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James A. Leftwich, Jr v. Gallaudet University

July 18, 2012


The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge



This matter is before the court on Defendant's, Gallaudet University ("Defendant" or "the University"), Motion to Dismiss, or, in the Alternative, for Summary Judgment. (Dkt. No. 9.). Plaintiff, James A. Leftwich, Jr. ("Plaintiff"), filed an Opposition to the Motion on February 13, 2012 (Dkt. No. 11), Defendant filed a Reply on March 21, 2012 (Dkt. No. 13), and Plaintiff filed a Sur-Reply on April 16, 2012.*fn1

Plaintiff instituted the present action against Defendant on April 27, 2011, alleging claims under the American with Disabilities Act of 1990, 42 U.S.C. § 12112 ("the ADA"), the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"), the District of Columbia Human Rights Act, D.C. Code §§ 2.1401 et seq. ("DCHRA"), and the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). (Dkt. No. 7 at ¶ 5.). Specifically, Plaintiff alleges that the University: (1) discriminated against him, subjected him to a hostile work environment and terminated his position at the University based on his race in violation of Section 1981 (Counts 1 and 2); (2) failed to accommodate his disability, subjected him to a hostile work environment on the basis of his race, terminated his position with the University on the basis of his race, disability and/or in retaliation for engaging in a protected EEO activity, and retaliated against him for participating in a protected EEO activity in violation of the DCHRA (Counts 3 through 8); (3) failed to accommodate his disability, subjected him to a hostile work environment, and unlawfully suspended him on the basis of his disability in violation of the ADA (Counts 9, 11 and 14); and subjected him to a hostile work environment on the basis of race, and retaliated against and suspended him for engaging in a protected EEO activity in violation of Title VII (Counts 10, 12 and 13).

Defendant moves, pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, Federal Rule 56, to dismiss: (1) Counts 9 through 15 brought pursuant to the ADA and Title VII for failure to exhaust administrative remedies, (2) Counts 3 through 8 brought pursuant to the DCHRA as time-barred, and (3) Counts 1 and 2 for failure to state a claim for discriminatory treatment under Section 1981. Having considered the parties' arguments, pleadings, and relevant case law, the court finds and rules as follows.


Plaintiff is a 36-year-old African-American man who was hired by the University on May 19, 2003 as a campus police officer. (Dkt. No. 7 at ¶¶ 1, 15-16.). On October 26, 2006, in the course of performing his duties, Plaintiff fe1l from a fence and injured his ankle. (Id. at ¶ 26.). His injury required surgery and he was out on Worker's Compensation Leave until he returned to work on April 17, 2007. (Id. at ¶¶ 28, 32.). Plaintiff alleges that as a result of this injury, he is permanently physically disabled with substantial limits to his ability to walk, run, stand, climb, and kneel. (Id. at ¶ 29.). Plaintiff obtained an Independent Medical Evaluation ("IME") through the University's Worker's Compensation Program. (Id. at ¶ 33.). The IME stated that he "cannot return to full duty nor will he ever be able to return to his job in a full duty position. A sedentary job is recommended." Id.

Plaintiff asserts that the University granted him a reasonable accommodation for his disability by restructuring his duties to include sedentary, administrative tasks related to campus security. (Id. at ¶ 34.). His job duties included, but were not limited to, Front Desk Technician, Dispatcher and Assistant to the Community Relations Coordinator/Investigator. Id. When Plaintiff returned to work, he reported to his immediate supervisor, Virginia Fedor, a Caucasian female who is the Community Services and Investigations Coordinator for the University. (Id. at ¶¶ 18, 37.). Additionally, Plaintiff reported to Fabienne Collson, the Manager of Communication Services at Gallaudet. (Id. at ¶¶ 19, 37.). Ms. Collson is also Caucasian. (Id. at ¶ 19.). Plaintiff also reported to Ms. Wendy Potts, Deputy Director of Defendant's Department of Public Safety. (Id. at ¶¶ 20, 37.). Ms. Potts is African-American. (Id. at ¶ 20.). Ms. Pott's direct supervisor is Ms. Batten-Mickens, the Director of Public Safety. (Id. at ¶ 21.). Ms. Batten-Mickens is also African-American. Id.

Plaintiff claims that from the moment he was placed in an administrative position, he was ostracized, unwelcome, and singled out for adverse treatment. (Id. at ¶ 40.). He alleges that Fedor and Potts repeatedly assigned him tasks that went beyond his physical limitations in contravention of the light duty accommodation. (Id. at ¶ 41.). He claims that frequently, when he reminded Fedor of his physical limitations, she would respond that he was being insubordinate and lazy. (Id. at ¶ 42.).

For instance, Plaintiff claims that in October 2007, Fedor and Potts assigned him to work at an outdoor surveillance post. (Id. at ¶ 43.). Plaintiff alleges that he expressed concern to Potts that his injury prevented him from being able to defend himself or anyone else if trouble arose, and, as such, his assignment to that post posed a security risk. Id. Plaintiff claims that Potts told him that he would be reprimanded and possibly suspended or terminated if he did not work at the designated post. Id. Plaintiff alleges that in May 2008, Fedor ordered him to perform a follow up investigation on police reports-a task requiring him to walk through campus dormitories for an extended period of time exceeding his physical capacity. (Id. at ¶ 57.). Plaintiff alleges that he expressed concern to Fedor about his ability to perform the task. Id. It is unclear from the complaint whether Plaintiff completed the task, but Plaintiff alleges that several days later, he received a letter from Potts in which she stated that she was "concern[ed]" about his refusal to perform assigned tasks that exceed his reasonable accommodation and physical abilities. (Id. at ¶ 58.).

Plaintiff asserts that in July 2008, Fedor instructed him to clean out a storage area, a task that would require him to stand and lift heavy objects while climbing a ladder for a period of time greater than one hour. He claims that when he reminded Fedor of his physical limitations, she threatened him with disciplinary action. He maintains that he completed the task, but later sent a letter to Potts describing the incident and inquiring why he was "continually asked to perform tasks outside the scope of his accommodation." (Id. at ¶ 63.). He claims that Potts never responded to the letter. (Id. at ¶ 64.). Plaintiff also claims that in September 2009, he was assigned to fingerprinting duty, a job that he alleges required him to stand for a period of time exceeding four hours. (Id. at ¶ 81.). According to Plaintiff, when he complained about the physical requirements, Fedor threatened to discipline him if he did not complete the task. (Id. at ¶ 82.).

In addition, Plaintiff claims that he was treated in a rude and demeaning manner on a number of occasions. (Id. at ¶ 43.). For instance, he alleges that Ms. Collson often stated that he was not a part of her team that she did not want him working in dispatch. Id. He claims that on April 30, 2008, Collson threw a document at him and stated, "Oh, by the way Officer Leftwich, this is for you," in a rude manner while she walked away from him. (Id. at ¶ 47.). He further alleges that as Collson left, Bob Wilson, a Caucasian male and the DPS Communications Manager approached Plaintiff and told him to "get [his] ass out there and help Frank Turk." He claims that Wilson also stated, "don't worry about it because you are not going to be working here much longer anyway, boy." (Id. at ¶ 48.).

Plaintiff maintains that he wrote a letter to Ms. Batten-Mickens that same day, reporting Collson's and Wilson's conduct and stated that he felt disrespected and discriminated again. (Id. at ¶ 49.). Plaintiff alleges that he expressed that Wilson's use of the word "boy" was racially derogatory and inflammatory and requested that Wilson's behavior be corrected. (Id. at ¶ at 50.). Plaintiff claims that he sent a copy of the letter to Ms. Fedor. (Id. at ¶ 51.). Plaintiff further alleges that on May 5, 2008, Ms. Batten-Mickens e-mailed him acknowledging his letter and stating that she would investigate the incident. He claims that she also forwarded his letter to Sharrell McCaskill, an African-American female who is the Director of Equal Opportunity Programs at the University. (Id. at ¶¶ 21 and 52.). Plaintiff claims that "within hours of receiving this e-mail" Fedor issued him a reprimand for his conduct during the April 30, 2008 incident, claiming that his "demeanor was unprofessional, inappropriate, and negatively impact[ed] the public's image of [the security] Department." (Id. at 53.). Plaintiff alleges that, to his knowledge, no disciplinary action was taken against Collson or Wilson. (Id. at 56.).

Plaintiff also claims that he was subject to offensive and insensitive remarks about his race (black) and overall appearance (large) on an almost daily basis. (Id. at ¶ 74.). For instance, he claims that in July 2009, he and two other black co-workers were talking in the break-room when Fedor walked in. She assigned him a task and then allegedly stated: "Stay out of trouble" and "don't get locked up." (Id. at ¶¶ 74-75.). Plaintiff felt that this comment was a "threat directly related to the well-publicized mistaken, racially motivated arrest of Harvard University Professor Henry Louis Gates, Jr., two days earlier." (Id. at ¶ 75.). Plaintiff claims that he wrote a letter to Fedor expressing his "disgust" at her comment, but that she never responded. (Id. at ¶¶ 76-77.).

Plaintiff asserts that he felt that he was "constantly being singled out and treated more harshly than his co-workers." (Id. at ¶ 86.). He claims that he received undue criticism of his work and was repeatedly reprimanded for refusing to do tasks that exceeded his physical limitations. Id. He maintains that his attempts to assert his rights were viewed as argumentative and unprofessional by his supervisors. Id. He further states that on October 6, 2008, he wrote a letter to Potts in which he complained about Fedor's alleged failure to respect his accommodation limitation and about her behavior towards him, stating: "ever since I returned to D.P.S. from my injury in October of 2006, I have been treated unfairly by Lt. Virginia Fedor. I have been told by [her] that I am lazy, incompetent, lack integrity, and above all a lousy assistant." (Id. at ¶ 67.). He claims that on October 12, 2008, he wrote a second letter to Potts complaining of the increasingly tense relationship and describing an incident in which Fedor allegedly said, "I do not want to upset you because you are such a big black guy and you always look mean all of the time." (Id. at ¶¶ 68-69.). He claims that Potts responded to his October 6, 2008 letter in a letter dated October 13, 2008, in which she "ratif[ied] Ms. Fedor's perceptions of [him] as lazy and incompetent but otherwise failed to address his complaint of [] failure to accommodate." (Id. at ¶ 70.). He claims that Potts never responded to his October 12, 2008 letter. Id.

Plaintiff contends that he complained to University management officials on multiple occasions regarding his supervisors' alleged treatment of him. He also claims that he attempted on multiple occasions to avail himself of the University's internal dispute resolution process by contacting the University's EEO Director McCaskill. (Id. at ¶¶ 65-66.). He states that McCaskill tried to coordinate a meeting between Fedor and Plaintiff in order to address his concerns, but Fedor refused to participate. (Id. at ¶ 66.).

Plaintiff received a negative performance review from Fedor in 2009, with a score falling within the "needs improvement" category. She gave him a 2 in the section entitled "attitude towards assignments" and commented that he "has been reluctant to accept and refused assignments in investigations as well as failed to follow direction." (Id. at ¶¶ 71-72.). He claims that he received much higher scores from his other supervisors in previous years. (Id. at ¶ 73.).

Finally, Plaintiff asserts, his relationship with his supervisors became so tense that in October 2009, he felt that he could only communicate with them through sign language because he was frequently accused of speaking in an insubordinate manner. (Id. at ¶ 79.). He claims that on the day that Fedor assigned him to the fingerprinting duty, she asked him in an "abrasive[]," "abrupt," and "confrontational manner" about the status of the project. (Id. at ¶ 83.). He responded in sign language: "It's going fine." Id. Thereafter, on October 1, 2009, Collson issued him a five day suspension for insubordination for being "non-responsive to a direct inquiry from Ms. Fedor." (Id. at ¶ 84.).

On October 8, 2009, Plaintiff filed an Intake Questionnaire with the EEOC. (Id. at ¶ 85.). Also in October 2009 (the Amended Complaint does not specify the exact date), Plaintiff went out on FMLA leave. (Id. at ¶ 88.). He claims that his physical disability, exacerbated by Defendant's alleged failure to accommodate it and in conjunction with the hostile work environment, caused him severe stress and anxiety. He claims that he began seeing a therapist for stress, anxiety and depression during this time. (Id. at ¶¶ 88-89).

On March 24, 2010, the same day that he exhausted his FMLA leave, Plaintiff provided Defendant with a note from his therapist stating that he was under doctor's care and requesting that his return to work date be extended to April 26, 2010. (Id. at ¶ 90.). On April 21, 2010, Plaintiff provided another note to Defendant in which the therapist stated that there had been no improvement in his condition and that he was still under doctor's care. (Id. at ¶ 91.). Plaintiff asserts that after he sent this second letter, he received a letter from Defendant dated April 14, 2010 stating that he was expected to return to work by April 26, 2010 or he would be terminated based on his inability to return to duty. (Id. at ¶ 92.). Plaintiff did not return to work by the specified date, so in a letter dated May 12, 2010, Defendant terminated Plaintiff's position effective April 27, 2010. (Id. at ¶ 94.).


A. Standard of ...

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