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Gordon v. District of Columbia

March 31, 2009

MURIELENE GORDON, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Murielene Gordon brings this action against the District of Columbia ("the District") for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act ("RA"), 29 U.S.C. § 794, and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401 et seq., alleging that the District failed to accommodate her disability while she was employed by the District as an art teacher. Currently pending before the Court are defendant's motion for summary judgment and plaintiff's motion for partial summary judgment. Upon consideration of the motions, and responses and replies thereto, the applicable law, and the entire record, this Court GRANTS IN PART defendant's motion for summary judgment with respect to the statutes of limitations under the ADA and DCHRA and DENIES plaintiff's cross-motion for partial summary judgment.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). In considering whether there is a triable issue of fact, the court must draw all reasonable inferences in favor of the non-moving party. Tao, 27 F.3d at 638.

II. BACKGROUND

Murielene Gordon was employed by the District as a teacher from 1979 until her retirement in 2006. Beginning in 1990, she was employed as an art teacher at Ballou Senior High School. Plaintiff has degenerative arthritis, which affects her mobility and manual dexterity. She alleges that while at Ballou, she did not have access to an accessible bathroom, she did not have keys to locked emergency doors, the heating and cooling system was non-functional, the shelves were too high, she did not have access to a copier, and mandatory meetings were held on the second floor of the buildings which she could not access. Compl. ¶¶ 7-8, 11-14.

Plaintiff is able to navigate the stairs into her house, up to her second floor, and down to her basement. See Def.'s Mot. Ex. 1 ("Gordon Dep.") at 10-13. Until 2004, she used public transportation to commute to work and was able to walk to and from the bus stop, which were distances up to a city block. Plaintiff was capable of bathing and dressing herself without assistance. Id. at 299-304. With respect to her ability to work, plaintiff stated that she maintained her full-time status until retirement and that she was at all times capable of performing her job at a high level despite her arthritis. See id. at 88-92.

According to plaintiff, she required the use of a cane to walk in 2002 and 2003, and thereafter required the use of a walker. See Pl.'s 2/11/08 Opp'n Ex. 2*fn1 ("Gordon Aff.") at 1. When she used a cane, it took her at least five minutes to traverse a single flight of stairs. With her walker, it takes at least seven or eight minutes to do so. In either case, traversing staircases causes "extreme pain." Id. In 2002 to 2003, plaintiff would go down to the basement in her house at most once a month, and since then does so even more rarely, if ever. The bathroom in her house is located on the second floor. At least since 2003, plaintiff has used a portable toilet so that she does not have to climb the stairs. She also stated that if she ever forgets something upstairs after coming downstairs, she either asks someone else to retrieve it, or does without it. See Gordon Dep. at 16.

Plaintiff admitted that she could walk to and from the bus stop until 2004, but explained that she could do so only at a sharply diminished pace. See Gordon Dep. at 300. A city block that able-bodied people could walk in less than ten minutes would take plaintiff at least twenty to twenty-five minutes with her cane, and thirty-five to forty minutes with her walker. It would take even longer in inclement weather. During these one-block walks, plaintiff would have to take a break and rest at least once. If sidewalks were icy or slippery, plaintiff could not walk at all and would call in sick to work. See Gordon Aff. At 3.

While plaintiff can bathe herself and brush her teeth, both activities cause great pain and take more time than average. For instance, plaintiff cannot brush her teeth for more than one minute without taking a break. See id. at 1. Due to pain, plaintiff has not worn makeup since 2000 and cannot style her own hair. See id. Since 2001, she has required assistance in order to shampoo her hair. Plaintiff cannot wear clothes or shoes that are fastened with buttons or laces. Finally, plaintiff was limited in her ability to cook, and thus only ate meals that required less than five minutes of preparation or that could be prepared using a microwave oven. See id. at 2.

Plaintiff was approved for sick leave in July 2002 for physical therapy relating to her arthritis. See Compl. ¶ 16. On August 9, 2002, plaintiff called principal Art Bridges and informed him that she would not return to Ballou for the start of the new school year due to her health problems. See Gordon Aff. at 2. According to plaintiff, Bridges told plaintiff to "sit tight," that he was going to transfer her to another school, and that she was a "liability" because she could not run out of the school if there was a fire. Id. at 3. According to Bridges, he expected plaintiff to return. See Pl.'s 2/11/08 Opp'n Ex. 5 ("Bridges Aff.") at 39.

On September 16, 2002, plaintiff faxed Bridges information that her sick leave bank request had been approved and called Bridges to inquire as to her teacher status, to which Bridges responded that he was going downtown to fill out the transfer forms. Plaintiff told Bridges that she may not be able to run out of the building in case of a fire, but that if she had a key to unlock the exit doors in her classroom she would not need to run. Bridges did not respond. See Gordon Aff. at 3. In November 2002, plaintiff started to make numerous phone calls to Bridges about returning to work and about the status of her transfer, but she was never able to reach him despite leaving messages for him. Id. at 3-4. On February 26, 2003, plaintiff received a letter from Ballou informing her that she was on absent without leave ("AWOL") status and that she must report to work by March 10, 2003. Plaintiff did not report to work. Id. at 4.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 18, 2003, alleging disability and age discrimination under the ADA and Age Discrimination in Employment Act. This EEOC complaint followed the filing of an internal discrimination complaint that was dismissed as unsubstantiated. See Pl.'s Opp'n at 3; Pl.'s 2/11/08 Opp'n at Exs. 14, 15. Also, in March 2003, plaintiff was ordered by the District to undergo a "fitness for duty" examination. Pl.'s 2/11/08 Opp'n at Ex. 10. After performing a physical examination, Dr. Samuel J. Scott confirmed that plaintiff suffered from arthritis that "severely affected" her mobility. Id. Dr. Scott concluded that plaintiff was fit for duty with accommodations that included no standing for more than five minutes at a time, no walking up or down stairs, and no walking more than fifty yards at a time. Id.

Plaintiff brought suit in this Court on September 28, 2005, alleging that defendant violated the ADA, the RA, and the DCHRA by failing to accommodate her disability. On August 1, 2006, during discovery, defendant filed a motion for summary judgment, arguing that plaintiff was not disabled under the ADA and that plaintiff failed to show that the District failed to accommodate plaintiff's disability. On March 26, 2007, this Court denied defendant's motion for summary judgment. The parties completed discovery, and on January 11, 2008, defendant renewed its motion for summary judgment on different grounds. On July 16, 2008, this Court denied the motion for summary judgment without prejudice, ordering the parties to address the split among District Court judges regarding the RA's statutory time ...


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