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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 07-CV-1301
K ATHLEEN B ARRETT,
A PPELLANT,
v.
C OVINGTON & B URLING LLP,
A PPELLEE.
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 R EID, F ISHER, and B LACKBURNE-R IGSBY, Associate Judges.
F ISHER, 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.
2
I. The Factual and Procedural Background
On September 23, 2002, appellee Covington & Burling LLP hired appellant Kathleen
Barrett for a full-time position as a Programmer/Analyst in its Information Resource Services
(“IRS”) department. During her employment, Ms. Barrett experienced recurring medical
problems, including chronic pancreatitis and a condition variously diagnosed as ulcerative
colitis or Crohn’s disease. Among other things, her condition made it painful for her to sit
for long periods of time. We will not discuss her symptoms and treatment in detail, but it is
fair to say that Ms. Barrett faced severe medical challenges during 2003, 2004, and 2005, the
years relevant to this appeal.
In March 2003, she suffered a relapse of her condition, which led to a week of
hospitalization and an additional week of recovery at home. Upon her return, and for some
time thereafter, appellant requested certain accommodations, including a zero gravity chair,
a modified desk, reduced hours, permission to telecommute, a flexible schedule, and an
adjusted workload. Over the next few weeks, appellant orally repeated her request for a zero
gravity chair on several occasions.
In May 2003, appellant was again hospitalized for a week. On June 3, 2003, her
3
physician signed a form releasing appellant to return to work at reduced hours, and from
June 2003 to February 2004, appellant worked a schedule of thirty hours per week.
Appellant provided her supervisor with additional written medical information – including
documentation of her need for a zero gravity chair – on June 17, 2003. Covington ordered
the chair and desk appellant had requested on June 30, 2003, and July 6, 2003, respectively,
and the items arrived on July 1, 2003, and August 1, 2003.
Over the coming months, appellant took additional leave due to her condition. In
November 2003, appellant missed two weeks of work while recuperating from surgery.
Then, beginning in February 2004, appellant took a medical leave of absence. Appellant was
hospitalized for three weeks in February 2004, and in May 2004 she underwent surgery
which resulted in an extended period of recovery.
On July 23, 2004, appellant spoke with Mary Ellen Carter, appellee’s Human
Resources Director, regarding her possible return to work and the prospect that she would
be terminated if she could not resume a full-time schedule. In response to this conversation,
appellant’s attorney sent a letter dated August 11, 2004, requesting that appellant be allowed
to telecommute at times and to work a modified schedule. Covington responded in an
August 23, 2004, letter which stated in part that it had “concluded the requested
accommodations are not consistent with the essential duties of [appellant’s] position.” The
4
contents of these communications will be discussed in more detail later in this opinion.
In September 2004, Covington posted notice of a job opening for a
Programmer/Analyst in the IRS Department. Internal documents revealed that this notice
sought a “Replacement For: Katy Barrett.”
Appellant did not return to work in September 2004. For several months thereafter,
she had prolonged bouts of serious illness, followed by major surgery. After her recovery,
and negotiation between the parties, appellant returned to work on a part-time basis on
July 7, 2005.
In her complaint, filed on July 16, 2005, appellant alleged that, “[b]eginning on or
around April 2003 and continuing until August 2004, [appellee] denied [appellant] a
reasonable accommodation, subjected her to a hostile work environment, and terminated her
employment in violation of the D.C. Human Rights Act’s (DCHRA) prohibition against
disability discrimination . . . .”
The trial court granted appellee’s motion for summary judgment as to all counts “on
both statute of limitations and sufficiency of evidence grounds . . . .” The court explained
its ruling at an August 23, 2007, hearing, holding that: the actions appellant complains of
5
“are not severe or persuasive [enough] under the case law” to constitute a hostile work
environment; appellee provided reasonable accommodations to appellant, who “failed to
prove that the essential functions of her job could have been performed even with the
accommodations”; appellee did not terminate appellant; and all of the appellant’s claims fall
outside the statute of limitations.
II. Standard of Review
When “reviewing a trial court’s grant of summary judgment, we make an independent
review of the record and employ the same standards as does the trial court in initially
considering the motion.” EastBanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d
996, 1001 (D.C. 2008). Our review centers on “whether the party awarded summary
judgment demonstrated that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law.” National Ass’n of Postmasters of the United States v. Hyatt
Regency Washington, 894 A.2d 471, 474 (D.C. 2006). “We cannot, nor can the trial court,
resolve issues of fact or weigh evidence at the summary judgment stage.” Anderson v. Ford
Motor Co., 682 A.2d 651, 654 (D.C. 1996) (internal quotation marks and citation omitted).
However, “[i]n order to avoid summary judgment, there must be some ‘significant probative
evidence tending to support the complaint’ . . . .” Lowrey v. Glassman, 908 A.2d 30, 36
(D.C. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “‘[T]here
6
is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.’” Brown v. George Washington University,
802 A.2d 382, 385 (D.C. 2002) (quoting Anderson, 477 U.S. at 249-50) (citations omitted).
III. Appellant’s Hostile Work Environment Claim Was Barred
by the Statute of Limitations
Appellant contends that the trial court erroneously dismissed her hostile work
environment claim on summary judgment, arguing that her claim was not time-barred as the
trial court found. According to appellant, a July 23, 2004, conversation with Mary Ellen
Carter, Covington’s Director of Human Resources, in which Carter told appellant “that she
would be terminated if she could not return to the office on a full-time basis . . . ,” was the
final incident in a pattern of “unlawful and abusive pressure on Ms. Barrett . . . expressly
premised on [her] disabilities and need for accommodation.” 1
Because the Carter
conversation falls within the statute’s one-year limitation period,2 she argues, all of the
incidents which collectively comprised a hostile work environment should have been
1
Appellant argued below that “the Huvelle letter,” sent in August 2004, also
contributed to a hostile workplace. Because appellant limits her argument on appeal to the
Carter conversation, we have similarly constrained our analysis.
2
The DCHRA requires that a claim be filed within one year of the occurrence of the
unlawful act. D.C. Code § 2-1403.16 (a) (2001). Ms. Barrett filed this action on
July 16, 2005, within one year of her July 23, 2004, conversation with Ms. Carter.
7
considered even if they occurred more than one year before her complaint was filed.
To make out a claim under the DCHRA for creating a hostile work environment, a
plaintiff must prove “(1) that [she] is a member of a protected class, (2) that [she] has been
subjected to unwelcome harassment, (3) that the harassment was based on membership in the
protected class, and (4) that the harassment is severe and pervasive enough to affect a term,
condition, or privilege of employment.” Lively v. Flexible Packaging Ass’n, 830 A.2d 874,
888 (D.C. 2003) (en banc) (citation omitted). A work environment is actionably hostile
“when the workplace is permeated with discriminatory intimidation, ridicule, and insult . . .
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment . . . .” Id. at 889 (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)) (citation and quotation marks omitted).
The Supreme Court has held “that consideration of the entire scope of a hostile work
environment claim, including behavior alleged outside the statutory time period, is
permissible . . . so long as an act contributing to that hostile environment takes place within
the statutory time period.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105
(2002) (emphasis added). We explicitly adopted this approach in Lively. 830 A.2d at 890.
Thus, in order to survive summary judgment on timeliness grounds, appellant had the burden
of establishing that there was a genuine issue of material fact as to whether the Carter
8
conversation contributed to a hostile work environment.
On this record, we agree with the trial court that something more than the July 23,
2004, conversation with HR Director Carter was necessary to avoid the bar of the statute of
limitations. In order to render the earlier incidents timely, the conduct which falls within the
limitations period must contribute to a hostile environment – an environment which is
“permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Daka, Inc. v. Breiner, 711 A.2d 86, 93 (D.C. 1998) (citations and punctuation
omitted). The claim “must be based on a series of separate acts . . . that are so objectively
offensive as to alter the conditions of the victim’s employment.” Harris v. Wackenhut Servs.,
Inc., 590 F. Supp. 2d 54, 77 (D.D.C. 2008) (citations and punctuation omitted). Moreover,
the allegedly hostile incidents “must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Faragher v. City of Boca Raton,
524 U.S. 775, 787 n.1 (1998) (citation omitted). “[I]solated incidents of offensive conduct
do not amount to actionable [workplace] harassment.” Smith v. Jackson, 539 F. Supp. 2d
116, 138 (D.D.C. 2008) (citation omitted).
The trial court ruled on alternative grounds, concluding that none of the incidents
about which appellant complained made out a hostile work environment claim, but we need
9
not decide that broader issue. Assuming, without deciding, that the more remote incidents
appellant cites actually occurred, and were sufficiently severe or pervasive to alter the
conditions of her employment, the conversation with Ms. Carter could not reasonably be seen
as contributing to actionable workplace hostility. Accordingly, appellant’s claim is timebarred.
According to appellant, the Carter conversation contributed to a hostile work
environment because “Ms. Barrett was told that she would be terminated if she could not
return to the office on a full-time basis by the date mandated by Covington, and against
medical advice.” We are not persuaded. First, as appellant acknowledges, she had been out
on medical leave for at least five months – since February of 2004 – when the July 23, 2004,
conversation with Ms. Carter took place. Indeed, that conversation involved the terms of
appellant’s return to Covington after her extended absence.
The conversation with
Ms. Carter simply was not part of the work environment – appellant had not been in the
workplace for months.
In any event, the discussion with Ms. Carter was hardly “hostile” as that term has been
construed in relevant case law. The communication was, by all accounts, a professional and
amiable interchange between an employee and an HR Director discussing the terms of
appellant’s return to work. According to Ms. Barrett’s own testimony, Ms. Carter said that
10
Covington would be “thrilled to have [Ms. Barrett] back . . . .” When Ms. Barrett said that
she was “excited to come back to work,” Ms. Carter responded that “we’d love to have you
back.” There is no indication that Ms. Carter used abusive or inappropriate language or
behaved in an objectively hostile fashion in the course of her conversation with Ms. Barrett.
Indeed, it is difficult to imagine how Ms. Carter could have conveyed the terms of
Ms. Barrett’s return to work in a less hostile fashion.
Furthermore, the Carter conversation bears little, if any, relation to the earlier events
which appellant alleges created a hostile work environment. Ms. Barrett contends that her
workplace was actionably hostile because of various disparaging comments made by her
supervisors, Ashley and Schroeder, and the “delays and attitude” of “upper management” in
response to appellant’s requests for accommodation. The only continuity between the Carter
conversation and the earlier incidents appellant cites is not severe or pervasive hostility, but
the recurring topic of appellant’s requests for accommodation.
The mere fact that Ms. Carter indicated that Covington would not accommodate
appellant with a 30-hour work week after September 15, 2004, does not transform a failure
to accommodate claim into a hostile work environment claim. Permitting this transmutation
“would significantly blur the distinctions between both the elements that underpin each cause
of action and the kinds of harm each cause of action was designed to address.” Rattigan v.
11
Gonzales, 503 F. Supp. 2d 56, 82 (D.D.C. 2007). See also Smith, 539 F. Supp. 2d at 138
(“[I]nsofar as Plaintiff attempts to base his hostile work environment claim on his
[compressed work schedule] revocation and AWOL charge, he cannot simply regurgitate his
disparate treatment claims in an effort to flesh out a hostile work environment claim.”)
(punctuation and citation omitted). Accord, Keeley v. Small, 391 F. Supp. 2d 30, 51 (D.D.C.
2005) (“[P]laintiff’s alleged ‘hostile’ events are the very employment actions he claims are
retaliatory; he cannot so easily bootstrap alleged retaliatory incidents into a broader hostile
work environment claim.”).
In sum, we agree with the trial court that no reasonable jury could find that the
conversation with HR Director Carter on July 23, 2004, which by all accounts was polite and
cordial (albeit unsatisfactory to appellant), contributed to a hostile work environment. Cf.
Morgan, 536 U.S. at 120-21 (plaintiff presented evidence “that managers made racial jokes,
performed racially derogatory acts, made negative comments regarding the capacity of blacks
to be supervisors, and used various racial epithets”; “[C]ourt of [A]ppeals concluded that the
pre- and post-limitations period incidents involve[d] the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers[,]” and the
Supreme Court could not say that acts occurring outside the filing period “are not part of the
same actionable hostile environment claim”); Lively, 830 A.2d at 895-96 (where supervisor
demeaned abilities and intelligence of women over many years, supervisor’s instructing
12
female plaintiff within limitations period to submit to diagnostic testing at brain dysfunction
center could be considered part of one unlawful employment practice). Thus, appellant’s
hostile work environment claim was barred by the statute of limitations.
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
13
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 Morgan, the Court considered a claim of racial discrimination under Title VII and
held that “discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new
clock for filing charges . . . .” 536 U.S. at 113; see id. (“The existence of past acts and the
employee’s prior knowledge of their occurrence, however, does not bar employees from filing
charges about related discrete acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed.”) (emphasis added). Relying upon
Morgan, the First Circuit concluded that the continuing violation doctrine does not apply to
reasonable accommodation claims. See Tobin, 553 F.3d at 130-31. The Tobin court held that:
14
the denial of a disabled employee’s request for accommodation
starts the clock running on the day it occurs. . . . [S]uch a denial
is a discrete discriminatory act that, like a termination, a refusal
to transfer, or a failure to promote, does not require repeated
conduct to establish an actionable claim. Consequently, the
continuing violation doctrine does not apply to this case, and the
timeliness of [a plaintiff’s] claim turns solely on whether an
actionable denial of his request for accommodations occurred
during the limitations periods.
Id. (footnote omitted). 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
15
(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.”).3
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
3
Alternatively, appellant asks that we adopt the position taken by the EEOC that
“because an employer has an ongoing obligation to provide a reasonable accommodation,
failure to provide such accommodation constitutes a violation each time the employee needs
it.” EEOC Compliance Manual, Directive 915.003 (July 2005). In Morgan, however, the
Supreme Court declined to follow “the EEOC’s discussion of continuing violations in its
Compliance Manual,” noting its previous holding “that the EEOC’s interpretive guidelines
do not receive Chevron deference.” 536 U.S. at 110-11 n.6 (referring to Chevron v. Natural
Resources Defense Council, 467 U.S. 837 (1984). The discussion in text which establishes
that denials of requests for accommodation are discrete acts is a sufficient rebuttal to this
branch of appellant’s argument.
16
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.
The parties hotly dispute whether, during July and August, Ms. Barrett requested a new
accommodation, sought to resume her old 30-hour work schedule, or renewed a request
previously denied. These distinctions are critical. A plaintiff cannot extend the limitations
period by reiterating an identical request that was previously denied. See Long, 512 F. Supp.
2d at 17 (“It is well-settled that ‘[m]ere requests to reconsider . . . cannot extend the
limitations periods . . . .’”) (citation omitted), aff’d, 384 U.S. App. D.C. at 26, 550 F.3d at 26
(“[T]o the extent that [the] actions were merely a re-affirmation of any University action
17
denying Long’s requests . . . the District Court properly explained that such claims were
barred.”) (emphasis in original); Tobin, 553 F.3d at 131 (“It is settled that an employee may
not extend or circumvent the limitations period by requesting modification or reversal of an
employer’s prior action.” (citation omitted)).
On the other hand, the revocation of a previously authorized accommodation is
actionable. See Woodruff v. Peters, 375 U.S. App. D.C. 429, 436, 482 F.3d 521, 528 (2007)
(holding that summary judgment was precluded where an employer’s communication
indicated that the employee “could no longer count on the accommodations the [employer]
had de facto afforded” even where “it is far from clear such accommodations are
reasonable”); Alston v. District of Columbia, 561 F. Supp. 2d 29, 43 (D.D.C. 2008) (“[T]he
revocation of one’s accommodations qualifies as an adverse action.”) (citation omitted).
Similarly, a claim based on the denial of a new request, made in light of changed
circumstances, would not be time-barred.
In either case, Ms. Barrett’s request, and
Covington’s denial, would have to be evaluated on the merits.
In order to establish a prima facie case of disability discrimination under the DCHRA,
a plaintiff must demonstrate, among other things, that she is an individual with a disability,
and that she can perform the essential functions of her position with or without a reasonable
accommodation. See Miller v. American Coalition of Citizens with Disabilities, Inc., 485
18
A.2d 186, 190-91 (D.C. 1984); see also Carr v. Reno, 306 U.S. App. D.C. 217, 221, 23 F.3d
525, 529 (1994) (“[A]n individual with handicaps is ‘qualified’ if she can perform the
essential functions of her position with reasonable accommodation.”). If the plaintiff makes
a prima facie showing, the employer must demonstrate that it reasonably accommodated the
plaintiff’s disability. In order to evaluate the reasonableness of a requested accommodation,
one must understand the essential functions of the job.
Although it concluded that appellant’s claims were time-barred, the trial court held in
the alternative that: Covington “has provided reasonable accommodations to” appellant;
Ms. Barrett “failed to prove that the essential functions of her job could have been performed
even with the accommodations”; appellant “was not capable of working . . . even if the
accommodations had been made”; and appellant’s August 11, 2004, letter “made requests for
reasonable accommodations, which . . . had been previously made.”
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
19
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.
V. Appellant Was Not Terminated
Finally, Ms. Barrett alleged that Covington wrongfully terminated her employment,
thereby violating the DCHRA. She now contends that the trial court erred in granting
summary judgment in favor of Covington on that claim.
In order to establish a prima facie case of an unlawful termination under the DCHRA,
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.”).
20
a plaintiff . . . must demonstrate (1) that [s]he was a member of
a protected class, (2) that [s]he was qualified for the job from
which [s]he was terminated, (3) that h[er] termination occurred
despite h[er] employment qualifications, and (4) that a substantial
factor in h[er] termination was h[er] membership in the protected
class.
McFarland v. George Washington University, 935 A.2d 337, 352 (D.C. 2007) (citation and
quotation marks omitted). “‘The test of whether or not an employee has been discharged
depends upon the reasonable inference that the employees could draw from the language used
by the employer.’” Liberty Mutual Insurance Co. v. NLRB, 592 F.2d 595, 604 (1st Cir. 1979)
(quoting NLRB v. Hale Mfg. Co., 570 F.2d 705, 708 (8th Cir. 1978)). “No formal discharge
is required if the words or conduct of the employer would reasonably lead an employee to
believe that he had been fired.” Elastic Stop Nut Division of Harvard Industries, Inc. v.
NLRB, 287 U.S. App. D.C. 287, 294, 921 F.2d 1275, 1282 (1990); see also Hale Mfg. Co.,
570 F.2d at 708 (“The fact of discharge of course does not depend on the use of formal words
of firing. It is sufficient if the words or action of the employer would logically lead a prudent
person to believe his tenure had been terminated.”) (citation and quotation marks omitted).
The test is objective, rather than subjective, however. The words or actions of the
employer must “reasonably lead an employee to believe that he had been fired.” Elastic Stop
Nut, 287 U.S. App. D.C. at 294, 921 F.2d at 1282 (emphasis added). In Liberty Mutual, for
21
example, the court held that the employee’s “interpretation of the phone call as a dismissal
was . . . unreasonable” where “[h]e was not told that he was fired, only that he would be if he
did not ‘behave as a Liberty Mutual salesman.’” 592 F.2d at 604; see id. (“The fact that [the
employee] . . . assumed that he would be discharged does not move up the date of termination.
[He] was not legally discharged until the date of the letter so notifying him from the
Company.”) “Mere threats of termination do not rise to the level of an adverse employment
action because they result in no materially adverse consequences or objectively tangible
harm.” Valles-Hall v. Center for Nonprofit Advancement, 481 F. Supp. 2d 118, 144 (D.D.C.
2007); see also Walker v. Washington Metropolitan Area Transit Authority, 102 F. Supp. 2d
24, 29 (D.D.C. 2000) (“for there to be an adverse employment action, there must be a
‘significant change in employment status’”) (citation omitted).
Although Covington may have “threatened” to terminate Ms. Barrett if she did not
return to work, her day-to-day status did not change; she still was absent from the workplace.
There was no formal notice of termination, and no “last day” of work. At oral argument,
appellant’s counsel could not tell us when the alleged termination occurred. Her brief is
equally vague, asserting that “Ms. Barrett heard nothing further from Covington in her status
as an employee after September 2004, and she was convinced she had been terminated.”
The question thus becomes whether Ms. Barrett’s communications with Covington
22
could have led her to reasonably conclude that she had been fired. We find useful guidance
in cases that have determined when a claim of wrongful termination accrues (and the statute
of limitations begins to run). In Delaware State College v. Ricks, 449 U.S. 250 (1980), a
college professor was denied tenure but “was offered a 1-year ‘terminal’ contract, with
explicit notice that his employment would end upon its expiration.” Id. at 258. The Supreme
Court held that the limitations period began to run, not on his last day of work, but “at the time
the tenure decision was made and communicated to Ricks.” Id. (footnote omitted); accord,
Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (statute of limitations began to run, not on last
day of work, but when employees were notified “that a final decision had been made to
terminate their appointments”). We followed Ricks and Chardon in Stephenson v. American
Dental Ass’n, 789 A.2d 1248 (D.C. 2002), holding that “the alleged wrongful discharge
occurred when Stephenson was notified unequivocally of his termination.” Id. at 1252
(emphasis added). See also Smith v. United Parcel Serv. of America, Inc., 65 F.3d 266, 268
(2d Cir. 1995) (the unlawful discharge occurs, and the statute of limitations begins to run, “on
the date when the employee receives a definite notice of the termination.”) (citations and
quotation marks omitted).
Appellant relies on a number of communications from Covington to support her
contention that she was terminated.
One e-mail, dated July 23, 2004, recounted a
conversation that occurred that day between Ms. Barrett and Mary Ellen Carter. Ms. Carter
23
reported that she had told Ms. Barrett “she would have to return to work at least 30 hours per
week by August 18th and full-time by September 15th and if either or both of those two things
did not happen, her employment would be terminated.” Ms. Carter noted that Ms. Barrett was
hoping to return to work on the schedule outlined above, but could not promise that she
would. On July 29, 2004, Ms. Carter e-mailed appellant Barrett, telling her “that we truly
prefer to have you return but also have a serious business need for a full-time
programmer/analyst . . . .” Carter reiterated both of the conditions set forth in the previous
conversation and stated: “If these conditions are not able to be met, we will discuss the
termination of your employment.”
Finally, appellant pointed to the August 23, 2004, letter sent by Jeffrey Huvelle, of
Covington, to Tracy Gonos, an attorney representing Ms. Barrett. In this letter, Mr. Huvelle
outlined both the medical difficulties faced by Ms. Barrett and the actions taken by Covington.
The letter concludes with Mr. Huvelle stating that Covington “plan[s] to move forward to
initiate the posting/recruitment process so that we will be able to hire a replacement without
further delay if, as now seems likely, Ms. Barrett’s condition precludes her from meeting the
requirements for this position.”
This letter was not the final word, however. Appellant’s attorneys responded that Ms.
Barrett “is unable to return to work in the absence of a reasonable accommodation” and
24
“intends to file promptly a complaint of disability discrimination under the District of
Columbia Human Rights Act . . . .” If Covington “wish[ed] to discuss possible alternative
accommodations and/or alternatives to litigation [it was invited to] contact [appellant’s
attorneys] by September 10, 2004.” These communications clearly referred to the possibility
of termination, but they also left open the prospect that Ms. Barrett would return to work. The
parties were in a negotiating posture.
Following the communications of July and August 2004, Covington posted a job
opening for the position held by Ms. Barrett. Appellant argues that this action demonstrates
that Covington was behaving as if it had terminated Ms. Barrett’s employment. We do not
agree. Mr. Huvelle’s letter had, in essence, told Ms. Barrett that the job posting was part of
a contingency plan that would enable Covington to hire a replacement if she was not able to
return to work. Although the job was posted in September, there was no evidence in the
record that Covington actually hired someone for the position. Moreover, beginning in
September, Ms. Barrett was very ill for several months. After major surgery, her recovery,
and further negotiations, Ms. Barrett returned to work at Covington in July of 2005 and
worked a 20-hour work week. Nine days after returning to work, she filed this lawsuit.
These considerations lead us to agree with the trial court that “[t]he fact that there was
a job announcement [wa]s not proof of the fact of her termination.” Moreover, the trial court
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“[did] not consider the letter of [August] 23, 2004 as a termination[;] . . . [o]n the contrary,
I don’t think there [wa]s any termination. . . . In fact, the history of the parties since that letter
was written is contrary to any termination.” 5
Appellant protests that the court was impermissibly resolving a disputed issue of fact
when it held that appellant had not been terminated. We disagree and hold, as the trial court
did, that there was not sufficient evidence to allow a jury to return a verdict in favor of the
plaintiff on her claim of wrongful termination. There was nothing sufficiently “final,”
“unequivocal,” or “definite” in the communications from Covington that would reasonably
lead appellant Barrett to conclude that she had been fired. Rather, like the employee in
Liberty Mutual, Ms. Barrett simply “assumed that [s]he would be discharged . . . .” 592 F.2d
at 604. The Superior Court properly granted summary judgment to Covington on this claim.
VI. Conclusion
We remand Ms. Barrett’s reasonable accommodation claim for further inquiry as
detailed above. In all other respects, the judgment of the Superior Court is hereby affirmed.
So ordered.
5
The trial court also concluded that Ms. Barrett was not a qualified individual
protected by the DCHRA because she was not able to meet the requirements of the job.
Since we hold that appellant was not terminated, it is not necessary to discuss this alternative
ruling.
