Smith v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2005 Decided December 6, 2005

No. 04-7082

GWENDOLYN B. SMITH
APPELLANT

v.

DISTRICT OF COLUMBIA,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 02cv00481)

Robin M. Meriweather, appointed by the court, argued the
cause as amicus curiae for appellant. With her on the briefs
were David W. DeBruin and William M. Hohengarten.

L. Saundra White argued the cause and filed the brief for
appellant.

William J. Earl, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellee. With him on the briefs were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.
 2

Before: TATEL and BROWN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.1

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Gwendolyn Smith, a former
employee of the District of Columbia’s Department of Mental
Health (DMH), filed suit against the District, claiming she was
the victim of discrimination and retaliation under the Americans
with Disabilities Act (ADA). The district court granted summary
judgment to the District on both claims; Smith now appeals. We
find the district court properly granted summary judgment on
Smith’s retaliation claim but abused its discretion by granting
the District’s late motion for summary judgment on the discrimi-
nation claim. We therefore remand the case for trial on the
discrimination claim.

I

Smith worked for the DMH as a mental health specialist for
over thirty years. During her service in the Gulf War, Smith was
diagnosed with a bacterial infection; the treatment for this
condition led to diabetes and hypertension. Smith also suffered
back and shoulder injuries. After returning to work in June 1994,
she informed her supervisors at the DMH of her disabilities and
was given a handicapped parking space and permitted to change
her work schedule to start at 10:00 a.m. rather than 8:15 a.m.

In Smith’s role as a mental health specialist at the DMH,
she had to make home visits to patients; this requirement was
always part of her job description, but the required frequency of
visits increased in 2000. Smith claims her disability prevents her

1
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
 3

from making “frequent trips up and down stairs” or “getting in
and out of vehicles constantly,” and because of these restric-
tions, she is physically able to make only occasional home visits
to patients.

On May 16, 2000, Smith filed a complaint with the D.C.
Office of Human Rights and the Equal Employment Opportunity
Commission (EEOC), alleging the DMH had discriminated
against her by denying her a reasonable accommodation of her
disability. In the section of the complaint form designated
“cause of discrimination,” Smith checked the boxes for “Retalia-
tion” and “Disability.” In part, Smith’s complaint stated she
“believe[d] that [she had] been discriminated against because of
[her] disability, in violation of the Americans with Disabilities
Act of 1990, as amended.” The EEOC dismissed her complaint
and issued a “right to sue” letter on November 20, 2000,
informing her that she had 90 days to file suit.

On January 3, 2001, Smith requested additional accommo-
dations, including not being counted as “absent without leave”
for time she missed, as well as being excused from home visits.
On March 12, 2001, a DMH director noted Smith’s patients had
not been receiving home visits over the previous three months
and found this “unacceptable.” Smith informed the DMH she
was unable to make home visits due to her disability; all of her
patients were then assigned to other employees. Later that
month, the District sent Smith a letter stating that “conducting
‘home visits’ [was] an essential function of [her] position.” The
District found her to be an “individual with a disability,”2 and
thus entitled to reasonable accommodations, but concluded there

2
We express no opinion as to whether Smith’s health
problems qualify her as disabled under the ADA. This question will
have to be resolved on remand.
 4

were “[n]o [p]robable [g]rounds to support a finding that [her]
rights in the workplace [were] being violated.”

The DMH also filed disciplinary charges against Smith
based on her refusal to acknowledge Kevin Martin as her
designated supervisor. Smith admitted that she would not accept
Martin as her supervisor, claiming he lacked the educational
background to give her instructions. Smith stated that if she was
given an instruction she viewed as “wrong,” she would not
comply: “I don’t come out and say, no, I’m not going to do it. I
just don’t do it.”

On June 14, 2001, the DMH ordered Smith to report for a
120-day detail at the Comprehensive Psychiatric Emergency
Program’s (CPEP) Crisis Hotline at D.C. General Hospital.
Smith informed the DMH she would be unable to report to the
CPEP, claiming the hospital was too far from her home and
driving there would “compromise [her] health and place [her] in
a position for potential and/or imminent severe medical compli-
cations.” On July 9, 2001, the DMH notified Smith she had no
accumulated leave time available and that it was instituting
disciplinary measures against her. On August 14, 2001, the
DMH denied Smith’s request for an advance of 328 hours of
sick leave because regulations did not allow such a large
advance and informed her she was going to be terminated. The
stated grounds for her removal were “insubordination” (i.e.,
“refusal to carry out assigned duties and responsibilities”),
“inexcusable neglect of duty” (i.e., “negligence in performing
official duties, including failure to follow verbal or written
instructions”), and “insubordination and discourteous treatment”
(i.e., “knowingly making false or unfounded face-to-face and
written discourteous statements concerning [her] immediate
supervisor”).
 5

On October 22, 2001, after the 120-day detail to CPEP
would have ended, Smith notified the DMH that she was ready
and medically able, given accommodations, to return to work.
She was not given another assignment, however, and filed
another complaint with the D.C. Office of Human Rights and the
EEOC on November 23, 2001. In the section of the complaint
form designated “cause of discrimination,” Smith again checked
the boxes for “Retaliation” and “Disability.” Smith alleged that
since she filed her first EEOC complaint, the District had
“retaliated against [her] by not allowing [her] a reasonable
accommodation for [her] disability.” On December 18, 2001, the
EEOC dismissed Smith’s complaint and issued her another
“right to sue” letter, stating that she had 90 days to file suit.
Smith retired from the DMH before disciplinary actions were
finalized.

Smith filed suit in the United States District Court for the
District of Columbia on March 15, 2002, alleging disability
discrimination and retaliation in violation of the ADA.3 The
District moved for summary judgment on both claims. The
district court denied the motion with respect to the discrimina-
tion claim, finding genuine issues of material fact as to whether
home visits were essential to Smith’s job and whether a reason-
able accommodation was possible. Smith v. District of Colum-
bia, 271 F. Supp. 2d 165, 172 (D.D.C. 2003) (Smith I). How-
ever, the court granted summary judgment to the District on the

3
In her complaint, Smith claimed the District’s acts violated
42 U.S.C. § 2000e-5 et seq. (part of Title VII of the Civil Rights Act
of 1964) and 42 U.S.C. § 12101 et seq. (the ADA). We note that the
parties have at times referred to Smith’s retaliation claim as arising
under Title VII and at other times as arising under the ADA. As Smith
alleges that she was retaliated against for filing a complaint of
disability discrimination, we analyze her retaliation claim under the
ADA, namely 42 U.S.C. § 12203(a).
 6

retaliation claim, finding Smith had not established a prima facie
case. Id. at 173. The court found her temporary reassignment to
CPEP was not an adverse action, and Smith did not present “a
single reason or scrap of evidence permitting the inference” that
her request for sick leave was denied as retaliation rather than
because her request exceeded the amount allowed by regulation.
Id.4

The district court had set December 27, 2002, as the
deadline for the District to file motions for summary judgment.
On April 9, 2004, ten days before the scheduled start of trial, the
District again moved for summary judgment, arguing Smith’s
disability discrimination claim should be dismissed as untimely.
The district court granted the motion on April 19, 2004, finding
Smith had 90 days after the EEOC sent her first “right to sue”
letter to file suit on her disability discrimination claim, but that
she had waited almost 16 months to do so. Smith v. District of
Columbia, No. 02cv00481, 2005 WL 488824, at *1 (D.D.C.
Feb. 28, 2005) (unpublished opinion) (Smith III). The district
court also found Smith’s second EEOC complaint alleged only
retaliation, not disability discrimination; thus, it held that Smith
had not exhausted her administrative remedies with respect to

4
The District later moved for summary judgment on the
discrimination claim for a second time, arguing that Smith had
submitted a “Total and Permanent Disability Cancellation Request” to
the Federal Family Education Loan Program. Smith v. District of
Columbia, 295 F. Supp. 2d 53 (D.D.C. 2003) (Smith II). In that
request, Smith had certified she was “totally and permanently
disabled, rendering her unable to work, even on a limited basis.” Id.
at 54 (internal quotation marks omitted). The District claimed this
statement was incompatible with Smith’s current claim that she could
still perform the essential functions of her job. Id. at 54-55. The
district court denied the motion, holding that Smith was not estopped
by her previous statement, as the loan cancellation request had not
been approved. Id. at 55-56.
 7

her attempt to renew her claim of disability discrimination. Id.
at *2-3. Although Smith protested the District’s late filing, the
trial court concluded the District’s “dilatoriness . . . [did] not
amount to the kind of delay and ‘game playing’ that have led the
courts to hold that the defendant has waived the failure to
exhaust defense.” Id. at *3. At the same time, the district court
attempted to “cure the prejudice [Smith] suffered without
nullifying the congressional policy . . . that the courts enforce
the procedural requirements Congress mandated” in the ADA.
Id. “All of the fees and costs generated since the District’s filing
of its answer were completely unnecessary,” the district court
reasoned, as the District could have moved to dismiss the
complaint at that early point; hence, the district court ordered the
District to pay all costs and attorney’s fees incurred by Smith
since that point, except those incurred in response to this final
motion. Id.

II

As a preliminary matter, we find that we have jurisdiction
to hear Smith’s appeal. After the district court granted summary
judgment on Smith’s disability discrimination claim, the parties
filed several motions contesting the costs and attorney’s fees and
asking for reconsideration. Smith also filed a notice of appeal.
The District then filed a motion in this court requesting that we
hold the case in abeyance pending the resolution of the district
court motions. We denied the District’s motion but directed the
parties to address this jurisdictional issue further in their briefs.
As the District now concedes, none of the relevant motions was
filed in the district court within ten days after the grant of
summary judgment, as Federal Rule of Civil Procedure 59(e)
requires. Hence, the motions were not timely, and do not affect
the timeliness of Smith’s notice of appeal. See Fed. R. App. P.
4(a).
 8

III

We review de novo the district court’s decision to grant
summary judgment. See Haynes v. Williams, 392 F.3d 478, 481
(D.C. Cir. 2004). We affirm only if, viewing the evidence in the
light most favorable to Smith, no reasonable jury would find in
her favor. See Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir.
2005).

Employers may not retaliate against employees who file
complaints of disability discrimination under the ADA. See 42
U.S.C. § 12203(a). In analyzing Smith’s retaliation claim, we
use the burden-shifting framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Although the framework was developed for Title VII
cases, our sister circuits have all accepted its application to ADA
retaliation suits under § 12203(a), as we do now. See Brown v.
City of Tucson, 336 F.3d 1181, 1186-87 (9th Cir. 2003); New
England Health Care Employees Union v. R.I. Legal Servs., 273
F.3d 425, 429 (1st Cir. 2001); Rhoads v. FDIC, 257 F.3d 373,
391-92 (4th Cir. 2001); Shaner v. Synthes, 204 F.3d 494, 500
(3d Cir. 2000); Silk v. City of Chicago, 194 F.3d 788, 799 (7th
Cir. 1999); Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th
Cir. 1999); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183
F.3d 155, 159 (2d Cir. 1999); Walborn v. Erie County Care
Facility, 150 F.3d 584, 588-89 (6th Cir. 1998); Sherrod v. Am.
Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998); Stewart
v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287
(11th Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997); see also Brown v. Brody, 199 F.3d 446, 456
n.10 (D.C. Cir. 1999) (“Courts of appeals routinely apply the
same standards to evaluate Title VII claims as they do ADA
claims, ADEA claims, and even ERISA claims.”).
 9

Under this framework, the plaintiff must establish the three
elements of a prima facie case of retaliation: first, that she
“engaged in protected activity”; second, that she “was subjected
to adverse action by the employer”; and third, that “there existed
a causal link between the adverse action and the protected
activity.” Jones v. Wash. Metro. Area Transit Auth., 205 F.3d
428, 433 (D.C. Cir. 2000) (internal quotation marks and
citations omitted). “Such a showing raises ‘a rebuttable pre-
sumption of unlawful discrimination’ and shifts to the defendant
the burden to ‘rebut the presumption by asserting a legitimate,
non-discriminatory reason for its actions.’” Id. (citations
omitted). If the defendant does so, “the McDonnell Douglas
framework disappears, and we must decide whether a reasonable
jury could infer intentional discrimination” from the plaintiff’s
prima facie case and any other evidence the plaintiff offers to
show that the actions were discriminatory or that the non-
discriminatory justification was pretextual. Murray, 406 F.3d at
713.

Clearly, Smith engaged in a statutorily-protected activity
when she filed her first EEOC complaint. See Holbrook v. Reno,
196 F.3d 255, 263 (D.C. Cir. 1999). Smith claims the District
took adverse actions against her by detailing her to CPEP,
denying her request for advance sick leave, and effectively
suspending her and forcing her to retire. Assuming, without
deciding, that these acts do qualify as “adverse actions,” and that
a causal connection between her EEOC complaint and the
District’s actions did exist, Smith’s case still fails under the
McDonnell Douglas framework. The District presented legiti-
mate, non-discriminatory reasons for its actions: it detailed
Smith to CPEP in an attempt to give her a position that would
not require home visits; it denied her request for advance sick
leave because she requested more leave than regulations
allowed; and it instituted disciplinary actions against her in
response to her negligence and insubordination (including
 10

discourteous treatment of her supervisor). Smith did not provide
evidence on which a reasonable jury could conclude that these
proffered justifications were mere pretext and that discrimina-
tory animus motivated the District’s actions. The District’s non-
discriminatory justifications for its actions remain completely
unrebutted. Therefore, summary judgment was properly granted
on Smith’s retaliation claim.

IV

The same cannot be said of Smith’s disability discrimina-
tion claim. Smith argues that the district court abused its
discretion in entertaining the District’s late motion for summary
judgment. The District filed its third motion for summary
judgment on April 9, 2004, contending that Smith’s disability
discrimination claim was not timely, as she did not file it in the
district court within 90 days after her first “right to sue” letter
was issued. Although the District concedes it never moved for
an extension of the December 27, 2002, deadline for filing
summary judgment motions, the district court granted the late
motion without discussing the lack of a request for an extension.

Federal Rule of Civil Procedure 6(b) governs extensions of
time for various filings with the trial court. When a court sets a
deadline, the court may, for cause, exercise its discretion “upon
motion made after the expiration of the specified period” and
permit the belated action “where the failure to act was the result
of excusable neglect.” Fed. R. Civ. P. 6(b). In Lujan v. National
Wildlife Federation, the Supreme Court noted the distinction
between this provision and Rule 6(b)(1), which allows a court to
grant an extension if a “request” is made before the time for
filing expires. 497 U.S. 871, 896 n.5 (1990). By contrast, the
Court emphasized that post-deadline extensions may be granted
only “for cause shown” and “upon motion.” Id. at 896. Any
post-deadline motion “must contain a high degree of formality
 11

and precision, putting the opposing party on notice that a motion
is at issue and that he therefore ought to respond.” Id. at 896 n.5.
We review the district court’s decisions under Rule 6(b) for
abuse of discretion. See In re Vitamins Antitrust Class Actions,
327 F.3d 1207, 1209 (D.C. Cir. 2003).

We have been quite deferential to Rule 6(b) decisions in the
past, even affirming a deadline extension that was granted
without a formal finding of excusable neglect when the court
found no prejudice to the other party.5 See Yesudian ex rel.
United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.
2001). In Yesudian, however, we found that the Rule 6(b)(2)
motion requirement may have been satisfied by a memorandum

5
The danger of prejudice to the other party is one of the
factors to be considered in making a determination of “excusable
neglect.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 388 (1993) (construing Bankr. R. 9006(b)); see also
Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 971
(D.C. Cir. 2001) (applying the Pioneer analysis to Rule 6(b)). Other
factors to be considered in this equitable determination include “the
length of the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.”
Pioneer, 507 U.S. at 395. Although the district court did not make a
formal finding of excusable neglect, we note that the Pioneer factors
would not have supported the district court’s acceptance of the
District’s late motion, even if the District had filed a formal request for
an extension. First, the district court found Smith would suffer
prejudice from the District’s late filing; the award of costs and
attorney’s fees was aimed at remedying the prejudice. Second, the
length of the delay was well over a year, not just a few days. Third, the
District did “not even attempt to justify . . . ignoring the deadlines”; no
reason for the delay was presented. Smith III, 2005 WL 488824, at *3.
Only one of the four factors—that the District did not appear to act in
bad faith—supports the court’s decision.
 12

filed by the requesting party. Id. Here, the District concedes that
it never moved for an extension of the deadline. In the absence
of any motion for an extension, the trial court had no basis on
which to exercise its discretion. See Lujan, 497 U.S. at 896
(stating that “any postdeadline extension must be ‘upon motion
made’”). Under these circumstances, then, we are compelled to
conclude that the district court abused its discretion in entertain-
ing the late motion for summary judgment on Smith’s disability
discrimination claim.

V

For the above reasons, we affirm the district court’s grant
of summary judgment on Smith’s retaliation claim, but reverse
the grant of summary judgment on the discrimination claim and
remand for trial on that claim only.
So ordered.