The D.C. Court of Appeals, in a DCHRA disability discrimination case brought by a non-attorney employee at Covington & Burling, holds that the continuing violation doctrine does not apply to reasonable accommodation claims brought by a disabled employee, thereby barring her older claims, and upholding summary judgment to the employer on the older claims. The court remands for consideration of the reasonable accommodation claims that do fall within the statute of limitations period. Some excerpts follow. The decision is online at:
Barrett v. Covington & Burling LLP
, No. 07-CV-1301 (D.C. Sept. 10, 2009)Appeal from the Superior Court of the District of Columbia
(CAB5478-05)
(Hon. Melvin R. Wright, Trial Judge)
(Argued March 11, 2009 Decided September 10, 2009)
Heather G. White
, with whom George M. Chuzi was on the brief, for appellant.James E. McCollum, Jr.
, for appellee.Before REID, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.
FISHER, Associate Judge:
Appellant Kathleen Barrett sued the law firm of Covington & Burling, alleging that it had denied reasonable accommodations for her medical condition, subjected her to a hostile work environment, and terminated her employment, all in violation of the District of Columbia Human Rights Act. D.C. Code § 2-1402.11 (2001). The trial court granted summary judgment in Covington’s favor, and this appeal followed. We affirm in large part, but reverse and remand for further proceedings with respect to a portion of the reasonable accommodation claim. . . .
IV. Most of Appellant’s Reasonable Accommodation Claim Is Barred by the Statute of Limitations
In her July 16, 2005, complaint, appellant alleges that "[b]eginning on or around April 2003 and continuing until August 2004, [appellee] denied [her] a reasonable accommodation . . . ." Ms. Barrett points to several incidents in support of her claim that Covington failed to reasonably accommodate her disability, including: a March 2003 denial of her request to work on a part-time basis and/or telecommute for part of the week; delay in providing her with a zero gravity chair and modified desk from March 2003 through June 2003; a denial of her June 2003 request that she be allowed to bring her own ergonomic equipment into the office; failure to allow her to work from home in June 2003; the denial of repeated requests between April 2003 and February 2004 for permission to telecommute and/or work on a modified schedule; and a July 2004 conversation and an August 23, 2004, letter in which Covington allegedly refused to reasonably accommodate her disability.
Appellant encourages us to consider her allegations as a whole, arguing that we should transplant the continuing violation doctrine applied to hostile work environment claims into the context of failure to accommodate claims. Unlike a hostile work environment claim, however, a reasonable accommodation claim is based on discrete acts, not on prolonged or repeated conduct. Consequently, we reject appellant’s invitation to treat failure to accommodate claims in the same way as hostile work environment claims, and instead adopt the approach taken by the United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and applied to the context of reasonable accommodations by the First Circuit in Tobin v. Liberty Mutual Insurance Co., 553 F.3d 121 (1st Cir. 2009), and by the United States District Court in Long v. Howard University, 512 F. Supp. 2d 1 (D.D.C. 2007), aff’d, Long v. Howard University, 384 U.S. App. D.C. 21, 550 F.3d 21 (2008).
. . . In Long v. Howard University, the United States District Court for the District of Columbia held that "there is no principled basis for declining to apply Morgan to denials of requests for reasonable accommodation under the . . . [Americans with Disabilities Act]." 512 F. Supp. 2d at 16 (noting that "many courts have held that an alleged failure to provide a requested accommodation under the . . . ADA is also a ‘discrete act’ under Morgan and thus cannot rest on a continuing violation theory to make it timely" (footnote omitted)).
We adopt the rationale of Morgan, Tobin, and Long, and hold that the continuing violation doctrine does not apply to reasonable accommodation claims. See also Davidson v. America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003) (applying Morgan to reasonable accommodation claims and holding that "plaintiffs are now expressly precluded from establishing a continuing violation exception for alleged discrete acts of discrimination occurring prior to the limitations period, even if sufficiently related to those acts occurring within the limitations period"); Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) ("The rejection of a proposed accommodation is a single completed action when taken" and the continuing violation doctrine is therefore inapplicable.); Isse v. American University, 540 F. Supp. 2d 9, 28 (D.D.C. 2008) (deciding that with respect to discrimination based on religion, "a rejection of a request for an accommodation is a ‘discrete act of discrimination’ . . . and not a ‘continuing violation’"); Blanchet v. Chevron/Texaco Corp., 368 F. Supp. 2d 589, 598 (E.D. Tex. 2004) ("In contrast to a claim alleging a hostile work environment, the continuing violation doctrine does not apply to a claim based on discrete discriminatory acts.")
Because the continuing violation doctrine does not apply to reasonable accommodation claims, a plaintiff cannot "reach back" and base a claim on otherwise time-barred incidents merely because they are connected to events which occurred within the limitations period. A one-year statute of limitations applies to claims alleging discrimination in violation of the DCHRA. See D.C. Code § 2-1403.16 (a) (2001) ("A private cause of action pursuant to this chapter shall be filed in a court of competent jurisdiction within one year of the unlawful discriminatory act . . . ."). Consequently, the statute of limitations bars any claim for relief based on denials of accommodation that occurred more than one year prior to the filing of appellant’s complaint.
According to appellant’s own pleading, the alleged discrimination did not extend beyond August 2004, and the vast majority of the actions Ms. Barrett complains of occurred more than one year before she filed her complaint. Appellant points to only two events that took place within the twelve months prior to appellant’s July 16, 2005, complaint: appellant’s July 23, 2004, conversation with Mary Ellen Carter (the content of which was described in a July 23 e-mail from Ms. Carter to Jeffrey Huvelle); and Mr. Huvelle’s August 23, 2004, letter.
. . . Based on the record before us, and the briefs filed by the parties, we are not convinced there is no genuine issue of material fact regarding the merits of Ms. Barrett’s claims based on events that occurred in July and August of 2004. Although it appears uncontested that appellant had a disability, the parties debate whether she was capable of performing the job even with a reasonable accommodation. We agree with appellant that this issue must be evaluated by focusing on her medical condition during those two months – not at some earlier or later time. Further inquiry into the essential functions of the job is also required.
We therefore remand for further consideration of whether those discrete acts constituted a failure to grant a reasonable accommodation in violation of the DCHRA. [4] The parties and the trial court should focus anew on whether, during July and August, appellant was seeking a new accommodation or merely trying to revive a time-barred claim; whether appellant was a qualified individual under the DCHRA; whether Covington unreasonably revoked an accommodation previously granted; and whether Covington failed to reasonably accommodate Ms. Barrett’s disability.
[Footnote 4] The events which occurred outside the statute of limitations are no longer actionable, but they may provide context for appellant’s timely claims. See Morgan, 536 U.S. at 113 ("Nor does the statute [of limitations] bar an employee from using the prior acts as background evidence in support of a timely claim."). . . .
[Alan R. Kabat, Bernabei & Wachtel, PLLC]
