Saman Khoury v. Secretary United States Army

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, VANASKIE and KRAUSE, Circuit Judges. Total Pages: 6. Judge: FISHER Authoring.

Case: 16-1393

Document: 003112523310

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Date Filed: 01/27/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-1393
____________
SAMAN KHOURY,
Appellant
v.
SECRETARY UNITED STATES ARMY
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-12-cv-06695)
District Judge: Honorable Susan D. Wigenton
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 26, 2016
Before: FISHER, VANASKIE and KRAUSE, Circuit Judges.
(Opinion Filed: January 27, 2017)
____________
OPINION*
____________

FISHER, Circuit Judge.
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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Saman Khoury appeals the District Court’s grant of summary judgment for the
Secretary of the United States Army, rejecting Khoury’s reasonable accommodation
claim brought under the Rehabilitation Act of 1973.1 We will affirm.
I.
Saman Khoury is a former employee of the U.S. Army Research Development
and Engineering Command at Picatinny Arsenal, New Jersey. In 2004, Khoury filed an
Equal Employment Opportunity (“EEO”) complaint against the Army for disability
discrimination and failure to reasonably accommodate his injuries stemming from three
unrelated motor vehicle accidents. In response, the parties executed a negotiated
settlement agreement (“NSA”) providing that, “subject to approval by higher
headquarters,” management would provide first-class air accommodations for workrelated trips requiring air travel.2
In March 2006, Khoury requested travel by first-class air for an upcoming
assignment in Rock Island, Illinois. On March 26, 2006, the Army approved air travel by
coach. Pursuant to the NSA, Khoury submitted medical documentation recommending
that he be able to “get up and walk around after sitting for approximately one hour.”3

1

29 U.S.C. § 701 et seq.
App. 193a-196a.
3
App. 145a.
2

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Additionally, Khoury consulted the EEO office for assistance in acquiring first-class
flight accommodations pursuant to the NSA.4
Following discussions with EEO personnel, the Army approved travel
arrangements by train with a sleeper car upgrade. Khoury then booked his own train
ticket to Illinois and a hotel room for an overnight detour in Washington, D.C. Khoury
departed for his assignment on Friday, April 21, arriving in Washington, D.C. later that
morning, where he saw a performance at Ford’s Theatre and toured a museum. The next
day, Khoury departed for Illinois in a family bedroom car. On April 24, while still in
Illinois, Khoury visited the emergency room and was diagnosed with a back sprain.
Khoury then booked a first-class airplane ticket without the Army’s permission for his
return trip to New Jersey.
On October 23, 2012, Khoury filed a complaint in the United States District Court
for the District of New Jersey under the Rehabilitation Act. In his amended complaint,
Khoury alleged failure to grant a reasonable accommodation (Count I), disability
discrimination (Count II), retaliation (Count III), and hostile environment (Count IV).
Khoury did not pursue the hostile environment claim in the District Court. The Army
moved for summary judgment under Federal Rule of Civil Procedure 56, and the District
Court granted the motion. This appeal followed.
II.

4

App. 509a, 534a.
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The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over summary
judgment determinations, applying the same legal standard as the District Court.5
Summary judgment is appropriate where the movant shows “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”6
All facts are viewed “in the light most favorable to the non-moving party.”7
III.
On appeal, Khoury limits his challenge to the District Court’s grant of summary
judgment on his reasonable accommodation claim. Khoury argues that the District Court
erred in holding that he failed to exhaust his administrative remedies, that he was not
disabled under the Rehabilitation Act, and that the Army granted him a reasonable
accommodation. Because each is an independent ground for affirming the District
Court’s decision, we only address Khoury’s reasonable accommodation argument.
The Rehabilitation Act forbids federal employers “from discriminating against
persons with disabilities in matters of hiring, placement, or advancement.”8 To establish a
prima facie case, Khoury must show “(1) he is a disabled person within the meaning of
the [Rehabilitation Act]; (2) he is otherwise qualified to perform the essential functions of

5

Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997).
Fed. R. Civ. P. 56(a).
7
D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268 (3d Cir. 2014) (internal
quotation marks omitted).
8
Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996).
4
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the job, with or without reasonable accommodations by the employer; and (3) he has
suffered an otherwise adverse employment decision as a result of discrimination.”9
Khoury asserts that the Army’s failure to provide the reasonable accommodation of firstclass air travel constitutes an “adverse employment decision” under the third prong. We
reject this argument.
Although federal employers are required to provide reasonable accommodations
for disabled employees under the Rehabilitation Act, “the employer providing the
accommodation has the ultimate discretion to choose between effective
accommodations.”10 As the District Court correctly noted, and as Khoury provided in his
response to the Army’s Statement of Undisputed Material Facts, the purpose of the
upgraded travel accommodation was to enable him to “stretch his extremities” and “get
up and walk around after sitting for approximately one hour or so.”11 Khoury fails to
point to “specific facts” that render the accommodation provided—train travel with a
family bedroom sleeper-car upgrade—ineffective to achieve that purpose.

9

Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004).
Though the framework set forth in Williams pertains to a claim brought under the
Americans with Disabilities Act, the “substantive standards for determining liability are
the same” under both the Americans with Disabilities Act and the Rehabilitation Act.
Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996) (internal quotation marks omitted).
10
29 C.F.R. app. § 1630.9; see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1305 (D.C. Cir. 1998) (en banc) (“[A]n employer is not required to provide an employee
with the accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” (internal quotation marks omitted)).
11
App. 15a-16a, 528a-529a.
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Instead, Khoury asserts that the Army cannot prove that the accommodation he
requested—first-class air travel—poses an undue burden on operations. Yet the Army
need not do so. Because we agree with the District Court that the Army provided a
reasonable accommodation via train travel with the sleeper-car upgrade, we find that
Khoury failed to establish a prima facie case that would trigger the need for the
affirmative defense of undue burden.
We have stated that “both parties have a duty to assist in the search for appropriate
reasonable accommodation.”12 Indeed, “[w]hen the interactive process works well, it
furthers the purposes of the Rehabilitation Act.”13 Khoury concedes that the facts do not
support a claim that the Army failed to engage in the interactive process. We agree.
Rather, it is Khoury who seemingly adopted the intractable position that first-class air
travel was the only satisfactory accommodation available to him. Clinging to an optimal
or preferred accommodation is contrary to the intent of the Rehabilitation Act. We
therefore agree with the District Court that the Army provided Khoury with a reasonable
accommodation.
IV.
For the above reasons, we will affirm the District Court’s grant of summary
judgment in the Army’s favor.

12
13

Mengine, 114 F.3d at 420.
Id.
6