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Haynes v. DC Water Is Life

United States District Court, District of Columbia

September 22, 2017

LARRY HAYNES, Plaintiff,
v.
DC WATER IS LIFE, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff Larry Haynes brings this action against his former employer, the District of Columbia Water and Sewer Authority (“DC Water”), under the Americans with Disabilities Act (“ADA”), see 42 U.S.C. 12101 et seq. (Count I), Title VII of the Civil Rights Act of 1964 (“Title VII”), see 42 U.S.C. § 2000e et seq. (Count II), 42 U.S.C. § 1981 (“Section 1981”) (Count III), the Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C. § 623 et seq. (Count IV), and the District of Columbia Human Rights Act (“DCHRA”), see D.C. Code § 2-1401 et seq. (Count V). He also brings a breach of contract claim (Count VI). Plaintiff demands declaratory and injunctive relief, compensatory and punitive damages, litigation expenses and reasonable attorney's fees.

         This matter is before the Court on Defendant District of Columbia Water and Sewer Authority's Motion for Summary Judgment, ECF No. 18. For the reasons discussed below, the Court concludes that plaintiff's claims under the ADA and the DCHRA are time-barred, that plaintiff failed to exhaust his age and race discrimination claims under the ADEA and Title VII, that DC Water did not violate Section 1981 by purposely discriminating against plaintiff on the basis of his race, and that plaintiff fails to state a breach of contract claim. Accordingly, the Court will grant DC Water's motion in its entirety.

         I. BACKGROUND

         Plaintiff is a 55-year old African American man, Pl.'s First Am. Compl., ECF No. 17 (“Am. Compl.”) ¶ 4, who is dyslexic, see id. ¶ 9. DC Water “is an independent authority of the District of Columbia that provides retail water and wastewater sewer service to the District of Columbia.” Id. ¶ 5. Its predecessor entity, the District of Columbia Department of Public Works, Water and Sewer Administration, hired plaintiff in 1988 as an Electrical Equipment Repairer 11/CDL. Id. ¶ 6.

         An Electrical Equipment Repairer 11/CDL “perform[ed] a wide range of electrical duties independently under the supervision of an electrical foreman.” Def. District of Columbia Water and Sewer Auth.'s Mem. of P. & A. in Support of its Mot. for Summ. J., ECF No. 18-1 (“Def.'s Mem.”), Decl. of Charles Sweeney in Support of Def. District of Columbia Water and Sewer Auth.'s Mot. for Summ. J., ECF No. 18-3 (“Sweeney Decl.”) ¶ 8.[1] Each person in this position was “only required to hold an apprentice electrician's license and a Commercial Driver's License [(CDL)].” Sweeney Decl. ¶ 8; see id., Ex. 1 (Job Description, Electrical Equipment Repairer 11/CDL) at 2. “Throughout his employment with DC Water, [plaintiff] had an [a]pprentice [e]lectrician['s] license and a Class B [CDL.] ” Am. Compl. ¶ 6.

         In or about 2011, DC Water planned to reorganize and consolidate its “Department of Water, Department of Sewer, and the Water and Sewer Pump Maintenance Branch into one department called the Department of Distribution and Conveyance Systems.” Sweeney Decl. ¶ 4. Management identified positions to abolish and identified “new positions . . . to create to replace the abolished positions and/or meet new organizational requirements.” Id. ¶ 6. One of the positions slated for abolishment was the Electrical Equipment Repairer 11/CDL position. Id. ¶ 7. DC Water announced the reorganization in 2014. Id.

         It came to light during the reorganization process that District of Columbia licensure requirements for electricians required direct supervision over “employees holding only an apprentice electrician's license [by] a person holding a master electrician's license[.]” Id. ¶ 9. DC Water sought guidance from the District of Columbia Department of Consumer and Regulatory Affairs, see id., which advised:

Pursuant to District law, “[a]n apprentice electrician shall work only under the direct personal supervision and control of a licensed master electrician or licensed master electrician specialist.” See D.C. Official Code §47-2853.92(a) (2010 Repl.). Accordingly, an apprentice electrician employed by [DC Water] must be directly supervised, which means that a qualified individual must be present to observe and guide the work of an apprentice. Further, District law specifies that a master electrician or master electrician specialist must provide the necessary supervision. Therefore, a licensed journeyman electrician cannot supervise an apprentice. Thus, to comply with District law, any Electrical Foreman or General Foreman employed by [DC Water who] supervises the performance of electrical work must be licensed as a master electrician or master electrician specialist, as only a licensed master is legally authorized to assume responsible charge over the performance of electrical work in the District.

Id., Ex. 2 (Letter to Stephanie Black, Manager, Learning and Development, DC Water, from Pamela Hall, Program Support Specialist, D.C. Board of Industrial Trades, Occupational and Professional Licensing Division, Department of Consumer and Regulatory Affairs, dated March 18, 2015) at 2-3 (emphasis in original).

         “DC Water did not employ a sufficient number of master electricians to directly supervise the electricians with apprentice electrician['s] licenses.” Id. ¶ 10. Management determined that, “[g]iven the financial and practical objectives of the planned reorganization, it was not practical or reasonable for DC Water to hire additional master electricians to individually oversee each Electrical Equipment Repairer 11/CDL.” Id. Instead, DC Water “change[d] the minimum license qualifications for the Electrical Equipment Repairer 11/CDL position, and create[d] the Industrial Journeyman Electrician position to replace it.” Id. ¶ 11. Each Industrial Journeyman Electrician was required to have a journeyman electrician's license and a CDL. Id. ¶ 12; see id., Ex. 3 (Job Description, Industrial Journeyman Electrician) at 2.

         American Federation of Government Employees Local 2553 (“Union”) represented employees in the Electrical Equipment Repairer 11/CDL positions. See id. ¶ 13.[2] Pursuant to the collective bargaining agreement (“CBA”), DC Water notified the Union of its “decision that Electrical Equipment Repairer 11 employees needed a journeyman[] electrician['s] license” by hand-delivering a letter to the Union's president on July 11, 2014. Id. ¶ 14. In addition, DC Water outlined the reorganization in a PowerPoint presentation to Union representatives on that same date. Id. ¶ 15. “[T]he Union requested effects bargaining on July 16, 2014, id. ¶ 16, and bargaining began on or about August 26, 2014, id. ¶ 18.[3] “Among the topics discussed was the requirement that . . . Electrical Equipment Repairer 11/CDL employees obtain a journeyman electrician's license to qualify for the new position” of Industrial Journeyman Electrician. Id.

         The Union and DC Water disagreed about the length of time within which an Electrical Equipment Repairer 11/CDL was to obtain a journeyman electrician's license. The Union proposed that an “employee[] holding an apprentice electrician's license be permitted a total of four (4) years to obtain [a] journeyman electrician's license.” Id. ¶ 19. DC Water rejected this proposed timeframe because the journeyman electrician's license requirement was a legal requirement. Id. Ultimately DC Water and the Union entered into a Memorandum of Agreement (“MOA”), and with respect to the Electrical Equipment Repairer 11 positions, the parties agreed:

Current DC Water bargaining unit employees[] in the position of Electrical Equipment Repairer possessing a DC Apprentice Electrician['s] license selected for Industrial Journeyman Electrician and Industrial Specialist Electrician positions shall have until March 31, 2015 to acquire the required DC Journeyman Electrician['s] license. Beginning September 2, 2014, any bargaining unit member in possession of a DC Apprentice license may participate in training for and testing for the DC Journeyman Electrician['s] license. DC Water shall pay for this training. Employees are expected to test within thirty (30) calendar days of completing this training. Employees that fail the test may retest so long as the second test is taken by March 31, 2015.

Id., Ex. 8 (Memorandum of Agreement Regarding the Department of Distribution and Conveyance Systems dated September 2, 2014) ¶ 4.

         The MOA also included agreements with respect to other DC Water employees affected by the reorganization. For example:

For any AFGE Local 2553 bargaining unit employee in the position of Utility Systems Operator RW-08, hired into the position of a Utility Systems Operator I or II, the employee shall have 18 months to obtain the required certification. Any training shall be paid for by DC Water. If any employee fails a test at any point during the eighteen (18) month period [he] shall be allowed to retest at DC Water's expense, so long as the retest occurs prior to the conclusion of the eighteen (18) month period . . . . Provided the employee has obtained the certification in [his] area of prior work experience (Distribution or Collections), employees who do not meet a certification requirement because the testing authority determines the employee did not perform the requisite number of years of work in the classification, shall be provided the time needed to meet the classification requirement.

Id., Ex. 8 ¶ 3.

         Notwithstanding the MOA, in October 2014, “the Union initiated an unfair labor practice grievance under the procedures laid out in Article 58 of the [CBA].” Id. ¶ 23; see generally id., Ex. 10 (Working Conditions Agreement Between DC Water and American Federation of Government Employees Local 2553) at 81-87 (Art. 58, General Grievance and Arbitration Procedures). The grievance did not delay implementation of the reorganization in November 2014. Id. ¶ 24.

         “In the fall of 2014, [plaintiff] was informed that his job title was being changed to Industrial Journeyman Electrician and that [an] Industrial Journeymen Electrician[ was] required to obtain a [j]ourneyman [e]lectrican['s l]icense.” Am. Compl. ¶ 7. On October 3, 2014, DC Water proffered a copy of the job description for the Industrial Journeyman Electrician position, Sweeney Decl. ¶ 25, and plaintiff refused to sign a form acknowledging its receipt, see id., Ex. 9 (Job Description Transmittal). Plaintiff had only six months to obtain a journeyman electrician's license, even though “[t]he license generally requires years of coursework and the signature of a master electrician who supervised the candidate.” Am. Compl. ¶ 8.

         Pursuant to the MOA, DC Water provided training for employees converting to the new Industrial Journeyman Electrician positions. Sweeney Decl. ¶¶ 26-27. Plaintiff began the course in September 2014. Id. ¶ 26. According to DC Water, plaintiff took a 15-week course ending in December, 2014. Id. ¶ 28. According to plaintiff, DC Water provided a six-week course at the end of which he “received a certificate showing that he completed sixty hours of training for the Journeyman Electrician Examination.” Am. Compl. ¶ 8. However, he “did not believe the course sufficiently prepared him for the examination, ” in part because “the course instructor admitted that [the] course was designed as a refresher for people who had already passed the test previously, and it was not meant for first-time test takers.” Id.

         “In the fall of 2014, [plaintiff] told various members of human resources . . . that he is dyslexic and needed additional time and to go to class if DC Water wanted him to obtain a [journeyman electrician's] license.” Id. ¶ 9. “They refused to give him the additional time, ” id., even though “other DC Water electricians, including Caucasian and younger electricians, ” were given 18 months to two years to obtain their licenses, and “some were even allowed to go back to school, id. ¶ 10. For example, according to plaintiff, there were employees “in the machine shop division [who] were not subject to the new [j]ourneyman [e]lectrician['s] license requirement[.]” Id. Plaintiff “tried to obtain a doctor's medical certification to show that he is dyslexic, ” but he was not able to do so until May 13, 2015. Id. ¶ 11; see generally Mem. of P. & A. in Opp'n to Def.'s Mot. for Summ. J., ECF No. 21 (“Pl.'s Opp'n”) Ex. E (Clinical Neuropsychological Evaluation dated May 13, 2015).[4]

         Meanwhile, the Union's grievance proceeded. “The parties could not agree on a statement of issues to be decided by the Arbitrator.” Def.'s Mem., Ex. 14 (Arbitration Decision dated July 12, 2015) at 2. On “[c]onsider[ation of] the evidence presented and the arguments in the briefs, ” id., Ex. 14 at 20, the Arbitrator fashioned his own statement of four issues to be decided, two of which are relevant here:

Did [DC Water] violate the MOA or Articles 4 or 18 of the [CBA] when it required Electrical Equipment Repairer . . . 11s to convert to the job classifications of Industrial Journeyman Electrician or Industrial Specialist Electrician and to obtain a CDL and journeyman electrician['s] license?
Did [DC Water] violate Article 34, Section A of the [CBA] when the MOA required Industrial Journeyman Electricians and Industrial Specialist Electricians to obtain new licenses by March [31], 2015?

Id., Ex. 14 at 21.[5] The Arbitrator found that DC Water did not violate any of the relevant CBA or MOA provisions, and denied the grievance. Id., Ex. 14 at 40. The Arbitrator's decision in DC Water's favor was binding on both parties. Id., Ex. 10 at 86 (Art. 58, Sec. 1, para. 12).

         There were seven incumbent Electrical Equipment Repairer 11/CDL employees eligible for the newly-created Industrial Journey Electrician positions: six are African-American and one is Caucasian. Sweeney Decl. ¶ 29. Two of the African-American employees already had journeyman electrician's licenses. Id. One African-American employee and the Caucasian employee “successfully tested for, and obtained, a journeyman electrician's license.” Id. Plaintiff and the two remaining African-American employees did not obtain a journeyman electrician's license by the March 31, 2015 deadline. Id. ¶ 30. In April 2015, plaintiff “submitted his application for the Journeyman Electrician license exam, and was authorized to take the exam on June 1, 2015.” Am. Compl. ¶ 12.

         On April 1, 2015, Charles Sweeney, Director of Distribution and Conveyance Systems, Sweeney Decl. ¶ 3, sent plaintiff a letter “informing him of his failure to meet the licensure requirement to convert to the Industrial Journeyman Electrician position” by the March 31, 2015 deadline, id. ¶ 30; see id., Ex. 12 (Letter to plaintiff from Charles Sweeney dated April 1, 2015). DC Water declined to terminate plaintiff's employment at that time. Id. ¶ 31. Instead, “DC Water removed him from his position as an electrician on April 1, 2015, ” Am. Compl. ¶ 12, and allowed him (and the two other African-American employees who failed to meet the March 31, 2015 deadline) an additional 60 days, to May 31, 2015, to obtain a journeyman electrician's license, Sweeney Decl. ¶¶ 31-32; see id., Ex. 12 (Acknowledgment of Receipt of Sixty (60) day Notice to Obtain a Journeyman Electrician['s] License). Plaintiff and two other African-Americans “were the only Electrical Equipment Repairer 11 employees provided additional time to obtain the required license.” Id. ¶ 32. Still, plaintiff failed to obtain the license, and DC Water terminated his employment effective May 31, 2015. Id. ¶ 34; see id., Ex. 13 (Personnel Action Report). He “received no benefits as part of the reduction-in-force (RIF) or severance package from the termination, ” and he was not eligible for rehire, see Sweeney Decl., Ex. 13, as were other DC Water employees, Am. Compl. ¶ 12.

         “On May 26, 2015, [plaintiff] went to the Washington Field Office of the Equal Employment Opportunity Commission [EEOC], ” where he filed a charge of discrimination, completed an intake report, and signed an agreement to mediate his discrimination charges. Id. ¶ 13. To indicate the basis of discrimination, plaintiff only checked the box marked “DISABILITY.” See Pl.'s Opp'n, Ex. A (Charge of Discrimination dated May 26, 2015). He stated that the alleged discrimination took place between April 1, 2015 and May 26, 2015, and involved “CONTINUING ACTION.” Id., Ex. A. The narrative section of the charge read:

I work as an Electrical Equipment Repair[er] 11/CDL for the DC Water and Sewer Authority . . . . I have a disability and require reasonable accommodations. I have documentation that demonstrates that I am disabled and require reasonable accommodations.
I require a reasonable accommodation so that I can obtain the training for the . . . the Journeyman Electrician['s] License. My Employer has not provided me with reasonable accommodations for the training required to obtain th[is] license[]. Because I have been unable to obtain th[is] license[] I have been laid off.
I believe that my layoff (and possible subsequent termination as a result of being unable to obtain these licenses) was discriminatory in violation of the Americans with Disabilities Act of 1990, as amended[] (“ADA”)[, ] and that my Employer has failed to ...

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