UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MURIELENE GORDON, )
)
Plaintiff, )
) Civil Action No. 05-1907 (EGS)
v. )
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Murielene Gordon brings this action against the
District of Columbia (“the District”) for violations of the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
12101 et seq., the Rehabilitation Act (“RA”), 29 U.S.C. § 794,
and the District of Columbia Human Rights Act (“DCHRA”), D.C.
Code § 2-1401 et seq., alleging that the District failed to
accommodate her disability while she was employed by the District
as an art teacher. Currently pending before the Court are
defendant’s motion for summary judgment and plaintiff’s motion
for partial summary judgment. Upon consideration of the motions,
and responses and replies thereto, the applicable law, and the
entire record, this Court GRANTS IN PART defendant’s motion for
summary judgment with respect to the statutes of limitations
1
under the ADA and DCHRA and DENIES plaintiff’s cross-motion for
partial summary judgment.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate if the pleadings on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). Material
facts are those that “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The party seeking summary judgment bears the
initial burden of demonstrating an absence of genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). In
considering whether there is a triable issue of fact, the court
must draw all reasonable inferences in favor of the non-moving
party. Tao, 27 F.3d at 638.
II. BACKGROUND
Murielene Gordon was employed by the District as a teacher
from 1979 until her retirement in 2006. Beginning in 1990, she
was employed as an art teacher at Ballou Senior High School.
Plaintiff has degenerative arthritis, which affects her mobility
and manual dexterity. She alleges that while at Ballou, she did
not have access to an accessible bathroom, she did not have keys
2
to locked emergency doors, the heating and cooling system was
non-functional, the shelves were too high, she did not have
access to a copier, and mandatory meetings were held on the
second floor of the buildings which she could not access. Compl.
¶¶ 7-8, 11-14.
Plaintiff is able to navigate the stairs into her house, up
to her second floor, and down to her basement. See Def.’s Mot.
Ex. 1 (“Gordon Dep.”) at 10-13. Until 2004, she used public
transportation to commute to work and was able to walk to and
from the bus stop, which were distances up to a city block.
Plaintiff was capable of bathing and dressing herself without
assistance. Id. at 299-304. With respect to her ability to
work, plaintiff stated that she maintained her full-time status
until retirement and that she was at all times capable of
performing her job at a high level despite her arthritis. See
id. at 88-92.
According to plaintiff, she required the use of a cane to
walk in 2002 and 2003, and thereafter required the use of a
walker. See Pl.’s 2/11/08 Opp’n Ex. 21 (“Gordon Aff.”) at 1.
When she used a cane, it took her at least five minutes to
1
As discussed below, there have been multiple rounds of
summary judgment briefing in this case. In the current round of
briefing, plaintiff incorporated the exhibits previously filed
with the Court. Unless otherwise noted, all citations to court
documents in this Memorandum Opinion refer to the most recent
round of briefing.
3
traverse a single flight of stairs. With her walker, it takes at
least seven or eight minutes to do so. In either case,
traversing staircases causes “extreme pain.” Id. In 2002 to
2003, plaintiff would go down to the basement in her house at
most once a month, and since then does so even more rarely, if
ever. The bathroom in her house is located on the second floor.
At least since 2003, plaintiff has used a portable toilet so that
she does not have to climb the stairs. She also stated that if
she ever forgets something upstairs after coming downstairs, she
either asks someone else to retrieve it, or does without it. See
Gordon Dep. at 16.
Plaintiff admitted that she could walk to and from the bus
stop until 2004, but explained that she could do so only at a
sharply diminished pace. See Gordon Dep. at 300. A city block
that able-bodied people could walk in less than ten minutes would
take plaintiff at least twenty to twenty-five minutes with her
cane, and thirty-five to forty minutes with her walker. It would
take even longer in inclement weather. During these one-block
walks, plaintiff would have to take a break and rest at least
once. If sidewalks were icy or slippery, plaintiff could not
walk at all and would call in sick to work. See Gordon Aff. at
3.
While plaintiff can bathe herself and brush her teeth, both
activities cause great pain and take more time than average. For
4
instance, plaintiff cannot brush her teeth for more than one
minute without taking a break. See id. at 1. Due to pain,
plaintiff has not worn makeup since 2000 and cannot style her own
hair. See id. Since 2001, she has required assistance in order
to shampoo her hair. Plaintiff cannot wear clothes or shoes that
are fastened with buttons or laces. Finally, plaintiff was
limited in her ability to cook, and thus only ate meals that
required less than five minutes of preparation or that could be
prepared using a microwave oven. See id. at 2.
Plaintiff was approved for sick leave in July 2002 for
physical therapy relating to her arthritis. See Compl. ¶ 16. On
August 9, 2002, plaintiff called principal Art Bridges and
informed him that she would not return to Ballou for the start of
the new school year due to her health problems. See Gordon Aff.
at 2. According to plaintiff, Bridges told plaintiff to “sit
tight,” that he was going to transfer her to another school, and
that she was a “liability” because she could not run out of the
school if there was a fire. Id. at 3. According to Bridges, he
expected plaintiff to return. See Pl.’s 2/11/08 Opp’n Ex. 5
(“Bridges Aff.”) at 39.
On September 16, 2002, plaintiff faxed Bridges information
that her sick leave bank request had been approved and called
Bridges to inquire as to her teacher status, to which Bridges
responded that he was going downtown to fill out the transfer
5
forms. Plaintiff told Bridges that she may not be able to run
out of the building in case of a fire, but that if she had a key
to unlock the exit doors in her classroom she would not need to
run. Bridges did not respond. See Gordon Aff. at 3. In
November 2002, plaintiff started to make numerous phone calls to
Bridges about returning to work and about the status of her
transfer, but she was never able to reach him despite leaving
messages for him. Id. at 3-4. On February 26, 2003, plaintiff
received a letter from Ballou informing her that she was on
absent without leave (“AWOL”) status and that she must report to
work by March 10, 2003. Plaintiff did not report to work. Id.
at 4.
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) on April 18, 2003, alleging
disability and age discrimination under the ADA and Age
Discrimination in Employment Act. This EEOC complaint followed
the filing of an internal discrimination complaint that was
dismissed as unsubstantiated. See Pl.’s Opp’n at 3; Pl.’s
2/11/08 Opp’n at Exs. 14, 15. Also, in March 2003, plaintiff was
ordered by the District to undergo a “fitness for duty”
examination. Pl.’s 2/11/08 Opp’n at Ex. 10. After performing a
physical examination, Dr. Samuel J. Scott confirmed that
plaintiff suffered from arthritis that “severely affected” her
mobility. Id. Dr. Scott concluded that plaintiff was fit for
6
duty with accommodations that included no standing for more than
five minutes at a time, no walking up or down stairs, and no
walking more than fifty yards at a time. Id.
Plaintiff brought suit in this Court on September 28, 2005,
alleging that defendant violated the ADA, the RA, and the DCHRA
by failing to accommodate her disability. On August 1, 2006,
during discovery, defendant filed a motion for summary judgment,
arguing that plaintiff was not disabled under the ADA and that
plaintiff failed to show that the District failed to accommodate
plaintiff’s disability. On March 26, 2007, this Court denied
defendant’s motion for summary judgment. The parties completed
discovery, and on January 11, 2008, defendant renewed its motion
for summary judgment on different grounds. On July 16, 2008,
this Court denied the motion for summary judgment without
prejudice, ordering the parties to address the split among
District Court judges regarding the RA’s statutory time
limitations. On August 14, 2008, defendant again renewed its
motion for summary judgment. Plaintiff opposed defendant’s
motion and, on September 8, 2008, filed her own motion for
partial summary judgment.
III. DISCUSSION
Defendant bases its claim for summary judgment on five
grounds: (1) plaintiff’s claims are time-barred; (2) plaintiff’s
accommodation claims under the DCHRA are precluded due to
7
plaintiff’s failure to comply with D.C. Code § 12-309; (3)
plaintiff failed to plead viable claims under the DCHRA during
the period of October 11, 2002, through April 11, 2003; (4)
plaintiff has not shown that she is disabled under the ADA, RA,
or DCHRA; and (5) plaintiff has not shown that she was
discriminated against on the basis of her disability.
A. Time-Bar
Defendant claims that plaintiff’s claims under the ADA, the
RA, and the DCHRA are time-barred according to corresponding
statutes of limitation and notice rules.
i. ADA Claims
The ADA does not include its own statute of limitations.
Instead, the ADA adopts the procedures set forth in Title VII of
the 1964 Civil Rights Act (“Title VII”), as amended, 42 U.S.C. §
2000e et seq., in particular the statute of limitations period
set forth in 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117(a) (“The
powers, remedies, and procedures set forth in sections 2000e-4,
2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the
powers, remedies, and procedures this subchapter provides . . .
to any person alleging discrimination on the basis of disability
in violation of any provision of this chapter.”). An
administrative complaint must be filed with the EEOC within 180
days of the alleged unfair employment practice. Id. § 2000e-
5(e)(1). If the complainant has first instituted proceedings
8
with a state or local agency, the limitations period is extended
to a maximum of 300 days, or within thirty days after receiving
notice that the state or local agency has terminated proceedings
under the state or local law, whichever is earlier. Id.
Plaintiff simultaneously filed her complaint with the D.C.
Office of Human Rights (“DCOHR”) and the EEOC “on or about April
18, 2003.” See Compl. ¶ 19. Plaintiff did not file her
complaint with the DCOHR first, so the 300-day extended
limitations period is inapplicable. Therefore, plaintiff’s
claims under the ADA are limited to the 180-day period from
October 18, 2002 to April 18, 2003; all other claims are time-
barred. Summary judgment is GRANTED on this issue.
ii. RA Claims
Plaintiff makes claims under § 504 of the RA, 29 U.S.C. §
794. See Compl. ¶ 1. The RA, like the ADA, does not have an
explicitly prescribed statute of limitations period. There is
some disagreement in this jurisdiction over which statute of
limitations should be used for RA cases: the limitations period
used in cases brought under the ADA (which in turn incorporates
the Title VII limitations period), or a limitations period “drawn
from the appropriate state statute” – in this case, the
District’s limitations period for personal injury claims. See
Stewart v. District of Columbia, No. 04-1444, 2006 WL 626921, at
*9-10 (D.D.C. Mar. 12, 2006) (describing the split among judges
9
on this Court and collecting cases). Plaintiff urges the Court
to adopt the three-year statute of limitations period for
personal injury actions, while Defendant argues that the Court
should use the period applied to ADA and Title VII claims.2
The disagreement about the appropriate limitations period
arises from a tension between two sections of the RA. First, the
RA explicitly adopts the “remedies, procedures, and rights set
forth in Title VI of the Civil Rights Act of 1964” (“Title VI”)
for claims brought under § 504. 29 U.S.C. § 794a(a)(2) (emphasis
added). Second, the RA was amended in 1992 to state, “[t]he
standards used to determine whether [Section 504] has been
violated in a complaint alleging employment discrimination shall
be the standards applied under title I of the Americans with
Disabilities Act.” 29 U.S.C. § 794(d) (emphasis added). The
question thus hinges on whether or not “standards” includes
“powers, remedies, and procedures.”
In Turner v. District of Columbia, the court adopted the
limitations period used in the ADA. 383 F. Supp. 2d 157, 176-77
(D.D.C. 2005). The court in Turner assumed that the term
2
Defendant also urges the Court to go even further and
apply the District’s one-year limitations period for intentional
torts or DCHRA claims rather than the three-year period for
personal negligence actions, because “plaintiff’s claims are more
akin to intentional tort or discriminatory claims.” Def.’s Mot.
at 9. The Court rejects this argument. See Doe v. Se. Univ.,
732 F. Supp. 7, 8-9 (D.D.C. 1990) (rejecting the same argument
and applying the District’s three-year limitations period to an
RA claim).
10
“standards” logically includes the terms “powers,” “remedies,”
and “procedures.” See id. The court did not address §
794a(a)(2)’s incorporation of Title VI’s “remedies, procedures,
and rights.” See id.
In Stewart, on the other hand, another judge on this Court
adopted the District’s three-year limitations period. Stewart,
2006 WL 626921, at *11. The court held in that case that the
tension between § 794a(a)(2) and § 794(d) can be explained by
interpreting § 794(d) as doing “nothing more than incorporat[ing]
the ADA’s standards of liability.” Id. at *10. In particular,
the Stewart court pointed out that the standards adopted in §
794(d) are only adopted for the purpose of determining whether §
504 has been violated. Id.; see also 29 U.S.C. § 794(d) (“The
standards used to determine whether [Section 504] has been
violated . . . shall be the standards applied under title I of
the [ADA].”).
This Court is persuaded by the analysis set forth in Stewart
and holds that the District’s three-year statute of limitations
for personal injury claims applies to RA claims. Accordingly,
plaintiff’s claims under the RA are limited to the period from
April 18, 2000 to April 18, 2003. Summary judgment is DENIED on
this issue.
iii. DCHRA Claims
11
Defendant argues that plaintiff’s claims under the DCHRA are
limited to events that occurred between October 11, 2002, and
April 11, 2003. Plaintiff has failed to respond to this argument
in any of her filings, including those in response to defendant’s
earlier motions for summary judgment, except to clarify that she
sent her notice by fax and mail on or about April 4 rather than
April 11, 2003. Because of her failure to respond, plaintiff
concedes the point. See, e.g., Hopkins v. Women’s Div., Gen. Bd.
Of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It
is well understood in this Circuit that when a plaintiff files an
opposition to a motion . . . addressing only certain arguments
raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”). Plaintiff’s
claims under the DCHRA are therefore limited to the period from
October 4, 2002, to April 4, 2003.
B. Disability Under the ADA, RA, and DCHRA
Defendant contends that plaintiff is not disabled under the
ADA, RA, or DCHRA. Plaintiff notes that this Court decided this
issue in March 2007. Defendant filed a motion for summary
judgment on August 1, 2006, arguing, inter alia, that plaintiff
is not disabled under the ADA. On March 26, 2007, this Court
denied that ground of defendant’s motion and ruled that
“plaintiff can demonstrate . . . that she is disabled within the
meaning of the ADA and [the RA].” See Gordon v. District of
12
Columbia, 480 F. Supp. 2d 112, 117 (D.D.C. 2007). In denying
defendant’s motion, this Court held that there was sufficient
evidence, drawing all inferences in plaintiff’s favor, to defeat
a grant of summary judgment on the issue of plaintiff’s
disability. Defendant presents no new evidence to alter that
conclusion. Therefore, this Court’s previous ruling is
controlling and summary judgment on this issue must be DENIED.
C. Failure to Accommodate
Defendant contends that plaintiff has not shown that
defendant’s failure to reasonably accommodate her disability
prevented her from performing the essential functions of her job.
This Court, however, already decided this issue in its earlier
denial of summary judgment noting that defendant misread the ADA.
See id. at 118. In the present motion for summary judgment,
defendant makes exactly the same argument as it presented in its
previous motion, presenting no new arguments nor identifying any
change of law. This Court’s previous ruling is controlling and
summary judgment on this issue must be DENIED.
D. Disparate Treatment
To sustain a claim under the ADA, RA, or DCHRA, plaintiff
must show that (1) she suffered an adverse employment action (2)
because of her disability. Adeyemi v. District of Columbia, 525
F.3d 1222, 1226 (D.C. Cir. 2008) (ADA); Barth v. Gelb, 2 F.3d
1180, 1186 (D.C. Cir. 1993) (RA); Hamilton v. Howard Univ., 960
13
A.2d 308, 314 (D.C. 2008) (DCHRA). Defendant argues that
plaintiff cannot prove disparate treatment because she cannot
satisfy either element of the prima facie case.
An adverse employment action is “a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.” Broderick v.
Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006). An adverse
action occurs “when an employee ‘experiences materially adverse
consequences affecting the terms, conditions, or privileges of
employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.’”
Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting
Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)).
In its motion for summary judgment, defendant addresses only
two of plaintiff’s claims.3 In her OHR/EEOC complaint, plaintiff
avers that the District: (1) refused to permit her to return to
work since late October 2002, and (2) placed her on absent
without leave status in February 2003. Both complaints fall
within the ADA, the RA, and the DCHRA’s statutes of limitations.
See supra Section III.B.
With regard to whether the District refused to permit
3
Defendant’s motion fails to address plaintiff’s numerous
failure-to-accommodate claims dating from 1999. See Compl. ¶¶
11-15.
14
plaintiff to return to work, there is a genuine issue of material
fact that precludes granting summary judgment. Plaintiff insists
that Bridges told her to “sit tight,” that he was going to
transfer her to another school, and that she was a “liability”
because she could not run out of the school if there was a fire.
Plaintiff also claims that she made repeated calls to Bridges
about her teacher status and about her transfer. Bridges, on the
other hand, stated that he expected plaintiff to return, but that
she did not. The precise exchange that occurred between
plaintiff and Bridges is material because it may be sufficient to
sustain a disparate treatment claim. While plaintiff continued
to receive paychecks during that time, plaintiff was forced to
use sick pay to continue receiving those paychecks.
Being forced to use sick pay is an objective and tangible
harm and may therefore constitute an adverse employment action.
See Turner v. Dist. of Columbia, 383 F. Supp. 2d 157, 178-79
(D.D.C. 2005) (concluding that a genuine issue of material fact
existed as to whether plaintiff had suffered an adverse
employment action where she alleged that she was denied the use
of sick days to which she was qualified); Washington v. White,
231 F. Supp. 2d 71, 78 (D.D.C. 2002) (“A leave restriction
presumably limits the circumstances under which an employee may
take leave that has been earned, and might be considered an
adverse personnel action insofar as it restricts plaintiff’s
15
ability to take leave to which he would otherwise be entitled.”).
Moreover, if Bridges forced plaintiff to use her sick pay because
her disability was a “liability” to Ballou, then the adverse
action was suffered because of plaintiff’s disability. Whether
plaintiff was placed on AWOL is not an independent claim but a
direct result of her claim that the District did not permit her
to return to work. Plaintiff would not have been placed on AWOL
status had her sick leave not run out, but she alleges her sick
leave ran out because she was forced to use it.
Plaintiff can demonstrate that she has suffered disparate
treatment on the basis of her disability. Summary judgment on
this issue is DENIED.
E. Plaintiff’s Cross-Motion for Partial Summary Judgment
In her cross-motion, plaintiff moves for partial summary
judgment solely on the ground that she is a qualified individual
with a disability under the ADA, RA, and DCHRA. Plaintiff argues
that this Court previously decided that she is disabled. This is
a misreading of the Court’s March 26, 2007 opinion. In the
opinion denying summary judgment, this Court found that
“plaintiff can demonstrate . . . that she is disabled within the
meaning of the ADA and Rehabilitation Act.” Gordon, 480 F. Supp.
2d. at 117 (emphasis added) (footnote omitted). Furthermore,
that ruling was based on accepting the non-moving party’s
(plaintiff’s) evidence as true. In the context of the present
16
motion, however, the non-moving party is the defendant.
Therefore the decision of the Court on defendant’s earlier motion
for summary judgment is not dispositive.
More fundamentally, this Court’s earlier denial of summary
judgment for defendant is irrelevant to plaintiff’s current
motion because of the different standards of proof to which the
parties are held. Indeed, the flaw in plaintiff’s reasoning is
highlighted by her argument that she is entitled to partial
summary judgment because “a reasonable jury could find in her
favor” on the issue of her disability. Pl.’s Reply at 5.
Although the Court agrees with this assessment, see Gordon, 480
F. Supp. 2d. at 115-17, such a conclusion is sufficient only to
preclude a grant of summary judgment for defendant, not to
support a grant of summary judgment in plaintiff’s favor. See
Anderson, 477 U.S. at 251-52 (explaining that the summary
judgment standard mirrors that of a directed verdict, and
concluding that “the inquiry under each is the same: whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must
prevail as a matter of law”). Rather, plaintiff is entitled to a
finding that she is disabled as a matter of law only if no
reasonable jury could agree with defendant that she does not have
“‘a physical or mental impairment that substantially limits one
or more major life activities.’” Gordon, 480 F. Supp. 2d at 116
17
(quoting 42 U.S.C. § 12102(2)(A)); see also Anderson, 477 U.S. at
252 (“[T]he judge must ask himself . . . whether a fair-minded
jury could return a verdict for the [non-moving party] on the
evidence presented.”). The Court does not believe that plaintiff
has met this burden.
Plaintiff testified that she walks up steps to enter her
home and needs to use even more stairs to reach her bedroom on
the second level and the laundry room in the basement. See
Gordon Dep. at 11, 13. Also, prior to 2004, plaintiff regularly
walked between her home and the bus stop and between another bus
stop and her work. See id. at 299-301, 329. Plaintiff also
stated, however, that she avoided using stairs as much as
possible because traversing them causes her “extreme pain,” see
Gordon Aff. at 1; Gordon Dep. at 16, and that she took
significantly longer than the average person to walk down a
sidewalk, see Gordon Aff. at 3. Based on these facts, the Court
concludes that whether – and the extent to which – plaintiff was
substantially limited in a major life activity is not a question
that the Court can appropriately resolve at this stage. In
short, neither party is entitled to judgment as a matter of law
on this issue, the resolution of which will be for a jury.
Therefore, plaintiff’s motion for partial summary judgment is
DENIED.
IV. CONCLUSION
18
Defendant’s motion for summary judgment is GRANTED with
respect to the statutes of limitations under the ADA and the
DCHRA and DENIED on all other grounds. As a result, plaintiff’s
ADA claims are limited to the time period of October 18, 2002 to
April 18, 2003; plaintiff’s RA claims are limited to the time
period of April 18, 2000 to April 18, 2003; and plaintiff’s DCHRA
claims are limited to the time period of October 4, 2002 to April
4, 2003. Moreover, a reasonable jury could find that plaintiff
was disabled under the ADA, RA, and DCHRA, and that plaintiff has
suffered disparate treatment on the basis of her disability.
Given the facts of this case, however, a reasonable jury could
also find that plaintiff was not disabled. Accordingly,
plaintiff’s cross-motion for partial summary judgment on the
issue of plaintiff’s disability is DENIED. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2009
19