The opinion of the court was delivered by: Colleen Kollar-kotelly United States 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.*fn1
Plaintiff alleges he was denied a reasonable accommodation
for his physical disability in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., following an on
the job injury. Plaintiff further alleges discrimination in the form
of termination and preclusion from future employment on the basis of
his disability, in violation of the ADA and the Rehabilitation Act of
1973, 29 U.S.C. § 791, et seq. Presently before the Court is
Defendant's  Motion for Summary Judgment. The motion has been
fully briefed by the parties and is therefore ripe for determination.
The Court has considered the parties' briefs, the accompanying exhibits, the record in this case, and the relevant legal authorities. The parties agree that Defendant is not liable for failing to provide a reasonable accommodation prior to Plaintiff's request for accommodation in January 2006, therefore the Court shall grant Defendant's motion as to the accommodation of Plaintiff's disability between April 2004 and December 2005. However, because there remain genuine issues of material fact regarding whether Plaintiff was an "otherwise qualified individual" in January 2006, the Court shall deny Defendant's motion as to Plaintiff's request for accommodation in January 2006 and Plaintiff's termination and preclusion from further employment.
Plaintiff is a former Financial Manager in the Office of the Chief Financial Officer ("OCFO") for the District of Columbia. Howard Aff. ¶ 3.*fn2 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).
In late 2005, the OCFO sought to terminate Mr. Howard once a final determination was made on his application for disability retirement. Pl.'s Ex. 4. Nearly one month later, Morris Winn, the Human Resources Director for the OCFO sent Plaintiff a letter referencing the denial of Plaintiff's application and requesting additional medical records to support Plaintiff's disability status and ongoing leave without pay. Def.'s Ex. 11 (01/06/2006 Ltr. M. Winn to L. Howard). Plaintiff submitted a new status form from his treating physician indicating Plaintiff could return to work 20 hours per week so long as he was primarily sedentary and did not engage in any "repetitive motion." Howard Aff. ¶ 14; Def.'s Ex. 6 (01/20/06 Status Form and Report of Physical Examination); Pl.'s Ex. 6 (same). Plaintiff asserts he had several telephone conversations with Mr. Winn, and was under the impression Mr. Winn was attempting to locate a suitable position to accommodate Plaintiff's work limitations. Howard Aff. ¶¶ 12-15. The record is conflicted as to whether Mr. Winn and Mr. Howard had further contact regarding his request for accommodation prior to Mr. Howard's termination. Cf. id. ¶ 16 (claiming Mr. Winn did not return Mr. Howard's phone calls between January 2006 and March 2006) with Def.'s Ex. 14 (04/04/06 Charge of Discrimination) (alleging Plaintiff spoke with Mr. Winn in February 2006, and Mr. Winn stated there were no positions available that could accommodate Plaintiff's medical restrictions).
Relying on the letter submitted by Dr. Higgins in support of Plaintiff's disability retirement application in September 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).
"The court shall 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." Fed.
A party asserting that a fact cannot be or is genuinely disputed must ...