United States District Court, D. Columbia.
Brien O. Hill, Plaintiff,
Associates for Renewal in Education, Inc., Defendant
Brien O. Hill, Plaintiff, Pro se, Washington, DC USA.
For Associates For Renewal in Education, Inc., Defendant: Squire Padgett, LEAD ATTORNEY, LAW OFFICE OF SQUIRE PADGETT, Washington, DC USA.
JOHN D. BATES, United States District Judge.
Plaintiff, proceeding pro se, sues his former employer, Associates for Renewal in Education, Inc. (" ARE" ), under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101 et seq., and the Family Medical Leave Act (" FMLA" ), 29 U.S.C. § § 2601 et seq. He claims that defendant (1) failed to accommodate his disability and (2) subjected him to a hostile work environment " based upon his disability and  his exercise of protected FMLA rights." Complaint for Failure to Reasonably Accommodate a Known Disability and for Interference With FMLA Rights [Dkt. # 1] ¶ 2. The FMLA claim has been dismissed as time-barred. See Oct. 16, 2012 Mem. Op. and Order [Dkt. # 7].
Following a period of discovery, both parties have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See ARE's Mot. for Summ. J. [Dkt. # 32]; Pl.'s Not. of Mot. and Mot by Pl. for Summ. J. [Dkt. # 33]. Upon consideration of the parties' submissions and the relevant parts of the record, the Court will grant in part and deny in part defendant's motion and will deny plaintiff's motion as non-compliant with the rules governing summary judgment motions.
ARE is a non-profit agency funded by a grant from the District of Columbia that works " primarily with at-risk and underserved" individuals " through intervention, education and employment skills training." ARE's Statement of Material Facts as to Which There is No Genuine Issue (" Def.'s Facts" ) ¶ 3. As a juvenile, plaintiff was among ARE's targeted population and was first hired by ARE in 1997. Plaintiff " held several intern, secretarial and receptionist
positions before his official acceptance of the ARE Secretary to the Deputy of Education position." Pl.'s Opp'g Facts [Dkt. # 38] at 2 (responding to Def.'s Facts ¶ 1). In 1999, plaintiff underwent surgery that resulted in the amputation of his left leg below the knee and his use of a prosthesis. Def.'s Facts ¶ 4; Decl. of Pl. Brien O. Hill in Supp. of Default J. [Dkt. # 33] ¶ 2.
A. Plaintiff's Work History
At an unspecified time and for unspecified reasons, plaintiff left ARE. See Pl.'s Opp'g Facts at 2. He was rehired in 2003 as a Program Aide in ARE's Developmental Before and Aftercare Program (" DBA" ). Id. In May 2007, plaintiff fell while working at ARE's " outdoor . . . play surface" and " severely injured [his] amputated stump and damaged [his] prosthesis." Hill Decl. ¶ 5. He " returned to work bruised" on May 22, 2007; he requested, and was granted, a " class assistant" on behalf of himself and his " fellow . . . Co-teacher" who was " in the final trimester of pregnancy." Id. ¶ 6.
On August 27, 2007, plaintiff " was reassigned back to the position of a Program Aide from that of . . . Head Start Lead Teacher and placed in a classroom located on the third floor of [ARE's] three story school and office complex." Id. ¶ 7. As a result of a reduction in force and staff reassignments, plaintiff's position became part-time as of September 1, 2007. Def.'s Ex. C (Aff. of La'Troy R. Bailey [Dkt. # 32-1] ¶ 3 & Attachs. 1, 2). At that time, plaintiff's immediate supervisor was La'Troy R. Bailey, who " is classified as a C5 quadriplegic, which means a portion of her body is partially paralyzed." Def.'s Facts ¶ ¶ 7-8. Both Bailey and plaintiff were located on the third floor of ARE's building, which had no elevator. Def.'s Facts ¶ 8.
Bailey avers that prior to assuming her supervisory duties over plaintiff in August 2007, she was told by the Human Resources Department (" HR" ) about plaintiff's conduct that had " raised concerns," and she was " instructed . . . to start counseling and implementing a progressive discipline program in accordance with ARE['s] Employee Handbook." Bailey Aff. ¶ 7. On March 21, 2008, Bailey suspended plaintiff for three days without pay " for misbehaviors that included absence from work without notification; leaving the work site without notification and  failure to adhere to department sign-in/out policies." Id. & Attach. 3. Bailey avers that plaintiff's behavior did not improve after the suspension. Specifically, " he continued to be insubordinate, by failing to perform [requested] duties" despite " continual verbal counseling and documentation of his conduct through early December  2008." Id. ¶ 8.
Defendant's HR Manager avers that in " the Fall of 2008" she learned that plaintiff " was harassing and attempting to intimidate his supervisor . . . Bailey." Def.'s Ex. B (Aff. of Talya C. Holloman [Dkt. # 32-1] ¶ 5). On December 12, 2008, Bailey recommended plaintiff's termination. Following a meeting that day attended by plaintiff, Bailey, Holloman and ARE's executive director, plaintiff was fired effective December 15, 2008. Id. ¶ 5; Bailey Aff. ¶ 8. The termination letter lists a " pattern of infractions" consisting of " insubordination and disrespectful conduct, excessive tardiness, falsification of timekeeping records, and violation of DBA call-in policy." Bailey Aff., Attach. 5.
B. Plaintiff's Accommodation Requests
Plaintiff admits in deposition testimony that he received requested accommodations throughout his employment, see Def's Facts ¶ 10, but stresses that he was accommodated
only " up until 9/07." Pl.'s Opp'g Facts at 8. The parties diverge on whether plaintiff requested an accommodation after August 2007.
According to plaintiff, he " expressed [his] concerns" about being on the third floor during a telephone call with Bailey on August 31, 2007, and she instructed him " to put all [his] grievances in writing and submit them to her for review." Hill Decl. ¶ 8. Plaintiff further avers that on September 3, 2007, he " submitted to . . . Bailey" a written request to be " repositioned back to the lower level . . . and the accommodation of having an Aide assigned to my classroom . . .," which was " denied, even though all other Program Aides [Teachers] were assigned classroom aids [sic]." Id. ¶ 9 (bracket in original); Pl.'s Ex. K [Dkt. # 38, p. 108]. Plaintiff avers that he " made daily verbal request[s]" to Bailey throughout the school year for the same accommodation but was denied. Hill Decl. ¶ ¶ 10, 13. Plaintiff states that he " disagreed with and refused to sign" his annual performance evaluation in March 2008 because Bailey " was fully aware . . . of my inability to fulfill the duties listed in my . . . evaluation as negative areas in need of improving, directly because" his " first written request on September 3, 2007" to be repositioned to the facility's lower level and for " the accommodation of [a classroom] Aide" had been denied. Id. ¶ 12. Plaintiff states that he conveyed the foregoing information in a meeting with Bailey and ARE's Director of Education Faye Mays-Bester held following his March 2008 evaluation. Id.
According to defendant, " [a]t no time did [plaintiff] request from [Bailey] any accommodation or modification of his duties or work place," issues about which Bailey is " extremely sensitive" because of her own disability. Bailey Aff. ¶ 6. Similarly, HR Manager Holloman avers that while she was aware of plaintiff's disability and his assignment to the third floor, she never received a direct request from plaintiff for " any accommodation or assistance . . . or [a request] through his supervisors in carrying out his responsibilities." Holloman Aff. ¶ 4; but see Holloman Sept. 26, 2013 Depo. [Dkt. # 33-1] at 46 & Pl.'s Ex. K (responding " ...