Submitted June 6, 2013
Appeal from the Superior Court of the District of Columbia (CAP-8024-11) (Hon. Todd E. Edelman, Reviewing Judge) (
Denise M. Clark was on the brief for appellant.
Jonathan W. Greenbaum was on the brief for appellee, R.B. Properties, Inc.
Before Blackburne-Rigsby and McLeese, Associate Judges, and Nebeker, Senior Judge.
Blackburne-Rigsby, Associate Judge
After conducting a preliminary investigation, the District of Columbia Office of Human Rights (OHR) found that there was no probable cause to support appellant Timothy Sparrow's allegations that appellee R.B. Properties: (1) failed to provide him with a reasonable accommodation for his disability; and (2) terminated him in retaliation for requesting a reasonable accommodation. Upon reconsideration at Sparrow's request, OHR affirmed its initial determination that there was no probable cause. Mr. Sparrow appealed OHR's decision to the District of Columbia Superior Court, where it was affirmed in a written order. We now consider Mr. Sparrow's appeal of the trial court's decision to uphold OHR's probable cause finding, in which Mr. Sparrow contends that: (1) OHR erroneously concluded that R.B. Properties engaged in an interactive process with him to identify a reasonable accommodation; (2) there was not substantial evidence to support OHR's finding that R.B. Properties' offer to demote Mr. Sparrow and reduce his salary and weekly hours was a reasonable accommodation; and (3) OHR placed an overly onerous burden on Mr. Sparrow to rebut R.B. Properties' allegation that Mr. Sparrow was terminated for poor performance. We remand to OHR for further proceedings not inconsistent with this opinion.
Mr. Sparrow's OHR complaint challenged his demotion and subsequent dismissal from his employment at the Sea Catch Restaurant in Washington, D.C. His complaint alleged the following sequence of events. While working as the "Director of Restaurant/Catering" at the restaurant, Mr. Sparrow was diagnosed with "an extreme case of degenerative joint disease in his left hip" on February 26, 2009. The next day, Mr. Sparrow informed R.B. Properties of his condition, which required him to use a cane until he was able to get a hip replacement. Pursuant to his doctor's recommendation, he requested to reduce his usual 65-hour work week by 10-15 hours and to spend less time on his feet while at work. Mr. Sparrow claimed that after his limp became noticeable, Tom Whitney, the Director of Quality Assurance, expressed concern about how the limp appeared to the restaurant patrons and told Mr. Sparrow that he wanted the condition "addressed as soon as possible." Mr. Sparrow further claimed that when Mr. Whitney called Mr. Sparrow to a meeting and Mr. Sparrow requested to move the meeting to his office rather than Mr. Whitney's upstairs office, to accommodate Mr. Sparrow's difficulty with the stairs, Mr. Whitney told Mr. Sparrow to "hobble up the stairs." Then, during a March 9, 2009, meeting, Mr. Sparrow was told that his position was being eliminated and that he had "the day to consider the offer" for a part-time position with a $13, 000 salary reduction and fewer responsibilities. There is no indication that Mr. Sparrow's request for an accommodation was discussed at this meeting. Mr. Sparrow accepted the demotion, his pay was cut, his hours were reduced to twenty hours per week, he was removed "from working the floor, " and he was told to "concentrate on booking catering events." Then, on March 17, 2009, R.B. Properties terminated Mr. Sparrow for "poor performance." Mr. Sparrow filed his complaint with OHR on March 5, 2010.
During OHR's initial investigation to determine whether there was probable cause to support Mr. Sparrow's allegations of disability-based discrimination, Mr. Sparrow submitted affidavits from his colleagues at Sea Catch Restaurant and copies of emails that he sent to R.B. Properties' management. These documents supported his claims that R.B. Properties discriminated against Mr. Sparrow by failing to accommodate his disability and terminated his employment in retaliation of his request for a reasonable accommodation. Each witness expressed surprise and dismay at how R.B. Properties treated Mr. Sparrow. They discussed, inter alia, Mr. Sparrow's strong work ethic, his effectiveness as a bar supervisor, his heavy workload, the frequent praise he publicly received from members of R.B. Properties' upper management, and the affiants' perceptions that he was fired in response to his request for a reasonable accommodation.
R.B. Properties responded to Mr. Sparrow's claims of discrimination by claiming that it had accommodated Mr. Sparrow's disabling condition by reducing his hours and reducing his responsibilities. R.B. Properties further argued that Mr. Sparrow was terminated because of his poor performance — not his disability. To support these claims, R.B. Properties produced affidavits from Mr. Whitney; Lisa Hornstein, Vice President of Sales and Marketing; and James Martens, Executive Vice President/CFO. These affidavits, which were identical apart from the affiants' names and titles, provided examples of Mr. Sparrow's poor performance over the course of the eight months that Mr. Sparrow worked at the Sea Catch Restaurant. Furthermore, the affiants asserted that although Mr. Sparrow "did not claim to have a disability, " his "request for a reduced schedule was granted. His hours were reduced as requested and he was to concentrate on booking banquets while he was working. At no time did [Mr. Sparrow] request for a change in the accommodations made[, ] nor did he suggest other accommodations be made." The affiants averred that Mr. Sparrow "was terminated for [p]oor performance." R.B. Properties also submitted a negative customer evaluation; emails from Mr. Whitney to Mr. Sparrow and Mr. Sgro; and a document dated June 12, 2010, entitled "Recap of Sea Catch Catering Issues, " which outlined several examples of Mr. Sparrow's poor performance. In these emails, Mr. Whitney detailed service problems at the restaurant. Finally, R.B. Properties provided financial data from the fourth quarter of 2008 and the first quarter of 2009 indicating that "Net Operating Income was down 38 percent from the previous year, " and that catering sales in particular were down significantly.
Based on the evidence it received during its preliminary investigation — and without conducting a hearing — OHR determined that there was no probable cause to support Mr. Sparrow's allegations that R.B. Properties failed to provide a reasonable accommodation and terminated his employment in retaliation for his reasonable accommodation request. Mr. Sparrow filed a "Request for
Reconsideration" to OHR in which he alleged that OHR's "no probable cause" findings misstated a material fact by finding that Mr. Sparrow's demotion amounted to a reasonable accommodation. Mr. Sparrow further alleged that OHR misapplied the law by: (1) not considering whether R.B. Properties engaged in an interactive process with Mr. Sparrow to provide a reasonable accommodation; (2) not finding that R.B. Properties "acted in bad faith when it failed to engage in an interactive process"; and (3) imposing an overly onerous evidentiary burden on Mr. Sparrow to rebut the legitimate reason proffered by R.B. Properties to support its decision to terminate Mr. Sparrow.
Without conducting a hearing, OHR addressed Mr. Sparrow's request for reconsideration in a written "Determination on Complainant's Request for Reconsideration." OHR explained that Mr. Sparrow had not refuted the evidence presented by R.B. Properties, which showed that it accommodated Mr. Sparrow by reducing his hours and responsibilities, and that Mr. Sparrow failed to refute the legitimate reason that R.B. ...