The opinion of the court was delivered by: Savage, J.
The threshold issue in this employment discrimination action is whether the plaintiff, Michael Robinson ("Robinson") failed to exhaust his administrative remedies because he is pursuing claims that were not explicitly included in his administrative charge filed with the Delaware Department of Labor ("DDOL") and the Equal Employment Opportunity Commission ("EEOC"). *fn1 Robinson alleges that Verizon Communications ("Verizon") refused him a reasonable accommodation and subjected him to retaliation for filing a charge with the DDOL and EEOC, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and the Delaware Handicapped Persons Employment Protections Act, Del. Code Ann. tit. 19, § 720, et seq . ("DHPEPA"). *fn2 Because Robinson's claims of retaliation and discrimination are not within the scope of his administrative charge or a reasonable agency investigation arising from that charge, we shall grant Verizon's motion for summary judgment.
Factual and Procedural Background
Robinson is employed by Verizon as a service technician, whose job duties include connecting, testing, and repairing wiring on poles, underground, in homes, and in building terminals. As part of the job, a service technician must climb poles and ladders, and work on roofs, and in attics, basements, and crawl spaces.
Since 2004, Robinson has suffered from atrial fibrillation. As a
consequence of his condition, he is prone to dizziness and
unpredictable chest pains. On February 24, 2010, Robinson requested
placement on sedentary duty as a medical restriction. Verizon approved
his request and assigned him, pursuant to Verizon's Medically
Restricted Plan, to the Enhanced Verizon Resolution Center in
Wilmington, Delaware. In this position, Robinson calls customers to
determine if they are satisfied with their service. *fn3
Robinson's pay and benefits were not reduced or otherwise
affected by his reassignment.
On July 7, 2010, Robinson filed a charge of age and disability discrimination against Verizon with the DDOL and the EEOC. *fn4 His DDOL/EEOC charge reads in full:
Charging party contends that his supervisor, Marilyn Rivera (approx. late 30's) is engaging in continuous harassing behavior (beginning in February 2010) in the form of ongoing verbal harassment and discipline. Charging Party believes she has targeted him due to his age and known disability/is perceived as such/has a known record of disability.
On August 25, 2010, while the charge was pending, Robinson requested a bucket truck or buried service work so he could perform the duties of a service technician without climbing. He supported his request with a note from his physician recommending "lifelong, no climbing duty" due to his unpredictable chest pain and dizzy spells. *fn5
On October 18, 2010, after MetLife substantiated the recommendation of Robinson's physician that he not be assigned to perform any tasks that require climbing, *fn6 Verizon's Workforce Accommodation Team, Robinson's managers, and the human resources department denied his request for a bucket truck or buried service work. The denial reads in relevant part: "Due to the physical limitations indicated by MetLife, you are unable to perform all of the essential functions of your job." *fn7 Robinson confirmed in his deposition that he is "prevented from climbing," which he agrees is an essential function of the service technician job.
Although Robinson's DDOL/EEOC charge was still pending when Verizon denied his requested accommodation, he did not amend his existing charge or file another charge adding a claim based on Verizon's denial of his request for a bucket truck or buried service work. Instead, on November 3, 2010, he requested that the DDOL issue a right to sue notice as soon as Verizon submitted its position statement in response to the charge of harassment based on age and disability. At Robinson's request, the agency issued the notice on November 23, 2010, the day after Verizon submitted its position statement.
On March 3, 2011, Robinson filed this action, reiterating the averments he made in his administrative charge about his supervisor's harassing and disciplining him because of his age and disability, and adding that Verizon's failure to accommodate his request for a bucket truck or buried service work constituted disability discrimination and was in retaliation for his filing the DDOL/EEOC charge. Robinson claims these activities violate the ADA and the DHPEPA.
Robinson has withdrawn his claims that Marilyn Rivera-Carrion, his supervisor, subjected him to verbal harassment and unwarranted discipline. *fn8 He asserts only that he was refused a reasonable accommodation and was retaliated against for filing the administrative charge with the EEOC.
In its motion for summary judgment, Verizon contends that Robinson failed to exhaust his claims that Verizon improperly refused his request for buried service work or the accommodation of a bucket truck, and retaliated against him for filing the EEOC charge. It argues that these claims are not reasonably related to his charge that his supervisor subjected him to verbal harassment and unwarranted discipline. Robinson counters that his DDOL/EEOC charge "could reasonably be expected to generate an investigation that would inquire into defendant's subsequent denial of his request to accommodate that disability." *fn9
Verizon also argues that Robinson has failed to provide any evidentiary support for his claim that he can perform the essential functions of a service technician in only completing buried service work. Instead, according to Verizon, the evidence demonstrates that working aloft is an essential function for service ...