Hill v. Hampstead Lester Morton Court Partners LP

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 &

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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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