United States District Court, D. Maine
MICHAEL S. MURPHY, Plaintiff,
JAMES N. MATTIS, Defendant.
SUMMARY JUDGMENT ORDER
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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
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.
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. 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).
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
The Secretary's Motion for Partial Summary
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).
SUMMARY JUDGMENT FACTS
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.
Mr. Murphy's Disability
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.
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. DSMF ¶ 3; PRDSMF ¶ 3. His
reading level does not constitute the true reading process;
instead, he functions with a word recognition
process. PSAMF ¶ 10; DRPSAMF ¶ 10.
Murphy struggles with closed captioning and texting in
English. 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.,  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)).
Mr. Murphy's Employment at the Portsmouth Naval
Transfer from the Navy to the DLA
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. 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. DSMF ¶¶ 8-9; PRDSMF ¶¶
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. 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.
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. 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.
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. 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.).
Mr. Murphy's Wage History with the DLA
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. 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. DSMF ¶ 26; PRDSMF ¶ 26; PSAMF
¶ 106; DRPSAMF ¶ 106.
Mr. Murphy's Experience as a Deaf Individual Throughout
His Employment at the Shipyard
Difficulties Communicating with Co-Workers,
Supervisors, and EEO Contacts
Need for Interpretation
Murphy's supervisors and DLA EEO contacts are aware that
Mr. Murphy's primary language and means of communication
is ASL. 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. 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. PSAMF ¶ 60; DRPSAMF
¶ 60. Moreover, the ASL interpreter is sometimes late to
the meetings. PSAMF ¶ 61; DRPSAMF ¶ 61.
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.
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. PSAMF ¶
20; DRPSAMF ¶ 20.
Mr. Murphy's Communications with His Supervisors
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. 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. 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 ¶
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. 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. PSAMF ¶ 30; DRPSAMF ¶ 30.
Despite knowing of Mr. Murphy's limited English
abilities, Mr. Murphy's supervisors used written notes to
communicate with him. PSAMF ¶ 28; DRPSAMF ¶ 28.
References to Mr. Murphy's Age and Disability in
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. 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.” PSAMF ¶ 46; DRPSAMF ¶ 46. Mr.
Murphy's co-workers also tell him to retire because of
his age.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.PSAMF ¶ 43; DRPSAMF ¶ 43.
Lack of Accommodations for Mr. Murphy's
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.
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.
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.
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.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.
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. 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.
Lack of Responsiveness to Deaf Affinity Group
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.
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.
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 ¶
Mr. Murphy's Failure to Obtain a Promotion
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.
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. 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.
Murphy was told many times that he would never be
promoted. 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.” 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.
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.
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.
Mr. Murphy's 2013 General Supply Specialist
USA Jobs/USA Staffing
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. DSMF ¶ 34; PRDSMF ¶ 34; PSAMF
¶ 134; DRPSAMF ¶ 134.
can learn about job openings through announcements, written
in English, on the USA staffing website. 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. 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.
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.
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.,
PSAMF ¶ 114; DRPSAMF ¶ 115.
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.
Shipyard arranged an ASL USA Staffing training and instructed
the participants on how to navigate the online
system. 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.
Mr. Murphy Applies Using the USA Staffing Website
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. 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.,  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. 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. DSMF ¶ 39; PRDSMF ¶ 39.
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. DSMF ¶ 42.
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
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.
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.
Mr. Murphy Is Not Selected for the GS-07 General Supply
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. 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.
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.
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.
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.
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.
Mr. Murphy Is Not Selected for the GS-09 General Supply
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
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
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.
Mr. Murphy Approaches the EEO
The Reasonable Accommodation Process Generally
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.
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.
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
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.
Mr. Murphy's Pre-2013 Contacts with the EEO
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
months later, Mr. Murphy received an email, written in
English, from Lorrie Oeser, EEO Manager of the Navy Shipyard,
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.
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.
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.
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. 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. 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. PSAMF ¶ 174; DRPSAMF ¶ 174.
Mr. Murphy Approaches the EEO After He Was Not Hired for the
General Supply Specialist Positions
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. 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.,  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
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.” 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. 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.
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.
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
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. 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. PSAMF ¶ 193; DRPSAMF ¶ 193.
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.
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.”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. PSAMF ¶ 38; DRPSAMF ¶ 38.
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.,  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