Rose v. United General Contractors

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CV-745

TODD ROSE, APPELLANT,

v.

UNITED GENERAL CONTRACTORS, et al., APPELLEES.

Appeal from the Superior Court of the
District of Columbia
(CAB-8899-18)

(Hon. Hiram E. Puig-Lugo, Trial Judge)

(Argued May 26, 2022 Decided November 17, 2022)

Denise M. Clark, with whom Jeremy Greenberg was on the brief, for
appellant.

Reshad D. Favors for appellees.

Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.

BLACKBURNE-RIGSBY, Chief Judge: Appellant Todd Rose appeals the trial

court’s judgment, after a bench trial, on the merits of his claims of retaliation and

discrimination under the D.C. Human Rights Act (“DCHRA”), D.C. Code § 2-

1401.01 et seq. In December 2018, appellant filed a complaint in D.C. Superior

Court alleging that his employer, United General Contractors (“UGC”), and the
 2

business’s owner, Nathaniel Lewis (hereinafter “appellees”), violated the DCHRA

by terminating him due to his disability of Parkinson’s disease and/or in retaliation

for requesting accommodations. Appellant argues that the trial court erred by 1)

concluding that appellant could not establish a claim of discriminatory retaliation,

and 2) failing to conclude that appellees acted with a discriminatory motive in

terminating his employment. We reverse and remand: 1) for the trial court to

determine whether, as relates to the retaliation claim, the November 13, 14, or 15

emails constituted protected activity; and 2) for the trial court to determine, as relates

to the discrimination claim, whether appellant was terminated, in part, based on his

disability.

I. Factual Background

The following facts appear to be undisputed unless otherwise noted. In

February 2017, appellees hired appellant to be their first-ever Glazing Field

Superintendent. UGC had recently secured a high-profile contract to renovate the

Marie Reed elementary school in the Northwest quadrant of D.C., and the project

needed a superintendent to coordinate and oversee day-to-day glazing operations.

As Glazing Field Superintendent, appellant was responsible for all portions of the

project related to glass and glazing. Appellant was charged with communicating
 3

between UGC and Gilbane (the general contractor on the jobsite), ordering

materials, maintaining oversight of field staff, conducting quality control, and

ensuring projects were executed within budget and on time.

At the time appellant was hired, appellees were aware that he had Parkinson’s

disease. In the first few months of his employment, appellant excelled in his

position, and Gilbane representatives complimented his work. However, in the

months that followed, his performance declined. Gilbane representatives sent

appellees several emails about incorrect and late installations. During the same

period, appellant began to experience more frequent medical issues, such as

increased falls, due to an issue with an implant that distributed his medication. On

at least one occasion, appellant was late to work because he needed to reset the

battery on his implant.

In July 2017, UGC union liaison Bob Arbour and UGC’s owner, Mr. Lewis,

had a discussion with appellant about changing positions to become a project

manager, which is an office job that does not require field site visits. Following the

discussion, Mr. Arbour emailed Mr. Lewis and UGC’s Vice President, Casey Gwei,

the following:

I just finished talking with Todd about Safety and being
on the project. He has agreed that his time in the field full
 4

time has come to a close[.] We discussed being a project
manager and he is willing to make the transition[.] Pay
and benefits will need to be reviewed and agreed upon[.]

However, appellant later declined the position change. Gilbane

representatives continued to raise concerns about the Marie Reed project until they

eventually froze payments to UGC “until resolution of outstanding items [could] be

identified.”

On November 13, 2017, Mr. Arbour emailed appellant to inform him that he

needed to provide UGC’s insurance company with “a current medical clearance . . .

to confirm [his] fitness for duty” by November 17, 2017. On November 16,

appellant’s doctor wrote a note indicating that appellant “is not to do any physical

labor” and “may experience ‘on and off’ time several times a day.” On November

17, appellees gave appellant a letter stating that he had been laid off because UGC

decided to eliminate his position and delegate the functions to the lead foremen on

each project. Within the year, appellees hired a new Glazing Field Superintendent.

Appellant filed a complaint in D.C. Superior Court in December 2018,

alleging that appellees violated the DCHRA by retaliating against him and

terminating his employment because of his disability. Appellant moved for partial

summary judgment asserting that he had made out a prima facie case of disability
 5

discrimination and retaliation. In response, appellees filed a cross-motion for

summary judgment asserting that appellant’s discrimination and retaliation claims

failed as a matter of law. Appellees’ cross-motion asserted that they had multiple,

legitimate reasons for terminating appellant, including violations of time and

attendance policies, poor job performance, and lack of work. The cross-motion also

asserted that appellant could not prove that his termination was in retaliation for

requesting accommodations because the temporal proximity between appellant’s

submission of his doctor’s note and his termination was “nothing more than

coincidence.” In opposition to appellees’ cross-motion, appellant noted that, despite

appellees’ assertion that he was terminated for performance and attendance issues,

his termination letter stated, “[T]his layoff is not a statement about your work for

United General Contractors. You have been a dedicated, contributing employee for

nearly one year.” Additionally, appellant noted that, while appellees asserted that

appellant’s position was eliminated due to lack of work, there was evidence that

appellees began to look for someone to fill appellant’s position shortly after

appellant’s termination.

The trial court granted appellant’s motion for summary judgment in part,

ruling as a matter of law that: 1) appellant has Parkinson’s disease; 2) appellant was

qualified for the Glazing Field Superintendent position; 3) appellant engaged in a
 6

protected activity by submitting the doctor’s note requesting accommodations for

his disability; and 4) appellant’s termination was an adverse action. The trial court

noted that there was a genuine issue of material fact pertaining to the date on which

the doctor’s note was submitted, i.e., whether it was before or after appellees decided

to lay him off. The trial court denied appellees’ motion for summary judgment

because appellant “presented a prima facie case of discriminatory termination and

retaliation that a jury might credit” and “proffered significant probative evidence

tending to support his contention that [appellees’] stated decision to terminate him

was pretextual.”

At a bench trial, 1 appellees testified about various concerns that led to

appellant’s termination, some of which they had not previously asserted. For

example, Mr. Arbour testified that appellant was laid off for

a combined number of reasons. His ability to perform his
work was declining, not accepting a project manager
[position], not providing us information about his ability
to continue working, his health report, it was just a lot of
different things in the transition that we were trying to let
him go without saying that he was a bad employee.

Because in all actuality, when he first got hired, I thought
it would be an amazing fit at this time, and he wasn’t. And

1
A jury trial was scheduled to begin on March 16, 2020. According to
appellant’s brief, the trial was vacated due to the Covid-19 pandemic, and on May
29, 2020, the parties agreed to proceed with a bench trial.
 7

that day he came in, I handed [him] this letter, and he
actually handed back the doctor’s report that morning. But
we made a decision the week prior that we were heading
[towards a decision to] lay him off.

Appellees also repeatedly described their concerns about appellant’s safety.

For example, Mr. Gwei testified that he had conversations with appellant after Mr.

Arbour notified him that “he had observed [appellant] fall downstairs in our office,

and had also observed him fall at another location within our office, and also had

heard complaints in the field about him having fallen on the site.” Mr. Gwei further

explained that he offered appellant a position as a project manager due in part to “the

issues that were thought about, the safety and [appellant] falling on the projects.”

Mr. Lewis likewise testified that he had witnessed appellant fall “many times” on

jobsites, and it was “[q]uite scary.” Mr. Lewis testified that appellees discussed

transitioning appellant to a project manager position because they “knew he had the

mindset but not the physical ability to be a superintendent as he once was before his

condition.”

After the bench trial, the trial court ordered judgment in favor of appellees.

On the retaliation claim, the trial court concluded that appellant failed to meet his

burden to prove a causal connection between appellant’s protected activity and his

termination. The trial court credited testimony that Mr. Arbour gave appellant a
 8

termination letter the same day appellant submitted his doctor’s note, which the trial

court referred to as a “request for accommodations.” Thus, the court concluded that

appellant failed to produce evidence that he engaged in a protected activity before

he was laid off. Accordingly, the trial court held that appellant did not establish a

causal connection between the two events and could not prevail on his retaliation

claim.

On the disability discrimination claim, the trial court concluded that appellant

failed to carry his burden to prove that appellees’ legitimate, non-discriminatory

reasons for terminating appellant were pretext for discrimination. Specifically, the

trial court focused on the “overwhelming documentation of problems at the Marie

Reed project.” The trial court acknowledged that appellees had proffered various,

unsupported reasons for appellant’s termination, but concluded that fact alone did

not prove that they had a discriminatory motive. Additionally, the trial court found

it “hard to believe that [appellees] would offer to transition [appellant] from glazing

field superintendent to project manager if there was an underlying discriminatory

animus.” This appeal followed.
 9

II. Discussion

Appellant raises two issues on appeal. First, he argues that the trial court

erroneously rejected his retaliation claim on the ground that he did not engage in

protected activity until after appellees decided to terminate him. Second, he argues

that the trial court erroneously rejected his discrimination claim on the ground that

he failed to meet his burden to prove that appellees’ proffered reasons for firing him

were pretext for discrimination. 2 We conclude that a remand is necessary for further

factual findings and for the trial court to more fully respond to appellant’s arguments.

When a case is tried without a jury, this court “may review both as to the facts

and the law, but the judgment may not be set aside except for errors of law unless it

appears that the judgment is plainly wrong or without evidence to support it.” D.C.

Code § 17-305(a). “That standard means that if the trial court’s determination is

plausible in light of the record viewed in its entirety, we will not disturb it whether

or not we might have viewed the evidence differently ourselves.” Hildreth

Consulting Engn’rs, P.C. v. Larry E. Knight, Inc., 801 A.2d 967, 971-72 (D.C. 2002)

2
Appellant’s reply brief argues that appellees’ opposition to his appeal should
be deemed abandoned because appellees’ brief failed to cite to the record. Because
we conclude that remand is warranted on the merits, we need not address this
procedural argument.
 10

(quoting Nolan v. Nolan, 568 A.2d 479, 484 (D.C. 1990)). We review de novo the

trial court’s legal conclusions. Id. at 972.

A. Retaliation

“Under the DCHRA, it is an unlawful discriminatory practice ‘to . . . retaliate

against . . . any person . . . on account of having exercised . . . any right granted or

protected under [the Act].’” McFarland v. George Washington Univ., 935 A.2d 337,

355-56 (D.C. 2007) (quoting D.C. Code § 2-1402.61(a)). To establish a prima facie

claim of discriminatory retaliation, a plaintiff must show that “(1) he was engaged

in a protected activity . . . , (2) the employer took an adverse personnel action against

him, and (3) a causal connection existed between the two.” McFarland, 935 A.2d

at 356 (internal quotation marks, brackets, and citation omitted).

“This court has ‘often looked to cases construing Title VII [of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seq. (1988),] to aid us in construing the D.C. Human

Rights Act.’” Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n.17 (D.C.

1993) (quoting Atl. Richfield Co. v. D.C. Comm’n on Hum. Rts., 515 A.2d 1095,

1103 n.6 (D.C. 1986)). However, “we have also observed that [the DCHRA] is
 11

different from the federal statutes in other significant ways[.]” East v. Graphic Arts

Indus. Joint Pension Tr., 718 A.2d 153, 159 (D.C. 1998). Thus, while federal

precedent is certainly persuasive, it “does not necessarily dictate the same result

under DCHRA.” Id. at 160.

The trial court found that appellant met his burden to establish that he engaged

in a protected activity by submitting a request for accommodation, and that appellees

took an adverse employment action against him. However, the court found that there

was no causal connection between the two events because appellant failed to prove

that appellees were aware that appellant had requested accommodations before

deciding to terminate him.

Appellant argues that the trial court erred by “omit[ting] the evidence

presented that [he] engaged in protected activity three and two days before his

termination.” Appellant refers to a series of emails that led to his doctor’s note, and

argues that these emails were protected activities, inasmuch as they themselves were
 12

informal requests for accommodation or engaged Mr. Arbour in the “interactive

process” of accommodation. 3

Appellant’s communications concerning his limitations were as follows. On

November 13, 2017, Mr. Arbour emailed appellant asking him to provide UGC’s

insurance company “with a current medical clearance . . . to confirm [his] fitness for

duty.” The following day, on November 14, appellant asked Mr. Arbour to “forward

the contact information of the insurance company[.]” He also followed up by asking

Mr. Arbour, “How should I tell my doctor to word this letter??” Mr. Arbour

responded that the letter should say, “To Whom it may Concern: For the standard

Restriction and limitation (if any): Standing, Sitting, Walking, Lifting, Driving and

any Medication Restriction.” On November 15, Mr. Arbour followed up to tell

3
Under the Americans with Disabilities Act, providing a ‘“reasonable
accommodation’ requires an employer ‘to initiate an informal, interactive process
with the individual with a disability in need of the accommodation’ to ‘identify the
precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.’” Howard v. HMK
Holdings, LLC, 988 F.3d 1185, 1193 (9th Cir. 2021) (emphasis in original) (quoting
29 C.F.R. § 1630.2(o)(3)). While “an employer has an obligation to engage in an
interactive process to determine a reasonable accommodation, such an obligation is
only triggered where the employee has actually requested a reasonable
accommodation.” Badwal v. Bd. of Trustees of Univ. of D.C., 139 F. Supp. 3d 295,
313 (D.D.C. 2015) (analyzing DCHRA claim) (emphasis in original). We therefore
focus on whether appellant’s communications impliedly requested an
accommodation.
 13

appellant that Mr. Arbour was “required to reach out to the doctor to confirm any

and all restrictions.” Appellant replied, “So, What are you trying to say?” to which

Mr. Arbour responded, “We have to verify, that’s all[.]” On November 16,

appellant’s doctor wrote a note indicating 1) appellant “is not to do any physical

labor,” 2) due to his condition of Parkinson’s disease, he “may experience ‘on and

off’ time several times a day,” and 3) appellant “must take his medication at certain

times each day and be allowed to sit down to allow his medication to reactivate his

movements.”

We agree with appellant that the trial court should have specifically addressed

whether or not the November 13, 14, and 15 communications between appellant and

Mr. Arbour amounted to protected activity. We therefore remand the case to the

trial court to consider this issue. At trial, appellant argued that he “engaged in

protected activity days before he handed [in] his doctor’s note by asking what

information UGC specifically needed from his provider.” We understand appellant

to argue that, by engaging in a conversation about a forthcoming doctor’s note that

would describe his limitations, appellant impliedly requested accommodations

before he actually submitted his doctor’s note. However, the trial court’s order does

not appear to have considered this argument, and instead focuses only on the timing

between appellant’s submission of the doctor’s note to Mr. Arbour and his
 14

termination. Appellees’ brief suggests that “the trial court found that [appellant’s]

only protected activity was the actual submission of his certification.” But at oral

argument, appellees could not point to anywhere in the trial court’s order where it

directly addressed whether or not the November 13, 14, and 15 communications

were protected activity, and we likewise do not see such a discussion in the order.

Appellees further argue that appellant’s communications with Mr. Arbour

could not have amounted to protected activities because appellant “made no explicit

or implied statement that would convey to any reasonable person that Mr. Rose was

making a request for accommodations.” We agree that appellant’s discussion with

Mr. Arbour does not include an explicit request for accommodations; but we view

the question of whether appellant implied that he would need accommodations at

least in part to be a factual issue that the trial court must address on remand. We

note that an employee need not formally ask for an accommodation. See Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999). “What matters under the

ADA are not formalisms about the manner of the request, but whether the employee

. . . provides the employer with enough information that, under the circumstances,

the employer can be fairly said to know of both the disability and desire for an

accommodation.” Id.
 15

Moreover, even if appellant’s submission of his doctor’s note was the only

protected activity, we do not view the trial court’s reasoning as sufficient to explain

why appellant nonetheless failed to establish a causal connection between the

submission of the note and his termination. The trial court explained that it:

credit[ed] testimony that Mr. Arbour gave [appellant] a
termination letter and [appellant] gave Mr. Arbour the
request for accommodations on the same day. Therefore,
the evidence does not show that [appellees] were aware of
[appellant’s] request for accommodation prior to making
its decision to terminate [appellant].

However, just because the two events happened on the same day does not eliminate

the possibility that the doctor’s note caused Mr. Arbour to terminate appellant’s

employment. Indeed, “[t]he causal connection . . . may be established by showing

that the employer had knowledge of the employee’s protected activity, and that the

adverse personnel action took place shortly after that activity.” Hollins v. Fed. Nat’l

Mortg. Ass’n, 760 A.2d 563, 579 (D.C. 2000). On remand, the trial court should

further explain why it reached the conclusion that there was no causal connection

between the two events.
 16

B. Discriminatory Intent

Appellant next argues that the trial court erred by failing to conclude that

appellees terminated his employment because of his disability. While we

acknowledge that there is ample evidence in the record that appellant’s work

performance declined prior to his termination, we remand the case to the trial court

to consider whether appellant was laid off, in part, due to his disability.

The DCHRA prohibits an employer from terminating an employee “wholly

or partially” based on disability. D.C. Code § 2-1402.11(a)(1). “In considering

claims of discrimination under the DCHRA, we employ the same three-part, burden-

shifting test articulated by the Supreme Court for Title VII cases in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” McFarland, 935 A.2d at 346

(internal quotations and citations omitted). The employee must

establish a prima facie case that [the employer
discriminated against him]. If such a showing is made, the
burden shifts to the employer to articulate a legitimate
basis for [its action]. If the employer articulates a
legitimate, nondiscriminatory basis for the [action], the
burden shifts back to the employee to demonstrate that the
employer’s action was pretextual.

Id. (internal quotation marks, brackets, and citations omitted).
 17

Here, the trial court concluded that appellant failed to prove that his

employment was terminated for a discriminatory reason. Despite appellees’

“shifting” reasons for terminating appellant, the trial court noted that there was

“overwhelming documentation” of appellant’s declining performance at the Marie

Reed project. Additionally, the trial court found it “hard to believe” appellees acted

with discriminatory animus in terminating appellant because they had previously

sought to retain him by moving him to an in-office position.

We agree with the trial court that there is ample evidence in the record

demonstrating that appellant’s performance at the Marie Reed project declined, and

that poor work performance is a legitimate, non-discriminatory reason to terminate

an employee. Additionally, though we consider appellees’ “shifting” reasons for

terminating appellant’s employment strong evidence of pretext, we also

acknowledge that the burden on appellant is to “show both that the reason was false,
 18

and that discrimination was the real reason.” McFarland, 935 A.2d at 355 (emphasis

in original) (internal quotations and citations omitted). 4

However, there is a need for the trial court to address whether appellant’s

employment might have been terminated in part due to his disability. At trial,

appellant framed the issue for the trial court as “whether [appellees’] reason[] for

terminating [appellant] was made wholly or partially because of his disability and/or

protected activities.” Appellant also moved for a directed verdict, noting that Mr.

Lewis and Mr. Arbour both testified about their

continual concerns regarding [appellant’s] disability and
the limitations imposed by his disability and that they were
considered in the decision to terminate him. And because
of that, [appellant] would be entitled to judgment on that
based on these admissions that UGC . . . terminated
[appellant] at least partially because of his disability,
which is all that plaintiff must show to succeed on that
claim.

4
We note that appellees have never articulated a clear or consistent reason for
terminating appellant’s employment. The original termination letter sent to
appellant stated “this layoff is not a statement about your work for United General
Contractors. You have been a dedicated, contributing employee for nearly one
year.” As the trial court found, and appellees’ brief acknowledges, “[a]t various
points during litigation, [appellees] have offered excessive absences, financial
considerations, safety considerations, and legitimate business reasons as additional
justifications.” Nonetheless, the trial court found evidentiary support only for
appellant’s poor performance, and appellant continues to dispute appellees’ other
proffered reasons.
 19

The trial court denied appellant’s motion for a directed verdict, explaining that

“the testimony here is that they were concerned about his safety. That does not mean

that it was his disability that fueled their decision.” The record does not indicate

whether the trial court considered some of the other testimony in the trial record, nor

whether the trial court considered whether a discriminatory motive could be one of

several motives for the termination.

Important here, the statute provides that it is unlawful to terminate an

employee even partially for a discriminatory reason. D.C. Code § 2-1402.11(a)(1).

The “employee may prevail by proving that the employer’s action was motivated

‘partially’ by a discriminatory reason, even if it also was motivated by permissible

reasons not, in themselves, pretextual.” Furline v. Morrison, 953 A.2d 344, 353

(D.C. 2008). In this case, a “‘mixed motive’ analysis is appropriate.” Id. Under

either the McDonnell Douglas standard or a “mixed motives” analysis, “the burden

of persuasion ‘remains at all times’ with the plaintiff employee to prove that the

employer took adverse action for a discriminatory or retaliatory reason (in whole or

part).” Id.
 20

We have not had occasion to squarely address the level of causation necessary

for a “mixed motives” claim. 5 In Babb v. Wilkie, 206 L. Ed. 2d 432, 140 S. Ct. 1168,

1172 (2020), the Supreme Court explained that it need not go any further than the

Age Discrimination in Employment Act’s text in determining when to impose

liability because the ADEA mandates that personnel actions “shall be made free

from any discrimination based on age.” 29 U.S.C. § 633a(a). Because “free from”

means “untainted” and because the statute prohibits “any discrimination based on

age,” the Supreme Court concluded that “the statute does not require proof that an

employment decision would have turned out differently if age had not been taken

into account.” Babb, 140 S. Ct. at 1173-74. Thus, a plaintiff could show a violation

of Section 633a(a) “without proving that age was a but-for cause” of the action. Id.

at 1177.

Similarly, in the Title VII context, a plaintiff need “only present sufficient

evidence for a reasonable jury to conclude, by a preponderance of the evidence, that

‘race, color, religion, sex, or national origin was a motivating factor for any

employment practice.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003)

(quoting 42 U.S.C. § 2000e-2(m)). “It suffices instead to show that the motive to

5
In Furline, 953 A.2d at n.28, we presumed, but did not decide, that an
employer would be entitled to an affirmative defense if it could show that it would
have taken the action for permissible reasons alone.
 21

discriminate was one of the employer’s motives, even if the employer also had other,

lawful motives that were causative in the employer’s decision.” Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013). 6

Both the Washington Supreme Court and the California Supreme Court came

to similar conclusions in interpreting their own antidiscrimination statutes, which

both prohibit adverse employment action “because of” protected characteristics. See

Mackay v. Acorn Custom Cabinetry, Inc., 898 P.2d 284, 288 (Wash. 1995) (en banc);

Harris v. City of Santa Monica, 294 P.3d 49, 72 (Cal. 2013). Noting Washington’s

“resolve to eradicate discrimination,” the court reasoned that adopting a standard

akin to “but for” causation would “erect [a] high barrier to recovery” and that

“Washington’s disdain for discrimination would be reduced to mere rhetoric[.]”

Mackay, 898 P.2d at 288. Thus, a plaintiff must only show that a protected attribute

6
“But for” causation is still important in determining the appropriate remedy
in the federal context. Thus, in a Title VII case, a “defendant may still invoke lack
of but-for causation as an affirmative defense, but only to stave off damages and
reinstatement, not liability in general.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-
Owned Media, 206 L. Ed. 2d 356, 140 S. Ct. 1009, 1017 (2020) (citing 42 U.S.C. §§
2000e-2(m), 2000e-5(g)(2)(B)). Similarly, in an ADEA case, to obtain
reinstatement, backpay, or compensatory damages, a “plaintiff[] must show that age
discrimination was a but-for cause of the employment outcome.” Babb, 140 S. Ct.
at 1177-78. Otherwise, plaintiff can seek “injunctive or other forward-looking
relief” as the trial court deems necessary to redress the injury. Id. at 1178.
 22

was a “substantial factor” in an adverse employment decision. Id. Similarly, the

California court undertook an exhaustive analysis of federal and state

antidiscrimination law and concluded that a plaintiff could prevail upon a showing

that “an adverse employment action was motivated at least in part by

discrimination.” Harris, 294 P.3d at 60. 7

The DCHRA prohibits taking a personnel action even partially for a

discriminatory reason, D.C. Code § 2-1402.11(a), a “standard comparable to that in

[42 U.S.C. § 2000e-2(m)].” Furline, 953 A.2d at 353 n.28. The statute was passed

“to secure an end in the District of Columbia to discrimination for any reason other

than that of individual merit[.]” D.C. Code § 2-1401.01. Based on the statutory text

and intent, the statute is violated if an employer took the action with one

discriminatory motive, even if the employer had other lawful motives. A plaintiff’s

burden, then, is to show that a protected characteristic was a substantial factor in the

employment decision. “A ‘substantial factor’ means that the protected characteristic

was a significant motivating factor bringing about the employer’s decision.”

7
In the California context, like the federal context, an employer is entitled to
an affirmative defense if it can show it would have made the same decision for lawful
reasons. See Harris, 294 P.3d at 72. In that case, a plaintiff is not entitled to
damages, backpay, or reinstatement but may still be entitled to declaratory or
injunctive relief or reasonable attorneys’ fees and costs. Id.
 23

Scrivener v. Clark Coll., 334 P.3d 541, 545 (Wash. 2014) (en banc). “It does not

mean that the protected characteristic was the sole factor in the decision.” Id.; see

also 42 U.S.C. § 2000e-2(m) (allowing for liability when “the complaining party

demonstrates that race, color, religion, sex, or national original was a motivating

factor for any employment practice, even though other factors also motivated the

practice.”).

Here, when asked why appellant was terminated, Mr. Arbour testified that

appellant was laid off for “a combined number of reasons[,]” including “not

accepting a project manager” position, “not providing us information about his

ability to continue working,” and “his health report.” Mr. Arbour further testified

that “[we] had to lay him off because he’s – the big circle and everything else going

on, it was really hard to do, lack of performance, not showing up to work, falling all

the time. I just don’t want to see him hurt himself.” During closing argument,

appellant’s counsel also argued that appellees’

continual emphasis on supposed concerns regarding
[appellant’s] limitations imposed on . . . his ability to work
demonstrates . . . that animus is directly on their mind and
that [appellant’s] Parkinson’s disease was directly
impacting their decision-making process.
 24

While safety concerns about a disabled employee, without more, might not

prove that he was subject to discrimination, the surrounding context here requires a

closer examination of that possibility. The trial court found that appellees’ offer of

the project manager position to appellant negated any discriminatory animus. We

can imagine a scenario where offering appellant a position change would be

consistent with discrimination. For example, appellees might have offered appellant

the project manager position to avoid providing him with reasonable

accommodations that would allow him to keep his position, as the law required them

to do. Appellees did not need to harbor complete animus toward appellant in order

to act with a partially discriminatory motive.

The trial court’s written order should have provided an analysis of the

employers’ testimony regarding their concerns about appellant’s safety in his

position as glazing field superintendent. We pay particular attention to appellees’

repeated description of their concerns about appellant’s safety on the construction

site when describing his work performance. 8 Appellees continued to refer to their

8
For example, when asked in general terms how appellant’s work product
was, Mr. Arbour answered:

Well, taking into [account] his . . . disability, we
understood where he stood – where he was at in his
 25

safety concerns when explaining appellant’s declining work performance and their

decision to terminate his employment. The trial court’s analysis of whether

appellees’ safety concerns reflected a discriminatory motive in their ultimate

termination of appellant’s employment is necessary for our consideration of whether

appellees’ actions stemmed, at least in part, from appellant’s disability.

Additionally, a clearer explanation of why the trial court found that appellant

was not terminated even partially because of his disability is also necessary. While

the trial court ultimately concluded that appellant “[had] not established that

capabilities of what he could perform. And he met those
when we first hired him. . . . It just seemed over time there
was more and more – he had more and more complications
in his performance tasks, like showing up for work – not
showing up for work, I should say. He had gotten in a few
different car accidents. He broke bones. He was falling
down. It was just over a matter of time it progressively
got worse.

Likewise, when asked generally about hiring appellant, Mr. Lewis testified that

He told us about his situation. . . . We knew his mind was
sharp, but we had no idea that he had as many limitations
as he has until later on. . . . [W]hen we first interviewed
[appellant], his mobility didn’t seem like it would be a
problem at that time, but as time went on, he explained that
his device that was planted in his chest needed to be
calibrated, and that’s why he was having so many
problems with falling and what-have-you.
 26

discrimination was a substantial factor in his termination,” the trial court made this

statement in its analysis under the McDonnell Douglas framework. The trial court

did not squarely address appellant’s argument that his termination was “motivated

partially by a discriminatory reason, even if it also was motivated by permissible

reasons not, in themselves, pretextual.” Furline, 953 A.2d at 353.

III. Conclusion

In sum, we remand the case to the trial court to consider whether appellant’s

communications with Mr. Arbour, before he submitted his doctor’s note, “provide[d]

[appellees] with enough information that, under the circumstances, [they could] be

fairly said to know of both the disability and desire for an accommodation.” Taylor,

184 F.3d at 313. We also remand for the trial court to determine whether appellees

terminated appellant in part based on his disability. See Furline, 953 A.2d at 353.

Accordingly, the judgment on appeal is hereby

Reversed and remanded.