Leonard I. HOWARD, Plaintiff, v. Vincent C. GRAY, Mayor for the District of Columbia, Defendant.
Civil Action No. 07-1291 (CKK).
United States District Court, District of Columbia.
Oct. 20, 2011.
John Felix Pressley, Jr., Law Office of John F. Pressley, Jr., Washington, DC, for Plaintiff.
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Leonard I. Howard, a former Financial Manager for the District of Columbia, filed this action against Adrian M. Fenty in his official capacity as Mayor of the District of Columbia.1 Plaintiff alleges he was denied a reasonable accommodation for his physical disability in violation of the Americans with Disabilities Act (“ADA”),
The Court has considered the parties’ briefs, the accompanying exhibits, the rec
I. BACKGROUND
Plaintiff is a former Financial Manager in the Office of the Chief Financial Officer (“OCFO”) for the District of Columbia. Howard Aff. ¶ 3.2 In April 2004, Plaintiff was injured when he fell while attempting to sit down in his chair at work. Def.’s Ex. 3 (05/04/04 Ltr. L. Howard to N. Mayers); Howard Aff. ¶¶ 4-5. Plaintiff initially reported pain and stiffness in his shoulder, back, neck, chest, and numbness in his hands, impairing his ability to move. Def.’s Ex. 3. Plaintiff’s treating physician, Dr. David L. Higgins, diagnosed Plaintiff with rotator cuff and labrum tears in both shoulders, as well as lateral and medial meniscus tears in both knees, and chondromalacia in both knees. Def.’s Ex. 5a (6/30/04 Report of Physical Evaluation). After the accident, Plaintiff did not return to work and utilized a combination of his annual and sick leave to cover his absence from work before being placed on Leave Without Pay (“LWOP”) status. Def.’s Ex. 8 (5/24/04 Doctor’s Note) at 2; Def.’s Ex. 16 (7/1/04 Ltr. N. Mayers to G. James); Howard Aff. ¶ 7. Mr. Howard also filed for disability retirement. Def.’s Ex. 3.
After nearly six months on LWOP, Natalie Mayers, Chief Management Officer for the Office of Finance and Resource Management, sent a letter to Plaintiff asking him to complete the paperwork to receive benefits under the Family Medical Leave Act. Def.’s Ex. 9 (9/27/04 Ltr. N. Mayers to L. Howard). Plaintiff did not to apply for FMLA benefits and remained on LWOP. Def.’s Ex. 7 (12/10/04 Ltr. L. Howard to N. Mayers). On December 6, 2004, Ms. Mayers once again wrote to Plaintiff, this time stating that Defendant considered his position abandoned because it had not received any medical documentation since June 2004, and Plaintiff reportedly was not pursuing his application for disability retirement. Def.’s Ex. 10. Plaintiff denied Ms. Mayer’s allegations, and further indicated that “if the Agency can find a suitable position for me in light of my current physical disabilities and medical conditions,” he would request medical clearance to return to work. Def.’s Ex. 7. There is no indication in the record that Defendant took any action in response to this letter.
Between the parties’ December 2004 correspondence and December 2005, Dr. Higgins provided periodic “status forms” stating Plaintiff still required indefinite leave from work on account of his injuries. Def.’s Exs. 5b (01/03/05 Status Form), 5c (09/19/05 Status Form). During this time period, Plaintiff filed for or continued to pursue his application for disability retirement. Def.’s Exs. 5d (09/27/05 Ltr. D. Higgins to Office of Personnel Management), 7. Dr. Higgins wrote to the Office of Personnel Management in support of Plaintiff’s application for disability retirement, reiterating that Plaintiff had been totally disabled since 2004, “his symptoms have continued to progress,” and “[e]ven though his job is considered sedentary Mr. Howard is unable to even perform light lifting or frequent use of the computer due to his shoulder impairments.” Def.’s Ex. 5d. Ultimately Plaintiff’s application for disability retirement was denied in November 2005. Howard Aff. ¶ 9; Pl.’s Ex. 4 (12/08/05 Email M. Winn to N. Mayers).
Relying on the letter submitted by Dr. Higgins in support of Plaintiff’s disability retirement application in Sеptember 2005, Ms. Mayers requested “finalization of the previous request (made in December 2004) to terminate Mr. Leonard Howard.” Def.’s Ex. 12 (02/6/06 Ltr. N. Mayers to M. Winn). On March 13, 2006, Defendant’s Chief Financial Office Natwar M. Gandhi terminated Plaintiff, effective immediately. Def.’s Ex. 15 (Ltr. of Termination); Pl.’s Ex. 7 (same). Plaintiff appealed his termination to Paul Lundquist, the Executive Director of the OCFO’s Office of Management and Administration, and filed a Charge of Discrimination with the District of Columbia Office of Human Rights, asserting Plaintiff was capable of returning to work, but was never given the opportunity to do so. Def.’s Ex. 13 (04/11/04 Ltr. L. Howard to P. Lundquist); Def.’s Ex.’s 14. Mr. Lundquist denied Plaintiff’s appeal (Answer to Am. Compl. ¶ 21), and the Office of Human Rights issued a right to sue letter in April 2007 (Am. Compl. ¶ 7; Pl.’s Opp’n at 5).
II. LEGAL STANDARD
“The court shаll 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.”
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials); or
(B) 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.
The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251-52. The mere existence of a factual dispute is by itself insufficient to bar summary judgment. See Liberty Lobby, 477 U.S. at 248. Mere allegations or denials in the adverse party’s pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis for support do not satisfy an opponent’s burden to set forth “affirmative evidence” showing a genuine issue for trial. Laningham, 813 F.2d at 1241.
III. DISCUSSION
In his Complaint, Howard asserts claims for failure to reasonably accommodate and termination on the basis of his disability. Specifically, Howard contends that his employer failed to reasonably accommodate his request for “limited duty work status”
A. April 2004 to December 2005 Reasonable Accommodation
The record (however sparse) provided by the parties indicates that, construed liberally, Plaintiff requested accommodation for his disability on three different occasions: (1) June 15, 2004 in a fax from Plaintiff’s wife Mrs. Deidran Howard indicating Mr. Howard needed indefinite medical leave, and requesting use of his sick leave and annual leave (Def.’s Ex. 8); (2) December 10, 2004 in Plaintiff’s letter to Ms. Mayers requesting “a suitable position for me in light of my current physical disabilities and medical conditions” (Def.’s Ex. 7); and (3) January 20, 2006 in Dr. Higgins’ status form indicating Plaintiff could return to “light duty status” of 20 hours per weeks with no repetitive motion (Pl.’s Ex. 6; Def.’s Ex. 6). Defendant assеrts, among other arguments, that it reasonably accommodated at least the first and second requests by placing Plaintiff on LWOP until his termination. Def.’s Mem. of P. & A. at 17-18. Plaintiff does not dispute the adequacy of the accommodation, arguing instead that his claims are based only on the January 2006 request for accommodation. Pl.’s Opp’n at 10 (“During the period of time that Plaintiff was on LWOP he was not seeking a reasonable accommodation that is relevant to the instant case. The relevant time period for determination of what duty the statutes would have imposed upon Defendant is the time period in early January, 2006 when Plaintiff sought a reasonable accommodation.”). On the basis of the parties’ agreement that the District is not liable for a failure to accommodate prior to January 2006, the Court grants Defendant’s motion for summary judgment on Count I of the First Amended Complaint as to all conduct between April 7, 2004 and Plaintiff’s request for accommodation in January 2006.
B. January 2006 Request for Accommodation
Count I of the Amended Complaint alleges a failure to reasonably accommodate Plaintiff’s disability in violation of the Americans With Disabilities Act. The ADA prohibits a number of forms of discrimination, including the failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.”
1. Plaintiff’s Application for Disability Retirement Did Not Render Him Unqualified under the ADA
Defendant argues that Plaintiff cannot claim he was an “otherwise qualified individual” and able to return to work (albeit with a reasonable accommodation) in January 2006 because he had applied previously for disability retirement on the grounds he was unable to work. Def.’s Mem. of P. & A. at 11. While initially styled as a legal estoppel type argument (see id.), in its reply brief, the District instead claims that Plaintiff’s disability retirement claim factually preсludes any genuine issue of material fact as to Mr. Howard’s ability to work. Def.’s Reply in Support of Def.’s Mot. for Summ. J. at 3-6. As a matter of law, Plaintiff’s ultimately futile application for disability retirement does not preclude him from asserting a claim for failure to accommodate his disability, especially when the request for accommodation post-dated the denial of his application. Factually, Plaintiff has provided sufficient evidence to create a genuine issue of material fact as to whether he recovered sufficiently after the denial of his retirement application to return to work.
a. A futile application for disability retirement does not hаve a legally preclusive effect on reasonable accommodation claims.
According to the Defendant, because Plaintiff’s application for CSRS benefits necessarily required Plaintiff to claim that he was “totally unable to work,” Plaintiff should not now be able to claim he was able to work with a reasonable accommodation. Defendant relies on two cases for this proposition: Chinchillo v. Powell, 236 F.Supp.2d 18 (D.D.C.2003) and Martin v. Leavitt, 569 F.Supp.2d 184 (D.D.C.2008). Neither is persuasive in this case. Initially, Chinchillo found, as an additional basis for granting summary judgment, that since the plaintiff received disability retirement under the Federal Employee Retirement System at the same time the alleged discrimination took place, plaintiff was not an “otherwise qualified person” under the Rehabilitation Act. 236 F.Supp.2d at 26-27. It is not clear in Chinchillo whether the court considered the award of benefits to factually establish that plaintiff’s disability could not reasonably be accommodated, or whether legally the plaintiff was barred from arguing in her application that she could not be accommodated, and that her employer should have accommodated her disability. Id. If the former, Chinchillo is irrelevant here because the Office of Personnel Management found, in rejecting Plaintiff’s application, that he was able to work. If the latter, any legal presumption was rejected by the Court of Appeals. In Solomon v. Vilsack, 628 F.3d 555 (D.C.Cir.2010), the D.C. Circuit Court of Appeals held that the receipt of FERS disability benefits does not crеate even a rebuttable presumption against the recipient’s disability discrimination claim. Id. at 565-67.
In Holmes-Martin, Judge Ricardo M. Urbina recognized that there is no controlling precedent in this Circuit on the preclusive effect of CSRS disability retirement benefits on ADA and Rehabilitation Act claims, and that other Circuits are divided on the issue. 569 F.Supp.2d at 195-96. Judge Urbina concluded that a plaintiff’s successful application for retirement benefits precluded a cause of action for a failure to reasonably accommodate during the same time frame. 569 F.Supp.2d at 195-96. However, in Holmes-Martin, as in Chinchillo, the plaintiff was actually successful in her application for disability retirement. Judge
The application for disability retirement is further irrelevant because Plaintiff has never sought to contradict the assertions made in his retirement application, but rather claims he recovered sufficiently after the application was prosecuted so as to be able to work. See Howard Aff. ¶ 11; Pl.’s Opp’n at 10. Defendant’s disbelief of this claim notwithstanding, Defendant has not identified any legal precedent or equitable principle that precludes Plaintiff from asserting that after his application for disability retirement was denied, he recovered from his disability and was an “otherwise qualified individual” that could perform the essential functions of his position with a reasonable accommodation.
b. Plaintiff’s claim for disability retirement does not foreclose the рossibility he recovered sufficiently to return to work in January 2006.
In its reply brief, the District reconstrues its argument regarding Plaintiff’s retirement application as a factual basis for denying summary judgment: according to the District, because there is no evidence Plaintiff recovered from his injuries between September 2005 (Dr. Higgins’ correspondence in support of Howard’s retirement application) and his request for accommodation in January 2006, the Court should grant summary judgment on the basis Howard was not qualified at the time he made the request. Defendant’s reliance on Chinchillo for this position is misplaced. Besides the ambiguity in the court’s reasoning (see supra), in Chinchillo, the alleged failure to accommodаte was contemporaneous with the plaintiff’s successful application for disability retirement:
[T]he fact that plaintiff applied for and received retirement benefits on grounds of disability at the same time that he alleged illegal discrimination based on the failure to provide a reasonable accommodation for his disability further demonstrates that plaintiff was unqualified to perform the essential functions of his job and that no reasonable accommodation was possible.
236 F.Supp.2d at 26 (emphasis added). Here, Howard alleges a failure to accommodate his disability after the application for and denial of disability retirement. Pl.’s Opp’n at 2, 11; Howard Aff. ¶¶ 9-10. Plaintiff did not simultaneously request disability benefits and the reasonable accommodation at issue, so the factual claims in his application do not require a particular finding regarding Plaintiff’s condition. Since neither party deemed it useful to introduce Plaintiff’s application into the record, the Court cannot grant summary judgment on the basis of speculation regarding factual claims in a document that is not before the Court.
Even if the Court assumes that Plaintiff’s retirement application conclusively establishes Plaintiff was unable to work between April 2004 and November 2005, Plaintiff has provided both his own affidavit regarding his physical condition (How
Though the January 20, 2006 report provided by Dr. Higgins is not the model of clarity, there is a genuine issue of material fact as to whether Plaintiff was totally disabled, or, as the status form explicitly states, Plaintiff was able to work with certain restrictions. “As the party moving for summary judgment, [Defendant] bears the initial burden of identifying evidence that demonstrates the absence of any genuine issue of material fact.” Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Here, Defendant “did not carry its burden because it offered no evidence to resolve the disputed material issue.” Miller v. Hersman, 594 F.3d 8, 12 (D.C.Cir.2010). The District failed to provide any reason why Dr. Higgins’ statements that certain of Plaintiff’s injuries worsened “with certain activities,” or that Plaintiff’s shoulders “in general” had not changed are entitled to more weight—much less dispositive weight—than Dr. Higgins’ statement in the same document that Plaintiff was able to return to work. This is particularly true because nothing in the record indicates whether Plaintiff’s condition had “not changed” since April 2004, his most recent visit, or some time in between. Defendant’s reliance on Dr. Higgins’ report merely reinforces the factual dispute in the record regarding Plaintiff’s ability to work. Therefore summary judgment is not appropriate at this time.
2. Plaintiff Established a Genuine Issue of Material Fact as to His Ability to Perform the Essential Functions of His Position
While the ADA and Rehabilitation Act require an employer to make reasonable accommodations for an employee’s or applicant’s disability, this requirement does not extend the “essential functions” оf a particular position. See
a. Plaintiff’s ability to work at a computer remains in dispute.
Initially, the District asserts that because Dr. Higgins restricted Mr. Howard from engaging in “repetitive motion” while at work (Def.’s Ex. 6 at 1), Mr. Howard could not work on a computer, an essential function of his position. Mr. Howard does not dispute that computer
Neither party has any direct evidence from Dr. Higgins. Rather, Defendant relies on the Eighth Circuit case Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011 (8th Cir.2000) for the notion that repetitive motion must mean typing. Def.’s Mem. of P. & A. at 15. In Cravens, the treating physician actually specified “keying” as one type of repetitive motion the plaintiff should not engage in. 214 F.3d at 1014. This is far from conclusive evidence that Dr. Higgins likewise meant to preclude Mr. Howard from typing. While the parties are not disputing Defendant’s claim that “[t]yping and working on a computer is clearly a repetitive motion for which individuals can develop carpal tunnel syndrome,” (Def.’s Mem. of P. & A. at 15), that point is irrelevant. Carpal tunnel syndrome was not part of the disability that kept Mr. Howard from returning to work, and typing is certainly not the only repetitive motion one might engage in within an office setting. Dr. Higgins previously associated Howard’s inability to work at a computer with Howard’s shoulder injuries, not his hands. Def.’s Ex. 5d. Moreover, Dr. Higgins was aware that Plaintiff’s position was primarily sedentary and required a significant degree of computer work. See id. It would be illogical for Dr. Higgins to clear Plaintiff to return to work, yet restrict him from pеrforming what Dr. Higgins knew was Plaintiff’s primary activity. Though far from clear, Plaintiff has provided enough support in the record to show a genuine issue of material fact as to the meaning of “repetitive motion” and his ability to work at a computer to avoid summary judgment.
b. Offsite travel was not an essential function of Plaintiff’s position.
In passing, the District also argues that Plaintiff could not travel to offsite agencies, purportedly an essential function of the Financial Manager position. In determining whether a particular function is “essential,” Courts look to a number of factors, including, among others, (1) the employer’s judgment; (2) the written job description; (3) the amount of time spent on the job perfоrming the function; (4) the consequences of not requiring performance of that function; and (5) the work experience of past incumbents in that job.
3. Plaintiff Did Not Need to Identify an Available Alternative Position for which He was Qualified
Defendant’s final argument regarding Plaintiff’s status as an “otherwise qualified individual,” is that Plaintiff had the burden and failed to identify an available alternative position within the OCFO for which he was qualified. Def.’s Mem. of P. & A. at 15-16. Plaintiff contends this argument is irrelevant because he sought an accommodation to return to his prior position, which remained open, not a new position within the OCFO. Pl.’s Opp’n at 15-16. Plaintiff is correct. Because Plaintiff sought to return to his prior position, only with shorter hours and no movement between floors, Plaintiff was not under any obligation—at that time or in opposition to a motion for summary judgement—to identify alternative positions available within OCFO for which he was qualified.
C. Termination and Preclusion from Further Employment
Count II of the Amended Complaint alleges discrimination in the form of termination and preclusion from further employment with the OCFO in violation of the ADA and the Rehabilitation Act. The ADA prohibits discrimination in the form of “denying employment opportunities to a job apрlicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.”
The District’s initial argument is the same as its argument for Count I, and likewise lacks merit. For the first time in its reply brief, Defendant argues that accommodating Plaintiff would have been “unreasonable” and thus termination was permissible. Upon closer inspection, Defendant’s argument is essentially that Plaintiff was still totally disabled and thus could not have been accommodated except
Defendant’s final argument is unclear, but seems to allege Plaintiff was not terminated in lieu of accommodating his disability, but rather was terminated because he was medically unable to work and the District was not willing to continue Plaintiff’s leave without pay. This is entirely duplicative of Defendant’s prior contentions regarding Plaintiff’s recovery, which as previously held, is still in dispute. See supra, at III.B.1.ii. In any event, this argument is irrelevant. Assuming, without deciding, that the “but for” causation requirement Defendant proposes is the governing standard, if Plaintiff was physically unable to work in January 2006, he was not an “otherwise qualified person,” under either statute and thus cannot state a claim for failure to accommodate or unlawful termination. See
IV. CONCLUSION
For the foregoing reasons, the Court finds that the parties agree Defendant is not liable for failing to accommodate Plaintiff’s disability between the date of injury and December 2005. Therefore Defendant’s motion for summary judgment is GRANTED as to Count I for all conduct between April 7, 2004 and December 2005. However, there remains a genuine issue of material fact as to whether Plaintiff was an “otherwise qualified individual” capable of performing the essential functions of his position in Jаnuary 2006, including whether Plaintiff was restricted from typing and working at a computer as part of his medical restrictions. Accordingly, Defendant’s Motion for Summary Judgment as to the January 2006 request for accommodation under Count I and the totality of Count II is DENIED. An appropriate Order accompanies this Memorandum Opinion.