Minter v. District of Columbia , 62 F. Supp. 3d 149 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
PENELOPE MINTER, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0516 (CRC)
)
THE DISTRICT OF COLUMBIA, )
)
Defendant. )
___________________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Penelope Minter, a longtime employee of the District of Columbia Government,
contends that the District did not provide reasonable accommodation for her disability in the
form of a flexible work schedule or permission to work from home one to two days per week,
and ultimately fired her for requesting these accommodations. The District moves for summary
judgment, arguing that Minter’s claims were not timely filed, Minter is not a qualified individual
with a disability under the relevant statutes, and Minter has not produced sufficient evidence for
a reasonable jury to find that the non-discriminatory reason provided to justify the termination
was not the actual reason. Because the District successfully demonstrates that Minter did not file
her claims within the prescribed time limits, is not a qualified individual with a disability under
the relevant laws, and has not provided sufficient evidence that the District’s reasons for firing
her were pretextual, the Court will grant its motion for summary judgment.
I. Background
Because the timeliness of Minter’s claims is so central to this case, the Court will provide
a detailed review of the chronology of events underpinning this litigation.
1
For approximately 19 years, Minter was employed as a social worker by various agencies
of the government of the District of Columbia. Am. Compl. ¶ 9. According to her Complaint,
Minter suffers from sarcoidosis, rheumatoid arthritis, and fibromyalgia. Id. ¶ 10; see Pl.’s
Opp’n, Ex. 5 at 5–6. 1 She describes sarcoidosis and rheumatoid arthritis as “chronic, systemic
inflammatory diseases that cause pain in the joints, lungs, lymph nodes and other tissue.” Am.
Compl. ¶ 10. Fibromyalgia, she alleges, is “a medical disorder characterized by chronic
widespread pain, debilitating fatigue, sleep disturbance and joint stiffness.” Id. Minter’s alleged
physical impairments “substantially limit[] the major life activity of working,” such that she
deems herself a person with a disability for purposes of the Americans with Disabilities Act
(“ADA”), see 42 U.S.C. § 12101 et seq. 2 Am. Compl. ¶ 5. These impairments also limit her
ability to sit, stand and walk. Minter Dep. 11/13/12 at 190:2. 3
Over the years, plaintiff held positions in the District’s Child and Youth Services
Administration, the D.C. Mayor’s Youth Initiative Office, the Office of the Commissioner of
Social Services, the Youth Services Administration (“YSA”), and the Office of the Chief
Medical Examiner (“OCME”). See generally Pl.’s Opp’n, Ex. 6 at 9–12. 4 In at least some of
these positions, she had been allowed to move between a full time schedule and a reduced work
schedule – typically a 32-hour work week – when she deemed it necessary. See Minter Dep.
1
Exhibit 5 to plaintiff’s opposition is filed under seal.
2
The Court notes at the outset that plaintiff points to evidence as to her diagnoses and her
physical symptoms (such as pain, fatigue, and limited mobility) but does not provide deposition
testimony or any other evidence to link her diagnoses and symptoms to her ability or inability to
perform her duties, or how the accommodations she requested address or otherwise alleviate her
symptoms.
3
Plaintiff was deposed on three days: September 18, 2012, November 13, 2012, and June 11,
2013. Both parties have attached excerpts from plaintiff’s deposition transcript to their
respective submissions. The Court will refer to the transcripts as “Minter Dep. 9/18/12,” “Minter
Dep. 11/13/12,” and “Minter Dep. 6/11/13.”
4
Exhibit 6 to plaintiff’s opposition is filed under seal.
2
9/18/12 at 26:14–27:14, 28:17–20. For example, between 1988 and 1995, although plaintiff’s
typical work hours were from 10:00 a.m. to 6:30 p.m., see id. at 26:14–18, she was allowed to
“work a reduced schedule,” id. at 27:2–3, and “when [she] was ready to [go] back to full time,”
id. at 27:4–5, she could do so without incident because she “remained in [a] full-time position,”
id. at 27:6. At one point, an administrative officer “would literally do a personnel action to
reduce [her] schedule and then a personnel action to bring it back to full time.” Id. at 28:17–19.
In another position, beginning in 1995, id. at 32:7–8, plaintiff “had flexibility,” although she
could not recall whether she was allowed to shift between a full time schedule and a reduced
work schedule, id. at 33:9. She could work late and leave for medical appointments as necessary
without any objection from her supervisors, see id. at 33:11–17.
While working at the the Office of the Commissioner of Social Services beginning in
1996, see id. at 35:9–20, Minter ’s work hours still were from 10:00 a.m. to 6:30 p.m., see id. at
37:4–6, but when she “asked to go on a reduced work schedule,” she claims “they shipped [her]
off to another office,” id. at 37:9–10. At that point, plaintiff was told “to report to YSA, the
Youth Services Administration.” Id. at 38:3–4. According to plaintiff, “they booted [her] out
and sent [her] to [YSA] because [she] asked for accommodation.” Id. at 38:12–14. At YSA,
plaintiff reached an agreement with her supervisors to work a reduced schedule, typically taking
a day off in the middle of the week or when she scheduled medical appointments. See id. at
48:12–22, 49:17–50:18.
Minter was “detailed” to the OCME on two occasions, first in 1999, see Minter Dep.
9/18/12 at 67:20–68:1, and again in November 2001 as a Program Specialist, id. at 76:14–17;
3
Am. Compl. ¶ 12. 5 Her reduced schedule continued, see Minter Dep. 9/18/12 at 67:14–68:1,
77:6–16, notwithstanding her “attempt[s] to go back to full time,” id. at 77:8. According to
Minter, “all the players had changed [and] nobody would listen to [her] or respond,” id. at 78:3–
5. Working on a reduced schedule meant that plaintiff lost pay and retirement benefits, Minter
Dep. 11/13/12 at 198:11–19, which “be[came] problematic as [she was] getting older,” id. at
198:19–20; see Minter Dep. 9/18/12 at 78:8–13. It was Minter’s understanding that “the ADA
does not require [that she work] reduced schedules in an accommodation because [she was]
losing pay [and] benefits.” Minter Dep. 11/13/12 at 192:7–10, 198:21–199:3.
On May 1, 2006, Minter accepted a promotion to the full-time position of Secretariat
(“Coordinator”) to the Child Fatality Review Committee (“CFRC”). Def.’s Mot. for Summ. J.,
Ex. B (Letter to plaintiff from W.L. Stokes, SR, HRS, dated April 7, 2006 and Acceptance[] of
Offer of Management Supervisory Service Appointment). “The mission of the [CFRC was] to
examine the circumstances surrounding and leading to child deaths for the purpose of identifying
contributing factors and making recommendations for systemic change, in order to improve
service delivery to children, and possibly to reduce the number of preventable deaths, especially
those associated with child abuse and neglect.” Id., Ex. C (position description for Secretariat to
the Committee) at 1. This was a Management Supervisory Service position; Minter “[did] not
acquire permanent status, serve[d] at the pleasure of the appointing personnel authority, and
[could] be terminated at any time.” Id., Ex. B at 1. Among other duties, the Coordinator
managed the day-to-day functions of the CFRC, supervised and trained CFRC staff, developed
grant applications, selected and assigned cases for review, developed reports from case reviews,
5
During plaintiff’s “detail” to OCME, the District’s Department of Human Services paid her,
and continued to do so until she was hired by OCME on a full-time basis. See Am. Compl. ¶ 12
n.1.
4
and attended review team meetings. See id., Ex. C at 2. Sharan James, OCME’s Fatality
Coordinator, was Minter’s immediate supervisor. Minter Dep. 9/18/12 at 190:17, 196:11–12.
Dr. Marie-Lydie Y. Pierre-Louis was the District’s Chief Medical Examiner at that time, and
Beverly Fields was her Chief of Staff. See Minter Dep. 11/13/12 at 197:3–6; Def.’s Mot. for
Summ. J., Ex. E at 3.
James, with whom Minter had been acquainted since 1995, see Minter Dep. 9/18/12 at
57:3–13, knew that plaintiff had sarcoidosis and that plaintiff had arranged a reduced work
schedule before her detail to OCME began. See James Dep. at 29: 3–21, 52:7–19. In her
capacity as Minter’s immediate supervisor, she had a number of conversations with Minter about
her purported disability, both before plaintiff accepted the Coordinator position, Minter Dep.
11/13/12 at 190:10–22, and “after starting the job, [when] the discussions started again around
June or July of 2006,” id. at 191:1–3. Among the topics of those discussions were “the
possibility of working from home at times,” id. at 191:16–17, and “reduced schedules,” id. at
191:19; see id. at 192:11–193:2. Minter recalled a “positive conversation about those two
options as possibilities,” id. at 193:1–2, and believed that James thought these options
“reasonable,” id. at 192:19.
James apparently “was not comfortable” with Minter working from home, id. at 197:12–
198:1, because “she was concerned about security issues,” id. at 200:7, regarding “confidential
records,” James Dep. at 69:18. Based on Minter’s understanding that “the only thing [James
was] comfortable with [was] a reduced schedule,” Minter Dep. 11/13/12 at 206:2–3, Minter
decided to “go ahead and do this for now and then . . . look at [her] other options later and
change to something else because [she did not] want to keep losing benefits,” id. at 206:5–8.
5
It was not clear, however, whether James had authority to approve either option. According to
Minter, James “neither told [Minter] she didn’t have the ability [to personally implement an
accommodation], nor did she tell [Minter] she didn’t. But [James] agreed that it was something
[they] could negotiate, something [they] could talk about[.]” Id. at 193:13–16. Notwithstanding
the reduced work schedules Minter enjoyed while employed at other District offices, she “really
had no accommodation after she got the job at OCME.” James Dep. at 53:15–16. Rather, she
was “back on her five-day work week schedule . . . .” Id. at 53:17–18. James “was pushing her
to put in for the accommodation,” id. at 53:20–21, and urged Minter “to talk with the ADA
coordinator, id. at 53:21–54:1. James intended to support Minter’s request for an
accommodation, id. at 54:10–12, and apparently was under the impression that Minter likely
would have had to “to submit extensive documentation related to medical records . . . to the
ADA person.” Id. at 54:6–8. OCME’s “ADA person” was Sharlene Williams, James Dep. at
54:13–14; Minter Dep. 6/11/13 at 8:19–20, whom Minter believed “would formalize” her
accommodation. Minter Dep. 11/13/12 at 213:22. The referral by James to Williams took place
“sometime around September” 2006. Id. at 202:10.
Tanya Lumpkins, M.D., who had been treating Minter’s sarcoidosis, Minter Dep.
11/13/12 at 260:8–10, prepared a letter addressed “to whom it may concern,” Minter Dep.
6/11/13 at 7:5, which Minter intended to give to James, id. at 9:9–10, “in anticipation that [she]
may need to go on a reduced schedule,” id. at 7:22–8:2. The letter, dated July 12, 2006, id. at
7:2–4, stated that Minter “[was] able, . . . may work a 40-hour workweek,” but could not
“maintain such a schedule on a regular basis.” 6 Id. at 14:4–6. In other words, as of July 12,
2006, although Minter was working a 40-hour work week on a regular basis, this schedule was
6
Neither party included Dr. Lumpkins’ letter as an exhibit, and its full contents are unknown.
6
not sustainable in Dr. Lumpkins’ opinion. See id. at 14:9–16:10. Minter did not recall whether
she gave Dr. Lumpkins’ letter to James or Williams. See id. at 8:13–9:16, 10:17, 13:9–15.
Initially, Minter “told [Williams] about the conversations [Minter] had with Ms. James . .
. about doing a reduced schedule.” Minter Dep. 11/13/12 at 211:1–4. Minter testified that
Williams’ response was that there were not “any part-time positions at OCME, and part time
[was] not a reasonable accommodation.” Id. at 211:6–8. Williams was “to look into some things
and . . . come back and talk again.” Id. at 212:2–3. Meanwhile, Minter contacted other District
government offices in search of assistance, to no avail. See generally id. at 212:5–218:6.
On September 25, 2006, Minter “slipped on the wet, newly-waxed hallway floor in the
OCME building,” Am. Compl. ¶ 32, injuring “her back [and] her left knee, and aggravate[ing]
her prior left ankle and foot injury,” id., sustained in 2005 when she “tripped over office
equipment power cords,” fell, and “injured her left ankle and foot.” Id. ¶ 19; see Def.’s Mot. for
Summ. J., Ex. D (Letter to plaintiff from Sharan D. James dated April 5, 2007) at 1; Minter Dep.
11/13/12 at 138:11–19. Minter described the injury to “the whole side from [her] left side to
[her] foot,” Minter Dep. 11/13/12 at 138:14, as “a sciatic nerve injury on both sides, but one is
much more involved than the other,” id. at 138:17–19. She sought and obtained disability
compensation, presumably worker’s compensation benefits, following this injury. Def.’s Mot.
for Summ. J., Ex. D at 1. Minter stated that the injuries she sustained on September 25, 2006
made the fatigue and difficulty sitting, standing, and walking as a result of her sarcoidosis “much
more intense,” to the point that even lifting records from a file cabinet caus[ed] a lot of pain for
[her] back.” Minter Dep. 11/13/12 at 190:2–9; 20: 3–9.
Minter’s conversations with Williams continued after her workplace injury, id. at
203:12–13, as Minter recalled having “asked [Williams] about the injury as an additional
7
component of the accommodation,” id. at 203:13–15. Neither James nor Williams was inclined
to address an accommodation for plaintiff’s alleged disability together with her workplace injury
(and resulting worker’s compensation claim). Id. at 221:4–11; James Dep. at 60:14–61:4.
According to Minter, Williams told her that the “accommodation for Workers’ Comp is not
related to [her] other accommodation,” Minter Dep. 11/13/12 at 221:8–9, and Williams thereafter
“refused to even discuss” the worker’s compensation claim, id. at 221:11. Minter “didn’t even
know how to separate the two, because . . . it’s the same issue for [her].” Id. at 221:12–14.
James believed that Minter’s “illness or whatever was requiring her to be away from the office
increasingly more was related to the Workmen’s Comp, her fall, not her ADA issues.” James
Dep. at 61:1–4.
From Minter’s perspective, her conversations with Williams were not fruitful. When
plaintiff inquired about a reduced schedule, “which would have meant working less than 40
hours per week,” Minter Dep. 11/13/12 at 220:7–8, Williams maintained that there were not “any
part-time positions at OCME, and part time [was] not a reasonable accommodation.” Id. at
211:6–7; see id. at 218:10–11. 7 Further, according to Minter, Williams questioned whether
plaintiff “even ha[d] an illness,” id. at 219:16, and directed Minter to “bring . . . all [her] medical
records,” in order for Williams to “decide whether [Minter had] a disability,” id. at 219:16–17.
They had reached “an impasse” without coming to any agreement about an accommodation. Id.
at 247:5. If Minter was not “fit for duty,” Williams allegedly told her that she should “file for
disability.” Id. at 219:12–13; see id. at 255:19–21.
On December 1, 2006, Williams sent an email to Minter encouraging her “to keep the
appointment [she] made with [Williams] for December 5, 2006 at 2:00 p.m.” Def.’s Mot. for
7
Williams testified that “a part-time position is not a reasonable accommodation . . . because
you lose all your benefits and everything.” Williams Dep. at 74:16–19.
8
Summ. J., Ex. H (email message to plaintiff from Sharlene Williams dated December 1, 2006).
Williams’ email further stated:
This is to follow up on our telephone conversation yesterday concerning your
medical conditions and how they should be addressed.
My advice to you is to keep the appointment you made with me for December 5,
2006 at 2:00 p.m. You are clearly having difficulty in determining where to go or
how to handle your situation. Without a meeting where we can discuss your
condition(s) and claims, I am unable to assist you, even as to the proper forum for
addressing your claims. . . . As the ADA compliance officer, my advice is that
you keep our appointment and allow me to assist you. The agency is unable to
accommodate you for a condition about which you have not informed us.
Id., Ex. H. “This is the same day [Minter] went to EEOC,” id. at 230:19, where she completed
an Intake Questionnaire charging discrimination based on her disability, Minter Dep. 11/13/12 at
236:8–22; 246:12–13; see Def.’s Mot. for Summ. J., Ex. K (Intake Questionnaire) at 3 (page
numbers designated by the Court). Minter explained that she has a disability requiring minimal
accommodation, yet the District “made little progress to allow flexibility in scheduling to
accommodate [her] needs for reduced hours and/or work at home (telework) without penalties.”
Id., Ex. K at 3. A handwritten note below her signature stated her “wish to consult with a[n]
EEO specialist regarding the possible filing of charges.” Id., Ex. K at 4.
Thereafter, Minter had no more “face to face [meetings] with [Williams].” Minter Dep.
at 250:4–5. She did correspond with Williams by email, and again inquired whether both the
worker’s compensation claim and her accommodation request could be addressed together.
Def.’s Mot. for Summ. J., Ex. H (email message to Williams from plaintiff dated December 4,
2006). Williams responded:
I do not know if the two claims can be addressed together. It would depend on
the status of the Workman’s Comp claim. If the Workman’s Comp claim is still
effective and the medical recommendations for accommodation are up to date,
then probably, yes. However . . . , I cannot answer that question without having
knowledge of your ADA and Workman’s Comp claims and your doctor(s)’
9
recommendations for accommodation . . . . After I learn what your claims are and
what accommodations are needed, I will be better able to answer your question[.]
Id., Ex. H (email to plaintiff from Williams dated December 4, 2006).
Minter did not meet with Williams on December 5, 2006, apparently because a meeting
Minter attended took longer than expected. See Pl.’s Opp’n, Ex. 8 (email from plaintiff to
Williams dated December 5, 2006). Williams then sent an email to Minter in error – it was
intended for James – stating, “FYI. This if for your [James’] records, in case [Minter] approaches
you to complain that she cannot get any help. She did not come to our meeting as I requested.”
Id., Ex. 8 (email from Williams to plaintiff dated December 5, 2006). Minter expressed concern
“that this [was] becoming an adversarial process,” even though she had “no desire to be in a
battle” with Williams. Id., Ex. 8 (email from plaintiff to Williams dated December 5, 2006.
Williams responded, “I am sorry that you believe my offer to assist is adversarial. If and when
you are ready, please feel free to see me.” Id., Ex. 8 (email from Williams to plaintiff dated
December 5, 2006).
Although Williams requested medical information and a doctor’s recommendations for
an accommodation, Minter did not recall whether she had actually provided this information.
See Minter Dep. 11/13/12 at 251:21–256:5; 258:14–21. She claimed that “they already had [her]
information,” id. at 252:2–3, or rather that “information regarding the Workers’ Compensation
was available to [Williams] the whole time,” id. at 252:8–9; see id. at 253:21–254:6. Minter
contended in her deposition that Williams “wanted all [her] medical information,” id. at 255:12–
13, which Minter “did not provide,” id. at 153:2, because she believed Williams “had no right to
all [her] medical records,” id. at 252:21–22.
From unspecified dates in December 2006 through January 2007, Minter took leave on
the advice of a doctor, which apparently was connected to her worker’s compensation claim for
10
injuries sustained on September 25, 2006. See Minter Dep. 11/13/12 at 140:17–20; 142:1–8;
261:8–18; 262:4–263:7. She was to continue working a 40-hour work week, id. at 261:16–21,
and apparently did so through the end of February 2007, id. at 262:14–22.
By the end of February 2007, because Minter still “was having a lot of pain,” id. at
263:18–19, she took additional leave with the understanding that this period would be covered
through worker’s compensation benefits, see id. at 264:3–14. 8 Dr. Levitt, who completed an
independent medical examination of Minter in April 2007 for the purposes of her worker’s
compensation claim, cleared her to return to work. See id. at 264:15–265:3; 275:2–8. She chose
not to return to work, however, “[b]ecause [she] wasn’t getting any medical care or treatment[,
and she] was still having lots of pain.” Id. at 268:7–8. At that point, Minter understood that she
would be using her annual and sick leave, and thereafter would take leave without pay. Id. at
268:17–269:1.
On April 5, 2007, James sent Minter a letter regarding her leave status. See generally
Def.’s Mot. for Summ. J., Ex. D. Based on the medical certifications James had received, Minter
had used 18 out of 21 days of leave authorized in connection with her September 25, 1006
workplace injury and resulting worker’s compensation claim. Id., Ex. D at 1. Without additional
documentation, James stated that Minter could not apply any leave to cover the additional days
she had been absent. Id., Ex. D at 1. James asked that Minter provide “supporting medical
documentation to cover the current and projected seven (7) week period of absence (February 26
through April 13, 2007),” and further requested that she complete an “Application for Leave
8
Minter declined to return to work on the verbal instruction of an unidentified claims examiner,
who presumably was the individual who handled her worker’s compensation matter. See Minter
Dep. 11/13/12 at 263:5–264:14; 266:5–267:18.
11
form officially requesting any uncovered leave to be applied to Leave Without Pay.” Id., Ex. D
at 2.
Meanwhile, on April 18, 2007, the EEOC sent Minter a letter with “six (6) copies of the
charge of discrimination,” informing her that, “[i]n order for the [EEOC] to investigate [her]
allegations, [she] must sign and date these documents and return them,” as “[t]he law requires
that charges of discrimination be filed with us within 300 days (in some cases 180 days) from the
date the alleged discriminatory action occurred.” Id., Ex. L (Letter from Jacqueline Queirolo,
Intake Officer, Washington Field Office, EEOC, dated April 18, 2007). Minter signed the EEOC
Charge of Discrimination on October 19, 2007. Id., Ex. M (Charge of Discrimination). By April
28, 2007, she had exhausted her sick leave and annual leave. Def.’s Mot. for Summ. J., Ex. E
(Letter from Fields to plaintiff dated May 7, 2007) at 2. On May 7, 2007, Fields notified Minter
that, “[b]ased on [her] injury and absences from the office as of September 25, 2006, [she may
have qualified] for medical leave pursuant to the federal Family and Medical Leave Act
(‘FMLA’) and District of Columbia Family and Medical Leave Act (‘DCFMLA’).” Id., Ex. E at
1. Fields’ letter further advised Minter that, “[i]n order to determine whether [her] absence . . .
qualifie[d] as medical leave, OCME require[d] that [her] healthcare provider complete [a]
medical certification and return it to the OCME no later than May 22, 2007.” Id., Ex. E at 2.
In late May or early June 2007, see Minter Dep. 11/13/12 at 279:4–6, Minter spoke with
Fields and Williams by telephone, id. at 279:9–10, and during the call Williams allegedly told
her that she could not return to OCME if she was “not fit for duty.” Id. at 280:19. Minter
summarized Williams’ statement as follows:
If you can’t come to work, then you should just go on disability. She repeated to
me OCME doesn’t have any part-time positions. So you can’t – because I went
through the same scenario that I had had – conversations that I had with her back
in the fall, and she repeated those.
12
Id. at 280:21–281:5. By “disability,” Minter understood Williams to mean “Social Security
disability.” Id. at 281:21–22.
Because OCME had not received “the required supporting medical certification,” James
again requested “medical certification to for [Minter’s] absence from duty since February 26,
2007.” Def.’s Mot. for Summ. J., Ex. F (Letter from to plaintiff dated June 14, 2007). In
addition, James directed Minter, by June 20, 2007, “to either report to duty or provide [OCME]
with the certification needed to support [her] continued absence from duty.” Id., Ex. F. On June
20, 2007, Am. Compl. ¶ 50, Minter sent by fax James “a doctor’s statement,” Minter Dep.
11/13/12 at 273:10, from neurologist Michael E. Batipps, M.D. “saying that [she] was totally and
temporarily disabled from the injury,” id. at 273:12–14; see id. at 273:19–22. 9 While Dr.
Batipps assessed that plaintiff was totally disabled for an indefinite period, Def.’s Mot. for
Summ. J., Ex. G, Minter informed James that she “believed [she] could come back to work [in]
September.” 10 Minter Dep. 11/13/12 at 273:17–18.
Minter then received a letter dated July 24, 2007 notifying her that her termination would
become “effective at the close of business, Wednesday, August 8, 2007.” Def.’s Mot. for Summ.
J., Ex. N (Letter to plaintiff dated July 24, 2007) at 1. 11 According to Fields’ deposition
9
Michael Batipps, M.D., declared Minter totally disabled for an indefinite period beginning on
September 26, 2006. Pl.’s Opp’n, Ex. G (Disability Certificate dated June 19, 2007) (filed under
seal). Although Dr. Batipps’ handwritten comments are partially illegible, the report indicated
that sarcoidosis was not the cause of plaintiff’s disability.
10
Minter testified that she attached to the Disability Certificate a cover letter stating her “hope
to return by the beginning of September [2007], depending on present treatment.” Pl.’s Opp’n,
Pl.’s Statement of Facts at 17; see Minter Dep. 11/13/12 at 273:15–22. The cover letter was not
included among plaintiff’s exhibits, however, and it is not part of the record on summary
judgment.
11
The July 24, 2007 letter apparently is a two-page letter, yet only the first page (which bears
no signature) is attached as an exhibit to defendant’s memorandum. See Def.’s Mot. for Summ.
J., Ex. N.
13
testimony, Minter was terminated because, notwithstanding the agency’s requests for
“certification from a doctor stating, this is why [Minter was] out of the office and this is the
length of time [she] will be out of the office,” the agency “didn’t receive anything . . . from any
type of physician, or anyone for that matter, including [Minter] herself.” Fields Dep. at 92:12–
18. She further testified:
Q. [Robert DeBerardinis, Assistant Attorney General, District of Columbia]
And so there came a point where a decision was made that enough’s enough.
Would that be fair to say?
A. [Beverly Fields, Chief of Staff to the District of Columbia’s Chief Medical
Examiner] Yes.
Q. Who made that decision?
A. I think we collectively did, the supervisor, Sharan James, I and the general
counsel, Sharlene Williams. And I’m pretty sure we had talked to DCHR, and it
may have been legal counsel there that Sharlene may have interacted with just to
get some more advice on how to handle this situation, and it came –
Q. When you say “handle this situation,” what are you talking about?
A. What do we do? We have to have work done. We’re not getting any
response from the employee for months, and the employee is not reporting to
work. So, the agency has to have the work done and with all of the efforts that we
made to attempt to get documentation from the employee, hear from the employee
about what was going on with her, we had to make a decision to move forward so
that we could get the work done.
Q. Was there any other reason that [Minter] was terminated?
A. No.
Id. at 93:15–94:19. The EEOC issued Minter a right-to-sue letter, which she received on
December 22, 2009. Am. Compl. ¶ 56.
Minter filed this action on March 22, 2010 under the ADA, the Rehabilitation Act, see 29
U.S.C. § 791 et seq., and the District of Columbia Human Rights Act (“DCHRA”), see D.C.
Code § 2-1401 et seq. See Am. Compl. ¶ 2. Specifically, she alleges that the District failed to
provide her a reasonable accommodation for her disability, namely, a flexible work schedule or
permission to work from home one or two days per week (Counts I and II), and discharged her in
retaliation for having requested an accommodation (Count III), in violation of the ADA. She
14
further alleges that these same actions – failure to provide a reasonable accommodation for her
disability and retaliatory discharge – violated the Rehabilitation Act (Counts IV and V). Lastly,
plaintiff alleges that the above-mentioned actions and retaliation in the form of terminating her
for having requested an accommodation and having filed a charge of discrimination violated the
DCHRA (Count VI). She demands “back pay, injunctive relief, reinstatement of civil service
status, reinstatement of all annual and sick leave, reinstatement of benefits, reinstatement of [her]
employment, attorneys’ fees and court costs, and such other equitable relief as the Court deems
appropriate.” Am. Compl. ¶ 2.
II. Standard of Review
The District moves for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. “The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R .Civ. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by “citing to particular parts of materials in the record, including
depositions, documents . . . affidavits or declarations, stipulations . . . , admissions, [or]
interrogatory answers[, or by] showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).
When considering a motion for summary judgment, the Court may not make credibility
determinations or weigh the evidence; the evidence must be analyzed in the light most favorable
to the nonmoving party, with all justifiable inferences drawn in her favor. Anderson v. Liberty
15
Lobby, Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are
susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,
571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). Yet, the mere existence of a factual dispute
does not bar summary judgment. See Anderson, 477 U.S. at 248. “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. The adverse party must “do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986), and cannot rely on conclusory assertions without any factual basis in
the record to create a genuine dispute, see Ass’n of Flight Attendants - CWA v. U.S. Dep’t of
Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009).
III. Analysis
A. Timeliness of Plaintiff’s Claims
i. Failure-to-Accommodate Claim Under the ADA
A plaintiff bringing an employment discrimination claim under the ADA first must file a
charge of discrimination “within a specified period . . . after the alleged unlawful employment
practice occurred.” Hodge v. United Airlines, 666 F. Supp. 2d 14, 20 (D.D.C. 2009) (quoting
Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 623–24 (2007)); see also Marshall
v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“Before bringing suit in federal
court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by
filing an EEOC charge and giving the agency a chance to act on it.”). 12 Ordinarily, a plaintiff
must file her charge of discrimination “within one hundred and eighty days after the alleged
12
Procedures applicable to Title VII of the 1964 Civil Rights Act, as amended, see 42 U.S.C. §
2000e et seq., including the limitations period set forth in 42 U.S.C. § 2000e-5, apply to actions
brought under the ADA, see 42 U.S.C. § 12117(a).
16
unlawful employment practice occurred . . . , except that in a case of an unlawful employment
practice with respect to which the person aggrieved has initially instituted proceedings with a
State or local agency with authority to grant or seek relief from such practice.” 42 U.S.C. §
2000e-5(e)(1). Because the District’s Office of Human Rights (“DCOHR”) has a work sharing
agreement with the EEOC, a claim filed with one agency is deemed to have been cross-filed with
the other. See, e.g., Lee v. District of Columbia, 733 F. Supp. 2d 156, 161 (D.D.C. 2010);
Kornegay v. AT&T, 579 F. Supp. 2d 34, 37 (D.D.C. 2008); see also Schuler v. Pricewaterhouse
Coopers, LLP, 514 F.3d 1365, 1372 (D.C. Cir. 2008) (analyzing “the worksharing agreement,
which the EEOC, acting in accordance with 29 C.F.R. § 1626.10, has signed with the DCOHR”).
In the District of Columbia, then, a plaintiff enjoys a longer period – 300 days – within which to
file a charge of discrimination. See Lee, 733 F. Supp. 2d at 160; Tucker v. Howard Univ. Hosp.,
No. 10-cv-756, 2011 WL 52863, at *3 (D.D.C. Jan. 7, 2011) (“In the District of Columbia, an
EEOC charge must be filed within 300 days of the date of the alleged discrimination.”). “[I]f the
employee does not submit a timely EEOC charge, [she] may not challenge that practice in
court.” Ledbetter, 550 U.S. at 624 (citing 42 U.S.C. § 2000e-5(f)(1)).
In Counts I and II of the Amended Complaint, Minter alleges that the District failed to
provide her reasonable accommodation for her disability, namely, a reduced schedule or
permission to work from home one or two days per week, in violation of the ADA. See
generally Am. Comp. ¶¶ 61–69, 71–76. The District argues that plaintiff’s ADA claim was not
timely filed. See generally Def.’s Mot. for Summ. J. at 20–23. It asserts that the latest date on
which her claim could have ripened is December 5, 2006, see id. at 22, when Williams “repeated
that part-time is not a reasonable accommodation[,]” Am. Compl. ¶ 40, after which Minter had
no further discussions regarding her request for an accommodation. Assuming that the 300-day
17
limitations period began to run on December 5, 2006, plaintiff’s failure-to-accommodate claim
under the ADA is viable only if she filed her charge of discrimination with the EEOC by October
1, 2007. 13 Def.’s Mot. for Summ. J. at 22. Review of the charge, however, reveals that it was
not filed until October 19, 2007. See id., Ex. M at 1.
Minter counters that she filed a charge of discrimination on December 1, 2006, and
therefore, it was timely filed with the EEOC within 300 days, that is, by October 1, 2007. See
generally Pl.’s Opp’n at 17–21. She relies on Fed. Express Corp. v. Holowecki, 552 U.S. 389
(2008), to support her argument that she “lodged her charge of discrimination on December 1,
2006, through her EEOC intake questionnaire, which itself constitutes a ‘charge of
discrimination,’” Pl.’s Opp’n at 17–18. The Intake Questionnaire, she contends, “detail[s]
discrimination occurring in September, November, and December of 2006,” and therefore, any
“[d]iscriminatory acts occurring thereafter are thus properly part of [her] claim.” Id. at 19. That
she filed her actual “Charge of Discrimination” on October 19, 2007, she argues, is not
dispositive. Id.
The Supreme Court considered in Holowecki whether an “Intake Questionnaire”
constitutes a “charge” for purposes of the Age Discrimination in Employment Act (“ADEA”),
see 29 U.S.C. § 621 et seq. While mindful of the admonition that “employees and their counsel
must be careful not to apply rules applicable under one statute to a different statute without
careful and critical examination,” Holowecki, 552 U.S. at 393, the Court concludes that the
Supreme Court’s analysis in Holowecki also applies in the context of an ADA claim. See, e.g.,
Beckham v. National R.R. Passenger Corp., 590 F. Supp. 2d 82, 86 (D.D.C. 2008) (applying
13
The Court presumes a typographical error in the District’s memorandum identifying the
operative date as December 5, 2007, see Def.’s Mem. at 22, and proceeds as if the operative date
is December 5, 2006.
18
Holowecki in the context of race discrimination and retaliation claims under Title VII of the
Civil Rights Act “because of the similarities between the statutory schemes of the ADEA and
Title VII concerning exhaustion of administrative remedies”).
In Holowecki, the claimant submitted to the EEOC an Intake Questionnaire (Form 283)
and “attached to the questionnaire a signed affidavit describing the alleged discriminatory
practices in greater detail.” 552 U.S. at 394. Even though the questionnaire complied with
certain minimum requirements set forth by regulation, see 29 C.F.R. §§ 1626.6 and 1626.8, the
Supreme Court “accept[ed] the agency’s position that the regulations do not identify all
necessary components of a charge; and it follows that a document meeting the requirements of
[the regulations] is not a charge in every instance.” Holowecki, 552 U.S. at 397. Where,
however, a document not only meets the minimal requirements set forth by regulation but also
can be “reasonably construed as a request for the agency to take remedial action to protect the
employee’s rights or otherwise to settle a dispute between the employer and the employee,” id. at
402, it qualifies as a charge of discrimination. And “[t]he filing of a charge . . . determines
when the [ADEA’s] time limits and procedural mechanisms commence.” Id. at 404. In
Holowecki, the intake questionnaire and supporting affidavit read together were found to be a
request for agency action “to activate its machinery and remedial processes,” id. at 402,
particularly because “the completed questionnaire . . . was supplemented with a detailed six-page
Affidavit” in which the complainant “asked the agency to ‘[p]lease force Federal Express to end
their age discrimination,’” a statement “properly construed as a request for the agency to act.”
Id. at 405.
Despite certain technical deficiencies, the Court finds that Minter’s Intake Questionnaire
substantially complies with the minimum regulatory requirements. See 29 C.F.R. § 1601.12(b).
19
The Questionnaire does not, however, communicate an intention “to activate the [ADA’s]
machinery,” as required by Holowecki. The document is plainly titled – in large print – “Intake
Questionnaire.” Nowhere on the face of the questionnaire does it state that it alone is or would
be deemed a charge of discrimination. Consistent with the disclosure statement on its final page,
the principal purpose of the questionnaire is to provide “information . . . relevant to filing a
charge of discrimination,” so the EEOC can “make an official determination whether facts exist
to prepare a charge of discrimination.” Def.’s Mot. for Summ. J., Ex. K at 5. The questionnaire
does not, for example, include a box for a claimant to check stating, “I want to file a charge of
discrimination, and I authorize the EEOC to look into the discrimination I describe above,” as in
Leftwich v. Gallaudet Univ., 878 F. Supp. 2d 81, 91–92 (D.D.C. 2012). It also does not indicate
that it would be considered a charge of discrimination if no other timely documents were filed.
See Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1, 7–8 (D.D.C. 2011); Hodge v. United
Airlines, 666 F. Supp. 2d 14, 20–21 (D.D.C. 2009); Beckham, 590 F. Supp. 2d at 87 (finding a
submission titled “Charge Questionnaire” to be sufficient where the form clearly stated that,
without further timely filings, the form itself would constitute a charge).
Minter did not attach a letter or separate document to the questionnaire expressing her
intention to file a claim. She merely added a handwritten notation expressing her “wish to
consult with a[n] EEO Specialist regarding the possible filing of charges.” Def.’s Mot. for
Summ. J., Ex. K at 4 (emphasis added). This is hardly a clear and forceful demand for agency
action. Other courts in this district have found similar information provided on an intake form to
be insufficient to constitute an EEOC charge. See Featherston v. District of Columbia, 910 F.
Supp. 2d 1, 5–7 (D.D.C. 2012) (“Considering . . . the lack of an explicit request that the EEOC
take remedial action for such discrimination, and the lack of textual indication in the intake
20
questionnaire that the EEOC would take such action without a formal charge subsequently being
filed . . . the intake questionnaire in this case does not constitute the charge.”); Marshall v.
Honeywell Technology Solutions, Inc., 598 F. Supp. 2d 57, 62 (D.D.C. 2009) (finding that
merely providing an allegation of discrimination and the name of employer on an intake form
does not constitute a charge under Holowecki). Even assuming, arguendo, that Minter was
confused about the nature of the Intake Questionnaire, her receipt of correspondence from the
EEOC in April 2007, enclosing copies of the charge of discrimination and directing her to sign
and return them in order for the EEOC to take any further action should have clarified matters.
Def.’s Mot. for Summ. J., Ex. L. The Court concludes that Minter’s Intake Questionnaire does
not manifest an intent to file a charge of discrimination, and Minter cannot rely on the date of its
filing, December 1, 2006, to establish that her ADA charge of discrimination was timely filed
within the 300-day limitations period. Accordingly, the Court will grant summary judgment to
the District on Minter’s failure-to-accommodate claim (Counts I and II) under the ADA.
ii. Failure-to-Accommodate Claim Under the Rehabilitation Act
The District argues that Minter’s failure-to-accommodate claim under the Rehabilitation
Act (Count IV) is barred because she failed to file this lawsuit within the requisite three-year
limitations period. Def.’s Mot. for Summ. J. at 24. Under this view, because plaintiff’s claim
arose no later than December 5, 2006, the filing of this lawsuit on March 22, 2010, is untimely.
See id. The parties do not dispute that a three-year limitations period applies to a claim under the
Rehabilitation Act. See Gordon v. District of Columbia, 605 F. Supp. 2d 239, 245 (D.D.C.
2009) (holding that the District’s three-year limitations period for personal injury claims applies
to Rehabilitation Act claims); Long v. Howard Univ., 512 F. Supp. 2d 1, 12 (D.D.C. 2007)
(holding that three-year period applies to claims under Rehabilitation Act and ADA), aff’d, 550
21
F.3d 21 (D.C. Cir. 2008). Nonetheless, Minter counters that she was required to administratively
exhaust her Rehabilitation Act claim, and “[b]ecause [she] did not receive her right to sue letter
[from the EEOC] until December 22, 2009, her . . . claims are timely under the Rehabilitation
Act.” Pl.’s Opp’n at 23.
As Minter acknowledges, however, whether administrative exhaustion is required “prior
to commencing suit under § 794 remains an unsettled question in this jurisdiction,” Adams v.
D.C., 740 F. Supp. 2d 173, 181 (D.D.C. 2010). To be sure, Minter is correct that several courts
in this district have held that plaintiffs must exhaust administrative remedies before filing a suit
under the Rehabilitation Act. See, e.g., Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 75
(D.D.C. 2009) (plaintiffs suing a non-federal employer under § 794 of Rehabilitation Act, “like
those under Title VII, must exhaust their administrative remedies”). Yet, the Court finds that
Adams, 740 F. Supp. 2d 173, embodies the more persuasive interpretation of the Rehabilitation
Act’s remedy requirements. In Adams, the Court comprehensively reviewed the conflicting
cases in this district concerning this issue, and, based on the text and structure of the 1992
amendments to Section 794 of the Rehabilitation Act, Pub. L. No. 102–569, 106 Stat. 4344,
concluded that the ADA’s exhaustion requirement does not apply to Rehabilitation Act claims.
Id. at 181–82. Specifically, the Court in Adams noted that the 1992 amendments provided that
the ““[t]he standards used to determine whether [Section 794] has been violated in a complaint ...
shall be the standards applied under title I of the [ADA].” 740 F. Supp. 2d at 181. While
“[s]ome courts have interpreted the ‘standards’ of the ADA to include the ‘powers, remedies, and
procedures’ that the ADA incorporates from Title VII, including Title VII's requirement that a
plaintiff exhaust his or her administrative remedies,” others have “reasoned that had Congress
intended to amend the Rehabilitation Act so as to incorporate the ‘powers, remedies, and
22
procedures’ of the ADA, it would have done so expressly.” Id. at 181–82. The latter cases
contend that “Congress was simply ensuring that all employees governed by federal disability
anti-discrimination law were subjected to the same liability requirements,” Stewart, 2006 WL
626921 at *10, and emphasize “the fact that the Rehabilitation Act explicitly incorporates Title
VI's ‘remedies, procedures, and rights’ into § 794, rather than those of Title VII,” Adams, 740 F.
Supp. 2d at 182. This Court agrees, and holds that “the ADA's exhaustion requirement does not
apply to the Rehabilitation Act[.]” Id. While the D.C. Circuit has not addressed the issue since
the 1992 amendments, every other Circuit to confront it has held likewise. Id. at 182 n. 8 (citing
Freed v. Conso. Rail Corp., 201 F.3d 188, 192 (3d Cir.2000) (collecting cases)).
Further, the limitations period in the employment discrimination context does not toll
when a plaintiff chooses, but is not required, to exhaust her administrative remedies before
initiating a lawsuit, as Minter did here. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454,
461 (1975); Adams, 740 F. Supp. 2d at 182 (collecting cases). Consequently, because Minter did
not file her Rehabilitation Act claim within the three-year limitations period, the Court finds that
it was time-barred.
iii. Failure-to-Accommodate Claim Alleging the District Failed to Fulfill Its
Role in the Interactive Process
The District also moves for summary judgment on plaintiff’s failure to accommodate
claims because, it contends, no reasonable jury could find that the government did not fulfill its
role in the interactive process. See generally Def.’s Mot. for Summ. J. at 27–36. Minter
counters, see generally Pl.’s Opp’n at 24–30, that there remain disputed issues of material fact as
to its compliance.
The interactive process solely requires “that employers make a good-faith effort to seek
accommodations.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999). As
23
courts in this district have noted, “[e]mployers can show their good faith in a number of ways,
such as taking steps like the following: meet with the employee who requests an accommodation,
request information about the condition and what limitations the employee has, ask the employee
what he or she specifically wants, show some sign of having considered employee's request, and
offer and discuss available alternatives when the request is too burdensome.” Woodruff v.
LaHood, 777 F. Supp. 2d 33, 41–42 (D.D.C. 2011) (quoting Taylor, 184 F.3d at 317). The
District appears to have taken many – if not all – of these steps, and Minter fails to cite any
binding authority explaining why its actions did not constitute good faith under Woodruff.
Consequently, this Court finds that no reasonable jury could find that the District did not fulfill
its role in the interactive process.
B. Whether Plaintiff Is a “Qualified Individual with a Disability”
In the alternative, the District argues that plaintiff’s failure to accommodate claims under
Titles I and II of the ADA (Counts I and II) and under the Rehabilitation Act (Count IV) must
fail because plaintiff is not a “qualified individual” whose disability must be accommodated.
See generally Def.’s Mot. for Summ. J. at 36–37. The standard applied to each claim is the
same:
In order to make out a prima facie case, a plaintiff must show: (1)
that she was an individual who had a disability within the meaning
of the statute; (2) that the employer had notice of her disability; (3)
that with reasonable accommodation she could perform the
essential functions of the position; and (4) that the employer
refused to make such accommodations.
Gordon v. District of Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007) (citations omitted)
(emphasis added). The parties do not dispute that plaintiff has a disability, which for purposes of
this discussion is defined as:
24
(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment[.]
42 U.S.C. § 12102(1) (emphasis added); see 29 U.S.C. § 705(9)(B). 14 Major life activities
include walking, standing, lifting, bending and working. 42 U.S.C. §12102(2)(A). A
“reasonable accommodation” includes “making existing facilities used by employees readily
accessible to and usable by individuals with disabilities[, and] job restructuring, part-time or
modified work schedules.” 42 U.S.C. § 12111(9).
Generally, Title I of the ADA provides that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to . . . the hiring, advancement,
or discharge of employees, employee compensation . . . , and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). For purposes of Title I, a “qualified
individual” means “an individual who, with or without reasonable accommodation, can perform
the essential functions of the employment position that such individual holds or desires.” 42
U.S.C. § 12111(8) (emphasis added).
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. §12132. The term “qualified individual with a disability” means:
an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
14
Minter’s termination occurred before the ADA Amendments Act of 2008 became effective
on January 1, 2009, and the amendments therefore do not apply retroactively in this case. See
Lyles v. D.C. Water and Sewer Auth., 572 F.3d 936, 942 (D.C. Cir. 2009).
25
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2) (emphasis added).
The District argues that, based on Dr. Batipps’ Disability Certificate, Minter is not a
qualified individual because her total disability for an indefinite duration prevented her from
either performing essential functions of her position as CFRC Coordinator or meeting essential
eligibility requirements for government services or programs, with or without a reasonable
accommodation. Because of her total disability “for an indefinite period of time, she cannot now
contend that she was a ‘qualified individual,’” and therefore, “her claims for failure to
accommodate must be dismissed.” Def.’s Mot. for Summ. J. at 37.
Minter responds with two arguments. First, she asserts that Dr. Batipps’ Disability
Certificate “is not directly relevant to [her] disability under the ADA, as it is written using Social
Security Disability Income benefits terminology that carries a different meaning.” Pl.’s Opp’n at
30. It is plaintiff’s burden to address any discrepancy between a disability for purposes of ADA
(meaning that she can still function with or without reasonable accommodation) and a disability
for purposes of Social Security disability benefits. See Cleveland v. Policy Management Sys.
Corp., 526 U.S. 795, 807 (1999). In denying the District’s motion to dismiss, the Court
explicitly gave Minter “the opportunity to do so in this case.” Mem. Op. at 11 (Mar. 9, 2012). In
the face of Dr. Batipps’ Disability Certificate, Minter must proffer “an explanation of any
apparent inconsistency with the necessary elements of an ADA claim,” and “[t]o defeat summary
judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that,
assuming the truth of, or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff
could nonetheless perform the essential functions of her job, with or without reasonable
accommodation.” Cleveland., 526 U.S. at 807. (internal quotation marks omitted); see Solomon
26
v. Vilsack, 628 F.3d 555, 562 (D.C. Cir. 2010) (finding that, “[s]ince a reasonable jury could find
that [employee’s] statements in support of her [application for disability benefits] are consistent
with her current contention that she could have worked . . . if afforded reasonable
accommodations, neither her accommodation claim nor her retaliation claims are foreclosed”).
Because Minter fails to offer an alternative interpretation of the Disability Certificate, she fails to
meet her burden on summary judgment.
Second, Minter contends that she has produced “uncontroverted evidence that disputes
the District’s position that she was able to perform the position while on loan to the OCME with
an accommodation.” Pl.’s Opp’n at 30. This evidence principally is deposition testimony
regarding plaintiff’s performance in positions held years before she became the CFRC
Coordinator. Missing from plaintiff’s submission is any discussion or credible explanation that
her ability to perform, for example, as a Program Specialist while detailed to OCME in 1999 and
2001 while working a reduced work schedule demonstrates her ability to perform as the full-time
CFRC Coordinator from May 1, 2006 forward.
Further, Minter’s experts shed little additional light on the connection between a reduced
32-hour per week schedule and plaintiff’s ability to perform her duties as CFRC Coordinator at
all. A neurologist merely suggested that patients with symptoms like plaintiff’s “can benefit
from workplace accommodations, especially during disease exacerbations,” but does not
describe what those accommodations might be for such patients in general or for Minter in
particular. Pl.’s Opp’n Ex. 5 at 6. A vocational expert concluded that “working one to two days
at home per week or a flexible work schedule” are reasonable accommodations, but does not
explain why these accommodations would enable Minter specifically to perform her duties. Pl.’s
Opp’n Ex. 6 at 6. In fact, Minter has provided no deposition testimony or any other evidence
27
linking her diagnoses and symptoms to her ability or inability to perform her duties. For
example, if plaintiff’s ability to sit, stand and walk is limited, nothing in the record explains how
much sitting, standing and walking would be required of her, or how the accommodations she
requested address or otherwise alleviate her symptoms. All that is on the record is Dr. Batipps’
Disability Certificate, which suggests that Minter is totally disabled for an indefinite period. Her
position description includes tasks such as supervising, training and evaluating staff; managing
the day-to-day activities of the CFRC; and attending team meetings and other relevant D.C.
government “internal reviews[,]” Def.’s Mot. for Summ. J., Ex. C at 2–3, but Minter has not
provided evidence of how she could fulfill these duties “with or without reasonable
accommodation” as required under the ADA, 42 U.S.C. § 12111(8), if she was totally disabled
for an indefinite period. Thus, the Court finds that no reasonable jury could find that Minter is a
qualified individual with a disability under Titles I and II of the ADA.
C. Plaintiff’s Retaliation Claims
The District also moves for summary judgment on plaintiff’s retaliation claims under the
ADA, the Rehabilitation Act, and the DCHRA. See generally Def.’s Mot. for Summ. J. at 37–
42. Because the District puts forth an explanation for its decision to terminate plaintiff, the
analysis proceeds as follows:
[I]f an employer asserts a legitimate, nondiscriminatory reason for an adverse
employment action, the district court must conduct one central inquiry in
considering an employer’s motion for summary judgment or judgment as a matter
of law: whether the plaintiff produced sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the plaintiff on a
prohibited basis.
Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (citation omitted).
28
According to the District, it had a legitimate, nondiscriminatory reason for firing Minter:
she effectively abandoned her job. See Def.’s Mot. for Summ. J. at 40. She stopped coming to
work after February 28, 2007 and by April 28, 2007, she had used all of her sick leave, annual
leave, and leave authorized in connection with her worker’s compensation claim.
Notwithstanding OCME’s many requests, Minter supplied no medical documentation to justify
her extended absence until she produced Dr. Batipps’ Disability Certificate declaring her totally
disabled for an indefinite period beginning September 26, 2006. Minter counters there is a
plausible alternative explanation for her termination: the content of the medical documentation
she ultimately provided. See Pl.’s Opp’n at 35. According to Minter, the fact that the District
made the decision to terminate only after receiving medical documentation confirming her
disability, Def.’s Mot. for Summ. J. at 41, proves that the content of the documentation
motivated her termination. Pl.’s Opp’n at 35–36.
Minter’s evidence does not show that the District’s stated motivation was pretextual and
actually buttresses the reason for termination asserted by the District. The District claims Minter
was fired for failing to show up for work, and the content of the medical documentation Minter
provided bolstered that conclusion, as it stated that she would be absent indefinitely. Id. While
Minter has sought to permission to work from home or to work reduced hours at various times,
the medical documentation she provided indicated that she would not be able to perform her
work functions at all for an indefinite period. Termination due to a general inability to perform
is not retaliation, as the standard for failure-to-accommodate specifically requires a plaintiff to
show “that with reasonable accommodation she could perform the essential functions of the
position[.]” Gordon v. District of Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007). In a
similar disability discrimination case, the D.C. Circuit observed that “an essential function of any
29
government job is an ability to appear for work” and affirmed the proposition that government
entities are not required to retain employees who cannot do so. Carr v. Reno, 23 F.3d 525, 530
(D.C. Cir. 1994). In other words, as in this case, “what Plaintiff [is] seeking [is] an indefinite
leave period, something an employer is not required to grant[.]” Sampson v. Citibank, F.S.B., 53
F. Supp. 2d 13, 18 (D.D.C. 1999) aff’d, 221 F.3d 196 (D.C. Cir. 2000). In short, Minter’s
argument does not constitute adequate evidence under the Adeyemi standard that a reasonable
jury could find that the District’s purported legitimate, nondiscriminatory reason for termination
was not the actual reason for its decision. The Court therefore will grant summary judgment on
Minter’s retaliation claims.
Accordingly, it is hereby
ORDERED that the District of Columbia’s motion for summary judgment is
GRANTED.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: August 5, 2014
30