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Murphy v. Mattis

United States District Court, D. Maine

March 27, 2017

MICHAEL S. MURPHY, Plaintiff,
v.
JAMES N. MATTIS, Defendant.

          SUMMARY JUDGMENT ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         An employee of the Defense Logistics Agency at the Portsmouth Naval Shipyard brings suit against the Secretary of Defense, alleging that the Secretary discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act (ADEA) and his deafness in violation of the Rehabilitation Act. The employee asserts that the Secretary denied him promotions on account of his age and deafness and continuously denied his reasonable accommodation requests.

         Before the Court is the Secretary's motion for partial summary judgment. The Secretary seeks judgment as a matter of law on whether the scope of the employee's discrimination claims is limited to a forty-five day period prior to his initial contact with an EEO counselor. Further, the Secretary moves for summary judgment on the employee's failure to promote claims.

         The Court concludes that the limitations periods contained in the Rehabilitation Act and the ADEA limit the employee's claims to events that occurred within the forty-five day period prior to his contact with the EEO counselor and that neither equitable exceptions nor federal regulations expand the scope of the employee's claims. Further, the Court concludes that the Secretary is entitled to summary judgment on the employee's failure to promote claims because the human resources representative who rejected the employee's promotion application was unaware of the employee's age or disability. The employee's failure to accommodate claim remains for trial.

         I. PROCEDURAL POSTURE

         A. Pleadings

         On October 10, 2014, Michael Murphy brought suit against the Secretary of the Navy, Ray Mabus. Compl. and Demand for Trial by Jury (ECF No. 1). On January 20, 2015, Secretary Mabus filed a motion to dismiss.[1] Def.'s Mot. to Dismiss the Compl. (ECF No. 11). Although the pleadings have been amended several times, for purposes of this motion, the operative pleading is Mr. Murphy's Second Amended Complaint against Secretary of Defense James Mattis, filed on May 25, 2016. Second Am. Compl. (ECF No. 56). The Secretary answered the Second Amended Complaint the same day it was filed. Def.'s Answer to Second Am. Compl. (ECF No. 57).

         On May 6, 2016, the Secretary filed a notice of intent to move for partial summary judgment. Notice of Intent to Move for Summ. J. (ECF No. 46). On May 24, 2016, the Court held a Local Rule 56 pre-filing conference. Min. Entry (ECF No. 53).

         B. The Secretary's Motion for Partial Summary Judgment

         The parties subsequently agreed to eight stipulated facts. Redacted Documents, Attach. 2, Stipulation and J.R. Solely for Purposes of Summ. J. (ECF No. 102) (Stip.). On August 10, 2016, the Secretary filed a motion for partial summary judgment and a statement of undisputed material facts. Redacted Documents, Attach. 3, Def.'s Mot. for Partial Summ. J. (ECF No. 102) (Def.'s Mot.); Redacted Documents, Attach. 4, Statement of Undisputed Material Facts in Supp. of Def.'s Mot. for Partial Summ. J. (ECF No. 102) (DSMF). On October 5, 2016, Mr. Murphy filed a memorandum of law in opposition to Mr. Murphy's motion, a responsive statement of material facts, and an additional set of material facts. Pl.'s Opp'n to Def.'s Mot. for Partial Summ. J. (ECF No. 73) (Pl.'s Opp'n); Pl.'s Resp. to Def.'s Statement of Undisputed Material Facts and Pl.'s Statement of Additional Material Facts at 1-12 (ECF No. 74) (PRDSMF); Id. at 12-42 (PSAMF). On October 26, 2016, the Secretary filed a reply memorandum and a reply statement of facts. Def.'s Reply in Further Supp. of Mot. for Partial Summ. J. (ECF No. 96) (Def.'s Reply); Reply Statement of Material Facts Pursuant to Local Rule 56(D) and 56(E) Responses (ECF No. 97) (DRPSAMF).[2]

         II. SUMMARY JUDGMENT FACTS

         The Court recounts the facts in the light most favorable to Mr. Murphy consistent with record support. Alfano v. Lynch, 847 F.3d 71, 74 (1st Cir. 2017). Although the Court must draw all reasonable inferences in Mr. Murphy's favor, the Court affords no evidentiary weight to “conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 2001)).

         A. Mr. Murphy's Disability

         Michael S. Murphy was born in 1943. Stip. ¶ 1. He became profoundly deaf at seven months old as a result of illness. Stip. ¶ 2; PSAMF ¶ 7; DRPSAMF ¶ 7. His deafness is a physical impairment that substantially limits one or more of his major life activities such that he is an individual with a disability. Stip. ¶ 3; PSAMF ¶¶ 6, 125; DRPSAMF ¶¶ 6, 125.

         Mr. Murphy communicates in American Sign Language (ASL) as his first language. Stip. ¶ 2. He had late access to language and only began formal language learning in ASL at age eight, which is well after the window for which easy acquisition of language can occur. PSAMF ¶ 8; DRPSAMF ¶ 8. Not every deaf person who communicates with ASL is able to read English text; rather, some deaf individuals only see characters because their language is signing. PSAMF ¶ 13; DRPSAMF ¶ 13. Mr. Murphy's own reading, writing, and vocabulary skills in English are quite limited.[3] DSMF ¶ 3; PRDSMF ¶ 3. His reading level does not constitute the true reading process; instead, he functions with a word recognition process.[4] PSAMF ¶ 10; DRPSAMF ¶ 10.

         Mr. Murphy struggles with closed captioning and texting in English.[5] PSAMF ¶ 14; DRPSAMF ¶ 14. Mr. Murphy can compose and read very basic text messages on his cellphone, compose and read very basic email messages, and compose and read very basic hand-written or typed correspondence without the aid of a friend, co-worker, or an interpreter; in this context, “very basic” means extremely simplistic, consisting of one or two words. DSMF ¶ 4, PRDSMF ¶ 4.[6], [7] However, when Mr. Murphy wants to send or read an email, he generally gets help from a co-worker to correct his English or explain words he does not understand. DSMF ¶ 4; PRDSMF ¶ 4. Mr. Murphy prefers that all communications with him be in ASL, because “if it's not in ASL, it's not completely coming to me.” PSAMF ¶ 15; DRPSAMF ¶ 15 (quoting Redacted Documents, Attach. 5, Dep. of Michael S. Murphy at 64:13-14 (ECF No. 102) (Murphy Dep. June 2015)).

         B. Mr. Murphy's Employment at the Portsmouth Naval Shipyard

         1. Transfer from the Navy to the DLA

         From approximately 1979 until June 5, 2010, Mr. Murphy was employed by the Department of the Navy (Navy) as a civilian Materials Handler, WG-06, Step 5, at the Portsmouth Naval Shipyard in Kittery, Maine. Stip. ¶ 4. On June 6, 2010, Mr. Murphy's employment was transferred to the Defense Logistics Agency (DLA) pursuant to the Department of Defense's base realignment and closure program. Stip. ¶ 5. Since June 6, 2010, Mr. Murphy has been employed by the DLA as a Materials Handler, WG-06, Step 5, at the Portsmouth Naval Shipyard.[8] DSMF ¶ 12; PRDSMF ¶ 12. Mr. Murphy is unsure of when his position transferred from the Navy to the DLA. DSMF ¶ 12; PRDSMF ¶ 12. With respect to Mr. Murphy's employment with the Navy from 1979-2010, many of the individuals in Mr. Murphy's prior chain of command have retired or are now deceased.[9] DSMF ¶¶ 8-9; PRDSMF ¶¶ 8-9.

         The DLA is a combat support agency of the Department of Defense. DSMF ¶ 13; PRDSMF ¶ 13. It is distinct from the Navy, which is a separate agency component of the Department of Defense headed by the Secretary of the Navy.[10] DSMF ¶ 13; PRDSMF ¶ 13. The Defendant, James Mattis, is the Secretary of Defense and is ultimately responsible for the oversight of the DLA. DSMF ¶ 14; PRDSMF ¶ 14.

         The Equal Employment Opportunity (EEO) office that services Navy employees at the Portsmouth Naval Shipyard is located on-site at the Shipyard. DSMF ¶ 15; PRDSMF ¶ 15. DLA employees who work at the Portsmouth Naval Shipyard, such as Mr. Murphy, are serviced by a separate DLA EEO office located in Columbus, Ohio.[11] DSMF ¶ 16; PRDSMF ¶ 16. There was some confusion among DLA employees and management about which EEO office serviced DLA employees. DSMF ¶ 16; PRDSMF ¶ 16; PSAMF ¶ 154; DRPSAMF ¶ 154. The DLA EEO expects that the Navy EEO would apprise them of any DLA complaints that were brought to the Navy's office accidently. PSAMF ¶ 155; DRPSAMF ¶ 155.

         In 2010, following his transfer to the DLA, Mr. Murphy participated in a video conference with Paul Gambrell, a DLA EEO Disability Program Manager. Decl. of Paul Allen Gambrell ¶¶ 5-7 (ECF No. 68). An ASL interpreter translated the video conference. Id.; DSMF ¶ 17; PRDSMF ¶ 17. During the video conference, Mr. Gambrell told Mr. Murphy that the DLA EEO office located in Columbus, Ohio, would provide EEO services to him as a DLA employee, and that if he had any concerns or issues with the DLA, EEO contacts in the Ohio office would provide him with assistance.[12] DSMF ¶ 18; PRDSMF ¶ 18. However, following the video conference, Mr. Murphy did not fully understand that the DLA EEO office in Ohio was his designated EEO office. See Dep. of Sheri Kelley at 93:23-10 (ECF No. 76) (Kelley Dep.).

         2. Mr. Murphy's Wage History with the DLA

         From the date of his transfer to the DLA until 2013, Mr. Murphy earned an hourly salary of $21.25. DSMF ¶¶ 19-22; PRDSMF ¶¶ 19-22. Mr. Murphy received a raise in 2013 and again in 2014, increasing his hourly salary to $21.47 and $21.69, respectively. DSMF ¶¶ 23-24; PRDSMF ¶¶ 23-24. From the date of his transfer to the DLA through 2015, Mr. Murphy's hourly wage was equal to or greater than that paid to his fellow Materials Handler colleagues. DSMF ¶¶ 19-25; PRDSMF ¶¶ 19- 25. Mr. Murphy testified that his younger Materials Handler co-workers are paid less than he is.[13] DSMF ¶ 26; PRDSMF ¶ 26. However, Mr. Murphy has observed his supervisors encourage his younger and non-disabled co-workers to apply for and obtain promotions, whereas Mr. Murphy has never received a promotion over the course of his employment.[14] DSMF ¶ 26; PRDSMF ¶ 26; PSAMF ¶ 106; DRPSAMF ¶ 106.

         C. Mr. Murphy's Experience as a Deaf Individual Throughout His Employment at the Shipyard

         1. Difficulties Communicating with Co-Workers, Supervisors, and EEO Contacts

         a. Need for Interpretation

         Mr. Murphy's supervisors and DLA EEO contacts are aware that Mr. Murphy's primary language and means of communication is ASL.[15] PSAMF ¶¶ 24-25; DRPSAMF ¶¶ 24-25. The DLA is aware that Mr. Murphy's language level, even in ASL, is minimal, and that qualified ASL interpreters with certain skill levels are necessary for Mr. Murphy to communicate successfully with the hearing world. PSAMF ¶ 27; DRPSAMF ¶ 27. An ASL interpreter is supposed to be available for Mr. Murphy on Thursdays from 7:45 A.M. to 8:45 A.M. during the weekly department meetings.[16] PSAMF ¶ 58; DRPSAMF ¶ 58. However, there is not always an interpreter present at the weekly department meetings; for example, from mid-2012 through mid-2013, an interpreter was absent from approximately six weekly meetings.[17] PSAMF ¶ 60; DRPSAMF ¶ 60. Moreover, the ASL interpreter is sometimes late to the meetings. PSAMF ¶ 61; DRPSAMF ¶ 61.

         When an interpreter is not present, Mr. Murphy cannot participate in the discussion with his co-workers. PSAMF ¶ 60; DRPSAMF ¶ 60. The expectation is that the Supply Department will not hold the meeting unless there is an interpreter present for Mr. Murphy. PSAMF ¶ 62; DRPSAMF ¶ 62. When there are last minute meetings in the Supply Department and there is no interpreter present for Mr. Murphy to participate, William Fales-Mr. Murphy's second-line supervisor- has told Mr. Murphy to “just wait until Thursday, we will fill you in then.” PSAMF ¶ 63; DRPSAMF ¶ 63.

         Mr. Fales would often ask Mr. Murphy's co-worker and friend Tanya Knowles to interpret personal conversations between him and Mr. Murphy instead of hiring a certified ASL interpreter. PSAMF ¶¶ 21-22; DRPSAMF ¶¶ 21-22. Ms. Knowles is not an ASL interpreter and only “knows” ASL through interactions with Mr. Murphy at work. PSAMF ¶ 21; DRPSAMF ¶ 21. However, when Ms. Knowles tried to interpret the mandatory weekly meetings for Mr. Murphy when an ASL interpreter was absent, Mr. Fales would not let her; rather, Mr. Fales told Mr. Murphy that he would have to wait until next week's meeting when a certified ASL interpreter was present. PSAMF ¶ 23; DRPSAMF ¶ 23. Ms. Knowles also helped Mr. Murphy draft emails to his supervisors and the DLA EEO.[18] PSAMF ¶ 20; DRPSAMF ¶ 20.

         b. Mr. Murphy's Communications with His Supervisors

         Mr. Fales noted in his September 9, 2010 “Memo to File” that “the communication gap [with Mr. Murphy] is hard for all concerned.” PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Dalfonso, Mr. Murphy's first-line supervisor, testified that Mr. Murphy often approaches Mr. Fales with complaints but that “no one can really understand [what] he's complaining about.” Sealed Additional Attachs., Attach. 7, Tr. of Dep. of Anthony R. Dalfonso, at 42:18-43:23 (ECF No. 86) (Dalfonso Dep.). When Mr. Murphy goes to Mr. Fales' office and attempts to communicate with him using hand gestures, Mr. Fales does not request the assistance of an interpreter or locate some other communication device.[19] PSAMF ¶ 18; DRPSAMF ¶ 18. Mr. Murphy has also communicated with his third-line supervisor, Donna Shepheard, using hand gestures and written notes, with no interpreter present the majority of the time.[20] PSAMF ¶ 19; DRPSAMF ¶ 19. Although Mr. Murphy's supervisors believe that he can “read lips, ” Mr. Murphy is unable to “read lips” or speech read. PSAMF ¶ 26; DRPSAMF ¶ 26.

         Mr. Murphy's supervisors are generally unaware that there is a difference in the syntax, morphology, and semantics between English and ASL. PSAMF ¶ 28; DRPSAMF ¶ 28. ASL classes were available to all DLA employees and management. PSAMF ¶ 39; DRPSAMF ¶ 39. Mr. Fales attended six of the seven classes offered in Basic ASL.[21] PSAMF ¶ 40; DRPSAMF ¶ 40. Before Mr. Fales attended the class, he believed that Mr. Murphy could read English; however, over the course of the class, he learned that “the deaf language is . . . like a foreign language.” PSAMF ¶ 41; DRPSAMF ¶ 41; Redacted Document, Attach. 1, Tr. of Dep. of William W. Fales, Jr. at 32:3-5 (ECF No. 91-1) (Fales Dep.). Following the course, Mr. Fales was unsure if Mr. Murphy could read or not. PSAMF ¶ 29; DRPSAMF ¶ 29. However, Mr. Fales believed that Mr. Murphy could read English because he knew Mr. Murphy to send and receive emails on his own.[22] PSAMF ¶ 30; DRPSAMF ¶ 30. Despite knowing of Mr. Murphy's limited English abilities, Mr. Murphy's supervisors used written notes to communicate with him.[23] PSAMF ¶ 28; DRPSAMF ¶ 28.

         2. References to Mr. Murphy's Age and Disability in the Workplace

         At some point during the course of his employment with the Navy in the 1980s, Mr. Murphy asked his prior supervisor, Butch Fanjoy, to have an interpreter present at a meeting. Mr. Fanjoy responded, “What do you need an interpreter for? I speak sign language, ” and he gave Mr. Murphy the middle finger.[24] PSAMF ¶ 45; DRPSAMF ¶ 45. At other unspecified times, Richard Tank, James Orfanides, and other of Mr. Murphy's co-workers gave Mr. Murphy the middle finger and also made signs at Mr. Murphy that translate to “asshole” and “fuck off.”[25] PSAMF ¶ 46; DRPSAMF ¶ 46. Mr. Murphy's co-workers also tell him to retire because of his age.[26]PSAMF 44; DRPSAMF ¶ 44. Additionally, at some point between 1999 and 2010, a co-worker named John Green teased him about never receiving a promotion.[27]PSAMF ¶ 43; DRPSAMF ¶ 43.

         3. Lack of Accommodations for Mr. Murphy's Disability

         Hearing individuals often improperly assume that deaf individuals cannot perform certain jobs because having speech and being articulate is considered equivalent to being intelligent. PSAMF ¶ 42; DRPSAMF ¶ 42. As of 2013, the Shipyard had not held any specific deaf-awareness trainings, other than a short video in 2012. PSAMF ¶ 47; DRPSAMF ¶ 47. Mr. Fales never received any training on how to effectively supervise a deaf employee. PSAMF ¶ 48; DRPSAMF ¶ 48.

         Mr. Murphy's first-line supervisor, Anthony Dalfonso, never heard of any discussions regarding providing Mr. Murphy with reasonable accommodations. PSAMF ¶ 49; DRPSAMF ¶ 49. Mr. Murphy requested that fire alarm lights-in addition to just a noise based alarm-be installed in the men's bathroom; management is still unsure whether safety lights have been installed. PSAMF ¶ 50; DRPSAMF ¶ 50. When Mr. Murphy told Mr. Fales that he needed to be informed of the same safety information that was provided to his co-workers, Mr. Fales nodded his head but did nothing about Mr. Murphy's request. PSAMF ¶ 51; DRPSAMF ¶ 51. Mr. Murphy also requested a reasonable accommodation for a forklift license in 2010. PSAMF ¶ 52; DRPSAMF ¶ 52. Mr. Murphy was told that he could not have a forklift license because he was deaf. PSAMF ¶ 53; DRPSAMF ¶ 53. Five years after the forklift license reasonable accommodation request was made, DLA management still had not addressed the request. PSAMF ¶ 54; DRPSAMF ¶ 54. With regard to this request, Mr. Gambrell, the DLA EEO Disability Program Manager, stated: “We . . . were looking at trying to determine what was going on with the forklift license . . . and the fact [was] there were medical limitations and the documentation provided regarding the ability to step up, use ladders, lift, [and] bend . . . may be impacting the forklift license.” PSAMF ¶ 55; DRPSAMF ¶ 55. Mr. Gambrell also stated: “What I recall . . . is [Mr. Murphy] was unable to step up onto a forklift because of the height and there are restrictions on climbing for [Mr.

         Murphy].” PSAMF ¶ 56; DRPSAMF ¶ 56. However, Mr. Murphy's medical evaluation, completed by Dr. Edward McAbee on April 24, 2012, states that while Mr. Murphy should not lift or bend, he was able to climb up steps, and that Mr. Murphy's “medical problem should not interfere with his qualifying for a forklift license.” PSAMF ¶ 57; DRPSAMF ¶ 57.

         Mr. Murphy has also requested help with respect to interpretation services. PSAMF ¶ 64; DRPSAMF ¶ 64. The DLA requires forty-eight hours to schedule an interpreter, although some supervisors erroneously believe the notice requirement is seventy-two hours. PSAMF ¶ 65; DRPSAMF ¶ 65. When there are last minute meetings and there is no interpreter, Mr. Murphy cannot participate. PSAMF ¶ 63; DRPSAMF ¶ 63. Mr. Murphy has informed his supervisors that he cannot participate in meetings unless an interpreter is present, but he felt that his requests for help in this regard have been brushed aside or briefly addressed with no follow through.[28]PSAMF ¶ 64; DRPSAMF ¶ 64. Mr. Murphy has been told that interpreters are expensive. PSAMF ¶ 64; DRPSAMF ¶ 64. When Mr. Murphy asked for an interpreter to be present at a meeting or social outing, he was told, “Why don't you just teach everyone sign language?” PSAMF ¶ 67; DRPSAMF ¶ 67. Mr. Fales never independently contacted an interpreter during conversations with Mr. Murphy that were outside the context of the weekly meetings. PSAMF ¶ 66; DRPSAMF ¶ 66.

         Furthermore, certain means of communication, such as Video Remote Interpreting, are not the right tool or the proper accommodation for every deaf individual. PSAMF ¶ 69; DRPSAMF ¶ 69. The DLA has two videophones on site; although neither one is located in Mr. Murphy's work area, they are located “close to” Mr. Murphy.[29] PSAMF ¶ 70; DRPSAMF ¶ 70. The DLA does not use the video phone or the video relay services often to communicate with Mr. Murphy. PSAMF ¶ 72; DRPSAMF ¶ 72. The management does not know how a video phone works, contributing to the underutilization of the video phones. PSAMF ¶ 73; DRPSAMF ¶ 73. The primary means of communication between Mr. Murphy and hearing individuals is through written notes or, less often, through an interpreter. PSAMF ¶ 74; DRPSAMF ¶ 74.

         4. Lack of Responsiveness to Deaf Affinity Group Concerns

         The Affinity Group is a group of deaf employees at the Shipyard that was formed to address the need for accommodations for deaf employees at the Shipyard, including accommodations needed to access USA Jobs/USA Staffing, the on-line application portal for promotions within the DLA. PSAMF ¶ 75; DRPSAMF ¶ 75. Mr. Murphy's expert witness testified that it would be very important for management to discover what issues deaf employees have by attending Affinity Group meetings at the Shipyard. PSAMF ¶ 76; DRPSAMF ¶ 76.

         Ms. Shepheard, Mr. Murphy's third-line supervisor, does not know why the Affinity Group was formed. PSAMF ¶ 77; DRPSAMF ¶ 77. Ms. Shepheard never attended an Affinity Group meeting because “the management was not involved [and] did not go to the Deaf Affinity Group meetings, ” even though she knew Mr. Murphy “had a concern that we were not attending the Deaf Affinity Group meetings.” PSAMF ¶ 78; DRPSAMF ¶ 78. Sheri Kelley, a DLA EEO Specialist, only attended one to three Affinity Group meetings. PSAMF ¶ 79; DRPSAMF ¶ 79. Mr. Dalfonso has never been to an Affinity Group meeting. PSAMF ¶ 80; DRPSAMF ¶ 80. Mr. Gambrell never attended an Affinity Group meeting. PSAMF ¶ 81; DRPSAMF ¶ 81.

         Mr. Fales believes he attended somewhere between three to eight meetings, but he stopped attending after he told his supervisor, “I think I'm out of my league here as far as attending these meetings.” PSAMF ¶ 82; DRPSAMF ¶ 82. Mr. Fales did not follow-up on the issues discussed at the Affinity Group meetings, including: whether deaf employees should have stickers on their hard hats to indicate that they are deaf in case of emergency situations or fires; how deaf employees can receive feedback regarding active shooter drills; how employees can raise issues regarding communication with supervisors; and how deaf employees can provide feedback on video remote interpreting. PSAMF ¶ 83; DRPSAMF ¶ 83. Mr. Fales testified that the Affinity Group meetings at the Shipyard were a “bitch session.” PSAMF ¶ 84; DRPSAMF ¶ 84.

         D. Mr. Murphy's Failure to Obtain a Promotion

         Mr. Murphy has an excellent employment record: he consistently receives positive performance reviews and feedback from his supervisors and has received a number of awards and recognition for his hard work. PSAMF ¶¶ 2-4; DRPSAMF ¶¶ 2-4. He has helped train newer and less experienced co-workers, including co-workers who are not disabled and who are much younger than he is. PSAMF ¶ 5; DRPSAMF ¶ 5.

         Despite Mr. Murphy's excellent work ethic, Mr. Murphy has never been given a promotion at the Shipyard, either during his tenure with the Navy from 1979 until 2010 or with the DLA from 2010 to the present. PSAMF ¶¶ 85, 99; DRPSAMF ¶¶ 85, 99. Mr. Murphy has the longest length of experience in the Supply Department of the twelve individuals currently stationed there. PSAMF ¶ 86; DRPSAMF ¶ 86. Only four DLA employees in the Supply Department, including Mr. Murphy, have more than thirty-five years of employment.[30] PSAMF ¶ 87; DRPSAMF ¶ 87. Of these four employees, only Mr. Murphy has never been promoted. PSAMF ¶ 88; DRPSAMF ¶ 88. For over thirty-five years, Mr. Murphy has consistently expressed his desire to be promoted to his supervisors, co-workers, EEO Specialists, Shipyard counsel, and others. PSAMF ¶ 100; DRPSAMF ¶ 100. From 2007 to September 2013, Mr. Murphy expressed his desire to be promoted to his supervisors at least nineteen times. PSAMF ¶ 89; DRPSAMF ¶ 89. Mr. Murphy's supervisors are aware that not being promoted has been a longstanding concern for Mr. Murphy. PSAMF ¶ 101; DRPSAMF ¶ 101. Mr. Murphy has gone to his third-line supervisor, Ms. Shepheard, “on and off” over the years about not being promoted. PSAMF ¶ 103; DRPSAMF ¶ 103.

         Mr. Murphy was told many times that he would never be promoted.[31] PSAMF ¶ 90; DRPSAMF ¶ 90. In particular, Mr. Fales, Mr. Murphy's current second-line supervisor, told Mr. Murphy that he would “never get promoted because he was deaf.”[32] PSAMF ¶ 94; DRPSAMF ¶ 94. Additionally, at some point in the 1980s, Mr. Murphy's then-supervisor, Butch Fanjoy, told Mr. Murphy that he would never get promoted. PSAMF ¶ 91; DRPSAMF ¶ 91. At some point between 2002 and 2012, George Stamos, one of Mr. Murphy's prior supervisors, told him that he was “stuck at this level.” PSAMF ¶ 93; DRPSAMF ¶ 93. In 2008 or 2009, another prior supervisor, John Green, told Mr. Murphy that he was going to be promoted to a GS-07 position but then told Mr. Murphy that he was “just kidding” about the promotion. PSAMF ¶ 82; DRPSAMF ¶ 82. Mr. Murphy was frustrated because John Green and George Stamos had failed to follow through on their promises to promote him. PSAMF ¶ 102; DRPSAMF ¶ 102.

         Mr. Murphy's first-line supervisor, Mr. Dalfonso, does not know of any employee who has been a WG-06 worker for as long as Mr. Murphy. PSAMF ¶ 95; DRPSAMF ¶ 95. According to Mr. Dalfonso, there is essentially no difference in work responsibility between the lesser paid WG-06 position and the higher paid GS-07 position in the Supply Department; however, going from a WG-06 position to a GS-07 position is considered a promotion. PSAMF ¶ 96; DRPSAMF ¶ 96. Mr. Dalfonso does not know of any reason why Mr. Murphy should not be promoted. PSAMF ¶ 97; DRPSAMF ¶ 97. Similarly, Ms. Shepheard believes that Mr. Murphy would be able to perform the functions of a higher-paid Supply Technician. PSAMF ¶ 98; DRPSAMF ¶ 98.

         In 1991, despite his hard work and seniority, Mr. Murphy was denied a promotion as an Inventory Management Specialist. PSAMF ¶ 104; DRPSAMF ¶ 104. After applying in 1991, Mr. Murphy sought a promotion by applying to at least thirty- six positions over the fifteen-year period from 2000 to 2015. PSAMF ¶ 105; DRPSAMF ¶ 105.

         E. Mr. Murphy's 2013 General Supply Specialist Application

         1. USA Jobs/USA Staffing

         The DLA uses a web-based talent acquisition system called USA Jobs to recruit non-federal government employees for open DLA positions. DSMF ¶ 33; PRDSMF ¶¶ 33. Applicants who already hold federal government employment apply to open DLA positions through USA Staffing, a web-based system that interfaces with USA Jobs. Id. With limited exceptions-such as for temporary promotions of 120 days or less or for promotions based on negotiated EEO settlements-DLA employees who were seeking a promotion to an open DLA position in 2013 were required to apply through USA Staffing.[33] DSMF ¶ 34; PRDSMF ¶ 34; PSAMF ¶ 134; DRPSAMF ¶ 134.

         Employees can learn about job openings through announcements, written in English, on the USA staffing website.[34] PSAMF ¶ 116; DRPSAMF ¶ 116. Sometimes, Mr. Fales notified employees of openings through emails, written in English. PSAMF ¶ 117; DRPSAMF ¶ 117. Mr. Fales also brought up job openings at weekly safety meetings.[35] DRPSAMF ¶ 108. However, at certain points over the years, Mr. Murphy's supervisors would notify his younger, non-disabled co-workers when there were job openings or promotion opportunities, but they would not let Mr. Murphy know about these opportunities. PSAMF ¶ 108; DRPSAMF ¶ 108. Sometimes, Mr. Murphy's co-workers would forward emails about job openings or promotion opportunities to him. PSAMF ¶ 109; DRPSAMF ¶ 109. On many occasions, Mr. Murphy emailed the Human Resources Office directly to express his interest in the positions. PSAMF ¶ 110; DRPSAMF ¶ 110. Mr. Murphy generally would not receive a response, or the response would be a “no.” PSAMF ¶ 111; DRPSAMF ¶ 111.

         To apply for a job opening through USA Staffing, DLA employees complete an electronic questionnaire. DSMF ¶ 35; PRDSMF ¶ 35. For some questions, applicants select answers from a drop-down menu that generally contains five answer choices. PSAMF ¶ 120; DRPSAMF ¶ 120. The questionnaire also asks the applicants to rate themselves as “proficient, expert, some knowledge, full knowledge.” PSAMF ¶ 121; DRPSAMF ¶ 121. As an example, the questionnaire asks applicants to choose between two different options regarding their knowledge, skills, and abilities:

(1) “I have performed this task as a regular part of my job. I have performed it independently and normally without review by a supervisor or senior employee.”
(2) “I have performed this task on the job. My work was monitored closely by a supervisor or senior employee to ensure compliance with proper procedures.”

PSAMF ¶ 122; DRPSAMF ¶ 122. Based on the applicants' answers, the electronic system generates a numerical ranking. DSMF ¶ 35; PRDSMF ¶ 35. The DLA then reviews the ranking to determine which DLA job applicants are qualified for the positions to which they applied and which candidates to interview. Id.

         Mr. Murphy's supervisors admit that the USA Staffing application process is difficult to access and understand. PSAMF ¶ 113; DRPSAMF ¶ 113. Mr. Murphy's supervisors and some members of the DLA EEO do not thoroughly understand the USA Staffing application process, including what information Mr. Murphy needed to provide in order to successfully apply. PSAMF ¶ 130; DRPSAMF ¶ 130. The USA Staffing website and application questionnaire are written in college-level English. PSAMF ¶ 115; DRPSAMF ¶ 115. This makes it essentially inaccessible for someone like Mr. Murphy, whose reading, writing, and vocabulary in English are quite limited.[36], [37] PSAMF ¶ 114; DRPSAMF ¶ 115.

         If applicants have questions during the USA Staffing application process, they can reach out to a Human Resources specialist by phone or email; no similar assistance is provided to deaf individuals. PSAMF ¶ 118; DRPSAMF ¶ 118. Some of Mr. Murphy's supervisors and members of the DLA EEO believe that, despite the website being written in English, the USA Jobs application process should not be more difficult to understand if the applicant communicates in ASL or is not fluent in English. PSAMF ¶ 119; DRPSAMF ¶ 119.

         The Shipyard arranged an ASL USA Staffing training and instructed the participants on how to navigate the online system.[38] PSAMF ¶ 131; DRPSAMF ¶ 131. Mr. Murphy did not attend this training because he was sick. PSAMF ¶ 132; DRPSAMF ¶ 132. The Shipyard informed Mr. Murphy that the ASL USA Staffing navigation training would be rescheduled so that he could attend; however, the training was never rescheduled. Id. DLA management received negative feedback about the ASL USA Staffing navigation training that it did hold. PSAMF ¶ 133; DRPSAMF ¶ 133. No one, however, attempted to reconstruct and reschedule the training. Id.

         2. Mr. Murphy Applies Using the USA Staffing Website

         Mr. Murphy has been told repeatedly that he must apply through USA Staffing in order to be promoted. PSAMF ¶ 135; DRPSAMF ¶ 135. However, Mr. Murphy did not realize that he had to apply for a promotion using the USA Staffing system until approximately five years ago.[39] PSAMF ¶ 112. The first time in 2013 that Mr. Murphy submitted an application for a promotion was on May 4, for the position of Distribution Facilities Specialist.[40], [41] DSMF ¶ 36; PRDSMF ¶ 36. On May 9, 2013, Mr. Murphy was informed that he had not been selected to interview for the position. DSMF ¶ 37; PRDSMF ¶ 37. Next, Mr. Murphy submitted an application for the position of General Supply Specialist on August 16, 2013, at both the GS-07 and GS-09 levels.[42] DSMF ¶ 38; PRDSMF ¶ 38. Although Mr. Murphy has made numerous attempts to obtain a promotion throughout his career at the Shipyard, his August 2013 application to the General Supply Specialist position is the only specific instance he cites in his Second Amended Complaint.[43] DSMF ¶ 39; PRDSMF ¶ 39.

         The DLA General Supply Specialist position was posted on the USA Staffing system on August 9, 2013, for both the GS-07 and GS-09 levels. DSMF ¶ 40; PRDSMF ¶ 40. Mr. Murphy applied for both the GS-07 and GS-09 positions on August 16, 2013. DSMF ¶ 41; PRDSMF ¶ 41. To apply for the positions, Mr. Murphy electronically filled out and submitted answers to a questionnaire on the USA Staffing system.[44] DSMF ¶ 42.

         Mr. Murphy was unable to complete the application accurately on his own. PRDSMF ¶ 42. For instance, the electronic questionnaire contained the following question:

6. I am applying for this position to be considered as a:
Person with Disabilities. You must submit a certification statement from a Vocational Rehabilitation Service (state or private), Department of Veterans Affairs, a licensed medical professional (e.g., a Physician or other medical professional duty certified by a State, the District of Columbia, or a U.S. territory, to practice medicine or provide disability benefits.
A. Yes
B. No.

DSMF ¶ 43; PRDSMF ¶ 43. Mr. Murphy answered “B. No” to Question Number 6 of the General Supply Specialist questionnaire. DSMF ¶ 61; PRDSMF ¶ 61. Question Number 6 of the questionnaire was the only solicitation of, or reference to, information regarding disabilities. DSMF ¶ 44; PRDSMF ¶ 44. The questionnaire did not seek or make any reference to the applicants' ages. DSMF ¶ 44; PRDSMF ¶ 44.

         The USA Staffing system used the applicants' answers to the General Supply Specialist questionnaire to automatically generate a score of between 70 and 100. DSMF ¶ 46; PRDSMF ¶ 46. This score then automatically generated a ranking list of the applicants, from the highest score to the lowest score. DSMF ¶ 47; PRDSMF ¶ 47. DLA Human Resources Specialist Lori Kendrick was the DLA contact for the General Supply Specialist job announcement at both the GS-07 and GS-09 levels. DSMF ¶ 48; PRDSMF ¶ 48.

         3. Mr. Murphy Is Not Selected for the GS-07 General Supply Specialist Position

         Ms. Kendrick was the only DLA employee responsible for reviewing the ranking list for the General Supply Specialist position at the GS-07 grade and determining which applications merited further review. DSMF ¶ 49; PRDSMF ¶ 49. The ranking list for the General Supply Specialist position at the GS-07 list included information that Mr. Murphy entered, as well as the eligibilities he selected and his cumulative score based on his answers.[45] DSMF ¶ 50; PRDSMF ¶ 50. Ms. Kendrick reviewed the ranking list, made handwritten notations, and initialed the document. DSMF ¶ 51; PRDSMF ¶ 51. Ms. Kendrick used a cut-off score of 88 out of 100 to determine which applicants to refer to have their resumes and applications reviewed for an interview for the General Supply Specialist position at the GS-07 level. DSMF ¶ 52; PRDSMF ¶ 52. Ms. Kendrick indicated this cut-off score by drawing a line on the ranking list separating the applicants who scored an 88 from those who scored an 87. DSMF ¶ 53; PRDSMF ¶ 53. She did not review the application materials of any candidate with a score of 87 or lower. DSMF ¶ 54; PRDSMF ¶ 54.

         Mr. Murphy's answers to the General Supply Specialist questionnaire automatically generated a score of 85, which was below the cut-off. DSMF ¶ 55; PRDSMF ¶ 55. Ms. Kendrick therefore did not review Mr. Murphy's application materials or consider him for referral for an interview. DSMF ¶ 56; PRDSMF ¶ 56. The only information Ms. Kendrick possessed and reviewed concerning Mr. Murphy was that contained on the ranking list: his name, address, telephone number, email address, the last four digits of his social security number, that he was a candidate for competitive promotion (“C-PROM”), and that he scored an 85. DSMF ¶ 57; PRDSMF ¶ 57.

         If Mr. Murphy had answered “A. Yes” to Question Number 6 of the General Supply Specialist questionnaire indicating that he had applied as a Person with Disabilities, the ranking list would have indicated a designation of “N-PWD” beside his name. DSMF ¶ 59; PRDSMF ¶ 59. Because Mr. Murphy answered “B. No” to Question Number 6 of the questionnaire, a designation of “N-PWD” was not present beside Mr. Murphy's ranking information. DSMF ¶ 58; PRDSMF ¶ 58. Even with a score below the 88 cut-off, had he self-identified as N-PWD, Mr. Murphy's application for General Supply Specialist at the GS-07 grade would have received additional review by Ms. Kendrick. DSMF ¶ 60; PRDSMF ¶ 60; PSAMF ¶ 126; DRPSAMF ¶ 126. If the ranking list indicated that he was N-PWD, his resume would have been reviewed and his application would have been forwarded to the selecting official. Id.

         Besides the information concerning Mr. Murphy's name, address, telephone number, email address, the last four digits of his social security number, that he was a C-PROM candidate, and that he scored an 85, Ms. Kendrick did not know any other details concerning Mr. Murphy as of August 2013. DSMF ¶ 62; PRDSMF ¶ 62. She did not review any information regarding whether Mr. Murphy had a disability and did not know how old he was when she determined which candidates to select for interviews for the General Supply Specialist positions. DSMF ¶ 63; PRDSMF ¶ 63. She did not review Mr. Murphy's resume, nor did she review any other materials submitted by Mr. Murphy in connection with his application. Id. As of August 2013, Ms. Kendrick did not know whether Mr. Murphy had a disability, and she did not know Mr. Murphy's age. DSMF ¶ 64; PRDSMF ¶ 64.

         Ms. Kendrick wrote “IRAT” beside Mr. Murphy's ranking information for the General Supply Specialist position at the GS-07 grade to indicate that he had scored below the cut-off. DSMF ¶ 65; PRDSMF ¶ 65. Mr. Murphy's IRAT rating was provided to him on August 22, 2013, by an email alert from the USA Staffing system, stating in part, “We have not reviewed your qualifications for this position because there are higher preference veterans and/or higher ranking candidates that must first be certified and considered.” DSMF ¶ 66; PRDSMF ¶ 66.

         4. Mr. Murphy Is Not Selected for the GS-09 General Supply Specialist Position

         The General Supply Specialist questionnaire contained a question regarding the applicants' minimum qualifications, which asked the applicants to select an answer which best described their highest level of education and/or experience they possessed for the General Supply Specialist position. DSMF ¶ 67; PRDSMF ¶ 67. Mr. Murphy selected the following answer to the question regarding his minimum qualifications:

A - At the GS-07 level. I possess one (1) year of specialized experience that equipped me with the particular knowledge, skills, and abilities (KSAs) to successfully perform the duties of the position, and is directly in or related to this position. To be creditable, specialized experience must be at the GS-05 grade level or equivalent under other pay systems in the Federal service, military, or private sector. Examples of specialized experience are listed in the vacancy announcement.[46]

DSMF ¶ 68; PRDSMF ¶ 68. This answer automatically disqualified Mr. Murphy for the General Supply Specialist at the GS-09 grade, because he answered that he had experience equivalent to the GS-07 level. DSMF ¶ 69; PRDSMF ¶ 69. Mr. Murphy's name did not appear on a ranking list for the General Supply Specialist position at the GS-09 grade. DSMF ¶ 70; PRDSMF ¶ 70. Ms. Kendrick did not review any of Mr. Murphy's information with respect to his application for that grade. DSMF ¶ 71; PRDSMF ¶ 71. Mr. Murphy was notified on August 22, 2013, by email alert from the USA Staffing system that he rated “ID” for the General Supply Specialist GS-09 grade, stating, “You do not meet the minimum education and/or experience requirements for this specialty and grade.” DSMF ¶ 72; PRDSMF ¶ 72. Mr. Murphy was not selected to interview for the General Supply Specialist position at either the GS-07 or GS-09 level and was informed of this on August 22, 2013. DSMF ¶ 73; PRDSMF ¶ 73. The individuals ultimately selected for the General Supply Specialist position at the GS-07 or GS-09 levels were not disabled and were younger than Mr. Murphy. DSMF ¶ 74; PRDSMF ¶ 74.

         F. Mr. Murphy Approaches the EEO

         1. The Reasonable Accommodation Process Generally

         Reasonable accommodation requests are processed by the EEO. PSAMF ¶ 139; DRPSAMF ¶ 139. When a deaf employee requests a reasonable accommodation, the EEO's expectation is that an EEO Specialist will engage an interpreter to determine exactly what the employee is requesting. PSAMF ¶ 140; DRPSAMF ¶ 140. It is the employer's responsibility to discuss with the individual what the request is in order to provide the appropriate reasonable accommodation. PSAMF ¶ 141; DRPSAMF ¶ 141. A reasonable accommodation depends on the individual situation and the individual who is involved. PSAMF ¶ 142; DRPSAMF ¶ 142.

         The parties agree that in order to provide an appropriate reasonable accommodation, it is important and helpful to know the reading level of a deaf employee. PSAMF ¶ 143; DRPSAMF ¶ 143. A reasonable accommodations request triggers an “interactive process” between the requesting individual and the management. PSAMF ¶ 144; DRPSAMF ¶ 144. An interactive process is one in which the EEO Specialist communicates with the employee and discusses the requested and necessary accommodations. PSAMF ¶ 145; DRPSAMF ¶ 145. The EEO Specialist will also involve all necessary parties and will sit in a meeting with the employee and their supervisor to facilitate the conversation if necessary. Id.

         DLA employees are educated about the reasonable accommodations process through policy statements posted throughout the building, which are written in English; there is no employee training. PSAMF ¶ 146; DRPSAMF ¶ 146. There are two methods of educating supervisors about the reasonable accommodation process, one through new supervisor orientation training and one through supervisory mandatory trainings. PSAMF ¶ 147; DRPSAMF ¶ 147. There was no training given to Mr. Murphy's supervisors, Mr. Fales and Mr. Dalfonso, about the reasonable accommodations policy or the reasonable accommodation request procedure. PSAMF ¶ 148; DRPSAMF ¶ 148. Ms. Shepheard cannot describe what constitutes an “interactive process.” PSAMF ¶ 149; DRPSAMF ¶ 149. Ms. Shepheard required reasonable accommodation requests to be in writing. PSAMF ¶ 150; DRPSAMF ¶ 150. EEO Specialist Sheri Kelley testified that an employee does not have to use the words “reasonable accommodation” or even submit a written request to trigger the reasonable accommodations process; employees should also be able to make a reasonable accommodation request in ASL. PSAMF ¶ 151; DRPSAMF ¶ 151.

         EEO Staffing Specialist Charlee Swingle testified that reasonable accommodations can be provided for the USA Staffing application process, where a Staffing Specialist helps the applicant manually fill out the application and upload the requisite documents. Alternatively, applications can also be accepted via fax if the applicant fills out the PDF version of the online application. PSAMF ¶ 152; DRPSAMF ¶ 152. Mr. Murphy's second-line supervisor, Mr. Fales, is the ultimate decision-maker for all of Mr. Murphy's reasonable accommodation requests, even if Mr. Murphy first contacts the Program Disability Manager. PSAMF ¶ 153; DRPSAMF ¶ 153.

         2. Mr. Murphy's Pre-2013 Contacts with the EEO

         After years of attempting to get a promotion, Mr. Murphy contacted the EEO in 2005 during his employment with the Navy. PSAMF ¶ 157; DRPSAMF ¶ 157. In or about October 2005, Mr. Murphy contacted Terry Burk, an EEO Specialist at the Navy's Shipyard EEO Office, who said he would investigate his claim. PSAMF ¶ 158; DRPSAMF ¶ 158. Terry Burk summarized Mr. Murphy's complaint as follows:

I'm being discriminated by Portsmouth Naval Shipyard, Code 500 Management and specifically Jonathan Green due to my disability (deaf) with the full support of his supervisor (George Stamos). I have the most experience and have the qualifications necessary, as evidenced by my being placed on the certificate of eligibles [sic] by HRSC-Northeast. I have not been selected for promotion although Jonathan Green has frequently promised that I would get the next promotion. My last promotion which was to WG-06 was effective on July 19, 2007. I believe that if I were not a deaf employee I would have been promoted by now.
For Resolution…I seek to work in an environment that is free from this discriminatory behavior. I seek fair and equal treatment in regards to promotion opportunities, and that management promote me immediately.

PSAMF ¶ 159; DRPSAMF ¶ 159 (alteration in original).

         Four months later, Mr. Murphy received an email, written in English, from Lorrie Oeser, EEO Manager of the Navy Shipyard, which stated:

The EEO Office cannot take sides in an issue, but can try to help resolve issues . . . After talking to you and to management, it looks to me like the key here is for you to be viewed by management as the best candidate for promotions. The viewpoint right now is that you are not a top candidate. Part of the reason for this is because you are not seen as doing an excellent job in all aspects of your current job.
Here's an idea that might help. Terry Burk can arrange for a job coach to come in on a daily basis to work with you on all tasks involved in your better understanding [sic] of what management says it is looking for. The state (Maine) vocational rehabilitation office offers this service, but we have to be prioritized on a waiting list.

PSAMF ¶ 160; DRPSAMF ¶ 160 (alterations in original). Mr. Murphy disagreed with Ms. Oeser's assessment that he was not the “best candidate” for promotion; rather, he has believed that he was not being promoted due to his disability. PSAMF ¶ 161; DRPSAMF ¶ 161. Mr. Dalfonso did not understand why a job coach was assigned to Mr. Murphy because Mr. Murphy knew how to do his job. PSAMF ¶ 162; DRPSAMF ¶ 162.

         In 2006, Mr. Murphy complained to the Navy EEO again about not being promoted, resulting in a mediation. PSAMF ¶ 163; DRPSAMF ¶ 163. Ms. Shepheard attended the mediation. PSAMF ¶ 164; DRPSAMF ¶ 164. No remedy was offered during the mediation. PSAMF ¶ 165; DRPSAMF ¶ 165.

         In April 2007, Mr. Murphy contacted the Navy EEO again when he was not selected for a promotion. PSAMF ¶ 166; DRPSAMF ¶ 166. Despite contacting the EEO, Mr. Murphy was still not provided with reasonable accommodations that would enable him to effectively navigate and apply for promotions through USA Staffing. PSAMF ¶ 162; DRPSAMF ¶ 162.

         On November 18, 2010, following Mr. Murphy's transfer to the DLA, Mr. Murphy informed Mr. Fales that “he wanted to leave supply and get another job on the Shipyard.” PSAMF ¶ 168; DRPSAMF ¶ 168. He also said that “he wanted to go to the EEO to get some help with getting another job.” PSAMF ¶ 168; DRPSAMF ¶ 168. At a meeting on March 31, 2011, between Mr. Murphy, Mr. Fales, and Ms. Shepheard, Mr. Murphy communicated his desire to seek a promotion.[47] PSAMF ¶ 169; DRPSAMF ¶ 169. Mr. Murphy states that he received no assistance at this meeting. Id. However, Mr. Fales' contemporaneous notes summarizing the meeting suggest that they discussed Mr. Murphy “getting in touch with Shipyard EEO for help in placement” and that the supervisors offered Mr. Murphy points of contact at the DLA to assist him. DRPSAMF ¶ 169; Varga Decl., Ex. D, Handwritten Mem. at 5 (ECF No. 86-9). In April 2011, Mr. Murphy contacted the Navy EEO and requested help in applying for a promotion; he was not given any help.[48] PSAMF ¶ 170; DRPSAMF ¶ 170. At this point, there was some confusion about whose responsibility it was to deal with Mr. Murphy's request due in part to the transfer from the Navy to the DLA.[49] PSAMF ¶ 174; DRPSAMF ¶ 174.

         3. Mr. Murphy Approaches the EEO After He Was Not Hired for the General Supply Specialist Positions

         On August 23, 2013, a day after learning that he was not hired for the General Supply Specialist position at either the GS-07 or GS-09 level, Mr. Murphy went to a Navy EEO Specialist at the Portsmouth Naval Shipyard named Ava Drost to make a complaint about not being hired due to his age-Mr. Murphy was 69 years old at the time-and his disability.[50] DSMF ¶¶ 75, 79; PRDSMF ¶¶ 75, 79; PSAMF ¶ 175; DRPSAMF ¶ 175. Mr. Murphy arrived at the Navy EEO office as a walk-in on August 23, 2013, without an appointment or notifying the Navy EEO beforehand, and therefore an ASL interpreter was not present.[51], [52] DSMF ¶ 76; PRDSMF ¶ 76. Although an ASL interpreter was not present, Mr. Murphy brought with him printed notifications that he had not been selected for the DLA job opening. DSMF ¶ 77; PRDSMF ¶ 77.

         Ms. Drost did not discuss Mr. Murphy's complaint with him; rather, in a handwritten note, Ms. Drost wrote, “Unfortunately, we don't service DLA. I can't step in.”[53] DSMF ¶ 78; PRDSMF ¶ 78; PSAMF ¶ 171; DRPSAMF ¶ 171. She provided him with a print-out of the DLA EEO contacts in Columbus, Ohio, but she took no other steps to ensure Mr. Murphy's understanding. Id.; PSAMF ¶ 178; DRPSAMF ¶ Mr. Murphy did not fully understand his meeting with Ms. Drost and complained to his department supervisor, who then directed him to speak with his immediate supervisor.[54] PSAMF ¶ 182; DRPSAMF ¶ 182. His immediate supervisor contacted Ms. Shepheard, who then communicated with Mr. Gambrell, the Disability Program Manager of the EEO for the DLA Land and Maritime, on August 23, 2013. Id.; PSAMF ¶ 172; DRPSAMF ¶ 172. In her email to Mr. Gambrell, Ms. Shepheard wrote:

I have a deaf employee who is having issues qualify [sic] for jobs, I believe he's having problems completing his resume. Is there assistance available for this gentleman, he's currently a WG-06 Warehouse worker and is not that familiar with computers etc.
He's brought his status paperwork for a GS-07 Supply Tech register which says “you do not meet the minimum education and/or experience requirements for this specialty and grade” and has asked me for assistance.

Dep. of Sheri Kelley, Attach. 4, Emails Re: Murphy Resume at 9 (ECF No 76). On August 23, 2013, Mr. Gambrell sent Ms. Shepheard an email and requested that Mr. Murphy send him a copy of his resume. PSAMF ¶ 185; DRPSAMF ¶ 186. Ms. Shepheard does not remember Mr. Murphy ever asking for help with his resume. PSAMF ¶ 186; DRPSAMF ¶ 186. Ms. Shepheard did not follow up with Mr. Gambrell or Mr. Murphy regarding the August 2013 emails. PSAMF ¶ 188; DRPSAMF ¶ 188.

         Neither Mr. Gambrell nor Ms. Shepheard viewed Mr. Murphy's request for help with the application and promotion process as a reasonable accommodation request. PSAMF ¶ 184; DRPSAMF ¶ 184. Rather, Mr. Gambrell viewed this as a “request for assistance.” PSAMF ¶ 184; DRPSAMF ¶ 184. Mr. Gambrell does not like to “get involved in a tightrope of this is or isn't an actual reasonable accommodations request, ” despite the fact that his job is to oversee reasonable request accommodation requests. Id.

         After emailing Mr. Gambrell his resume the first time and hearing no reply, Mr. Murphy sent Mr. Gambrell his resume again on October 24, 2013. PSAMF ¶ 189; DRPSAMF ¶ 189. On Mr. Murphy's resume, it states: “Language Skills: Language Spoken Written Read, American Sign Language Advanced Advanced Advanced”; English was not listed. PSAMF ¶ 190; DRPSAMF ¶ 190. On November 4, 2013, Mr. Gambrell provided Mr. Murphy with instructions-written in English-on how to improve his resume.[55] PSAMF ¶ 191; DRPSAMF ¶ 191. Mr. Murphy understood that the email had something to do about his resume, but he did not fully understand Mr. Gambrell's email. PSAMF ¶ 192; DRPSAMF ¶ 192. Mr. Murphy was not seeking job or resume counseling from the EEO; rather, he wanted to file a complaint due to discrimination based on his disability and age, and the resultant inability to obtain a new job, a raise, or a promotion. PSAMF ¶ 194; DRPSAMF ¶ 194. Mr. Murphy was upset with the little help he received from Mr. Gambrell and that Mr. Gambrell did not offer to help him file a complaint.[56] PSAMF ¶ 193; DRPSAMF ¶ 193.

         Mr. Gambrell believed sending Mr. Murphy an email and making edits to his resume-without any follow-up-constituted an “interactive process.” PSAMF ¶ 195; DRPSAMF ¶ 195. For Mr. Murphy's request, Mr. Gambrell did not “go through an actual reasonable accommodation analysis and determination.” PSAMF ¶ 197 (quoting Dep. of Paul Gambrell at 136:3-5 (ECF No. 78) (Gambrell Dep.)); DRPSAMF ¶ 197. Although it is Mr. Gambrell's policy to follow-up with an employee after receiving information from the employee's supervisor about a reasonable accommodation request, Mr. Gambrell did not contact Mr. Murphy when he received an accommodation request from Ms. Shepheard and instead relied solely on the information that was provided to him. PSAMF ¶ 198; DRPSAMF ¶ 198. Mr. Gambrell never communicated with Mr. Murphy through an interpreter during the process to determine the root of Mr. Murphy's concerns. PSAMF ¶ 196; DRPSAMF ¶ 196. Mr. Gambrell believed that Mr. Murphy's difficulty with computers was more of an information technology issue than a language barrier. PSAMF ¶ 199; DRPSAMF ¶ 199. According to Mr. Gambrell, if he had known that Mr. Murphy was not able to answer the questions on the USA Staffing site and was not able to understand the language, then Mr. Gambrell would have told him, “[L]et's get an interpreter in here to help you understand the questions so you can respond appropriately.” PSAMF ¶ 200; DRPSAMF ¶ 200.

         Ms. Shepheard's August 23, 2013 email informed Mr. Gambrell that Mr. Murphy was “not that familiar with computers.” PSAMF ¶ 35; DRPSAMF ¶ 35. Mr. Gambrell also received an email from Ms. Shepheard on December 19, 2013, stating that Mr. Murphy's English is very limited, and that he “really relies on signing.” PSAMF ¶ 36; DRPSAMF ¶ 36. Additionally, Mr. Gambrell received emails from Ms. Oeser stating that Mr. Murphy “does not use emails.” PSAMF ¶ 34; DRPSAMF ¶ 34. Nevertheless, Mr. Gambrell used email to communicate with Mr. Murphy “[b]ased on the fact that Mr. Murphy provided [him] emails and responded to [his] emails.”[57]PSAMF ¶ 37; DRPSAMF ¶ 37. According to Mr. Gambrell, this “indicated to [him] at the time that he was capable of corresponding back and forth using emails in the computer.” Id. Paul Gambrell stated that even if he learned that a co-worker edited Mr. Murphy's emails, this “in and of itself would not change” his assessment of Mr. Murphy's abilities to communication in English.[58] PSAMF ¶ 38; DRPSAMF ¶ 38.

         By at least November 21, 2013, DLA EEO contacts were aware that Mr. Murphy felt that his management and the servicing EEO office were unresponsive to his request for accommodations. PSAMF ¶ 202; DRPSAMF ¶ 202.[59], [60] In particular, on November 21, 2013, Ms. Kelley, a DLA EEO Specialist, attended a teleconference with Ms. Oeser to discuss concerns that Mr. Murphy raised at a Deaf Affinity Group meeting, including his inability to get a promotion and his confusion regarding which EEO office serviced him. Dep. of Sheri Kelley, Attach. 1, Memo for Record at 1 (ECF No. 76) (Memo for Record). Following the teleconference, Ms. Kelley wrote to Mr. Gambrell and Ms. Oeser, “Tasks I have taken on: 1. Make ...


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