March 29, 2012
ADESINA F. JAIYEOLA, APPELLANT,
DISTRICT OF COLUMBIA, APPELLEE.
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:
(Argued May 26, 2011)
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 present, incomplete state, the record does not support the District's position. We review the trial court's rejection of appellant's waiver claim for abuse of discretion*fn8 ; our review of the other arguments presented to us is de novo.*fn9
A. Waiver of Affirmative Defenses
Because § 12-309 and statutes of limitations provide affirmative defenses, Civil Rule 8 (c) requires them to be "set forth affirmatively" in the answer to the complaint,*fn10 and they "may be waived if not promptly pleaded."*fn11 The District ran the risk of waiver in this case, as it neglected to assert either defense in its answer to the amended complaint and waited two years before raising the defenses for the first time in its summary judgment motion. Nonetheless, we cannot find that the trial court abused its discretion in rejecting appellant's waiver claim. We have held that, absent unfair surprise or other substantial prejudice to the plaintiff, or interference with the administration of justice, a defendant may raise an affirmative defense in a pre-trial motion despite having neglected to assert it in answer to the complaint.*fn12 Appellant "had and exercised a full and fair opportunity"*fn13 to respond to the District's tardy invocation of the statutes of limitations and § 12-309, and he has not shown that he was unfairly disadvantaged in any other respect. We conclude that "[t]here was no prejudice and hence no waiver."*fn14
B. The Statute of Limitations Governing Rehabilitation Act Claims
As pertinent here, § 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, . . . be subjected to discrimination under any program or activity receiving Federal financial assistance."*fn15 The Rehabilitation Act does not have its own statute of limitations, so courts must look elsewhere for the limitations period that applies to it. When the District moved for summary judgment, it argued that § 504 claims are subject to the federal statute of limitations that governs claims under Title I of the Americans with Disabilities Act ("ADA"), namely, § 706 of Title VII of the Civil Rights Act of 1964.*fn16 Because appellant's EEOC complaint was cross-filed with the OHR, § 706 of Title VII would dictate a limitations period of 300 days.*fn17 The trial court agreed with the District and applied the ADA/Title VII limitations period to appellant's Rehabilitation Act claim. However, the District now concedes,*fn18 and we agree, that it erred in urging the trial court to look to the ADA for the applicable statute of limitations.
Although § 504 of the Rehabilitation Act adopts the applicable
standards of liability set forth in the ADA,*fn19 §
505 specifies (in pertinent part) that "[t]he remedies,
procedures, and rights set forth in title VI of the Civil Rights Act of 1964 . . .
shall be available to any person aggrieved by any act or failure to
act by any recipient of Federal assistance or Federal provider of such
assistance under [§ 504 of the Rehabilitation Act]."*fn20
The Rehabilitation Act thus directs us to look first to the
provisions of Title VI for the limitations period that governs claims
under § 504.*fn21 Unfortunately, however, Title VI
does not have its own statute of limitations either.*fn22
Furthermore, the general federal statute of limitations, 28
U.S.C. § 1658 (2006), does not apply to the Rehabilitation Act because
it only governs actions arising under statutes passed after December
"When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so."*fn24 Our task, therefore, is to identify the District law "most closely analogous to" § 504 and borrow its limitations period, unless doing so would "stymie the policies underlying the federal cause of action."*fn25 "[T]he most analogous statute need not be identical" to § 504*fn26 ; federal statutes rarely have a precise mirror image in state law. To select the best fit, we are charged with identifying the "essence" of the claim embodied in the federal act and seeking out a District law that can be boiled down to the same or highly similar ingredients.*fn27
Two candidates in the District of Columbia Code present themselves:
the three-year statute of limitations for personal injury
claims,*fn28 and the one-year limitations period for
complaints of unlawful discrimination under the HRA.*fn29
A majority of federal courts in other jurisdictions have
chosen to apply the forum state's limitations periods for personal
injury claims to claims of disability discrimination under § 504 of
the Rehabilitation Act.*fn30 Only
rarely, however, has a federal court in these cases considered the
option of applying a statute of limitations specific to a state
anti-discrimination statute. For the most part, federal district court
judges in our jurisdiction also have been drawn to the personal injury
statute of limitations for § 504 actions (the D.C. Circuit not having
had occasion to weigh in on the question), though it appears they have
not considered the HRA statute of limitations as an
alternative.*fn31 The rationale for choosing the
limitations period governing personal injury claims is that the
Rehabilitation Act is an anti-discrimination statute and, as the
courts have recognized in borrowing state statutes of limitations for
actions brought under 42 U.S.C. 1981 and 1983 and Title VI of the Civil Rights Act of 1964, "claims
for discrimination are essentially claims for personal
injury."*fn32 And even where a state statute affords a
specific cause of action for discrimination comparable in scope to
that of § 504, the state statute may not have a statute of limitations
of its own that could be adopted.*fn33
Unlike § 1983, which is "a 'uniquely federal remedy . . .' [that] can have no close counterpart in state statutes,"*fn34 § 504 of the Rehabilitation Act can, and does, have counterparts in some states. A state anti-discrimination statute that furnishes a sufficiently broad cause of action for disability discrimination may be the "most closely analogous" state statute to § 504; the specific cause of action for disability discrimination would be a better fit than the more general personal injury cause of action. In that case, the state anti-discrimination statute's own limitations period would be the appropriate period to borrow for § 504 claims.
The Fourth Circuit considered this possibility in Wolsky v. Medical College of Hampton Roads.*fn35 Finding that "[t]he Virginia Rights of Persons with Disabilities Act was modeled after and is almost identical to the Rehabilitation Act," the Fourth Circuit held that the federal district court should have borrowed the Disabilities Act's one-year statute of limitations for a § 504 claim rather than the longer personal injury statute of limitations.*fn36
The appeals court was not deterred by the fact that the Disabilities Act was "not an exact counterpart" to the Rehabilitation Act because, the court explained, "minor differences between state and federal statutes are acceptable and the most analogous statute need not be identical."*fn37
The Fourth Circuit followed Wolsky in McCullough v. Branch Banking & Trust Company,*fn38 affirming a decision to apply the 180-day statute of limitations in the North Carolina Handicapped Persons Protection Act to a claim under § 504 of the Rehabilitation Act rather than the three-year limitations period under the state's personal injury statute. The Handicapped Persons Protection Act prohibited discrimination on the basis of disability in employment, public accommodations, service, and transportation; although its language did "not correspond to the Rehabilitation Act as precisely as the language of the Virginia Act, the North Carolina Act provide[d] similar protections to disabled individuals."*fn39 The court of appeals concluded that the Handicapped Persons Protection Act was more analogous to the Rehabilitation Act than other state laws, even though it was not a "perfect counterpart" because, among other things, it did not allow a jury trial or provide for full compensatory and punitive damages.*fn40 In addition, the court held, "application of the 180-day statute of limitations is not inconsistent with the federal policies behind the Rehabilitation Act."*fn41 "[A] short statute of limitations is not uncommon among federal civil rights statutes," the court explained (notably, both Title VII of the Civil Rights Act and the ADA have 180-day time bars), "and it serves the goals of prompt notification . . . and swift resolution of the conflict."*fn42 Moreover, the court reasoned, the federal policies behind the ADA and the Rehabilitation Act are similar, and it is "unlikely that Congress, while enacting a 180-day time-bar for an ADA claim, would not approve of the same limitations period under the Rehabilitation Act."*fn43
The District of Columbia does not have a statute modeled on the Rehabilitation Act. But in lieu of such a narrowly focused statute, the District has the HRA, which expressly does prohibit discrimination based, inter alia, on disability.*fn44 We must decide whether the HRA is sufficiently similar to § 504 of the Rehabilitation Act that we should borrow the HRA statute of limitations rather than the default choice of the limitations period for personal injury claims.
There are some substantive differences between the two Acts. Most
obviously, while § 504 deals exclusively with disability-related
discrimination, the HRA also prohibits discrimination based on a
number of other characteristics, including race, national origin,
gender, and sexual orientation.*fn45 And while § 504
applies only to programs or activities (whether governmental or
private) that receive federal assistance (or that are conducted by an
Executive agency or by the United States Postal Service),*fn46
the HRA, with limited exceptions, applies broadly to
proscribe discrimination in employment, membership in labor
unions, housing and real estate transactions, public accommodations,
and educational institutions, as well as in and by the District of
Columbia Government itself.*fn47
In our view, these differences pale in comparison to the similarities between the HRA and § 504. The similarities start with their shared purpose and ambitious aims: Just as the Rehabilitation Act seeks to "empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society,"*fn48 the HRA aims to "secure an end in the District of Columbia to discrimination for any reason other than that of individual merit."*fn49 To accomplish those ends, both statutes create private causes of action for individuals who have been victimized by disability discrimination.*fn50 In doing so, both statutes employ substantially the same definition of the term "disability."*fn51
And the remedies available to prevailing plaintiffs under the HRA include compensatory damages and equitable relief and appear to be no less broad than the range of remedies available under § 504 of the Rehabilitation Act.*fn52
There is not a perfect match, but these core similarities outweigh the differences in determining which statute of limitations to borrow for claims of disability discrimination under the Rehabilitation Act. Personal injury claims need not -- and, indeed, typically do not -- seek to remedy discrimination at all, and the three-year statute of limitations for such claims certainly was not chosen with discrimination claims in mind. In contrast, the HRA targets virtually all forms of disability discrimination, encompasses the range of activities covered by the Rehabilitation Act, and has a statute of limitations intended specifically for claims of discrimination. It is no objection that the HRA has broader coverage of discrimination than § 504 has.*fn53 Given the reality that perfect fits are rare, it is preferable that the state statute be overinclusive as opposed to underinclusive when lined up against the federal act in need of a borrowed statute of limitations. Significant underinclusiveness is problematic because a state statute is unlikely to be a good analogue if it is substantively lacking in a number of the causes of action encapsulated in the federal act in need.*fn54 But we do not perceive underinclusiveness to be a problem here. While there are claims that can be brought under the HRA but not under § 504 -- for instance, claims for racial discrimination, or claims for disability discrimination in activities that are not federally funded -- it strains the imagination to think of instances in which the reverse is true.
In sum, a Rehabilitation Act claim is far more similar to an HRA claim than it is to an ordinary personal injury claim, and the HRA must be deemed the District statute most analogous to § 504. Having reached that conclusion, we must determine whether borrowing the HRA's one-year statute of limitations would be inconsistent with § 504 or the policies underlying it. It would not be. Although the HRA limitations period is shorter than the limitations period for personal injury claims, a short limitation period is by no means anomalous for a federal anti-discrimination claim*fn55 ; and a "state statute cannot be considered 'inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation."*fn56 Thus, we hold that the HRA's one-year statute of limitations governs § 504 claims in this jurisdiction.
As a rule, when a court borrows a state limitations period for a federal cause of action, the court also must apply the state's rules for tolling the statute of limitations.*fn57 The rationale for doing so is that "[i]n virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. Courts thus should not unravel state limitations rules unless their full application would defeat the goals of the federal statute at issue."*fn58 This rule and its rationale apply here. The HRA statute of limitations provides that "[t]he timely filing of a complaint with the Office [of Human Rights] . . . shall toll the running of the statute of limitations while the complaint is pending."*fn59 We have held that this tolling provision is triggered by the timely filing of a complaint with the EEOC, where the complaint is cross-filed with the OHR pursuant to the worksharing agreement between the two agencies.*fn60 The running of the statute of limitations resumes, in such a situation, when the EEOC (or the Department of Justice, if the case was referred to it by the EEOC for possible prosecution) issues a right-tosue letter.*fn61
C. Timeliness of the Complaint
The same statute of limitations and tolling provision apply to all of appellant's causes of action, as they are brought under either the Rehabilitation Act or the HRA. The one-year statute was tolled while appellant's administrative complaint was pending with the EEOC or the Department of Justice, i.e., between November 10, 2003, and November 29, 2005. Appellant filed his Superior Court complaint 65 days after the tolling period ended, on February 2, 2006. Consequently, the limitations period for his HRA and Rehabilitation Act claims extends back 300 days (i.e., one year less 65 days) before November 10, 2003, or to January 14, 2003.
In holding appellant's complaint untimely, the trial court reasoned that any discrimination against appellant on the basis of his actual or perceived disability occurred in September 2001, when the PSC first denied appellant's request to be reinstated. That was well outside the limitations period. The court discounted the significance of appellant's subsequent unsuccessful requests for reinstatement, some of which were within the limitations period, on the ground that "[m]ere requests to reconsider . . . cannot extend the limitations periods applicable to the civil rights laws."*fn62
On appeal, the District does not defend the trial court's ruling on
this score. Appellant's interactions with the PSC subsequent to
January 14, 2003, constituted more than "[m]ere requests to
reconsider." When an employee, whose employer has denied his initial
request for a disability accommodation, makes a subsequent request for
"a new accommodation" (or for reinstatement without previously
requested accommodation on the ground that he is impaired no longer),
the denial of that new request can give rise to a fresh act of
discrimination, because "the denial of a new request, made in light of
changed circumstances, [will] not be time-barred."*fn63
As described above, appellant presented evidence that within
the limitations period, beginning in January and March 2003, he
supported his renewed requests for reinstatement with medical reports
informing the PSC that his condition had improved and that the
restrictions on his ability to perform his job therefore were relaxed
or eliminated. In other words, there is evidence that appellant sought
reinstatement in 2003 "in the light of changed circumstances."
Appellant therefore is permitted to argue that the PSC's failure to
reinstate him despite those changed circumstances amounted to fresh acts of disability discrimination that
are not time-barred.
D. The Failure to Give Notice Under D.C. Code § 12-309
Section 12-309 prohibits a claimant from maintaining an action against the District for unliquidated damages if the claimant has failed to provide the District with written notice "of the approximate time, place, cause, and circumstances of the injury or damage" within six months after it was sustained. This notice requirement applies to appellant's claims under the HRA.*fn64 It does not apply to his claims under the Rehabilitation Act.*fn65
Appellant's conceded failure to comply with § 12-309 bars him from
seeking unliquidated damages against the District under the HRA.*fn66
The trial court correctly so held. Thus, appellant is not
entitled to seek damages for pain and suffering (which he requested in
his complaint) as part of his HRA claims. But "§ 12-309 applies only
to unliquidated damage claims,"*fn67 and appellant
argues that the statute therefore does not prevent him from seeking
back pay and attorney's fees. We agree.
"A debt is liquidated if at the time it arose, it was an easily ascertainable sum certain."*fn68 We and other courts have recognized that a claim for back pay ordinarily is a claim for a liquidated debt.*fn69 No facts have come to our attention that would necessitate treating appellant's back pay claim otherwise. The fact that the District might be entitled to a setoff for the wages that appellant earned after he was hired by the Maryland Public Safety Commission does not convert his claim into one for an unliquidated debt.*fn70 Furthermore, we agree with those courts that have held a prevailing plaintiff's request for attorney's fees to be "outside the ambit of unliquidated damages" for purposes of § 12-309 because attorney's fees incurred to litigate a claim generally are not considered to constitute damages at all.*fn71
E. Establishment of a Prima Facie Case
The District argues that we should affirm the award of summary judgment on a ground the trial court did not reach: namely, that appellant could not establish a prima facie case that he was disabled or that the PSC regarded him as being disabled.*fn72 Appellant counters that this issue was not in a posture to be resolved at the summary judgment stage and is not ripe for our consideration now, because -- as he represented to the trial court by Rule 56 (f) affidavit*fn73 in his opposition to the District's motion for summary judgment -- the District had not yet complied with court-ordered discovery or produced "key witnesses for deposition," specifically appellant's former supervisor at the PSC and the Rule 30 (b)(6)*fn74 witnesses. Appellant stated that these requested depositions were the subject of pending motions for a protective order (based, in the case of the supervisor, on his alleged ill health). According to appellant, he needed the depositions "in order to fully explore a variety of issues," including, in particular, "whether Defendants 'regarded' him as disabled and whether their refusal to permit his return was motivated by his disability or perceived disability."
Because the trial court awarded summary judgment to the District on the grounds that appellant's claims were time-barred (as well as partly precluded by appellant's failure to give the District proper notice), the court found it unnecessary to consider whether appellant had presented sufficient evidence to establish a prima facie case of discrimination on the basis of actual or perceived disability. The court similarly found it unnecessary to consider whether appellant genuinely needed to depose his former supervisor and obtain other discovery in order to address that issue.
We agree with appellant that it would be premature for this court to entertain the District's alternative argument for summary judgment. As this court not long ago explained:
An appellate court has discretion to uphold a summary judgment under a legal theory different from that applied by the trial court, and rest affirmance on any ground that finds support in the record, provided it proceeds cautiously so as to avoid denying the opposing party a fair opportunity to dispute the facts material to the new theory. That course presupposes that there will be no procedural unfairness, that is that the opposing party had notice of the ground upon which affirmance is proposed, as well as an opportunity to make an appropriate factual and legal presentation with respect thereto. We have cautioned that it usually will be neither prudent nor appropriate for this court to affirm summary judgment on a ground different from that relied upon by the trial court. Among the reasons cited for this proposition are that the issues are not ripe for consideration, not clearly presented by the record or simply because it would be better to leave to the trial court the task of sifting through the summary judgment record.*fn75
These considerations guide us here -- especially because of the unresolved discovery questions raised by appellant's Rule 56 (f) affidavit. The resolution of those questions was committed to the discretion of the trial court.*fn76 The trial court not having exercised that discretion, we cannot substitute our own judgment of the matter,*fn77 but we can say that appellant's claimed need to depose his former superior at the PSC is not implausible. Where an employee claims that his employer mistakenly regarded him as disabled, the inquiry of necessity "focuses on the reactions and perceptions of the employer's decisionmakers who worked with the employee."*fn78 The District complains of the somewhat conclusory nature of appellant's Rule 56 (f) affidavit and asserts that appellant's former supervisor was not involved in the decision not to reinstate appellant in 2003, but these are matters best left to the trial court to evaluate. If the trial court found appellant's affidavit unduly vague or otherwise questionable, it could have required appellant to supplement or clarify it. "[I]t is incumbent on the court to make sure that the parties have had an opportunity to develop the record before ruling on a summary judgment motion, particularly where, as here, a party claims the need for discovery."*fn79
In short, even setting to one side the genuine benefit for appellate review of having the trial court study the record first and provide us with its informed view of the sufficiency of the evidence to raise a genuine issue of material fact, we can have no confidence that appellant has had the requisite opportunity to make the record in support of his position. We therefore decline the District's invitation to affirm on the alternative ground that appellant cannot establish a prima facie case of disability discrimination. In so doing, we express no opinion on the merits of that question.
For the preceding reasons, we reverse the award of summary judgment to the District and remand for further proceedings consistent with this opinion. Our decision does not preclude the entry of partial summary judgment for the District. Because appellant did not provide notice in compliance with D.C. Code § 12-309, the District is entitled to judgment as a matter of law on appellant's HRA claims to the extent they seek unliquidated damages. And our decision leaves it open for the trial court eventually to consider whether the District is entitled to summary judgment because appellant cannot establish a prima facie case of unlawful disability discrimination. We leave these and other matters for future resolution.