requested an accommodation for his disability; (4) that his
employer failed to make a reasonable accommodation for his
disability; and (5) that other similarly-situated employees who
were not members of a protected group were given accommodations
for their disabilities. See McDonnell Douglas, 411 U.S. at 802
n. 13, 93 S.Ct. 1817 ("The facts necessarily will vary in Title
VII cases, and the specification of the prima facie proof
required from respondent [in this case] is not necessarily
applicable in every respect to differing factual situations.").
First, Mr. Dorchy, as an African-American, is a member of a
protected class. See Coward v. ADT Security Sys., Inc.,
140 F.3d 271, 272-73 (D.C.Cir. 1998) (uncontested by employer that
African-Americans are members of a protected class). Second, as
discussed above, WMATA does not contest that Mr. Dorchy has a
disability. Accordingly, this Court will assume for purposes of
this analysis that Mr. Dorchy is disabled. Third, WMATA's Motion
to Dismiss concedes that as an accommodation for his disability,
Mr. Dorchy requested that he be placed in a light duty position
when he attempted to return to work in October 1995. See WMATA
Motion at 8 ("WMATA `had no light duty program or light duty
position to place [Dorchy] in' when Mr. Dorchy's physician
released him to return to work in October 1995."). Fourth, as
indicated above, WMATA did not put Mr. Dorchy in a light duty
position when he attempted to return to work in October 1995. See
id. Thus, Mr. Dorchy meets four of the five requirements to
establish a prima facie case of discrimination under McDonnell
Finally, WMATA argues that Mr. Dorchy does not satisfy the
fifth requirement, that other employees who were not members of a
protected group were given accommodations for their disabilities,
because he does not cite any examples of non-minority individuals
being "placed in light duty positions during the period when he
himself sought a light duty position." See WMATA Reply at 6. To
support this proposition, WMATA cites Laffey v. Northwest
Airlines, Inc., 567 F.2d 429 (D.C.Cir. 1976) and Milton v.
Weinberger, 645 F.2d 1070 (D.C.Cir. 1981). WMATA argues that Mr.
Dorchy must show that the individuals to which he compares
himself for purposes of analysis under Title VII, non-minority
individuals, received more favorable treatment during the six
month statutory period for filing a charge with the Equal
Employment Opportunity Commission. See WMATA Reply at 6
("Plaintiff has failed to show disparate treatment within the
filing period by producing evidence that whites were placed in
light-duty positions during that time.").
However, both Laffey and Milton address whether a plaintiff
timely filed an administrative charge with the EEOC, not whether
a plaintiff successfully demonstrated discriminatory actions
within the statutory filing period. See Milton, 645 F.2d at
1075-76 ("[T]he court held that where the `violations complained
of were of a continuing nature . . . the filing is timely as to
all similarly situated employees regardless of when the first
discriminatory incident occurred.'"); Laffey, 567 F.2d at 473
("[D]iscrimination is not limited to isolated incidents but
pervades a series or pattern of events which continue to within
ninety days of the filing of the charge with the
Commission. . . ."). WMATA does not argue that Mr. Dorchy's EEOC
charge was untimely with respect to his allegation of racial
discrimination based on WMATA's failure to accommodate his
WMATA vigorously urges the Court to find that Mr. Dorchy must
demonstrate that WMATA placed non-minority individuals with
disabilities in light duty positions during the same time period
that Mr. Dorchy sought such a placement and argues
that Mr. Dorchy has provided no evidence that non-minority
employees were placed in light duty positions during this
"relevant" time period. See WMATA Reply at 6 ("[P]laintiff has
failed to produce evidence that white employees were placed in
light duty positions during the time period when he himself
sought a light duty position. . . ."). Case law, however, does
not support this proposition. Discussing limitations on discovery
in Title VII disparate treatment cases, the court in Onwuka v.
Federal Express Corporation suggests a broader reasonable time
[D]iscovery, in the Title VII context, must be limited to the
practices at issue in the case and, where an individualized
claim of disparate treatment is alleged, the discovery of
information concerning other employees should be limited to
employees who are similarly situated to the Plaintiff.
Accordingly, Courts have frequently tailored discovery
requests, as to historic company records, to encompass
a "reasonable time period" both before and after the
discriminatory event being alleged.
Onwuka v. Federal Express Corp., 178 F.R.D. 508, 516-17 (D.Minn.
1997) (citations omitted). The Onwuka court cites cases
indicating that discovery of "several months before and two years
after alleged discrimination" and discovery "limited to two years
immediately preceding employee's termination" was reasonable. See
id. at 517. Ultimately, the Onwuka court allowed the plaintiff to
examine records within three years of the alleged discrimination.
See Onwuka, 178 F.R.D. at 518.
Drawing upon these examples, this Court can infer that if
courts allowed discovery into a period of months or years prior
to the alleged discrimination, then evidence found within those
time periods would be relevant to proving the alleged
discrimination. This Court has found no case law supporting the
proposition that discriminatory conduct must be found to occur
within the six month period that a plaintiff must file an EEOC
charge, and this Court finds that establishing a limitation on
the relevant period of inquiry to six months, the statutory
period an individual has to file an EEOC charge, would be
unreasonably limiting and contrary to the remedial intent of the
Mr. Dorchy cites several examples from deposition testimony
where WMATA employees indicate that non-minority individuals were
placed in light duty positions following injuries. See Dorchy
Opposition at 2-4. In its reply brief, WMATA includes the
declaration of Wayne Roberts, a current Shop Maintenance
Supervisor in the Machine Shop at WMATA, and Mr. Dorchy's former
supervisor. See WMATA Reply, Exh. 1 at 1. Mr. Roberts stated that
all but two of the individuals Mr. Dorchy references in his
opposition brief returned to work between October 1990 and
January 1995, following injuries. See id. at 4. These occurrences
were all within five years of Mr. Dorchy attempt to return to
work in October 1995.
Unlike the Onwuka court, this Court's purpose is to determine
whether Mr. Dorchy presents sufficient evidence of discrimination
to stave off summary judgment. In considering a summary judgment
motion, the "evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). This court is satisfied that Mr. Dorchy's
evidence of white individuals being placed in light duty
positions following injuries, bolstered by WMATA's evidence of
the specific time period in which those individuals worked for
WMATA, is adequate to conclude for the purposes of defeating
summary judgment that the alleged disparate treatment of Mr.
Dorchy and the non-minority individuals occurred within a
sufficiently proximate time period.
However, this Court's inquiry does not end there. This Court
must also determine whether the non-minority individuals
Mr. Dorchy claims were given light duty positions following
their injuries were "similarly situated" to himself:
In order for two or more employees to be considered
similarly-situated for the purpose of creating an inference of
disparate treatment in a Title VII case, the plaintiff must
prove that all of the relevant aspects of [his] employment
situation are "nearly identical" to those of the [other]
employees who [he] alleges were treated more favorably. The
similarity between the compared employees must exist in all
relevant aspects of their respective employment circumstances.
Calhoun v. Johnson, No. Civ. A. 95-2397 (PLF), 1998 WL 164780, at
*5 (D.D.C. March 31, 1998) (quoting Pierce v. Commonwealth Life
Ins., Co., 40 F.3d 796, 802 (D.C.Cir. 1987)). In order to
ascertain whether Mr. Dorchy is "similarly situated" to other
individuals for the purpose of this inquiry, this Court will
consider the facility in which he worked, his job therein, and
the existence of his disability. These three aspects sufficiently
define the group of people most likely to encounter the same type
of discrimination that Mr. Dorchy alleges.
Mr. Dorchy worked in WMATA's Department of Bus Services, which
includes the "Paint Shop" and the "Machine Shop." See WMATA Reply
at 9. The non-minority individuals that Mr. Dorchy cites in his
opposition brief as having been given less strenuous jobs
following their injuries all worked in the Department of Bus
Services. See Opposition at 2-3 & Exhs. A-H. The employees in the
two different shops who were not supervisors, according to Mr.
Dorchy's opposition, apparently performed different types of
physical labor. See id. (describing positions such as AA Painter,
AA Mechanic Painter, and Mechanic). As noted above in the
discussion of the relevant time period, Mr. Dorchy presents
deposition testimony from several individuals that numerous
employees in the Department of Bus Services were transferred to
different positions following their return to work after
sustaining injuries. This Court finds, for the above reasons,
that Mr. Dorchy is similarly situated to these individuals for
purposes of establishing a disparate treatment claim under Title
Mr. Dorchy has provided sufficient evidence to support his
allegation that other similarly situated individuals who were not
members of a protected group were given accommodations for their
disabilities, and has, therefore, met the fifth prong of the
test. Having also satisfied the first four prongs, this Court
finds that Mr. Dorchy has established a prima facie case of
discrimination under Title VII.
The inquiry now turns to whether WMATA has "articulate[d] some
legitimate, nondiscriminatory reason" for refusing to transfer
Mr. Dorchy to a light-duty job. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
WMATA argues that there were no official "light duty" positions
in which to place Mr. Dorchy when he attempted to return to work
in October 1995. See WMATA Motion at 8; WMATA Reply at 8 ("As
note above, WMATA had no light-duty program from October 1994,
when Mr. Dorchy reinjured his back and went out (again) on
workers' compensation, to January 1997, the last time he worked
at WMATA before again going out on workers' compensation.").
However, Mr. Dorchy's does not allege that WMATA failed to place
him in a "light duty" program. Mr. Dorchy alleges that WMATA
placed individuals in less strenuous positions when they returned
to work following injuries, but it refused to accord him the same
opportunity, regardless of whether an official "light-duty"
program existed at WMATA. See Dorchy Opposition at 2 ("[A]lthough
Plaintiff Charles A. Dorchy, an American of African descent, was
not allowed to return to his job in the machine shop working on
small engines in October, 1995, other white employees were
transferred by white supervisors to less strenuous jobs after
returning to work following disabilities."). WMATA does not respond
to the form of discrimination that Mr. Dorchy alleges
under Title VII, namely that the other non-minority employees
were placed in positions that permitted them to work,
notwithstanding their injuries. Indeed, WMATA's only explanation
for not modifying Mr. Dorchy's job duties or offering him a
different job was that it did not have a light-duty program in
which to place Mr. Dorchy in October 1995. This Court finds that
the absence of a light duty program during the statutory period
Mr. Dorchy was required to file his EEOC charge does not amount
to a legitimate, non-discriminatory reason for failing to place
Mr. Dorchy in a less strenuous job when be attempted to return to
work in October 1995. Accordingly, Mr. Dorchy has established a
prima facie case of discrimination under Title VII. By failing to
state a legitimate, non-discriminatory reason for its actions,
WMATA has not met its burden under the McDonnell Douglas standard
to sustain its motion for summary judgement.
C. Title VII Promotion and Training/Preparation
WMATA argues that Mr. Dorchy's claim of racial discrimination
in promotions and training is time-barred. Mr. Dorchy filed a
charge with the Equal Employment Opportunity Commission on
November 27, 1995, alleging racial discrimination in the "terms
and conditions of employments." See WMATA Motion at Exh. 4. On
August 26, 1996, the EEOC issued a right-to-sue letter. Mr.
Dorchy timely filed suit in this Court on or about November 19,
1996. See WMATA Motion at 1 n. 2.
In his Amended Complaint, Mr. Dorchy alleges that he was
"denied employment and promotion in his employment, [and] has
suffered a loss of pay. . . ." See Amended Complaint at 3. He
further alleges, inter alia, that WMATA maintained
discriminatory practices with respect to allowing minority and
non-minority individuals the opportunity to practice on machinery
and shadow higher level employees when preparing to qualify for
promotions. See Dorchy Opposition at 4.
WMATA argues in its motion for summary judgment that due to his
injury, Mr. Dorchy was not working and did not apply for any job,
job training, or promotion at WMATA between 1994 and October
1995, and, therefore, WMATA could not have taken any action
during that period that would constitute discrimination. See
WMATA Motion at 6-7; see also Dorchy Deposition on April 6, 1998
at 129. Title VII requires that individuals file a charge with
the EEOC within 180 days of any alleged unlawful employment
practice. See 42 U.S.C. § 2000e-5(e)(1); Beall v. Abbott
Lab., 130 F.3d 614, 620 (4th Cir. 1997) ("Incidents outside of
the statutory window are time-barred unless they can be related
to a timely incident as a `series of separate but related acts'
amounting to a continuing violation."). Mr. Dorchy was not
working at WMATA between October 1, 1994 and the date he filed
his EEOC charge on November 27, 1995; therefore, he could not
have been denied any jobs, training, or promotions in the 180 day
period immediately prior to filing his EEOC charge. Because Mr.
Dorchy has not provided any explanation for failing to file a
charge within the requisite time period, his claim that he was
denied employment and promotion in employment is time-barred.
Additionally, Mr. Dorchy did not make any allegations in his
opposition to WMATA's motion for summary judgment that WMATA's
alleged discrimination constituted a continuing violation of
Title VII, in order to extend the 180-day statute of limitations.
A plaintiff can establish a continuing violation by showing "(1)
a series of related acts one or more of which falls within the
limitations period, or (2) the maintenance of a discriminatory
system both before and during the limitations period." Miller v.
United States, 603 F. Supp. 1244, 1247-48 (D.D.C. 1985) (citing
Valentino v. United States Postal Service, 674 F.2d 56, 65
(D.C.Cir. 1982)). As discussed above, Mr. Dorchy has not alleged
or established that he applied for and was rejected for a
position or a promotion within the requisite limitations period.
He, therefore, fails to establish a continuing violation under
the first basis. Regarding the second, Mr. Dorchy acknowledges
that WMATA does not maintain a continuing discriminatory system:
"[t]he claims of discrimination . . . reflect disparate treatment
of white and Afro-American employees, although the formal
procedures of selection and job assignment of Defendant WMATA are
not discriminatory in nature." Dorchy Opposition at 6.
Accordingly, Mr. Dorchy cannot establish that WMATA's actions
constituted a continuing violation under Title VII in order to
enlarge the 180-day statute of limitations. Mr. Dorchy's failure
to identify any discrimination based on WMATA's practices in
hiring or promotion that took place in the 180 day period before
he filed his charge with the EEOC requires this Court to grant
WMATA's motion for summary judgment on Mr. Dorchy's claim on this
In the order of this Court dated November 10, 1998, the Court
denied the Motion to Dismiss the Complaint and/or for Summary
Judgment of Defendant Washington Metropolitan Area Transit
Authority (WMATA)  and indicated that an opinion would
follow. In light of the Motion to Dismiss the Complaint and/or
for Summary Judgment of Defendant Washington Metropolitan Area
Transit Authority (WMATA), the opposition thereto, the foregoing
analysis in this opinion, and the entire record in this case, it
is this ____ day of February, 1999, hereby
ORDERED that the Order of this Court dated November 10, 1998
be, and the same is hereby, VACATED; and it is further
ORDERED that WMATA's Motion to Dismiss the Complaint [32-1] be,
and the same is hereby, DENIED; and it is further
ORDERED that the Motion for Summary Judgment of Defendant
Washington Metropolitan Area Transit Authority (WMATA) [32-2] be,
and the same is hereby, GRANTED IN PART AND DENIED IN PART; and
it is further
ORDERED that WMATA's motion for summary judgment on Mr.
Dorchy's Rehabilitation Act claim is GRANTED; and it is further
ORDERED that WMATA's motion for summary judgment on Mr.
Dorchy's Title VII claim of racial discrimination for failure to
accommodate is DENIED; and it is further
ORDERED that WMATA's motion for summary judgment on Mr.
Dorchy's claim of racial discrimination in hiring and/or
promotion is GRANTED.