Berger v. U.S. Department of Commerce

Background

Trent Berger worked for the Census Bureau, which is part of the U.S. Department of Commerce, beginning in January 2018. He was hired as a geographer under Schedule A, a federal hiring program for people with disabilities, to assist with the 2020 census. His duties included developing maps and analytical products, analyzing census data, supporting state and local governments, and answering calls about the Local Update of Census Addresses program.

Berger had been diagnosed with Asperger’s Syndrome, social anxiety, and obsessive-compulsive disorder. He told his supervisor about his disability after receiving a May 2018 progress review that identified performance deficiencies, including problems answering program-support calls and understanding or reviewing assignments. On May 30, 2018, Berger requested a workspace with fewer distractions and more natural light, as well as flexibility in his work schedule for medical appointments. The requested workspace and modified schedule were approved and implemented in July.

Berger later stated that he also needed clearer instruction, coaching, and mentorship. The parties disputed whether he received sufficient individualized training and guidance. Berger was terminated on August 24, 2018. His termination letter cited unacceptable performance, including his failure to answer support calls and his failure to demonstrate sufficient understanding of certain census-related work.

Claims and arguments

Berger’s amended complaint asserted claims under Section 504 of the Rehabilitation Act. The parties treated those claims as including failure to provide reasonable accommodation, disability discrimination based on his termination, and retaliation for requesting accommodations. Berger also asserted claims under the Americans with Disabilities Act.

The defendants moved for summary judgment, which asks whether the evidence presents any genuine factual dispute requiring a trial. They argued that Berger could not perform the essential functions of the geographer position with or without an accommodation and that the Commerce Department had granted his accommodation requests. They also argued that there was no evidence that his termination resulted from disability discrimination or retaliation and that his poor performance supplied a legitimate reason for the termination.

Analysis

The report recommends denying summary judgment on the Rehabilitation Act failure-to-accommodate claim. The report identifies factual disputes about whether Berger could have performed the essential duties of the position with the additional coaching, instruction, and mentorship he proposed. The defendants said Berger received significant guidance and training, while Berger testified that he did not receive the formal or individualized training he needed. The report also identifies disputes about whether Berger requested accommodations beyond the workspace change and flexible schedule and about whether the employer engaged in the required process of discussing possible accommodations with him.

The report also recommends denying summary judgment on Berger’s Rehabilitation Act termination claim. Because the evidence presented factual disputes about whether additional accommodations could have enabled Berger to perform the job, the report concluded that factual disputes also remained about whether his termination was connected to his disability. The report noted evidence from which a jury could find discriminatory intent, including Berger’s account of hostile remarks by the supervisor who terminated him and evidence that the stated performance reason might have been pretextual.

The report recommends denying summary judgment on the retaliation claim. Berger requested accommodations as late as July 17, 2018, and was terminated shortly afterward. The report concluded that this timing was sufficiently close to support an inference of retaliatory intent at the summary-judgment stage. It also noted evidence that Berger was treated less favorably after his initial accommodation request.

The report recommends granting summary judgment dismissing Berger’s Americans with Disabilities Act claims with prejudice because federal employees do not have an employment-discrimination remedy under that statute. It recommends denying summary judgment on the Rehabilitation Act claims.

Recommended disposition and procedure

The report recommends that the defendants’ motion for summary judgment be granted in part and denied in part: granted as to dismissal of the Americans with Disabilities Act claims with prejudice, and otherwise denied. This document is a report and recommendation by Magistrate Judge Stewart D. Aaron to District Judge Gregory H. Woods, not the final ruling identified in the opinion text. The parties were given 14 days after service to file objections.