Appeal from the Superior Court of the District of Columbia (CAB738-06) (Hon. Brian F. Holeman, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
Adesina Jaiyeola appeals from a grant of summary judgment to the District of Columbia in his employment discrimination case. Mr. Jaiyeola complained that the District of Columbia Public Service Commission ("PSC") violated the federal Rehabilitation Act of 1973 and the District's Human Rights Act by discriminatorily refusing to reinstate him to his job because he was, or was regarded as, physically disabled.
In awarding summary judgment to the District, the trial court concluded that appellant's claims were barred by the statute of limitations and, in part, by appellant's failure to give proper notice of his claims to the District as required by D.C. Code § 12-309 (2001). We conclude otherwise and reverse and remand for further proceedings.
Appellant's claims arise from his employment with the PSC as a pipeline safety engineer. In 1998, appellant was in a car accident while on the job and sustained injuries to his neck and back. He continued to work intermittently until December 15, 2000, when, still suffering from neck pain and with his physician recommending surgery, he went on unpaid leave and began receiving temporary total disability benefits.
In September 2001, appellant asked to be allowed to return to his job at the PSC. An independent medical examiner evaluated appellant and reported that he could return to work subject to two "permanent" restrictions -- that he not lift more than 30 pounds or engage in prolonged neck or back flexion. In light of this report, the PSC denied appellant's request.
Appellant made several further attempts to be reinstated. Between September 2001 and December 2002, he communicated with his former supervisor and the Director of Human Resources for the PSC, but they told him he was too injured to return to work. Beginning in January 2003, appellant presented evidence that his physical condition had improved and that he could return to work with fewer or no restrictions on his activity.*fn1 The PSC did not respond affirmatively to appellant's submissions.*fn2 Unable to convince the PSC to allow him to return, appellant resigned in December 2004 to take a position as a pipeline safety engineer with the Maryland Public Safety Commission at a lower salary.*fn3
On November 10, 2003 (roughly a year prior to his resignation), appellant filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), in which he charged the PSC with discriminating against him on account of his disability and failing to make reasonable accommodations to enable him to return to work. Pursuant to the EEOC's worksharing agreement with the District of Columbia Office of Human Rights ("OHR"), the complaint was cross-filed with the OHR, but it was investigated by the EEOC. Two years later, on November 29, 2005, the Department of Justice provided appellant with a right-tosue notice.*fn4 Appellant filed suit in the Superior Court on February 2, 2006. As subsequently amended,*fn5 his complaint charged the PSC with having discriminated against him on the basis of his actual or perceived disability, in violation of the District's Human Rights Act ("HRA")*fn6 and Section 504 of the federal Rehabilitation Act of 1973.*fn7
The District eventually moved for summary judgment on the grounds that appellant's claims were time-barred under the relevant statutes of limitations; that his claims under the HRA for unliquidated damages also were barred by his failure to give proper notice under D.C. Code § 12-309; and that appellant could not establish a prima facie case of unlawful discrimination under either the HRA or the Rehabilitation Act because he could not show that he was disabled or regarded as being disabled within the meaning of those laws. The trial court awarded the District summary judgment on the first two grounds and found it unnecessary to decide whether appellant could establish a prima facie case of disability discrimination. This appeal followed.
Appellant argues that the District waived its objections under applicable statutes of limitations and § 12-309 by failing to assert them as affirmative defenses in its answer to his amended complaint. Appellant further contends that his claims are not time-barred, and that his failure to comply with the notice requirements of § 12-309 does not prevent him from presenting his claims under the HRA for liquidated damages, or from suing the PSC (as distinct from the District of Columbia). The District largely (though not entirely) disagrees with these contentions. In addition, the District argues that we should affirm the judgment in its favor because appellant cannot establish that he was disabled or regarded as disabled, even though the trial court did not rely on that ground. Appellant rejoins that this latter issue is not ripe for our consideration because he had not completed necessary discovery, but that even in its ...