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Ivey v. District of Columbia

June 5, 2008

SHIRLEY IVEY, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB-8965-00) (Hon. John M. Campbell, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued September 20, 2006

Before KRAMER and FISHER, Associate Judges, and SCHWELB, Senior Judge.

Appellant Shirley Ivey filed this action against the District of Columbia alleging discrimination and retaliation in the workplace. Concluding that the decision to grant summary judgment in favor of the appellee was error, we reverse the decision of the trial court in part.

I.

Ms. Ivey, a District of Columbia government employee since 1970, began her tenure at the Department of Consumer and Regulatory Affairs (DCRA) in 1995. She served the DCRA as a contact representative in the Building and Land Regulation Administration. She was consistently reviewed at an overall satisfactory level, and none of her supervisors expressed serious issues with the quality or quantity of her work, with the exception of Lennox Douglas, who became her immediate supervisor in 1997.

Ms. Ivey gained 150 pounds between 1995 and 2000, and this weight gain limited her ability to walk, breathe, and work. She alleges that during 1997 and 1998, Mr. Douglas repeatedly told her that she would do a better job if she were more attractive, and that he would stop bothering her if she lost some weight. He would explain to Ms. Ivey that he would like her better if she looked like her attractive co-worker. He consistently made "fat girl jokes," and told her that she could be his girlfriend if she lost weight. In June 1998, Ms. Ivey complained to Dwight Reeves, the Acting Director of the DCRA, about Mr. Douglas' behavior. She also complained to Teresa Lewis, a DCRA administrator, and other management personnel, but the harassment continued. In what Ms. Ivey contends was a retaliatory act, Mr. Douglas suspended her from work on July 22, 1998, "without cause, justification, or authorization." In front of two other management employees, Mr. Douglas told Ms. Ivey to leave, and that if she did not, he would have her removed. Ms. Ivey balked, and Mr. Douglas "lunged" at her as the other managers restrained him.

Ms. Ivey returned to work two months later, and on or about September 10, 1998, Mr. Douglas relocated her from a private office to a storage room. Ms. Ivey alleges that in the ensuing weeks, while no one was using her former office, she was forced to work in space that was dirty, "crammed with various storage items," contaminated with foul odors from the adjacent, "largely un-serviced" restroom, and equipped with "an antiquated typewriter and a broken desk chair."

On September 15, 1998, Ms. Ivey requested a meeting with Mr. Douglas and an Equal Employment Opportunity counselor. Mr. Douglas never granted that request. On September 28, Ms. Ivey was given thirty-days notice that she was being terminated on the grounds that she had been absent without leave and that she had negligently performed her duties. She exercised her right to appeal the termination to a "Disinterested Designee." The DCRA informed the Designee that it had dismissed the charge of being absent without leave. The Designee found no cause for Ms. Ivey's termination and rejected her proposed removal on October 19, 1998.

Before the Designee rendered his decision, however, Ms. Ivey suffered what appeared to be a heart attack on October 8, 1998, and left work to be treated at a hospital. Her diagnosis was subsequently downgraded to a less serious coronary condition. She returned to work on April 29, 1999, and was informed that she was being transferred to the Occupational Professional and Licensing Administration so that she would no longer be under Mr. Douglas' supervision.

On August 3, 1999, Ms. Ivey filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), contending that the District of Columbia had engaged in gender-based harassment and retaliation. She amended her complaint on April 24, 2000, adding charges of disability-related harassment and retaliation. Ultimately, the EEOC notified Ms. Ivey that it had concluded its proceedings without any final resolution of her claims, and that she had ninety days to pursue judicial relief.

Ms. Ivey filed suit in the Superior Court against the District of Columbia on December 7, 2000, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e (2000 & Supp. 2007); the District of Columbia Human Rights Act (DCHRA), as amended, D.C. Code §§ 1-2501--2557 (recodified at D.C. Code §§ 2-1401.01--1403.17 (2001 & Supp. 2007)); and the Americans with Disability Act, as amended (ADA), 42 U.S.C. §§ 12101--12213 (2000 & Supp. 2007). On August 28, 2002, she amended her complaint to add a DCHRA charge of discrimination based upon personal appearance.

The District filed a motion for summary judgment at the close of discovery.*fn1 The trial court granted the motion, determining that a 180-day limitations period applied to the Title VII and DCHRA claims, and that she had not made an adequate showing of disability for her ADA claims. The court further noted that because she had not mentioned the personal-appearance claims in her EEOC ...


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