Wiegand v. Wormuth

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRANDON T. WIEGAND, : CIVIL ACTION NO. 1:19-CV-108

: (Consolidated with 1:17-CV-979)

Plaintiff :

: (Judge Neary)

v. :

:

DANIEL DRISCOLL, Secretary, :

Department of the Army, :

:

Defendant :

MEMORANDUM

Plaintiff Brandon T. Wiegand’s tenure at the Army Heritage and Education

Center (“AHEC”) did not end on favorable terms. He asserts he faced disability

discrimination as a result of having Asperger’s and filed suit against defendant

Secretary of the Army (“the Army”). The Army responds there is no dispute of

material fact in this case and that it had no obligation to accommodate Wiegand’s

specific demands. Reviewing the record, the court agrees and will grant the Army’s

motion for summary judgment.

I. Factual Background & Procedural History1

Wiegand began his employment with AHEC in October 2010. (Doc. 162 ¶ 1).

While he was there, the director of AHEC was Colonel Matthew Dawson. (Id. ¶ 2).

Around 2012, Colonel Dawson began a reorganization of the AHEC in order to

modernize and streamline the operation. (Id. ¶¶ 3-6). As part of this reorganization,

Wiegand’s job changed, he was assigned to new raters, and his responsibilities

increased. (Id. ¶ 7). Wiegand made the Army aware he has Asperger’s Syndrome no

later than during the reorganization process. (Id. ¶ 12).

This reorganization did not go smoothly for Wiegand. For example, the Army

never updated the official position description—the listing of the essential duties—

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party

opposing a motion for summary judgment must file a separate statement of material

facts, responding to the numbered paragraphs set forth in the moving party’s

statement and identifying genuine issues to be tried. Id. Unless otherwise noted, the

factual background herein derives from the parties’ Rule 56.1 statements of

material facts. (See Docs. 162, 173). To the extent the parties’ statements are

undisputed or supported by uncontroverted record evidence, the court cites

directly to the statements of material facts.

When Wiegand originally filed his response (Doc. 145) to the Army’s statement of

material facts, he failed to properly follow the Middle District of Pennsylvania’s

local rules. Specifically, he failed to “respond[] to the numbered paragraphs set

forth [by the movant]” and included his own paragraphs, which is not allowed by

the rule. See M.D. PA. L.R. 56.1. This court allowed Wiegand to file an amended

responsive statement, this time in accordance with the rules. (Doc. 167). While the

amended statement, (Doc. 173), no longer contains extra paragraphs, it adds

extraneous or irrelevant details. Where he fails to point to a genuine dispute of

material fact in regard to the Army’s specific claim, the court treats him as

admitting to the pertinent fact.

for Wiegand’s job. (Doc. 173 ¶¶ 3, 7). After the changes to his job, he also began to

feel stress and anxiety. (Doc. 173-1 at ECF 6). These issues led Wiegand to take paid

medical leave from AHEC in October 2013. (Doc. 162 ¶ 11). Eventually, Wiegand

exhausted his paid leave and switched to FMLA leave. (Doc. 173-1 at ECF 6).

Wiegand remained on FMLA leave until his removal from AHEC on October 24,

2014. (Doc. 162 ¶ 11; Doc. 162-1 at ECF 247-48).

On January 8, 2014, Wiegand submitted an official request for

accommodations from the Army due to his Asperger’s. (Doc. 162 ¶ 13). Attached to

this form was a letter from Dr. Christopher Royer, Wiegand’s doctor. (Id. ¶ 14). This

letter included a list of accommodations Dr. Royer felt “would be helpful to

[Wiegand].” (Doc. 162-1 at ECF 162). Among other things, these suggested

accommodations included:

• You are likely to struggle more on tasks that require close

coordination with staff outside of your team, and these situations

should be minimized whenever possible.

• Whenever possible, care should be taken to minimize or eliminate

situations in which conflict may be expected (e.g. working with

individuals who you have had significant conflict in the past). . . .

• Your supervisors should be aware of any potential interpersonal

conflicts when assigning you group tasks. . . .

• [G]eneral efforts should be made to minimize stress whenever

possible, and to be clear about expectations and priorities if stress

is unavoidable. As it is sometimes difficult for you to

“compartmentalize” situations in your life, it will be important to

give you time between interactions to reset and get ready for the

next item or responsibility.

(Id. at ECF 162-63). In Wiegand’s request for accommodations, his preference was

to be transferred out of AHEC, but in the alternative, he wanted the

accommodations suggested by Dr. Royer. (Id. at ECF 48-49).

Beginning the accommodation process, Colonel Dawson met with Wiegand

and his wife to discuss Wiegand’s request. (Doc. 162 ¶ 17). After that meeting,

Colonel Dawson shared with Wiegand’s supervisor a list of various accommodations

he thought the Army should offer Wiegand and instructed him to provide these to

Wiegand. (Id. ¶¶ 19-20). Yet, Wiegand did not return to work. (Id. ¶¶ 24, 27). On

February 20, 2014, Colonel Dawson emailed to Wiegand a formal accommodation

proposal. (Id. ¶ 27). Four days later, Wiegand rejected this formal proposal. (Doc.

162-1 at ECF 559-61). He reiterated his preference to be transferred out of AHEC.

(Id. at ECF 560). If that could not be done, Wiegand requested “[t]he choice of my

rater and senior rater.” (Id.). If he could not choose his raters, Wiegand said he

wanted to be transferred out of AHEC. (Id.).

Colonel Dawson promised to look into Wiegand’s requests and was informed

he could reassign him internally—not outside of AHEC—to different positions. (Id.

at ECF 90; Doc. 162 ¶ 37). However, leadership at AHEC felt reassignment to those

positions would not work because, “Wiegand only wanted to work for certain

people. He only wanted to be rated by certain people, and was only willing to work

in certain areas.” (Doc. 162-1 at ECF 574). Allowing Wiegand this much power over

his supervisors would set a precedent “that is not good for the organization.” (Id.).2

This led to Colonel Dawson providing another response to Wiegand on

March 4, 2014. (Doc. 162 ¶ 50). That response explained it would be unreasonable to

use “any one person’s definition or allegation of ‘significant conflict in the past’” to

determine who Wiegand could and could not work with. (Id. ¶ 50a). It additionally

explained internal reassignment was disfavored since those positions “would hold

new stressors, the likelihood of supervisory responsibilities, and continuous routine

collaboration across both the USAHEC team and external agencies.” (Id. ¶ 50b).

While the Army did not offer permanent external reassignment, it did offer a

temporary position for 120 days (with the possibility of extension for another 120

days) during which time there would be a search for a permanent external

replacement position. (Id. ¶ 51a, b). By letter dated March 14, 2014, Wiegand again

rejected the Army’s offer. (Id. ¶ 59). On May 9, 2014, Wiegand applied for disability

retirement, (Doc. 162-1 at ECF 496), which was approved on November 5, 2015,

(Doc. 162 ¶ 106).

On June 9, 2014, Wiegand filed an Equal Employment Opportunity complaint

alleging the Army failed to appropriately accommodate him at AHEC. (Doc. 1-21 at

ECF 4-5). Reviewing the Army’s investigative findings along with his complaint, an

2 Wiegand calls this testimony “not credible” because the person behind this

testimony “was not aware of the essential functions of Wiegand’s job.” (Doc. 173 ¶

38). Yet, wanting to choose one’s supervisors is not dependent on any specific

position and Wiegand does not dispute that he wanted a say in his supervisors.

Equal Employment Opportunity Commission (“EEOC”) administrative law judge

granted summary judgment in favor of the Army. (Id. at ECF 5). Wiegand then

appealed that decision to the EEOC who affirmed on September 28, 2018.3 (Id. at

ECF 6, 8). Wiegand timely appealed the EEOC’s decision by filing a complaint in

district court on January 17, 2019. (Doc. 1 ¶ 64). This matter has been fully briefed

and is ripe for disposition.

II. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary

judgment is appropriate if the moving party shows that “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). A factual dispute is material if resolution of it “might affect the

outcome of the suit under the governing law” and genuine “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Mall

Chevrolet, Inc. v. General Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a

motion for summary judgment, a court must view the evidence in the light most

favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 657 (2014) (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). The court’s duty is not “to

weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Anderson, 477 U.S. at 242-43.

3 The EEOC would need to reissue its decision, which it did on October 19,

2018. (Doc. 1-21 at ECF 2).

There are “two closely related methods for a movant to succeed at summary

judgment.” Mall Chevrolet, 99 F.4th at 630. “First, under the standard approach, the

moving party may produce material facts, established as genuinely undisputed, that

entitle it to judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(a)). “Second,

under the Celotex approach, a moving party may instead demonstrate that the

nonmoving party has not made ‘a showing sufficient to establish the existence of an

element essential to that party’s case on which that party will bear the burden of

proof at trial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

The nonmoving party can defeat a motion for summary judgment by

producing evidence to establish a genuine issue of material fact. Anderson, 477 U.S.

at 256. The nonmoving party “may not rest upon mere allegation or denials of his

pleading, but must set forth specific facts showing that there is a genuine issue for

trial.” Id. The party “must do more than simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of

evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477

U.S. at 252. Moreover, if the nonmovant’s version of disputed facts is “blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

Federal Rule of Civil Procedure 56(c) requires movants and nonmovants

alike to support factual assertions by “citing to particular parts of materials in the

record” or otherwise “showing that the materials cited do not establish the absence

or presence of a genuine dispute.” FED. R. CIV. P. 56(c). Rule 56(e) allows the court

to deem undisputed any fact not properly countered by record evidence. See FED.

R. CIV. P. 56(e)(2). Local Rule of Court 56.1 undergirds these principles by requiring

Rule 56 motions to “be accompanied by a separate, short and concise statement of

the material facts, in numbered paragraphs, as to which the moving party contends

there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. Local Rule 56.1 further

requires the nonmovant to file a responsive statement identifying genuine issues to

be tried and mandates that both parties’ submissions “include reference to the

parts of the record that support the statements.” Id.

This court has wide discretion to sanction noncompliance with local rules,

including Local Rule 56.1, which serves the important purpose of organizing the

summary judgment record and facilitating efficient disposition of Rule 56 motions.

See Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d Cir. 2018). Permissible

sanctions for failure to strictly comply with Local Rule 56.1 include striking

nonresponsive statements of fact or deeming a moving party’s statement to be

unopposed when not properly controverted. See id.; see also FED. R. CIV. P. 56(e);

M.D. PA. L.R. 56.1. In resolving the instant motion, the court has reviewed the

parties’ statements and has independently considered the entire record.

III. Discussion

Wiegand argues his complaint raises claims of “failure to forward/provide an

approved award, violation of privacy through release of medical information, and

failure to file appropriate documents to reflect Wiegand’s correct [position

description]” in addition to a failure to accommodate claim. (Doc. 173 at 1 n.2). He

further asserts the Army only addressed the failure to accommodate claim in its

motion for summary judgment and therefore gave no defense to his other claims.

(Id.). However, the Army did in fact address his other claims, albeit, in footnotes.

(Doc. 143 at 7 n.2, 20 n.3).

Perhaps the reason the Army contained its arguments to Wiegand’s non-

accommodations claims is because they can be summarily dealt with. For example,

the Army is correct that neither the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101, et seq, nor 42 U.S.C. § 1983 creates a cause of action against an

instrument of the federal government. 42 U.S.C. § 12111(5)(B)(i) (“The term

‘employer’ does not include the United States. . . .”); Polsky v. United States, 844

F.3d 170, 173 (3d Cir. 2016) (reaffirming 42 U.S.C. § 1983 is inapplicable to the

federal government). Concerning alleged violations of various policies and

executive orders, the Army is again correct in pointing out Wiegand has failed to

show the abrogation of sovereign immunity necessary to proceed on these claims.

See Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s

sovereign immunity must be unequivocally expressed in statutory text and will not

be implied.”) (internal citations omitted). Nowhere has Wiegand pointed to a waiver

of sovereign immunity allowing him to challenge alleged violations of Army policy

or executive orders. Accordingly, summary judgment must be awarded to the Army

on all of the non-accommodation claims.

Turning to accommodation, the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. §

701, et seq, does allow an employee to sue the federal government for certain claims

of discrimination. See 29 U.S.C. §§ 794, 794a. Additionally, the standards used to

determine whether a violation occurred under the ADA are the same under the RA.

29 U.S.C. § 794(d).

As to those standards, an employer violates the RA for failing to

accommodate an employee where:

1) the employer knew about the employee’s disability; 2) the employee

requested accommodations or assistance for his or her disability; 3) the

employer did not make a good faith effort to assist the employee in

seeking accommodations; and 4) the employee could have been

reasonably accommodated but for the employer’s lack of good faith.

Williams v. Philadelphia Hous. Auth. Police Dep’t,4 380 F.3d 751, 772 (3d Cir.

2004) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-20 (3d Cir.

1999)). Additionally, though “‘an employer who fails to engage in the

interactive process runs a serious risk that it will erroneously overlook an

opportunity to accommodate a statutorily disabled employee, and thereby

violate the [RA],’ failure to engage in the interactive process, in itself, does not

constitute such a violation.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169,

194 (3d Cir. 2009) (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d

Cir.1998) (en banc)). This is because, as explained by the Third Circuit, “[t]he

[RA], as far as we are aware, is not intended to punish employers for behaving

callously if, in fact, no accommodation for the employee’s disability could

4 This case, like others cited later in this opinion, dealt with the ADA rather

than the RA. Yet because the same standards apply to the RA as in the ADA

context, 29 U.S.C. § 794(d), these cases are still controlling.

reasonably have been made. Id. (quoting Mengine v. Runyon, 114 F.3d 415, 420

(3d Cir. 1997)).

The Army does not dispute that it knew about Wiegand’s disability or

that he requested accommodations relating to his disability. (Doc. 143 at 8). It

does, however, contend it acted in good faith and that Wiegand’s requests

could not have been reasonably accommodated.

An employer “can show their good faith in a number of ways, such as

taking steps like the following: meet with the employee who requests an

accommodation, request information about the condition and what limitations

the employee has, ask the employee what he or she specifically wants, show

some sign of having considered the employee’s request, and offer and discuss

available alternatives when the request is too burdensome.” Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999). Notably, “[t]he

interactive process does not dictate that any particular concession must be

made by the employer; nor does the process remove the employee’s burden of

showing that a particular accommodation rejected by the employer would have

made the employee qualified to perform the job’s essential functions.” Id.

Finally, “[i]f an employee insists on a single accommodation that is

unreasonable as a matter of law, then the employee will be at fault for the

breakdown in the interactive process.” Id. at 316 n.7.

Wiegand fails to show either that the Army acted in bad faith or that

there were reasonable accommodations that would have allowed him to do his

job. To prove it acted in good faith, the Army can point to Colonel Dawson’s

meeting with Wiegand and his wife, (Doc. 162 ¶ 17), the repeated offers of

accommodations, (Id. ¶¶ 28, 50-51) and the open requests for Wiegand to work

with it to return him to work, (Doc. 162-1 at ECF 59) (“It is clear there is still

room to find the right balance and work toward the details. Recommended the

next step be you come in to explore those details and settle concerns. . . .

[T]his will not be a one-step transition; it will take time to adjust.”). These are

precisely the steps an employer is required to take to show it is acting in good

faith.

In response, Wiegand argues the Army failed to act in good faith

because it never gave him an official position description outlining his essential

duties, it did not explain why Wiegand’s proposed accommodations were

unreasonable, and because the Army never offered the internal transfers to

Wiegand. (Doc. 174 at 10-11). None of these are convincing. First, while there

may not have been a current, official position description for Wiegand’s

position, as one of its proposed accommodations, the Army offered either

returning him to his previous position description or meeting with his

supervisors and go “line by line” in establishing a new one. (Doc. 162-1 at ECF

56). That same letter also explained why some accommodations were

unreasonable, stating that it would be too difficult to ensure Wiegand avoided

everyone with whom he deemed as having a conflict. (Id. at ECF 55). Further,

the internal transfers were ruled out because those “would hold new stressors,

the likelihood of supervisory responsibilities, and continuous routine

collaboration across both the USAHEC team and external agencies.” (Id.).

Thus, those internal positions would potentially put Wiegand back into conflict

with the same people he was having issues with and force him to work closely

with people outside of his team; both of these are contrary to Dr. Royer’s

suggested accommodations. (See id. at ECF 161-63).

Even setting aside the question of whether the Army engaged in good

faith, Wiegand cannot show he could have been reasonably accommodated. He

had two principal accommodation requests: (1) a transfer out of AHEC; and

failing that, (2) the ability to choose his own supervisors. (See id. at ECF 560).

As for external positions, there were no positions within the Army War College

for which Wiegand was qualified, (Doc. 162 ¶ 70), and he has not identified any

possible positions elsewhere in the Army that he could have taken, (Doc. 173 ¶

70). As this court recently explained, a plaintiff’s desire to be transferred “does

not conjure up vacant, funded roles for which [he] is qualified. . . . An

amorphous request cannot suffice to meet [a plaintiff]’s burden of

demonstrating that an appropriate role exists, and no reasonable juror could

find to the contrary.” Bainbridge v. Bondi, No. 3:21-CV-1895, 2025 WL 1920415

*7 (M.D. Pa. July 11, 2025), appeal docketed, No. 25-2434 (3d Cir. Aug. 4, 2025).

When “the summary judgment record is insufficient to establish the

existence of an appropriate position into which the plaintiff could have been

transferred, summary judgment must be granted in favor of the defendant.”

Donahue v. Consol. Rail Corp., 224 F.3d 226, 234 (3d Cir. 2000). The internal

positions would have been inappropriate as they would have violated

Wiegand’s other accommodations requests—namely, to avoid certain

supervisors and to minimize working closely with people outside of his team.

Wiegand has offered no proof of any other vacant position within the Army for

which he which he would have been qualified and so he cannot succeed on this

claim.

As to Wiegand’s issues with his bosses, he claims “he never requested a

particular supervisor.” (Doc. 174 at 3). That is plainly not true. In his February

24, 2014, response to Col. Dawson, Wiegand requests “[t]he choice of my rater

and senior rater.” (Doc. 162-1 at R558). He goes on to name specific people and

says that if it could not be any of them, he wanted to be reassigned out of

AHEC. (Id.). Unfortunately for Wiegand, the Third Circuit has made clear

“[the] request to be transferred away from individuals causing [an employee]

prolonged and inordinate stress [i]s unreasonable as a matter of law.” Gaul v.

Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998). Allowing employees the

ability to choose who they worked for would “interfere with personnel

decisions within an organizational hierarchy,” something Congress never

intended its anti-discrimination laws to do. Id. at 581. Therefore, Wiegand

cannot show his desire to work under different supervisors would have been a

reasonable accommodation.

In short, Wiegand’s key requests for accommodation were unreasonable

as a matter of law. He has failed to show another position existed where he

could have been reassigned, and the law does not allow him to pick and choose

his supervisors. Thus, even if the Army did not act faithfully—and to be clear,

the court finds the Army did act in good faith—Wiegand’s accommodation

claims would still fail. Donahue, 224 F.3d at 233 (quoting Willis v. Conopco,

Inc., 108 F.3d 282, 285 (11th Cir.1997)); Taylor, 184 F.3d at 317 n.7.

IV. Conclusion

The record before the court establishes the Army acted in good faith in trying

to accommodate Wiegand and that his proposed accommodations were

unreasonable as a matter of law. Wiegand’s additional claims are not grounded in

statute. Therefore, the Army’s motion for summary judgment shall be granted, and

an appropriate order shall issue.

/S/ KELI M. NEARY

Keli M. Neary

United States District Judge

Middle District of Pennsylvania

Dated: September 23rd, 2025