UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 9, 2005
LAWRENCE BATTLE, PLAINTIFF,
NORMAN Y. MINETA, SECRETARY OF TRANSPORTATION, DEFENDANT.
The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiff sues under the Civil Rights Act of 1964 for racial discrimination and retaliation, the Age Discrimination in Employment Act for age discrimination, and the Rehabilitation Act of 1973 for refusing to accommodate his claimed disability and for terminating his employment. Both parties have moved for summary judgment, and Mr. Battle has moved for sanctions and civil contempt. For the reasons set forth below, The FAA's motion for summary judgment must be granted. Mr. Battle's motions for summary judgment, sanctions, and contempt will be denied.
Mr. Battle began working at the FAA in 1973 as an electronics technician. He was transferred to FAA headquarters in Washington, D.C. in 1990. Between 1992 and 1996, he filed several EEOC complaints claiming racial discrimination. In July 1998 he entered a settlement agreement with the FAA to settle some of his EEO claims.
Mr. Battle claims he suffered a workplace injury on August 4, 1998, upon receipt of a letter from the head of the FAA Office of Civil Rights.*fn1 He left work the following day after submitting a leave slip that included a request for administrative leave, Def. Ex. 2 ¶¶ 13-15. The requested leave was granted, Def. Ex. 2, Attach. 3 ¶ 12, and Mr. Battle then began to undergo treatment with a therapist who diagnosed him with generalized anxiety disorder "causally related to the work environment." Pl. Ex. 8. According to the therapist, Mr. Battle's condition would not stabilize unless he could return to a "totally different" work environment. Pl. Ex. 9. The therapist sent several letters to the FAA chronicling Mr. Battle's condition and prognosis.*fn2 On May 20, 1999, Mr. Battle's attorney requested that he be transferred to a different location as a reasonable accommodation of his asserted disability, Def. Ex. 2 ¶ 43, Attach. 15, attaching another letter from the therapist, dated May 19, 1999, which stated that Mr. Battle's anxiety was a conditioned response triggered by being around his supervisors "due to adversarial relationships established during litigation and EEO complaints." Def. Ex. 2, Attach. 16. In a subsequent letter dated June 10, 1999, the attorney restated the request for accommodation as a request that Mr. Battle be moved to a different building. Pl. Ex. 2 ¶ 52.
Much of this letter-writing occurred after Mr. Battle had essentially abandoned his job. His supervisor had directed him to return to work on February 16, 1999. Mr. Battle complied, but two days after his return he requested further leave, which the FAA also granted. Def. Ex. 2 ¶ 31. Mr. Battle never again returned to work, and the FAA terminated his employment on February 20, 2000, citing as its reasons his unavailability to perform the duties of his position and his inability to perform the essential functions of his position. Def. Ex. 2 ¶¶ 66-67.
One of the reasons why the defendant's motion for summary judgment will be granted, but not the only reason, is that Mr. Battle has not complied with rules of procedure that require a party opposing a motion for summary judgment to set forth specific facts showing that there is a genuine issue for trial, and, in this Court, to file a statement of genuine issues of material fact that he asserts are disputed. Fed. R. Civ. P. 56(e); LCvR 7(h); see Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145 (D.C. Cir. 1996).
Nor has Mr. Battle complied with the requirements of Rule 56(f). He has moved for contempt and for sanctions under Fed. R. Civ. P. 37, claiming, inter alia, that "'facts essential to justify' the [sic] his case in chief, Fed.R.Civ.P. 56(f), are within the control of the FAA and have not been produced pursuant to lawful and reasonable discovery requests previously filed . . . ," Pl. Mem. in Support of Civil Contempt and Sanctions Order 6, but he has ignored Rule 56(f)'s requirement of an affidavit setting forth "what facts he intended to discover that would create a triable issue and why he could not produce them in opposition to the motion," Byrd v. U.S. EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999); see King v. United States Dep't of Justice, 830 F.2d 210, 232 n.157 (D.C. Cir. 1987); Strang v. U.S. Arms Control and Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989).
Rehabilitation Act Claim
The Rehabilitation Act forbids discrimination against a "qualified handicapped person" 45 C.F.R. § 84.4(a). A "handicapped person" is one who "(i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Id. at § 84.3(j)(1). "[M]ajor life activities" are "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
Id. at § 84.3(j)(2)(ii). A "qualified handicapped person" is one "who, with reasonable accommodation, can perform the essential functions of the job in question." Id. at § 84.3(k)(1). Recipients of federal funds must reasonably accommodate "the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program." Id. at § 84.12(a).
The McDonnell Douglas burden-shifting algorithm developed for Title VII applies equally in Rehabilitation Act cases. Barth v. Gelb, 2 F.3d 1180, 1185 (D.C. Cir. 1993) ("courts allocating burdens of proof under the Rehabilitation Act have been prone to adapt and employ the familiar principles of McDonnell Douglas as elaborated by Burdine").*fn3 In order to trigger it, a plaintiff must show 1) that he is handicapped within the meaning of the Act, 2) that he was qualified to perform his duties with or without a reasonable accommodation, 3) that he worked for a program or activity that received federal financial assistance, and 4) that he endured an adverse employment action at the hands of his employer. Stewart v. Rondeau, 940 F. Supp. 7, 8 (D.D.C. 1996) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), cert. denied, 511 U.S. 1011 (1994)).
The question presented in this motion is whether Mr. Battle has an impairment that "substantially limits one or more of [his] major life activities." Mr. Battle's allegation is that his general anxiety disorder substantially limits "his ability to interact with people in a positive and productive manner." Pl. Mot. 16.
The D.C. Circuit has yet to decide whether the ability to interact with others is a major life activity like "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii). The Ninth and Second Circuits have found "interacting with others" to be a major life activity under the Americans with Disabilities Act.*fn4 McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999); Jacques v. DiMarzio, Inc., 386 F.3d 192, 202 (2d Cir. 2004). The First, Fourth, and Tenth Circuits have either suggested the opposite conclusion or declined to decide the question. Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997) (suggesting the ability to interact with others is too elastic, subjective, and amorphous to be considered a major life activity); Rohan v. Networks Presentations, LLC, 375 F.3d 266, 274 (4th Cir. 2004) (declining to address whether interacting with others is a major life activity); Steele v. Thiokol Corp., 241 F.3d 1248, 1254-55 (10th Cir. 2001) (same).
There is Circuit precedent for determining what is a "substantial" limit on a major life activity. In Haynes v. Williams, 392 F.3d 478 (D.C. Cir. 2004), the Court of Appeals held, citing Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), that a skin irritation that was triggered by appellant's work environment at a single workplace was not permanent or long-term and therefore could not substantially limit a major life activity under the Americans with Disabilities Act. The logic of the statutory rquirement that the limitation of a major life activity be "substantial" has been criticized.*fn5 Were it applied in this case, the result would be (paraphrasing Haynes, 293 F.3d at 482) that because the impact of Mr. Battle's impairment could be eliminated by assigning him to a different supervisor, the impairment is neither permanent or long term, ergo the limitation is not substantial, ergo Mr. Battle is owed no accommodation and must continue working for the same supervisor, which he cannot do. That would be a very unsatisfactory basis upon which to decide this case.
I find instead that the "ability to interact positively with others" is not a "major life activity." It is, as the First Circuit has held, too undefined, indistinct, and unlike the sort of activities that have been held by other courts to be major life activities. Soileau, 105 F.3d at 15. "Work" is a major life activity, see 45 C.F.R. § 84.3(j)(2)(ii, but Mr. Battle cannot successfully claim that his anxiety disorder substantially limits his ability to work, because
When the major life activity under consideration is that of working, the statutory phrase "substantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs. . . . To be substantially limited in the major life activity of working, then, one must be precluded from more than one type of job, a specialized job, or a particular job of choice.
Duncan, 240 F.3d at 1114 (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 491-92 (1999)); see Murphy v. United Parcel Service, Inc., 527 U.S. 516, 523 (1999) ("[T]o be regarded as substantially limited in the major life activity of working, one must be regarded as precluded from more than a particular job."). Mr. Battle's claim is that his disorder prevents him from working with a discrete group of former supervisors. The number of positions that fit this description do not constitute "a broad class of jobs."
Title VII Race Discrimination Claim
Mr. Battle has not made out a prima facie case of race discrimination. He is African-American, and he did suffer an adverse employment action when he was terminated, but the facts do not give rise to an inference of discrimination. See Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150 (D.C. Cir. 2004); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005).
Mr. Battle has argued that "forty-four (44) FAA non-minority employees similarly situated with a disability as Mr. Battle were accommodated by the FAA," Pl. Mem. 25.*fn6 Since, as I have found, Mr. Battle is not a handicapped person, he cannot successfully claim to be similarly situated with persons who are, and the fact that the FAA refused his request for reasonable accommodation raises no inference of discrimination. See Holbrook v. Reno, 196 F.3d 255, 261-2 (D.C. Cir. 1999) (plaintiff, a probationary trainee, does not raise inference of discrimination by comparing employer's treatment of her to that of a veteran employee with supervisory responsibility because they are not similarly situated).*fn7
Title VII Retaliation Claim
To state a prima facie case of retaliation under Title VII, the plaintiff must show 1) that he engaged in protected EEOC activity, 2) that he suffered an adverse employment action, and 3) that these actions are causally connected. Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). A plaintiff may establish a causal connection by showing that his employer knew of his protected activity and took adverse action against him soon thereafter. Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985).
It is undisputed that Mr. Battle engaged in protected activity by filing several EEOC complaints between 1992 and 1996 and that his termination in February 2002 was an adverse employment action. More than five years elapsed between his protected activity and his termination (about three years between his protected activities and FAA's alleged refusal to accommodate his anxiety disorder); however, those time periods are too long to give rise to an inference of discrimination. See Clark County Sch. Distr. v. Breeden, 532 U.S. 268, 273-4 (2001) (20 month time lapse suggests no causality at all in retaliation case); Holbrook v. Reno, 196 F.3d 255, 263 (D.C. Cir. 1999). He has also failed to provide any evidence to show that the defendant's nonretaliatory explanation for terminating him --- namely, Mr. Battle's 17-month absence from work --- was pretextual.*fn8 See Waterhouse v. D.C., 298 F.3d 989, 994 (D.C. Cir. 2002) (affirming summary judgment where evidence was insufficient for reasonable juror to reject employer's nondiscriminatory explanation for employment decision); Plotkin v. Shalala, 88 F. Supp. 2d 1, 4 (D.D.C. 2000).*fn9
Title VII Age Discrimination Claim
Mr. Battle's complaint that he was discriminated against on the basis of age appears to have been abandoned.
Motion for Sanctions
A district court may impose sections for violations of discovery orders pursuant to Federal Rule 37(b)(2), or by the exercise of its inherent power to "'prevent abuses of the judicial process.'" Butera v. District of Columbia, 235 F.3d 637, 661 (D.C. Cir. 2001) (quoting Shepherd v. Am. Broad. Co., 62 F.3d 1469, 1474 (D.C.Cir.1995)).
The motion for sanctions will be denied. I find that the FAA did make a good-faith effort to obtain the requested personnel files from the national archive in St. Louis, Missouri, and that the plaintiff has put forth insufficient evidence to the contrary. See Decl. of Candide Cavanagh. The plaintiff subpoenaed the four requested personnel files, but only two were located, and the archivists were unable to retrieve the remaining two files without the employees' social security numbers. Id. at ¶¶ 1-3.
An appropriate order accompanies this memorandum.