UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1569
GLADYS HILL; CYNTHIA MITCHELL,
Plaintiffs - Appellants,
v.
HAMPSTEAD LESTER MORTON COURT PARTNERS LP; EMP II INC.,
d/b/a Alpha Management; HAMPSTEAD LMC LLC; HAMPSTEAD
PARTNERS, INC.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:12-cv-00539-CCB)
Submitted: November 6, 2013 Decided: August 5, 2014
Before WILKINSON, DUNCAN, and FLOYD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Luciene M. Parsley, MARYLAND DISABILITY LAW CENTER, Baltimore,
Maryland; Christopher J. Wright, Timothy J. Simeone, Danielle J.
Piñeres, WILTSHIRE & GRANNIS, LLP, Washington, D.C., for
Appellants. M. Natalie McSherry, KRAMON & GRAHAM, P.A.,
Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gladys Hill and her adult daughter, Cynthia Mitchell,
(together, Plaintiffs) appeal from a district court order
granting summary judgment against them in their civil action
brought pursuant to Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794. * After careful review, we vacate the
award of summary judgment with respect to one of Plaintiffs’
claims and remand for further proceedings.
We review the district court’s order granting summary
judgment de novo. Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 958 (4th Cir. 1996). In doing so, we construe the
facts in the light most favorable to Plaintiffs and give them
the benefit of all reasonable inferences. See Carnell Constr.
Corp. v. Danville Redevelopment & Hous. Auth., 745 F.3d 703, 716
(4th Cir. 2014).
The underlying litigation arises out of Hill’s inability to
secure certain structural modifications to her townhouse
following the amputation of her left leg. For nearly forty
years, Hill has rented the same four-bedroom townhouse unit at
*
The order from which Plaintiffs appeal also disposed of
their state common-law claim for negligence. By failing to
raise any argument in their opening brief concerning the
district court’s grant of summary judgment on their negligence
claim, Plaintiffs have waived appellate review of the issue.
See Town of Nags Head v. Toloczko, 728 F.3d 391, 395 n.4 (4th
Cir. 2013).
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Hampstead Lester Morton Courts (Hampstead), a federally
subsidized housing community in Baltimore City, Maryland. In
2004, Hill’s left leg was amputated below the knee due to
diabetes-related complications, forcing her to use a wheelchair
for mobility. Hill must navigate a series of three steps to
enter or exit her townhouse.
In June 2004, Hill’s physician sent Hampstead’s property
manager a letter stating that Hill needed a wheelchair ramp to
access her townhouse. The property manager responded to the
letter by informing Hill that Hampstead would be undergoing
renovations in 2005 and that Alpha Property Management (Alpha),
the entity managing Hampstead, would “make preparations to
install the handicap ramp” during the renovation process. The
property manager vowed to send Hill a letter notifying her of
the date that the ramp would be installed, but Hill never
received the notification letter.
In January 2005, Hill submitted to Hampstead’s property
manager a written request for a wheelchair ramp or a transfer to
another unit. The property manager responded to Hill’s request
in a March 31, 2005 letter, explaining that Hill would have the
opportunity to transfer to a new, handicap-accessible apartment
at the completion of the renovation project. Renovation
concluded in October 2005, but Hill never received an offer to
transfer to a new apartment.
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In June 2006, Hill renewed her request for a wheelchair
ramp or a transfer to a handicap-accessible unit. The next
month, Hill met with Hampstead’s property manager, who denied
Hill’s request for a ramp, stating that Alpha had no legal
obligation to provide her with the requested accommodation
because the cost of providing a ramp would be too expensive.
On September 30, 2010, Hill’s counsel sent a letter to
Alpha and Hampstead requesting that Hill’s townhouse be equipped
with a wheelchair ramp and other structural modifications.
Hampstead’s counsel responded to the request by email on
November 1, 2010, stating that neither Hampstead nor Alpha had a
legal obligation to provide the requested accommodations because
they would inflict an undue financial hardship on Hampstead and
Alpha.
Plaintiffs filed suit against Alpha, Hampstead, and other
related entities (collectively, Defendants) in February 2012,
alleging that Defendants violated the Rehabilitation Act by
refusing to grant to Hill reasonable accommodations. Defendants
filed a motion to dismiss or, in the alternative, for summary
judgment. Defendants argued that Plaintiffs’ claims were time-
barred under Maryland’s three-year statute of limitations for
civil actions because the limitations period began to run—at the
latest—when Alpha expressly denied Hill’s request for structural
modifications in 2006. Any subsequent denials of Hill’s
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proposed accommodations, Defendants insisted, amounted to mere
requests to reconsider and, as such, were insufficient to
restart the limitations period. The district court, treating
the motion as one for summary judgment, agreed with Defendants
and entered judgment in their favor.
On appeal, Plaintiffs maintain that the district court
erred in finding their Rehabilitation Act claims barred by the
three-year limitations period. In support of this contention,
Plaintiffs mount two principal arguments. First, they assert
that the November 2010 denial of Hill’s proposed accommodations
qualifies as an independently discriminatory act that triggered
a new limitations period. Second, Plaintiffs argue that
Defendants’ actions constitute a continuing violation of the
Rehabilitation Act, thereby extending the limitations period for
all of Defendants’ alleged failures to accommodate. We agree
with Plaintiffs’ first argument but disagree with their second.
The limitations period for a Rehabilitation Act claim
commences “when the plaintiff ‘knows or has reason to know of
the injury which is the basis of the action.’” A Soc’y Without
a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (quoting
Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). When an
individual “engages in a series of acts each of which is
intentionally discriminatory, then a fresh violation takes place
when each act is committed.” Ledbetter v. Goodyear Tire &
5
Rubber Co., 550 U.S. 618, 628 (2007), superseded in part by
statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-
2, 123 Stat. 5. In those circumstances, “[e]ach discrete
discriminatory act starts a new clock for filing charges
alleging that act. . . . The existence of past acts and the
[plaintiff’s] prior knowledge of their occurrence . . . does not
bar [a plaintiff] from filing charges about related discrete
acts so long as the acts are independently discriminatory.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Thus, a plaintiff who renews a request for a previously denied
accommodation “may bring suit based on a new ‘discrete act’ of
discrimination if the [defendant] again denies [the] request,”
Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 131 (1st Cir.
2009), and the subsequent denial carries its own, independent
limitations period, Cherosky v. Henderson, 330 F.3d 1243, 1248
(9th Cir. 2003) (explaining that if a plaintiff’s “new
[accommodation] request results in a denial, the time period
begins to run anew”).
Plaintiffs’ amended complaint alleges that Defendants
repeatedly denied Hill’s requests for accommodations, thereby
engaging in multiple discrete acts of discrimination. The final
denial occurred in November 2010, inside the three-year
limitations period. Because that denial constitutes an
allegedly independent and discrete act of discrimination,
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Plaintiffs’ claim premised upon the November 2010 failure to
accommodate is not time-barred.
In reaching the opposite conclusion, the district court
primarily relied upon Jersey Heights Neighborhood Association v.
Glendening, 174 F.3d 180 (4th Cir. 1999). In that case, we
rejected the plaintiffs’ attempt to extend the limitations
period by relying upon the “ongoing effects” of a single
discriminatory act, observing that “every refusal to reconsider
the [decision] does not revive the limitations period for the
original . . . decision. To do so would upset the balance
struck by the limitations period between the reasonable needs of
individual claimants and the public interest in finality.” Id.
at 189. Because the complaint was devoid of any “discrete acts
of discrimination that f[e]ll within the limitations period,” we
concluded that the claims were barred by the applicable statute
of limitations. Id.
The district court’s reliance on Jersey Heights was
misplaced. Unlike that case, in which the plaintiff alleged a
single act of discrimination, Plaintiffs here allege multiple,
discrete acts of discrimination. Because the November 2010
alleged failure to accommodate constitutes a discrete act and
occurred during the three-year period immediately preceding the
date on which Plaintiffs filed suit, the district court erred in
concluding that it was time-barred.
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Plaintiffs attempt to breathe new life into their failure-
to-accommodate claims premised upon denials that occurred before
February 2009 (three years before they filed suit) by arguing
that the repeated denials of their requests for accommodations
constitute a continuing violation that culminates within the
limitation period. We disagree. The continuing-violation
doctrine applies to claims based upon a defendant’s ongoing
policy or pattern of discrimination rather than discrete acts of
discrimination. See Holland v. Wash. Homes, Inc., 487 F.3d 208,
219-20 (4th Cir. 2007); Williams v. Giant Food Inc., 370 F.3d
423, 429 (4th Cir. 2004). As explained above, a defendant’s
failure to accommodate constitutes a discrete act rather than an
ongoing omission. Accordingly, the continuing-violation
doctrine is inapplicable, and Plaintiffs’ claims premised upon
acts that predate the three-year limitations period are time-
barred.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this Court and argument would not aid the decisional process.
VACATED AND REMANDED
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