager at the Department’s Disability Resource Center pe rformed a second search by emailin g the selective placement coordinators again. Burnham D ep. 76:21–78:5, ECF No. 17-9; Emai l from Jonni Burnham to multiple recipients (Oct. 3, 2014, 3:59 PM), ECF No. 17-18 (sec ond search email to selective placement coordinators). Unlike the previous email, this email provided in the body the list of grades and series that “FMCSA has determined that [Mr. Harris] may be qualified for.” Email from Jonni Burnham to multiple recipients (Oct. 3, 2014, 3:59 P M), ECF No. 17-18. The second search required the selective placement coordinators to respond within sixty days. Email from Jonni Burnham to multiple recipients (Oct. 3, 2014, 3:59 PM), E CF No. 17-18. Only three of the operating admin istrations responded to the se cond search. 8 Email from Jonni Burnham to multiple recipients (Dec. 3, 2014, 9:51 AM), E CF No. 17-17(“[O]nly three

8 Although the Department identifie s no evidence in the record that more than three modes replied, several of the Depa rtment’s employees stated the ir belief that all of the modes always reply. See Quade Dep. 33:1–11, ECF No. 19-27; Walker Dep. 22:8–15, ECF No . 19-13.7 [operating administra tions] have responded to the request below .”). 9 Other documents in the record suggest that this poor res ponse rate is par for the cour se in the Department’s reasonable accommodation reassignment searches. ECF No. 19-11. 10 Indeed, the selective placement manager stated that, in his tim e in his job, “two to five perce nt” of the people he had searched for were reassigned. Walker Dep. 20:11–22, ECF No. 17-3. None of the three responses id entified any potential vacancies for Mr. Harris. Two of the modes stated they had found no appr opriate positi ons, and the t hird attached a list of all open positions—none of which appeared to be appropriate. Email from Jonni Burnham to Brandon Poarch (Dec. 3, 2014, 9:20 AM), ECF No. 17-17 (“FHWA responded that they are under a hiring freeze. OIG responded that thei r search did not find any positi ons for which the employee is qualified. OST provided a list of a ll their vacancies[,] most o f which are for series and grades that do not meet the search criteria . . .”); see also Quade Aff. at 5, ECF No. 21-2 (“The outcome was that no other modes responde d that they had a position.”). This result confused Mr. Harris’s

9 Indeed, evidence in the recor d suggests that the FAA not only did not respond, but did not complete a search at all be cause the email was sent to the wrong person. See Burnham Dep. 92:18–93:6, ECF No. 19-12 (“Q: Well , the bottom line here is th at during the whole time of this search, even the extende d week, nobody in FAA was actually doin g a search, correct? A: It doesn’t appear so.”); cf. Email from Cesar Collantes to Jonni Burnham (Dec. 12, 2014, 12 :02 PM), ECF No. 19-15.
10 A table collecting the results of five other re asonable accomm odation reassignment searches indicates that—out of the 13 m odes—only four, five, or six mode s responded to each search. This conclusion assumes that the common “No response/no vacanci es” label used by the Department actually means no res ponse, as suggested by the docu ment as a whole. First, whenever “No response/no vacancies” is used, the corresponding date field is empty, but when any other comment describes a resp onse the date of the response is filled in. Second, many of the other comments (with dates) use more specific language to indic ate that no positions were available (“No positions available in requested area,” “Agency is on a hiring freeze,” “Not successful in finding a vacant position,” etc.), suggesting tha t the “No response/no vacancies” label was not used when a mode actually replied indicating that no vacancies were available. Cf. Burnham Dep. 19:5–8, ECF No. 19-12 ( “Q: Now, suppose [the modes ] determine there isn’t a position? A: They would typically respond by email and say we d on’t have any vacancies.”).8 supervisors in the Department. See, e.g. , Quade Aff. at 5, ECF No. 21-2 (“I t is difficult to believe that there were not vacant positi ons in the entire Department f or which he would qualify.”). Throughout the reassignment process , Mr. Harris identified manyjobs on USAJOBS that he believed he was qualified f or, and emailed the postings to h is supervisor and others. See, e.g. , Email from Bruce Harris t o Brandon Poarch (July 3, 2014, 9:52 A M), ECF No. 18-8; Email from Bruce Harris to Brandon P oarch (Aug. 7, 2014, 11:08 AM), ECF No . 18-10; Email from Bruce Harris to Brandon Poarch (Aug. 13, 2014, 12:03 PM), ECF No. 18- 11; Email from Bruce Harris to Lisa Horne (Aug. 25, 2014, 4:33 PM), ECF No. 18-12; Email fr om Bruce Harris to Lisa Horne (Aug. 29, 2014, 5:34 PM), ECF No. 18-13; Email from Bruce Harri s to Brandon Poarch (Oct. 2, 2014, 11:11 AM), ECF No. 19-1. No evidence in the record sugge sts that human resources or the selective placement coordinators took any action concer ning the vacancies identifie d by Mr. Harris. The manager of the Department’s Disability Res ource Center said that, if it ap peared that appropriate jobs were not being identified through the search process, the human reso urces specialist in the employee’s operating administration or a s upervisor in human resources wou ld be the appropriate person to follow-up. Burnham Dep. 71:9–73:4, ECF No. 19-12. Here, no evid ence in the record indicates that such a follow-up was performed. See, e.g. , Horne Dep. 44:11–18, ECF No. 18-5 (testimony of FMSCA’s human resources speci alist that she did not know if Mr. Harris was considered for the positions he identified) ; Allen Dep. 24:3–25:11, ECF No. 19 -14 (FMSCA’s acting director of human resources testifying that the human resources specialist did not respond directly to his question about whether she had followed up on the positions Mr. Harris had identified). In the end, no jobs were identifi ed through the formal agency-w ide search. The Department then pursued the “non-tr aditional alternative[]” of reassigning Mr. Harris into the9 Office of Acquisitions, still wi thin FMSCA. Quade Aff. at 5, EC F No. 21-2. The acquisitions job was in either the 301 or 1102 series 11 —neither of which was include d in the list of series Mr. Harris was qualified for according to human resources. Cf. Email from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19- 28. Mr. Harris was offered the choice between accepting the reassignment and staying in hi s current position w ith a performance work plan. Poarch Aff. at 10, ECF No. 19-18. Mr. Harris accepte d the reassignment “under protest” because he believed it would reduce his opportunities for promotion. Email from Bruce Harris to Brandon Poarch ( Jan. 23, 2015, 11:38 AM), ECF No. 17- 24 (accepting the acquisitions position “under protest” because “ [Mr. Harris] would be at leas t 5 years away from a GS-14 promotion, plus the on[e] year in the 0301 position, effectivel y making this position a demotion with reduced promoti onal possibilities”); see also Notification of Per sonnel Action, ECF No. 17- 25. Mr. Harris was officially offe red reassignment to the Offic e of Acquisitions as a GS-13 in January of 2015. Letter from Brandon P oarch to Bruce Harris (Ja n. 5, 2015), ECF No. 17-23.

11 The position that Mr. Harris wa s initially offered was in the 301 series. Letter from Brandon Poarch to Bruce Ha rris (Jan. 5, 2015), ECF No. 17-23. I t was apparently expected that after a year he would be moved i nto the 1102 series, which deal s with contracting. See Adams Aff. at 5, ECF No. 21-3 (“[Mr. H arris] had to be assigned to a GS-301 Program Specialist position because he did not meet the specialized experience for a GS-1102 position.”); Email from Brandon Poarch to Bru ce Harris (Jan. 8, 2015, 5:32 PM) (“F MCSA cannot provide you with a direct transfer t o a GS-1102 . . . . Then, after one year of acceptable performance . . . the letter assures you that you woul d be reclassified as a GS-1102/ 13 Acquisitions Specialist.”). It appears that Mr. Harris was ind eed eventually reclassified into the 1102 series. Personnel Action Form, ECF No. 17-25. It also appears that Mr. Harris was initially expected to work as a contracting specialist, but was later moved into the pur chasing agent track based on hi s prior work experience. See Adams Aff. at 6, ECF No. 21-3 (“[Th e new Director] said she wan ted to switch [Mr. Harris] to a GS-1102 in the purchasing agent tra ck, which is different from contracting speci alist, where we originally planned to have him work. . . . He was qualified for this position. He ha[d] enough experience to do purchasing and [it would] allow him to progres s more quickly than if he were in contracting.”). Any differences between a contracting specialis t and purchasing agent do not appear to be at issue in this lawsuit.10 Once in the Office of Acquisiti ons job, the parties dispute whe ther Mr. Harris was assigned work suitable for a GS -13. According to Mr. Harris, he “was not assigned grade 13 work, but instead, was assigned dutie s that are more typically performed by a GS-8 level employee.” Harris Decl. ¶ 14, ECF No. 19-26; see also Harris Dep. 77:16–19, ECF No. 17-4 (“I found out . . . it would take me three to five years to obtain enough experience to function at the GS-13 level” in acquisitions); Harris Decl. ¶ 15, ECF No. 19-26 (stating that Mr. Harris “can neither do the work nor advance professionally because . . . it would take at least 5 years to gain the experience necessary to function at the GS-13 level in this area”). Other evidence in the record, esp ecially the statements of Mr. Harris’s supervisor in acquisitions, indicates that he was assigned work below the GS- 13 level. See, e.g. , Baker Aff. at 5, ECF No. 18-7 (“Mr. Harris had n o prior experience in the are a of contracting, acquisitions and/or procurement. Conseque ntly, any person who cross-trains i nto the field of contracting . . . must start work projects, which e quate in complexity to either a GS-07 or GS-08 grade level. Mr. Harris having no prior contracti ng experience shoul d start his on the job training at the beginning, which equates to bei ng assigned tasks similar to tho se a GS-07 or GS-08 would accomplish.”); Baker Aff. at 6, E CF No. 18-7 (“It is true that [Mr. Harris] has not been given work commensurate with a GS-13 because he does not have the ski lls, experience or certification to perform work at the GS-13 lev el.”); Baker Aff. at 7, ECF No. 18-7 (“[M]ost persons who serve as GS-13 procurement profe ssionals typically have acquire d at least 3 years of procurement experience. Overall it is not realis tic for Mr. Harris to think he will catch up with the rest of the federal govern ment GS-13 1102 procurement profe ssionals in just 52 short weeks when the other federal govern ment GS-13 1102s have worked in th e procurement career-field for a minimum of 3 to 4 years.”); see also Cooper Dep. 14:2–15:2, ECF No. 2 1-7 (stating that “two11 to three years’ worth of train ing” would be required for a pers on in Mr. Harris’s position “to be a Grade 13 contracting officer” and that it would be “possible” f or a person to start in contracting and be able to function as a Grad e 13 in two to t hree years). The Department argues, to the c ontrary, that Mr. Harris was som etimes able to perform GS-13 work. Reply Supp. Def.’s Mot. Summ. J. (Def.’s Reply) at 8, ECF No. 21; see also Cooper Dep. 12:17–22, ECF No. 21-7 (“I knew from initial discus sions with [Mr. Harris] that he had really no contrac ting experience, but that wasn’t a require ment for him to come onto my staff”); Baker Dep. 19:10–12, E CF No. 21-8 (“Q: And in your vie w, is he able t o do the duties of an 1102 at the GS-13 level? A: Som etimes yes, sometimes no.”). Mr. Harris filed an EEO complaint concerning his allegations an d received a Final Agency Decision on December 11, 2015. Compl. ¶ 4, ECF No. 1. Mr . Harris initiated this suit shortly after, raising claims of failure to provide a reasonabl e accommodation and retaliation. See generally Compl. The Department does not argue that Mr. Harris has faile d to exhaust his administrative remedies. Cf. Memroandum [sic] P. & A. Supp. Def.’s Mot. Summ. J. (Def.’s MSJ) at 9, ECF No. 17-1. The disc overy period having concluded, the Department now moves for summary judgment on both claims. See generally Def.’s MSJ.

III. LEGAL STANDARD

A. Summary Judgment Summary judgment is appropriate w hen “the movant shows that the re is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact i s one capable of affecting th e substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a r easonable jury to return a verd ict for the nonmovant. Scott v.12 Harris , 550 U.S. 372, 380 (2007). The burde n is on the nonmovant to i dentify specific facts in the record that reveal a genuine issue that is suitable for tri al. Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). When considering a motion for summary judgment , the Court analyzes all underlying facts and inferences i n the light most favorable to the nonmovant, Anderson , 477 U.S. at 255, and “eschew[s] making credib ility determinations or wei ghing the evidence,” Czekalski v.
Peters , 475 F.3d 360, 363 (D.C. Cir. 2007).
B. The Rehabilitation Act Mr. Harris pursues two claims u nder the Rehabilitation Act, 29 U.S.C. §§ 701 et
seq. —discrimination based on failure to provide a reasonable accomm odation, and retaliation. 1. Discrimination “To establish a prima facie ca se of discrimination based on the failure to accommodate under the Rehabilitation Act, a pl aintiff must proffer evidence from which a reasonable fact-finder could find that (1) she had a qua lifying disability within the meaning of the statute, (2) her employer had notice of the disab ility, (3) with reasonable acco mmodation, she could perform the essential functions of the position, and (4) she requested an a ccommodation but the employer denied her request.” 12 Doak v. Johnson , 19 F. Supp. 3d 259, 273–74 (D.D.C. 2014), aff’d , 798 F.3d 1096 (D.C. Cir. 2015) (citation omitted). A reasonable accommodation may c onsist of reassignment to a newjob. See Norden v. Samper , 503 F. Supp. 2d 130, 145 (D.D.C. 2007) (citing 42 U.S.C. § 12 111(9)(B) and 29 C.F.R. § 1630.2(o)); 29 C.F.R. § 1630.2(o)(2)) (“ Reasonable accommodat ion may include but is not

12 “[F]ailure to accommodate claims are not subject to the McDonnell Douglas burden-shifting framework. Doak v. Johnson , 19 F. Supp. 3d 259, 273–74 (D.D.C. 2014), aff’d , 798 F.3d 1096 (D.C. Cir. 2015) (citing Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1288 (D.C. Cir. 1998)); see also Davis v. George Wash. Univ. , 26 F. Supp. 3d 103, 114 (D.D.C. 2014).13 limited to: . . . reassignment to a vacant position.”); 13 42 U.S.C. § 12111 (“The term ‘reasonable accommodation’ may include . . . rea ssignment to a vacant posit ion . . .”). Indeed, when an “accommodation cannot be made in the employee’s current positio n, the federal employer must consider the feasibility of reassi gning the disabled employee t o a vacant position.” Norden , 503 F. Supp. 2d at 145–46 (emphasis added) (citing Carr , 23 F.3d at 530 and Aka v. Wash. Hosp.
Ctr. , 156 F.3d 1284, 1301 (D.C. Cir. 1998)).

The D.C. Circuit has outlined the applicable considerations in reassigning an employee pursuant to a request for accomodation. First, the employee mus t, “with or without reasonable accommodation, [be able to] perform the essential functions of the employment position to which [he or] she seeks reassignment.” Aka , 156 F.3d at 1301 (citing Daugherty v. City of El
Paso , 56 F.3d 695, 698–99 (5th Cir. 1995) (addr essing the standard in an ADA case, which has identical standards to the Rehabilitation Act, see supra note 11)). The reassignment “can only be to an existing, vacant job for whi ch the plaintiff is qualified , and positions to which other employees have a ‘legitimate contractual or seniority right’ ar e not considered ‘vacant.’” Alston
v. Wash. Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 84 (D.D.C. 2008) (quoting Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1170 (10th Cir. 1999) (en banc)). The regulations instruct empl oyers to “reassign the individual to an equivalent position, in terms of pay, status, etc., i f the individual is qualified, and if the position is vacant within a

13 The Court cites to the regulati ons governing the Americans with Disabilities Act because, as in effect at the times relevant to this case, the f ederal regulations governing the Rehabilitant Act stated “[t]he st andards used to determine whet her section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has bee n violated in a complaint alleging nonaffirmative action em ployment discrimination under this part shall be the standards applied under Titles I an d V (sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990, a s amended (42 U.S.C. 12101, 12111, 1 2201), as such sections relate to employment. These standards are set forth in the Commission’s A DA regulations at 29 CFR part 1630.” 29 C.F.R. § 1614.203(b) (2016).14 reasonable amount of time.” 29 C.F.R. § Pt. 1630, App. Furtherm ore, “[r]eassignment may not be used to limit, segregate, or o therwise discriminate against employees with disabilities by forcing reassignments to undesirable positions or to designatedoffices or facilitie s.” 29 C.F.R. § Pt. 1630, App. However, the employe r is not required to reass ign an employee to a job that would constitute a promotion, and the “employer has the authori ty to pick and choose which appropriate vacant job is to be o ffered to the otherwise qualif ied disabled employee.” Alston , 571 F. Supp. 2d at 84 (quoting Midland Brake , 180 F.3d at 1170); see also Johnson v. Brown , 26 F. Supp. 2d 147, 151 (D.D.C. 1998) (“Thus, the regulations do not require an employer to promote an employee to a higher wage l evel; nor do they require an empl oyer to create a position where no vacancy exists.” (citing Mengine v. Runyon , 114 F.3d 415, 418 (3rd Cir. 1997)). Indeed, not only is there no requireme nt that an employer promote through reassignment, but an employer
may demote through reassignment if no equiva lent positions are available. See 29 C.F.R. § Pt. 1630, App. (“If . . . there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation” then “[a]n employer m ay reassign an individual to a lower graded position.”). It is the plaintiff’s duty to “de monstrate that there existed s ome vacant position to which he [or she] could have been reassigned.” Aka , 156 F.3d at 1304 n.27; see also Alston , 571 F. Supp. 2d at 82 (requiring the plaint iff to show “that a reasonable accommodation was possible and would have led to a reassignment position”—in other words, the plaintiff “bears both the burden of production and the burden of pe rsuasion on the question whet her a suitable vacancy existed at the time [she] sought transfer.” (first quoting Midland Brake , 180 F.3d at 1174, then quoting Jackan v. N.Y. State Dept. of Labor , 205 F.3d 562, 567 (2d Cir. 2000)); Faison v. Vance-Cooks ,15 896 F. Supp. 2d 37, 60 (D.D.C. 2012) (“[I]tis the plaintiff’s burden to identify available positions and to demonstrate that she was qualified for those p ositions.” (citations omitted)). Throughout the reassignment pro cess, both parties are obligated to proceed in a “reasonably interactive manner.” Norden v. Samper , 503 F. Supp. 2d 130, 145–46 (D.D.C. 2007) (citing Midland Brake , 180 F.3d at 1173). “Ultimately, the t ouchstone of the reassig nment inquiry is ‘reasonableness.’ ‘Eve rything that an employer must do in terms of a reassignment is modified by the adjective reasonabl e, just as that adjective mo difies any other accommodation required by the employer under the ADA.’” Alston , 571 F. Supp. 2d at 84 (quoting Midland
Brake , 180 F.3d at 1171); see also Solomon v. Vilsack , 763 F.3d 1, 9 (D.C. Cir. 2014) (“Determining whether a partic ular type of accommodation is rea sonable is commonly a contextual and fact-specific inquiry.”). 2. Retaliation Establishing a prima facie case of retaliation under the Rehabi litation Act requires showing that “(i) [the plaintiff] engaged in statutorily protected activity; (ii) [the plaintiff] suffered a materially adverse action by [his or her] emp loyer; and (iii) a causal lin k connects the two.” Solomon v.
Vilsack , 763 F.3d 1, 14 (D.C. Cir. 2014) (inte rnal quotation marks and citations omitted). When the plaintiff presents only circumstantial evidence of ret aliation, the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), applies. Id. Under that framework, the plainti ff must “first establish a prima facie ca se of retaliation.” Id. (internal quotation marks and citations omitte d). If the plaintiff establ ishes a prima facie case, “the burden of production shifts to the employer to produce a ‘legitimate, nondiscriminatory reason’ for its action.” Id. (quoting Wiley v. Glassman , 511 F.3d 151, 155 (D.C. Cir. 2007)). If the employer produces such a nondiscriminator y reason, then the plaintiff mu st demonstrate a genuine dispute16 “either directly by [show ing] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanationis unworthy of credence.” Id. (quoting Pardo-Kronemann v. Donovan , 601 F.3d 599, 604 (D.C. Cir. 2010)).

IV. DISCUSSION The Department moves for summary judgment, asserting that it (1 ) did not discriminate against Mr. Harris because it reasonably accommodated him by re assigning him to the Office of Acquisitions, and (2) did not retal iate against him for seeking a reasonable accommodation. 14 As to Mr. Harris’s discrimination c laim, genuine issues of materia l fact concerning which positions Mr. Harris was offered, whether the acquisitions position was a de facto demotion, and whether other positions that Mr. Harris was qualified for were availabl e prevent summary judgment. As to Mr. Harris’s reta liation claim, the Court finds that Mr. Har ris has presented a prima facie case and cast doubt on the Department’ s nondiscriminatory reason. Un der the McDonnell Douglas burden-shifting test, M r. Harris therefore evades summary judgm ent on his retaliation claim. The Court addresses each issue in turn.
A. Discrimination The Department asserts that it reasonably accommodated Mr. Harr is by offering to reassign him either to the Grants Management Office (GMO) or in to acquisitions, either of which it claims would constitute a reasonable accommodation. It further argues that, even if the acquisitions job was inferior to Mr. Harris’s previous job, it had no better options available to accommodate him. However, genuine issues of material fact exist as to whether the Department

14 Mr. Harris also moved for leave to file exhibits out of time. Pl.’s Mot. File Exs., ECF No. 19. The Department consented to the motion. Pl.’s Mot. File Exs. The Court therefore grants the motion and has considered the out-of-time exhibits in reach ing this opinion.17 offered Mr. Harris the GMO position and whether that position w ould have accommodated Mr. Harris. The Court also concludes that Mr. Harris has demonstrat ed a genuine issue of material fact concerning whether the acqui sitions position was inferior to his existing job. Because the acquisitions job may therefore constitute a de facto demotion, the Court considers whether such a demotion would have been appropriate on the grounds that no equ ivalent jobs were available to Mr. Harris. Ultimately, the Court concludes that genuine issues of material fact a lso exist as to whether other jobs for which Mr . Harris was qual ified were vaca nt, and therefore denies the Department summary judgment on Mr . Harris’s discrimination clai m. 1. The Grants Management Office Position The Department claims that it satisfied its ob ligation to provi de a reasonable accommodation by offering Mr. Harris a position in the GMO that he declined. Def.’s MSJ at 3, 13, ECF No. 17-1. Mr. Harris argues , to the contrary, that he w as not offered the GMO position during the reassignment search, and that in any event the posit ion would not have been a reasonable accommodation because it would have required the sam e conference calls as his previous job. Because genuine issues of material fact exist on both issues, the GMO position does not justify summary judgm ent for the Department. To suffice as a reasonable accommodation, an employer must actu ally offer the employee a position, not provide merely an illusory discussion of altern ative work. See, e.g. , Norden v. Samper , 503 F. Supp. 2d 130, 162 (D.D.C. 2007) (“[T]he [defendant’s] attempt to ‘reassign’ [the plaintiff] did not satisfy its ob ligations under the Rehabilita tion Act because it merely invited her to apply for the job; it did not o ffer her a reassignment.” (ci ting 29 C.F.R. § 1614.203(g))); cf. Perry-Anderson v. Howard Univ. Hosp. , 192 F. Supp. 3d 136, 147 (D.D.C. 2016) (“[A]n employer does not dispense with i ts obligation to provide a rea sonable accommodation under the18 ADA if the employer merely allows ‘an employee to apply for a j ob on the same basis as anyone else . . .’” (quoting Aka v. Wash. Hosp. Center , 156 F.3d 1284, 1304 (D.C. Cir. 1998))). The Department and Mr. Harris ag ree that he was initially offer ed the GMO position before beginning the reassignmen t process. According to the Dep artment, he was offered the GMO position for a second time afte r seeking reassignment, Def. ’s Reply at 7, ECF No. 21, which Mr. Harris disputes, Pl.’s Mem. Opp’n Def.’s Mot. Summ. J . (Pl.’s Opp’n) at 2 n.1, 15, ECF No. 18; Pl.’s Statement Disput e Def.’s Statement Mat. Facts , ECF No. 18-20 ¶ 3. The evidence in the record establishe s that there is a genuine issu e of material fact a s to whether Mr. Harris was re-offered the GMO j ob after requesting reassignmentin April of 2014. See Email from Bruce Harris to Brandon P oarch (April 28, 2014, 4:37 PM), ECF No. 17-8. No direct evidence of an offer, such as an email or testimony about a spe cific conversation, appears in the record. Some evidence suggests Mr . Harris was offered the GMO j ob during the reassignment process. Mr. Harris acknowledge d in his deposition that he had conversations with Mr. Poarch about the GMO as part of the reasonable accommodation process, although it is not clear if these conversations rose to the level of a job offer. See Harris Dep. 65:18–66:3, ECF No. 17-4 (“Q: Did anybody talk to you about a position [in the GMO]? A: They did. . . . Q: And this was as part of the attempt to find a r eassignment that’s [a] reason able accommodation? A: Yes and no. He was trying to bypass that pr ocess. But we knew right fro m the beginning that [the GMO] position has the same speakerphone problem.”); see also Kuo Aff. at 3, ECF No. 21-5 (discussing what may or may not be the same job as being discus sed during the “[s]ummer of 2014” but rejected by Mr. Harris be cause “[the] Office of Finan cial Management, under the CFO Office. . . . was under the [GMO]”); Email from Brandon Poarch to Bruce Harris (Jan. 8, 2015, 5:32 PM), ECF No. 21-6 (“Since this process [of reassignment] h as started, FMCSA has pursued19 with you options to transfer you to [ the GMO] (for which you we re initially hired a nd for which you are qualified as a GS-1109/13) . . .”); Poarch Aff. at 8, E CF No. 21-1 (“We told him about this vacancy [in the G MO] but [Mr. Harris] di d not want it.”). But other evidence in the recor d suggests that the Department d id not re-offer the GMO job to Mr. Harris. See Poarch Aff. at 9, ECF No. 21-1 ( stating that, as of “July 21, [2014,]” they “had no plans to reassign [Mr. Ha rris] to GMO” because of the p roblems between Mr. Harris and Mr. Bethel); Quade Aff. at 5, ECF No. 21-2 (ruling out the poss ibility of finding a job for Mr. Harris in GMO because “that was not an option”). However, Mr. H arris, unlike his counsel, does not explicitly deny being offered the GMO job after beginning the reassignment process. Compare Pl.’s Opp’n (“Nor was Mr. Harri s offered to work in the FMCSA [GMO] as a reasonable accommodation. That position had been discussed in July 2013 . . . long before Mr. Harris requested a reassignmentas a reasonable accommodation.” ), with Harris Decl., ECF No. 19-26 (not addressing GMO position), and Harris Dep. 65:18–66:3, ECF No. 17-4 (“Q: Did anybody talk to you about a position [in the GMO]? A: They did. . . . Q: And this was as part of the attempt to find a reassignmen t that’s [a] reasonable accomm odation? A: Yes and no. He was trying to bypass that process.”) . Analyzing the evidence in the record in the light most favorable to Mr. Harris, as it must, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986), the Court finds that a genuine issue of mat erial fact exists as to whethe r he was offered the GMO position at the relevant time. Furthermore, even if the Department had offered Mr. Harris the GMO job during the reassignment process, there are genuine issues of material fact as to whether the GMO job would have been effective accommodation. Some evidence in the record indicates that the GMO job would have caused the same confer ence call issues that initiall y necessitated reassignment. See20 Harris Dep. 66:2–67:13 (“[W]e knew right from the beginning tha t [the GMO] position has the same speakerphone problem. In fact , a[] GMO representative woul d be on that same call.”). Although the Department attempts t o argue that Mr. Harris was n ot certain of the exact contours of conference calls from the GMO side, Harris Dep. 67:15–18 (“Q : Did the GMO official have the same role on those confer ence calls as you had . . .? A: I don’t know.”), Def.’s MSJ at 7 n.8, there is a genuine issu e of material fact a s to whether or not the GMO job, if it involved conference calls, would be a reasonable accommodation. 15 It is unclear if the Department also claims that it should rece ive summary judgment because of various other job opportunities it offered Mr. Harri s. See Def.’s MSJ at 13 (“ Most notably , Mr. Harris was offered the opportunity to work in the [GMO] . . . .” (emphasis added)); ECF No 17-1 at 7 (describing convers ations about possible jobs for Mr. Harris in the Internal Audit Division, the National Trai ning Center, and Human Resourc es). However, because genuine issues of material fact e xist as to whether Mr. Harris was ever offered a job in any of those assorted areas, none j ustifies summary judgment. 16 Cf. Pl.’s Opp’n at 15–16.

15 The Department also contends t hat Mr. Harris has waived any ar gument that the GMO position would involve conference calls because he did not rais e it in his opposition brief. Def.’s Reply at 7 n.1, ECF No. 21; see generally Pl.’s Opp’n, ECF No. 18. Howev er, the D.C. Circuit has held that “a motion for summary judgment cannot be ‘concede d’ for want of opposition. . . . The District Court ‘must always determine for itself whether th e record and any undisputed material facts justify granting summary judgment.’” Winston & Strawn, LLP v. McLean , 843 F.3d 503, 505 (D.C. Cir. 2016) (quoting Grimes v. District of Columbia , 794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concur ring) and citing Fed. R. Civ. P . 56(e)(3)). This Court thus investigates for itself if the r ecord contains a genuine issue of material fact.
16 The Court briefly summarizes th e evidence in the record about each opportunity. For the internal controls position, most of the evidence in the rec ord shows that Mr. Harris was not actually offered a job. See Quade Dep. 26:14–20, 30:15–31:1, ECF No. 17-6 (“[t]he two of t hem had a meeting and [Mr. Quade] th[ought] it was the conclusion o f both of them at the end of the meeting that Bruce Harris would not be a fit in the Internal—a good fit in the Internal Controls Office”); Quade Dep. 31:6–8, ECF No. 17-6 (“Q: So he was never offered a position in the Internal Controls? A: No.”); Reed Dep. 9:13–11:6, ECF No. 17-7 (stating that based on a conversation between Mr. Harris and another employee, “they mut ually agreed that [Internal21 2. The Acquisitions Job The Department argues that Mr. H arris’s eventual reassignment i nto the Office of Acquisitions constituted a reas onable accommodati on. Def.’s MSJat 13–15; Def.’ s Reply at 7–10. Mr. Harris argues that it was not a reasonable accommodation be cause his lack of qualifications forced him to perform GS-7 or G S-8 work and delayed his eligibi lity for a promotion. Pl.’s Opp’n at 21–24. The parties do not dispute that the Office of Acquisitions job provided Mr. Harris with the same pay and benefits as he had previously received. SF-50 Notification of Personnel Action, ECF No. 17-25 (showing that Mr. H arris was reassigned at the sa me grade and step and same

Controls] was not a good fit” and that she “d[id]n’t know that there was an offer” of a job); Harris Dep. 75:8–76:3, ECF No. 17-4 ( stating that the interviewended “within a minute” because Mr. Harris did not have acertification as an internal auditor and emphasi zing that it was “not true” that “the position w as offered to [Mr. Harris]”). But see Adams Aff. at 4, ECF No. 21- 3 (“He had turned down an offer t o work as an auditor with unde r [sic] the jurisdiction of the Chief Financial Officer.”). Similarly, the evidence in the r ecord generally indicates that Mr. Harris was not offered a position at the National Trai ning Center. Harris Dep. 82:24–83: 16 , ECF No. 17-4 (he recalled “[v]ery, very briefly” a conversa tion about an opportunity at the National Training Center, but “it was no specific position that [was] talked about” and the conve rsation only lasted “a minute or two” because “there was really nothing there”); Poarch Dep. 31: 10–32:8, ECF No. 17-5 (noting that he and another supervisor “ discussed the possibility of [M r. Harris] working at the National Training Center for FMCSA” but he “d[id]n’t recall specificallywhether there was a vacancy or not”). But see Adams Aff. at 4, ECF No. 21-3 (“I was able to offer him [a] po sition[] [with] the National Training Center . . . . as a program specialist on course related work and training.”). Finally, the evidence is mixed as to whether Mr. Harris was off ered a position in human resources. Harris Dep. 79:12–80:10, ECF No. 17-4 (stating that he was “asked if [he] would be interested in something about hiri ng people with disabilities” but “[t]here never was a position available” and he “never interviewed with anybody”). But see Adams Aff. at 4, ECF No. 21-3. “I was able to offer him [a] position[] in HR . . . . as a program specialist working on special emphasis programs and specific projects.”). Given that the Court cannot weigh e vidence or make credibility determinations at summary judgment, Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007), it cannot resolve these disputes in favor of the Department, and summary judgment is therefore inappropriate.22 total salary); Letter from B randon A. Poarch to Bruce Harris (J an. 5, 2015), ECF No. 17-23 (offering Mr. Harris reassignment into acquisitions as a GS-301 /13). However, a genuine dispute of mat erial fact clearly exists over whether Mr. Harris was able to perform GS-13 work in t he Office of Acquisitions. See supra Part II; see also, e.g. , Harris Decl. ¶ 14 (stating that Mr. Har ris “was not assigned grade 13 work, but instead, was assigned duties that are more typically p erformed by a GS-8 level employ ee”); Baker Aff. at 6, ECF No. 18-7 (“It is true that [Mr. Ha rris] has not been given work com mensurate with a GS-13 because he does not have the skills, expe rience or certification to per form work at the GS-13 level.”). But

see Cooper Dep. 12:17–22, ECF No. 21-7 (“I knew from initial discu ssions with [Mr. Harris] that he had really no contracti ng experience, but that wasn’t a requirement for him to come onto my staff.”); Baker Dep. 19:10–12, ECF No. 21-8 (“Q: And in your view, is he able to do the duties of an 1102 at the GS-13 lev el? A: Sometimes yes, sometim es no.”). In addition, Mr. Harris argues—w ithout dispute from the Departm ent—that the acquisitions job limited his opportunities for promotion. See, e.g. , Harris Dep. 77: 16–19 (“I found out . . . it would take me three t o five years to obtain enoughexperience to func tion at the GS-13 level” in acquisitions); Baker Aff. at 7, ECF No. 18-7 (“[M]ostpersons who serve as GS-13 procurement professionals typical ly have acquired at least 3 ye ars of procurement experience. Overall it is not realistic for Mr. Harris to think he will cat ch up with the rest of the federal government GS-13 1102 procurement pr ofessionals in just 52 short weeks when the other federal government GS-13 1102s have worked i n the procurement career-fi eld for a minimum of 3 to 4 years.”); see also Cooper Dep. 14:2–15:2, ECF No. 21-7 (st ating that “two to thre e years’ worth of training” would be required for a person in Mr. Harris’s pos ition “to be a Grad e 13 contracting23 officer” and that it would be “ possible” for a person to start in contracting and be able to function as a Grade 13 in two to three years). Therefore, in order to prevail at summary judgment, the Departm ent must establish that the acquisitions job was still a reasonable accommodation even if Mr. Harris performed work below the GS-13 grade level and had impaired promotion opportun ities. The Department argues that this is the case because a reassignment is a reasonable ac commodation “virtually as a matter of law” so long as it “does not require a significant reductionin pay and benefits.” Def.’s MSJ at 13 (quoting Guice-Mills v. Derwinski , 967 F.2d 794, 798 (2d Cir. 1992)). Under the Department’s theory, therefore , the existence of other potentia l positions is irrelevant as long as it placed the employee into a j ob with the same pay and benefit s. Def.’s Reply at 9. Mr. Harris disagrees with the Department’s laser focus on pay and benefits . According to Mr. Harris, whether a job is equivalent to the employee’s original job shou ld be measured on additional factors—including difficulty of w ork and the opportunity for pr omotion—and an employer may not reassign an employee to an inf erior job if an equivalent jo b is available. Pl.’s Opp’n at 22. The Court finds that Mr. Harris has the better position. The De partment’s own procedure states that “[t]he reassignment search should focus on vacant p ositions that are equivalent to the current job in terms of pay, grad e, promotion potential, status , benefits, geographical location, and other relevant factors.” DOT Order 1011.1A § 3.4, ECF No. 1 7-12; see also DOT Order 1011.1A § 3.4 (“Prior to assigning th e employee to a non-equiva lent position, the decision-maker must consult with the employee t o determine which factors are m ost significant to the employee.”). This clearly signa ls that pay and benefits are notthe only relevant factors. Promotion potential—which the D epartment does not dispute Mr. H arris lost—is explicitly named. The Department’s procedure is consistent with the ADA re gulations, which require24 employers to “reassign the indivi dual to an equivalent position , in terms of pay, status, etc.” but provide that “[i]f . . . there are no vacant equivalent positio ns for which the indi vidual is qualified with or without reasonable accommodation” then “[a]n employer m ay reassign an individual to a lower graded position.” 29 C.F.R. § Pt. 1630, App. Both the ADA regulations and the D epartment’s procedure contemp late that, if no equivalent vacant position is available, an employee may be rea ssigned to an inferior position. They do not suggest that an employe r may assign an employee to an inferior position without first searching for an equivale nt position. Here, Mr. Harris ha s demonstrated at least a genuine of issue of material fact as to whe ther the acquisitions job was i nferior because it provided fewer opportunities to perform intere sting and difficult work and reduced his promotion potential. The Court thus concludes that the a vailability of equivalent positi ons is a factor in considering whether reassignment to an inferior position may be made as a r easonable accommodation. This conclusion is in harmony with other decisions in this jurisdict ion that a reasonable accommodation reassignment must be “equivalent in terms of stat us and pay.” Alston v. Wash.
Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 84 (D.D.C. 2008). As Mr. Harris notes, th is conclusion is not in direct tensi on with the out-of-circuit cas e the Department cites because in that case there was no evidence of an available equivalent posi tion. See Guice-Mills v.
Derwinski , 967 F.2d 794, 798 (2d Cir. 1992) (“Thi s may have constituted a demotion in [the plaintiff’s] eyes but given the fact that she could not fulfill the head nurse position, it was

necessary . . .” (emphasis added)); see also Pl.’s Opp’n at 23. Therefore, whether the acquisitions job (arguably inferior to Mr. Har ris’s previous job) justifies summary judgment for the Department hinges on whether jobs equivalent to Mr. Harris’s pr evious job were available. The Court turns to that question.25 3. Availability of Other Jobs Mr. Harris identifies 11 job postings 17 that he claims he was qualified for and flagged during the reassignment process. See generally Pl.’s Opp’n; see also Harris Decl. ¶ 28. The Department argues that none of the 11 positions was both within his qualifications and also vacant during the reasonable ac commodation search. Def.’s Replyat 10–12. Mr. Harris has demonstrated the existence of agenuine issue of material fact as to whether vacant jobs existed for which he was qualified. The plaintiff “is required to show that vacant positions existe d that were equivalent in terms of status and pay to [the former] position, and that [he or] she was qualified for those positions.” 18 Alston v. Wash. Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 84 (D.D.C. 2008) (citing 29 C.F.R. § 1630, App. § 1630.2(o) and McCreary v. Libbey-Owens-Ford Co. , 132 F.3d 1159, 1165 (7th Cir. 1997)). First, the Court addresses whic h grades of jobs were appropriat e for Mr. Harris. The Department asserts that, because an employer need not promote a n employee through a reassignment as a reasonable a ccommodation, it could not be req uired to reassign Mr. Harris to any GS-14 positions. Def.’s MSJ at 15, ECF No. 17-1. Mr. Harris accepts this assertion—the 11 jobs are all either GS-13 positions or I band 19 positions (in the case of positions with the FAA).

17 Mr. Harris claims to h ave emailed the Depa rtment about 32 jobs

. See Pl.’s Opp’n at 8–11, ECF No. 18. Of these, Mr. Harris now produces detailed informat ion concerning 11.
18 However, although it is the plai ntiff’s burden to identify a p osition, the D.C. Circuit has held that an employer ha s “a corresponding o bligation to he lp [the employee] identify appropriate job vacancies (since plaintiffs can hardly be expec ted to hire detectives to look for vacancies).” Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1304 n.27 (D.C. Cir. 1998) (collecting cases). In this case, the scant re sponse from the selective pla cement coordinators casts significant doubt on the Department’s performance in service of its obligat ion to identify vacancies.
19 Instead of the GS system, the F AA classifies positions using l ettered bands. Mr. Harris asserts that I band equates t o GS 12/13. Harris Decl. ¶ 28; compare Salary Table 2014-GS, ECF No. 19-8, with FAA Pay Bands, ECF No. 19-9. The Department apparently agrees. See Def.’s26 See Harris Decl. ¶ 28, ECF No. 19-2 6 (identifying two grade 13 pos itions, a grade 12/13/14 position, seven I band positions, and a I/J band position); Pl. ’s Opp’n at 7–15 (st ating that Mr. Harris identified many “Grade 13 a nd Grade 13 [e]quivalent” job s); see also Harris Decl. ¶ 28,
ECF No. 19-26. The Department appears to expand this argument to also apply to GS-13 positions that “ladder” to GS-14. Lad dering refers to jobs with a career path to the higher gr ade through a non-competitive promotion. For example, the Court understands f rom the parties’ briefing that a person could be placed as a GS-13 in a position graded as GS-13 /14, but later could be eligible for a non-competitive (but not automatic) promotion to GS-14. T he Department appears to argue that it can refuse to reassign Mr. Harris to any position with a career track that reaches GS-14 because of the future promotion potential. See Def.’s Reply at 13 (cont ending that Mr. Harris was “not eligible” for a particular position because “it [was] a ladder, target GS-14 position, which means that the incumbent would be eligible for a noncompe titive promotion to a GS-14”); cf., e.g. , Adams Aff. at 4, ECF No. 21-3 ( “We were not authorized to rea ssign him to a GS-14 position or to a position that had a career track to GS-14 .” (emphasis added)); May Dep. 51:1–7, 51:12–22 ,ECF No. 21-9 (eliminating one possible position becau se “[i]nasmuch as the position is a target 14, it’s no t comparable to the one that [Mr. Harris ] encumbered at the time of his

Reply at 13, ECF No. 2 1 (“This position ladders to the ‘J’ band , which is comparable to the GS-14 level.”); Burnham Dep. 62:1–5 (“I f we look at the bands for the FAA, albeit a different year . . . . going into the I band definite ly wouldn’t be a promotion . . . .”). But see Poarch Aff. at 9, ECF No. 19-18 (“FAA uses a different pay grade scale and there was some disagreement as to which pay band he could qualify. [sic] M any of the positions he found himself . . . in the case of the FAA positions, were not clearly l ateral positions. In a meeting on August 22, 2014, Human Resources (Lisa Horne) and I sai d we needed to defer to FAA to determine which were lateral positions.”). Because the Department does not articulate a contrary position, the Court assumes that an I band position in the FAA would not be a promotion for Mr. Harris.27 request” and explaining that a “t arget 14” has a “career ladder ” that goes to GS-14, although that “would still require an action by th e manager to promote the pe rson”). The Court need not resolve this argument because it is new in t he Department’s reply. 20 Cf. Def.’s MSJ at 15; see also Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau , 785 F.3d 684, 695 n.3 (D.C. Cir. 2015) (refusing to consider new argumen ts for irreparable injury in a movant’s reply brief because the opposing party “had no opportu nity to respond” and the movant “offer[ed] no reason, much less anextraordinary one, for its f ailure to raise these arguments in its opening brief” (citing CTS Corp. v. EPA , 759 F.3d 52, 60 (D.C. Cir. 2014) and United States v.
Whren , 111 F.3d 956, 958 (D.C. Cir. 1997))). 21 Furthermore, the Court not es that the Department

20 The Department suggests that it raised this argument in its su mmary judgment motion at page 15. See Def.’s Reply at 13, ECF No. 21 (ar guing that “Mr. Harris was n ot eligible for reassignment to this position beca use it is a ladder, target GS -14 position, which means that the incumbent would be eligible for a noncompetitive promotion to a GS-14. It therefore would have constituted a promotion from Mr. Harris’s GS-13 position in the State Programs Office. And the department’s policy, which is s upported by case law, provides t hat a reasonable-accommodation reassignment cannot result in a promotion. [ See Def.’s Opening Br. at 15 .]” (bracketed material in original) (citations omitted)) . However, the Department’s op ening brief does not discuss laddering or target grades at all. See Def.’s MSJ at 14–15.
21 The Court additionally rejects two other new arguments the Dep artment adds in its reply concerning the jobs id entified by Mr. Harris. First, the Department objects th at Mr. Harris di d not “present[ ] his claimed qualifications to the Department during the rea ssignment search” or “actually request[] reassignment to any of the positions.” Def.’s Repl y at 2, ECF No. 21. This argument do es not appear in the Department’s motion for summary judgment, cf. Def.’s MSJ at 14–15, and therefore the Court disregards it because Mr. Harri s has not had the opportunity to respond. Furthermore, the Department identifies no leg al authority placing the burden on the employee to take either of these steps. Second, the Department argues for the first time in its reply t hat Mr. Harris has not shown “that he could have performed the essential functions of those positions with or without an accommodation.” Def.’s Reply at 12. The relevant legal authority speaks to the plaintiff’s requirement to demonstrate that an equivalent position existed and that the employee was qualified, not that the employee could perform it with or witho ut reasonable accommodations. Alston v. Wash. Metro. Area Transit Auth. , 571 F. Supp. 2d 77, 84 (D.D.C. 2008) (citing 29 C.F.R. § 1630, App. § 1630.2(o) and McCreary v. Libbey-Owens-Ford Co. , 132 F.3d 1159, 1165 (7th Cir. 1997)). Nor have other co urts in this jurisdiction ex amined at summary judgment28 offers no legal authority supporti ng its assertion that it may refuse to reassign an employee to a vacant position at the employee’s same grade because the reassi gnment might someday render the employee eligible for a promotion. See Def.’s Reply at 15. Of course , to the extent that there are multiple equivalent positions at the appropriate grade avai lable, the Department may freely select which to offer, and any cons ideration of the career ladd ers would be innocuous in that

context. Cf. Alston , 571 F. Supp. 2d at 84 (“[The] empl oyer has the authority to p ick and choose which appropriate vacant job is to be offered to the otherwise qualified disabled employee.” (quoting Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1170 (1999))). Because all of the 11 jobs include either GS-13 or I band posit ions, the Court therefore finds that their grades do not exc lude them from consideration. Next, the Court addresses whether Mr. Harris has shown tha t a genuine issue of material f act exists concerning his qualifications for the 11 jobs. The Court concludes that a genu ine issue of material fact exists for

two reasons. First, ten of the jobs are withi n the list of grades and series that Mr. Harris was found to be qualified for by human resources. 22 Compare Email from Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28, with Harris Decl. ¶ 28 (li sting series), ECF No. 19-26. The Department’s pr ocedure states that “the empl oyee must be” offered “an equivalent position . . . for whic h the employee is minimally q ualified, per anal ysis by an HR

whether the employee had made ashowing that she could perform the job to which she sought reassignment with or without reasonable accommodation. See, e.g. , Alston , 571 F. Supp. 2d at 85.
22 The fifth job Mr. Harris iden tifies, posting FTA-TSO-2014-0059 , is in the 2101 series. Harris Decl. ¶ 28 (discussing pos ting FTA-TSO-2014-0059). The 2 101 series is not included in the human resources list. Email from Lisa Horne to Jonni Burnha m and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28. However, the Department does not object to this posting on this ground, likely because Mr. Harris’s original job as a Prog ram Officer and Grant Manager was in the 2101 series, Harris Decl. ¶ 6, ECF No. 19-26. Becaus e other postings for which Mr. Harris was qualified exist in the listed series, the Court does not address this issue further.29 Specialist, and can perform the essential functions, with or wi thout reasonable accommodation,” if such a position exists. DOT Order 1011.1A § 3.4, ECF No. 17- 12. Unfortunately, the Department’s procedure does notdefine minimally qualified, although the term itself suggests a lenient standard. However, this “minimal qualification” appears to be satisfied by the human resources list. The Department uses the exact language of “minimal qualificatio n” to describe the list generated by human resources. See Def.’s MSJ at 5, ECF No. 17- 1 (“[A] Human Resources Specialist in FMCSA . . . conducted an analysis of Mr. Harris’s resume to determine those positions for which he was minim ally qualified according to req uirements set by the Office of Personnel Management.”); Def.’ s MSJ at 6 (describing the second reasonable accommodation reassignment search email as “in clud[ing] a list of series and grades for which Mr. Harris was minimally qualified”); see also Def.’s Reply at 11 (acknowledgi ng that the jobs Mr. Harris identifies are within the “gene ral series and lev els” for whichthe Department’s human resources specialist found Mr. Harris was “b asically qualified”); Email f rom Lisa Horne to Jonni Burnham and Duronne Walker (Aug. 6, 2014, 1:55 PM), ECF No. 19-28 (emai l from human resources specialist stating tha t “Mr. Harris is qua lified for the follow ing series and grade levels” and listing series and grade leve ls); Horne Dep. 32:11–18, ECF No. 18-5 (“Q: . . . [D]o you have any role in determining whether or nothe’s qualified for the posit ion? A: That was already determined. Q: Okay. And when you said that, you were pointing to the email that you sent on August 6th, 2014, at 1:55 p.m.? A: Yes.”). But see Horne Dep. 49:2–7, ECF No. 18-5. (“Q: [L]ooking at the jobs tha t Mr. Harris had identified, do y ou have any reason to believe that he’s not qualified for these positi ons that he’s identified? A: Additional information would be required.”). Indeed, the list of grades and series is the only determination in the record of Mr.30 Harris’s qualifications by a huma n resources specialist. The re cord contains no analysis of the 11 (or 32) jobs by a human resources specialist. The list of grade s and series, therefore, creates a genuine issue of material fact as to whether Mr. Harris was qua lified for each of the jobs he identifies without reference t o the specific vacancy announceme nts pertaining to each position. 23 Second, even if the Court analyzed the vacancy announcements, t here are genuine issues of material fact as to whether M r. Harris was qualified for the 11 jobs. The Department argues that Mr. Harris failed to meet the “specific requirements” from each individual job posting. 24 Def.’s Reply at 11–18. The Department relies upon its counsel’s analysis to discount Mr. Harris’s qualifications, and does not present any findings or e vidence from human resource specialists or similar members of the Department. See Def.’s Reply at 12–18. Upon consideration of the qualifications listed in the job postings and Mr. Harris ’s qualifications, the Court

23 To the extent that there may be daylight between the requireme nt of the Department’s procedure and of the Rehabilitati on Act, this distinction is ne ver articulated by the Department. The Department’s procedure is i ntended to “support[] the Department’s obligation to meet the reasonable accommodation require ments prescribed under the Reha bilitation Act of 1973, as amended.” DOT Order 1011.1A at 1.
24 The Department appears to seek a n inference that Mr. Harris wa s not qualified because he did not receive a favorable res ponse from the selective plac ement coordinators after the 11 positions were forwarded to them. See Def.’s MSJ at 14–15, ECF N o. 17-1 (“The postings that [Mr. Harris] located were provide d to the Departmental official conducting the search for suitable positions, and that offici al forwarded the postings to the selective-placement coordinators in each of the Department’s operating administrati ons[, but n]one of those coordinators suggested that those positions were suitable or av ailable to Mr. Harris.”). However, the record contains no evidence that any selective placement co ordinator responded at all to the positions suggested by Mr. Harris, whether favorably or unfavor ably. Indeed, after the second search was implemented to cure the poor response to the first s earch, only three selective placement coordinators respond ed to the second search. Burnham Dep. 76:21–78:5, ECF No. 17-9; Email from Jonni Burnham to multiple recipients (Dec. 3, 2014, 9:51 AM), ECF No. 17- 17. Similarly, it would be perverse to require Mr. Harris to su bmit a finding by a human resources specialist as to his qualifications. Cf. Def.’s Reply at 11 (“[T] here had been no finding that Mr. Harris satisfied any of [ the requirements in specific job postings].”).31 concludes that genuine issues of material fact prevent summary judgment for the Department on the grounds that Mr. Harris was not qualified. 25 For example, Mr. Harris iden tified an I band position as a Mana gement and Program Analyst in the FAA (AWA-AHR-14-0064DB-37476). See 37476 Job Posting, ECF No. 19-23. The Department asserts he could no t satisfy the requirement tha t the applicant “have the ability to be a Contracting Officer Repre sentative (COR),” because he “ only obtained COR training after his reassignment to the O ffice of Acquisitions.” Def.’s R eply at 17 (first quoting 37476 Job Posting, ECF No. 19-23). However, the posting does not require that the applicant already be a COR. Instead, it specifies th at the applicant “should have the ability to be a [COR].” 37476 Job Posting, ECF No. 19-23 (emphasis adde d). Mr. Harris’s subsequen t COR training empirically demonstrates that he had the ability to become a COR at the tim e of the reasonable accommodation reassignment search. Furthermore, the COR require ment is followed by “and/or be knowledgeable about working wit h contracts and assisting the Lead COR.” 37476 Job Posting, ECF No. 19-23. This language suggests that COR experti se is permissive if the applicant is experienced with cont racts and able to assist the COR. Although the Department also quotes this requirement and the req uirement that the applicant have “[s]ome knowledge of personnel operations’ activities ,” it does not explain why it b elieves these requirements have not been met. Def.’s Reply at 17 (quoting 37476 Job Posting, ECF No . 19-23. Because Mr. Harris previously ran his own company—i ncluding “[n]egotiat[ing] contr acts with customers”—Harris

25 The Department also argues that one of the 11 jobs must be set aside because the job posting closed before the reasonable accommodation reassignment search began. Def.’s Reply at 12–13, ECF No. 21 (discussing FRA.RPD-2014-0035). Because the C ourt finds that genuine issues of material fact exist a s to Mr. Harris’s qualifications for other jobs with uncontested timing, it need not resolve this issue. However, the Court susp ects that the more important date is when the position was filled (or, at least, an offer was made), rather than when the job posting closed.32 Résumé, ECF No. 18-1 at 8, there is at least a genuine dispute as to whether Mr. Harris is knowledgeable about contracts and p ersonnel operations’ activit ies. This is especially the case because Mr. Harris need only ha ve been “minimally qualified,” r ather than the strongest candidate, to be placed into the position under the Department’ s policy. See DOT Order 1011.1A § 3.4, ECF No. 17-12. Similarly, Mr. Harris identified a second I band position as a Management and Program Analyst in the FAA (A WA-AHR-14-0061WE-37272). See 37272 Job Posting, ECF No. 19-22. The Department argues that Mr . Harris was not qualified for thi s position becaus e it required the applicant to have “experience th at has led to the knowledge of human resource policies.” Def.’s Reply at 16–17 (quoting 37272 Job Posting, ECF No. 19-22). The Department asserts that Mr. Harris cannot be qualified because he “has never held a human-r ecourses [sic] position.” Def.’s Reply at 16–17. However, as Mr. Harris notes, he previously man aged his own company where he “[i]nterviewed, hired and deve loped every one of [his] emplo yees, performed evaluations, terminations, an d layoffs.” Harris Résu mé, ECF No. 18-1 at 8; see also Harris Decl. ¶ 28 (discussing the 37272 job posting), ECF No. 19- 26. Given that the job posti ng does not specify a particular certification or threshold of know ledge, the Court finds that g enuine issues of material fact exist as to whether Mr. Harris’s expe riences have “led to the knowled ge of human resource policies.” In a final example, Mr. Harris identified a third Management an d Program Analyst position in the FAA at the I band (AWA-AHR-14-0067DB-37288). See 37288 Job Posting, ECF No. 19-24. The Department argues th at Mr. Harris was not qualif ied for this position because it required “knowledge of” EEO policie s, which Mr. Harris admits h e was “not an expert on.” Def.’s Reply at 17 (second quo ting Harris Decl. at 17, ECF No. 19-26). However, Mr. Harris explains that he has been “invol ved with disability-related iss ues” for the past four decades,33 including presenting to organizations, writing his MBA thesis, chairing the Fairfax County Disability Service Board, and s erving as the executive director for an advocacy group for hearing-impaired persons. See Harris Decl. ¶ 28 (disc ussing the 37288 job posting); see generally Harris Résumé, ECF No. 18-1. These extensive experiences at th e intersection of disability issues and employment create a genuine issue of mate rial fact as to whether Mr. Harris could satisfy the “knowledge of ” EEO program requirement. 26
Based on an examination of Mr. Ha rris’s qualifications and the requested qualifications for the 11 positions he identifies, the Court concludes that ge nuine issues of material fact exist as to whether Mr. Harris was qualif ied. This conclusion is in harm ony with the decision of another court in this circuit, whic h found that genuine issues of mater ial fact precluded summary judgment when it was unclear if the Rehabilitation Act plaintif f could satisfy each of the specific requirements in a job posting. See Alston , 571 F. Supp. 2d at 84–86. As discussed above, supra Part IV.A.2, the possible existen ce of jobs for which Mr. Harri s was qualified prevents summary

26 For several positions, includi ng the 37288 job posting, the De partment argues that—even if Mr. Harris was qualified—he di d not adequately signal his qu alifications in his original résumé. See, e.g. , Def.’s Reply at 17. In general, this argument lacks persuasiv e heft, especially given the anemic response from the Department during the “inter active process.” No evidence in the record indicates that the Department followed up with Mr. H arris concerning any of the jobs that he identified prior to this litigation—despite multiple re quests by Mr. Harris for such feedback. See, e.g. , Email from Bruce Harris to Lisa Horne (Aug. 29, 2014, 5:35 PM ), ECF No. 18-6 (“It would be very helpful t o hear some feedback from the modes on these positions: Do they think I am qualified or not qualified, and why.”). Clearly , additional engagement with Mr. Harris during the reassignment search would have permitted the Department to learn more about Mr. Harris’s qualifications at the time that it could have used that information to reassign him. The Department’s argument is especially egregious in the contex t of job posting 37288. After emailing his supervisor about the job posting, Mr. Harris followed-up the next day by emailing his manager two versions of his résumé, including one that “more fully describes [his] background working with persons with disabilities, ADA, Vocatio nal Rehab Act of 1973, etc.” Compare Email from Bruce Harris t o Brandon Poarch (Oct. 3, 2014, 8:24 AM), ECF No. 18-1, with Email from Bruce Harris to Brandon Poarch (Oct. 2, 2014, 11:11 AM), ECF No. 19-1. The focus on the disability experien ces was apparently unsolicited, and still resulted in no known feedback from the Department.34 judgment on the Department’s choice to place Mr. Harris in an i nferior job for which he was not qualified and which impaired his opportunities for promotion.
B. Retaliation The Department does not dispute th at Mr. Harris has presented aprima facie retaliation claim. 27 Cf. Solomon v. Vilsack , 763 F.3d 1, 14 (D.C. Cir. 2014) (list ing the elements of a pr ima facie retaliation claim). The C ourt therefore proceeds to the McDonnell Douglas burden-shifting test, which requires the Depart ment to present a nondiscriminat ory reason for its action. 28 Id. The

27 Nor would such an argument be s uccessful. The elements of a pr ima facie retaliation claim are that “(i) [the plaintiff] engaged in statutorily prot ected activity; (ii) [the plaintiff] suffered a materially adverse action by [hi s or her] employer; and (iii) a causal link connects the two.” Solomon v. Vilsack , 763 F.3d 1, 14 (D.C. Cir . 2014) (internal quotation marks and citations omitted). Mr. Harris engaged in a protecte d activity—requesting a reasonable accommodation. See id. at 15 (“[W]e join our sister ci rcuits in holding that the act of requesting in good faith a reasonable accommodation is a protected activity under 42 U.S.C . § 12203, which is incorporated into the Rehabilitation Act, see 29 U.S.C. § 791(g).”). Accor ding to Mr. Harris, his reassignment into acquisitions was a de facto demotion which force d him to do work he was not qualified to do and prevented him from getting a promotion. Com pl. ¶ 21, ECF No. 1. Such a reassignment could constitute an adverse action. See, e.g. , Norden v. Samper , 503 F. Supp. 2d 130, 158 (D.D.C. 2007) (holding that a ssigning “a Fulbright Sch olar who had published several research papers . . . to the full-ti me cataloguing of insect sp ecimens was demeaning and transparently punitive” and could justify a retaliation claim u nder the Rehabilitation Act); see also Loya v. Sebelius , 840 F. Supp. 2d 245, 256 (D.D.C. 2012) (holding, in the Title VII context, that “a reduction in responsibili ties can constitute an adverse employment action” (collecting citations)). Nor does the Departme nt contend that the reassignm ent was causally unrelated to Mr. Harris’s request for a reasonable accommodation. Cf. Poarch Aff. at 14, ECF No. 19-18 (“[Mr. Harris’s] disability was indee d a factor and the reason he requ ested an accommodation. . . . [H]is disability and request for a r easonable accommodation were the reason for the [reassignment] process . . .”).
28 The Department also argues thatMr. Harris cannot bring a reta liation claim because the action of which he complains ( his reassignment to the Offic e of Acquisitions) was the same action that he claims denied hi m a reasonable accommodation. De f.’s MSJ at 16, ECF No. 17-1. Cases in this jurisdiction have held that the denial of a reque st for reasonable accommodation cannot serve as the nucleus of both a discrimination claim and a retaliation claim under the Rehabilitation Act. See, e.g. , Prescott-Harris v. Fanning , No. 15-1716, 2016 WL 7223276, at *8 (D.D.C. Dec. 12, 2016) (“Notably, the denial of a request for a ccommodation cannot by itself support a claim of retaliati on based on the request.”); Floyd v. Lee , 968 F. Supp. 2d 308, 334 (D.D.C. 2013) (“[I]f the denial of a request for accommodation could itself support a claim of retaliation based on the request, then every failure-to-accommo date claim would be doubled.”).35 Department alleges that it ha s presented a non-retaliatory reas on for the reassignment: “The Department of Transportation reas signed Mr. Harris to the Offic e of Acquisitions not out of any retaliatory animus, but because he asked to be reassigned as a reasonable accommodation, the opportunity was available, and Mr. Harris had expressed enthusi asm for it.” Def.’s MSJ at 16–17, ECF No. 17-1. To survive summary j udgment, Mr. Harris must rebu t the Department’s nondiscriminatory reason. Solomon , 763 F.3d at 14. Although it is certainl y accurate that Mr. Harris requested rea ssignment, that alone does not explain why the Department reassigned him to acquisitions i nstead of, according to Mr. Harris, a job for which he was qualified. The Department’s argu ment to the contrary proves too

However, unlike the claims at issue in Floyd and Prescott-Harris , here Mr. Harris alleges a distinct retaliatory act (r eassignment to the Office of Acqui sitions) in addition to the denial of his request for a reasonable acco mmodation (denial of reassignm ent to any of the jobs he identified). In other words, Mr . Harris alleges that he would h ave been better off had he never requested a reasonable accommoda tion at all. Unde r these circum stances, a retaliation claim is not double-counting because it arises from a separate harm. If, for example, an employee requests an office with fewer stairs as areasonable accommodation, the wrongful denial of that request might constitute discriminati on under the Rehabilitation Act. B ut if the employer not only wrongfully denies a move into apreferred office but also vindi ctively moves the employee into an unfinished basement corridor—w ith even more steps—a claim fo r retaliation may also exist. A similar fact pattern existed in Norden v. Samper , where an employee with a disability requested flex time and reduced exposure to chemicals as reason able accommodations. 503 F. Supp. 2d 130, 140 (D.D.C. 2007). The employer did not remove th e employee from chemicals or allow her to work flexible hours . Instead, the employer assigne d her—purportedly as an accommodation—to work “almost exclusively” with chemical-soaked specimens during a strict 8 AM to 5:30 PM schedule. Id. at 140–42. The court in Norden analyzed the employee’s retaliation claims in addition to h er discrimination claims und er the Rehabilitation Act. Id. at 157–61. The court granted the employee summary judgment on her retaliation claims based on this “ de facto demotion” after noting, as evid ence of causation, that the con ditions were the employer’s “response to [the empl oyee’s] EEO complaint after sh e requested accommodations under the Rehabilitation Act.” Id. at 159 (quoting the employer’s briefing that the conditions were “offered to [the employee] by the [employer] in an attempt to resolve her EEO claims”). Mr. Harris alleges similar ev ents here—not only did the Depart ment, according to him, fail to reasonably accommodate him by reassigning him to a job that he identified and was qualified for, but it also retal iated by moving him into a job for which he was unqualified and where he would be unable to adva nce. The Court finds no structural obstacle to Mr. Harris’s retaliation claims.36 much by suggesting that whenever an employee can establish caus ation for the prima facie case (by showing that the alleged ret aliation was causally linked to the request for a reasonable accommodation), that causation can also be deployed as a nondis criminatory reason by the employer. See Thomas v. Vilsack , 718 F. Supp. 2d 106, 122 (D.D.C. 2010 ) (rejecting the employer’s argument that “becaus e Plaintiff requested a reassig nment, she cannot then use that reassignment as the basis for he r Title VII [retaliation] claim ” because “regardless of whether she requested the reassignment, the f act that she suffered a drasti c reduction, both qua ntitative and qualitative, in work assignments a nd responsibilit ies constitut ed an adverse employment action”). Similarly, although Mr. Ha rris does not dispute that “the opportunity was available” in acquisitions, that reason alone does not explain why Mr. Harris was reassigned into acquisitions when, as discussed above, other jobs for which he was qualified may have been available. The Court thus reaches the Department’s third reason—that Mr. H arris expressed enthusiasm for acquisitions. Mr . Harris can demonstrate a genui ne issue of material fact concerning his enthusiasm for acquisitions. Some evidence in th e record indicates that he was initially interested. See Poarch Dep. 41:7–10, ECF No. 17-5 (“[ Mr. Harris] expressed ent husiasm regarding the Office of Acquisiti ons” after attending a trainin g and after the end of the second reassignment search). However, ot her evidence indicates that any interest had cooled well before the reassignment. See Email from Bruce Harris to Brandon Poarch (Jan. 23, 2015, 11:3 8 AM), ECF No. 17-24 (accepting the acq uisitions position “under prote st” and stating that it was “not correct” that he was intereste d in the position, as any interes t had been expressed before he fully understood that the reassignment was “essentially a demotion an d also has negative concoctions [sic] on [his] career”); Harri s Decl. ¶ 13, ECF No. 19-26 (“I n ever expressed ‘enthusiasm’ for [the acquisitions] position but a greed to consider it.”).37 The D.C. Circuit has held that a Rehabilitation Act plaintiff g enerally need not do more than “cast[] doubt” on the empl oyer’s nondiscriminatory reason to escape summary judgment.
See Solomon , 763 F.3d at 15 (“Thus, [the plai ntiff] casts doubt on the [employer’s] proffered justification, and ‘we do not routin ely require plaintiffs “to submit evidence over and above rebutting the employer’s stated e xplanation in order to avoid s ummary judgment.”’” (quoting
Hamilton v. Geithner , 666 F.3d 1344, 1351 (D.C. Cir. 2012)). T herefore, because Mr. Harris has cast doubt on the Department’s e xplanation that it reassigned h im to work in acquisitions because of his enthusiasm, summa ry judgment is not appropriate.

V. CONCLUSION For the foregoing reasons, Defendant’s Motion for Summary Judgm ent (ECF No. 17) is
DENIED and Plaintiff’s Motion for Leave to File Exhibits (ECF No. 19) is GRANTED . An order consistent with this Memo randum Opinion is separately and contemporaneously issued.
Dated: July 6, 2017 RUDOLPH CONTRERAS United States District Judge