United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 2006 Decided March 2, 2007
No. 05-7137
HAZEL V. MAYERS,
APPELLANT
v.
LABORERS’ HEALTH & SAFETY FUND OF NORTH AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02671)
John E. Carpenter argued the cause and filed the briefs for
appellant.
James S. Ray argued the cause and filed the brief for
appellee.
Before: GINSBURG, Chief Judge, and SENTELLE and TATEL,
Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Hazel V. Mayers appeals the district court’s
grant of summary judgment in favor of her former employer, the
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Laborers’ Health and Safety Fund of North America (LHSFNA),
on her allegations of discrimination, retaliation, and constructive
discharge in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. Although we disagree with
several aspects of the district court’s analysis, we agree that
summary judgment was appropriate.
I.
Mayers worked for LHSFNA from November 1992 until
January 2001, initially as a data entry clerk, and then, beginning
in February 1996, assembling desktop publishing materials.
Shortly after being transferred to the desktop publishing
position, Mayers developed rheumatoid arthritis, making her
new responsibilities—cutting, stapling, and the like—painful
and difficult to complete. According to Mayers, she notified
LHSFNA of her disease soon after being diagnosed. A year
later, Mayers says, in July 1997, she requested an electric stapler
and cutter, but LHSFNA failed to provide the tools. The
following year, in April 1998, Mayers’s co-worker in the
desktop publishing operation was promoted, leaving Mayers
with twice the work, but still no electric tools. Although
LHSFNA promised to provide an electric cutter, it again failed
to do so.
In April 1999, Mayers’s physician sent a letter to LHSFNA
stating that because of her condition, “she often has flares with
severe swelling and pain of multiple joints. At these times the
patient should be placed on light duty.” Another year went by,
and in March 2000, the physician sent a second letter, this time
stating that Mayers’s condition “obviously causes swelling and
inflammation of her joints,” as a result of which, “she is unable
to perform the current task she has been asked to do.” The next
month, Mayers told LHSFNA’s Assistant Executive Director
that the publishing work hurt her hands. Thereafter, LHSFNA
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provided Mayers with an electric cutter, and two months later,
an electric stapler. Roughly three years had passed between her
initial request and receipt of the tools. According to Mayers,
moreover, after LHSFNA provided the electric tools, it
increased her workload and, contrary to her physician’s
recommendation, failed to place her on “light duty.”
Appellant’s Br. 5.
On December 22, 2000, Mayers began a one-week vacation.
Then in the middle of a 4,000-brochure project with a December
29 deadline and believing that someone else would finish the
project in her absence, she returned on January 2, 2001, to find
the project uncompleted. She finished the project the next day
and in doing so, she says, severely exacerbated her arthritis. On
January 19, she resigned effective January 26. Even before the
January incident, though, Mayers had applied for a position with
another employer, where she began work on January 29.
On March 12, 2001, Mayers filed a complaint with the
Equal Employment Opportunity Commission (EEOC) alleging
that LHSFNA failed to reasonably accommodate her arthritis,
retaliated against her for requesting a reasonable
accommodation, and constructively discharged her. See 42
U.S.C. § 12112 (prohibiting discrimination in employment on
the basis of disability); 42 U.S.C. § 12203(a) (prohibiting
retaliation for asserting an ADA claim). The EEOC issued a
“Dismissal and Notice of Rights” letter in September, see 29
C.F.R. § 1601.19(a) (setting forth EEOC procedure for issuing
letters of determination), and Mayers filed suit in the district
court soon thereafter, see 42 U.S.C. § 2000e-5(f)(1) (authorizing
suit by person claiming to be aggrieved within 90 days of
dismissal of an EEOC complaint). The district court granted
summary judgment for LHSFNA on all of Mayers’s claims.
The court rejected Mayers’s failure-to-accommodate claim
because LHSFNA had provided the electric tools, “albeit
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slowly,” and because Mayers had never—as far as the record
indicated—informed LHSFNA that she was experiencing the
“flare ups” referenced in the physician’s letter. Mayers v.
Laborers’ Health & Safety Fund of North America, 404 F. Supp.
2d 59, 61 (D.D.C. 2005). The constructive discharge claim
failed because Mayers had “voluntarily left her employment
with LHSFNA.” Id. The court rejected Mayers’s retaliation
claim, finding that she had suffered no “adverse employment
action” given her testimony that the only retaliatory action she
suffered was that her co-workers acted “like she was not
there”—actions the district court found insufficient to establish
a case of unlawful retaliation. Id. at 61-62. Mayers appeals.
II.
In considering a district court’s grant of summary judgment,
our review is de novo, Smith v. District of Columbia, 430 F.3d
450, 454 (D.C. Cir. 2005), and we may affirm “on a ground not
relied upon by the lower court, provided that the opposing party
has had a fair opportunity to dispute the facts material to that
ground,” Washburn v. Lavoie, 437 F.3d 84, 89 (D.C. Cir. 2006).
In support of its motion for summary judgment, LHSFNA
argued that because Mayers’s EEOC complaint was untimely,
she had failed to exhaust her administrative remedies. Although
the district court never addressed this argument, we shall,
because it disposes of all issues, save one.
The ADA incorporates the procedural provisions of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., including the requirement that an injured
individual file an EEOC charge “within one hundred and eighty
days after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1); see also 42 U.S.C. § 12117
(incorporating procedural elements of Title VII). Although
EEOC regulations extend the deadline for filing to 300 days
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when it has a worksharing agreement with a state or local
agency, see 29 C.F.R. § 1601.13(a)(4)(ii), Mayers does not
allege the existence of such an agreement nor does she dispute
the applicability of the 180-day deadline to her case. Because
Mayers failed to file her EEOC complaint until March 12, 2001,
the complaint was timely only as to events transpiring on or
after September 13, 2000. Accordingly, except for the January
brochure project, all of Mayers’s claims, including LHSFNA’s
failure to provide electric tools, are barred.
Mayers asserts that she should nonetheless be deemed to
have exhausted her administrative remedies with respect to her
pre-September allegations pursuant to the continuing violations
doctrine. Under that doctrine, “if the alleged acts constitute one
similar pattern or practice and at least one illegal act took place
within the filing period, then the complaint of discrimination is
not time-barred and acts outside the statutory period may be
considered for purposes of liability.” Singletary v. District of
Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003) (internal
quotation marks and citation omitted). According to Mayers,
LHSFNA’s “misconduct was pervasive and constituted an
ongoing violation dating from April of 1996.” Appellant’s
Reply Br. 9. The continuing violations doctrine, however, has
two crucial limiting principles, neither mentioned by Mayers
and both derived from the Supreme Court’s ruling in National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
First, the doctrine has no applicability to “[d]iscrete acts such as
termination, failure to promote, denial of transfer, or refusal to
hire” because “[e]ach incident of discrimination and each
retaliatory adverse employment action constitutes a separate
actionable ‘unlawful employment practice.’” Id. at 114.
Second, although plaintiffs may invoke the continuing violations
doctrine for claims that by their nature occur not “on any
particular day” but “over a series of days or perhaps years,” they
must allege that at least one “act contributing to the claim
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occur[red] within the filing period.” Id. at 115, 117 (describing
continuing violations doctrine requirements in context of hostile
work environment claim). With these two Morgan limitations
in mind, we turn to Mayers’s three substantive claims.
First, the district court found that Mayers had not been
discriminated against because LHSFNA provided her electric
tools, “albeit slowly,” and because she never requested light
duty. 404 F. Supp. 2d at 61. As to the first point, we doubt that
a three-year delay in accommodating a plaintiff’s disability is
not actionable under the ADA. ADA accommodations must be
“reasonable,” 42 U.S.C. § 12112(b)(5)(A), and we are unsure
how a long-delayed accommodation could be considered
reasonable. We need not resolve this issue, however, for we can
affirm summary judgment for LHSFNA on Mayers’s failure-to-
accommodate claim based on the first Morgan limitation.
LHSFNA’s failure to provide the electric tools was a discrete act
of discrimination that ended, at the latest, in June 2000 when
LHSFNA provided the requested equipment—well outside the
180-day period leading up to her EEOC complaint. Thus,
although we think it likely that Mayers has presented sufficient
evidence of pre-September 2000 discrimination to survive
summary judgment, her failure to exhaust her administrative
remedies precludes a finding of liability. The same holds true
for Mayers’s claim that she was discriminated against by not
being placed on light duty, as the record contains no evidence
that she requested such duty in the period after September 13,
2000.
Mayers’s retaliation claim suffers from a similar defect. To
make out a prima facie case of retaliation, an ADA plaintiff
must show “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.’” Smith, 430 F.3d
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at 455 (citation omitted). Mayers points to a smorgasbord of
allegedly retaliatory acts, some of which are merely her
discrimination claims with new labeling—for instance, she
alleges that LHSFNA’s retaliation included “[the] failure to put
her on light duty as ordered by her physician,” Appellant’s Br.
19—and others that find no support in the record, e.g., her
assertion that LHSFNA “fail[ed] to consider her requests for
transfer to a position in which she could work with less physical
pain,” id. Her only potentially viable claim is that LHSFNA
increased her workload and tightened her deadlines in retaliation
for her seeking reasonable accommodation for her arthritis. In
support of this claim, Mayers testified at her deposition that
LHSFNA upped her workload after providing her with electric
tools in the spring or early summer of 2000. Ordinarily, such
testimony might suffice to defeat summary judgment on a
retaliation claim, but here it shows only that Mayers may have
been retaliated against outside the actionable 180-day period.
Mayers, of course, has exhausted her administrative
remedies with respect to her claim that the LHSFNA retaliated
against her in connection with the January 2001 brochure
project. That claim, however, fails on the merits. To begin
with, Mayers does not allege that the project increased her
workload above and beyond what ordinarily was expected of
her. In fact, although Mayers says that she anticipated the
project would be finished by someone else while she was on
vacation, she nowhere claims that LHSFNA ordered her to
complete it on her own when she returned. Mayers has thus
failed to allege an adverse action. Even if the project did qualify
as an adverse action, summary judgment was nonetheless
appropriate because Mayers failed to establish a causal
connection between the project and her requests for reasonable
accommodation. Although causation can sometimes be inferred
by temporal proximity, see, e.g., Singletary, 351 F.3d at 525
(“[T]his circuit has held that a close temporal relationship may
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alone establish the required causal connection.”), the eight- or
nine-month gap between the final protected activity—either the
physician’s March 2000 letter or Mayers’s April 2000
conversation with the Assistant Executive Director—and the
early January 2001 project is far too long, see Clark County Sch.
Dist. v. Breeden, 532 U.S. 270, 273-74 (2001) (per curiam)
(citing with approval circuit cases rejecting temporal proximity
of three and four months as evidence of causation).
We arrive finally at Mayers’s constructive discharge claim.
The district court acknowledged Mayers’s allegation that “she
was forced to find a new job because of the hostile work
environment,” but concluded that “Ms. Mayers voluntarily left
her employment with LHSFNA.” 404 F. Supp. 2d at 61. In
reaching this conclusion, the district court relied on the letter
Mayers sent applying for her new job, which stated that “her
reason for leaving LHSFNA was ‘advancement.’” Id. The
district court also ruled that “notwithstanding [Mayers’s]
contention in her resignation letter that LHSFNA required her to
perform tasks despite advice from her doctor that she be placed
on light duty, the evidence shows that no such accommodation
was specifically requested by Ms. Mayers.” Id. But the
resignation letter plainly qualifies as evidence, and the district
court’s weighing of it against the application letter had no place
in summary judgment proceedings. See Arrington v. United
States, 473 F.3d 329, 335-38 (D.C. Cir. 2006).
Nonetheless, the district court correctly concluded that
Mayers’s constructive discharge claim cannot survive summary
judgment. We have not yet had occasion to say whether, after
Morgan, constructive discharge claims (like hostile work
environment claims) by their “very nature involve[] repeated
conduct,” and are thus amenable to continuing violations
analysis. Morgan, 536 U.S. at 115. Assuming that they do,
Morgan’s second limiting principle bars Mayers’s claim.
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Morgan requires that Mayers show one offending act within the
statutory period and, as this court recently noted, constructive
discharge claims “must be predicated on a showing of either
intentional discrimination, or retaliation.” Carter v. George
Washington Univ., 387 F.3d 872, 883 (D.C. Cir. 2004) (internal
citation omitted). Because Mayers has failed to identify a single
act of discrimination or retaliation within the 180-day period,
her constructive discharge claim fails as a matter of law.
We affirm the grant of summary judgment in favor of
LHSFNA.
So ordered.