Smith v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2005 Decided December 6, 2005

No. 04-7082

GWENDOLYN B. SMITH

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv00481)

Robin M. Meriweather, appointed by the court, argued the

cause as amicus curiae for appellant. With her on the briefs

were David W. DeBruin and William M. Hohengarten.

L. Saundra White argued the cause and filed the brief for

appellant.

William J. Earl, Assistant Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellee. With him on the briefs were Robert J. Spagnoletti,

Attorney General, and Edward E. Schwab, Deputy Attorney

General.

2

Before: TATEL and BROWN, Circuit Judges, and EDWARDS,

Senior Circuit Judge.1

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Gwendolyn Smith, a former

employee of the District of Columbia’s Department of Mental

Health (DMH), filed suit against the District, claiming she was

the victim of discrimination and retaliation under the Americans

with Disabilities Act (ADA). The district court granted summary

judgment to the District on both claims; Smith now appeals. We

find the district court properly granted summary judgment on

Smith’s retaliation claim but abused its discretion by granting

the District’s late motion for summary judgment on the discrimi-

nation claim. We therefore remand the case for trial on the

discrimination claim.

I

Smith worked for the DMH as a mental health specialist for

over thirty years. During her service in the Gulf War, Smith was

diagnosed with a bacterial infection; the treatment for this

condition led to diabetes and hypertension. Smith also suffered

back and shoulder injuries. After returning to work in June 1994,

she informed her supervisors at the DMH of her disabilities and

was given a handicapped parking space and permitted to change

her work schedule to start at 10:00 a.m. rather than 8:15 a.m.

In Smith’s role as a mental health specialist at the DMH,

she had to make home visits to patients; this requirement was

always part of her job description, but the required frequency of

visits increased in 2000. Smith claims her disability prevents her

1

Senior Circuit Judge Edwards was in regular active service

at the time of oral argument.

3

from making “frequent trips up and down stairs” or “getting in

and out of vehicles constantly,” and because of these restric-

tions, she is physically able to make only occasional home visits

to patients.

On May 16, 2000, Smith filed a complaint with the D.C.

Office of Human Rights and the Equal Employment Opportunity

Commission (EEOC), alleging the DMH had discriminated

against her by denying her a reasonable accommodation of her

disability. In the section of the complaint form designated

“cause of discrimination,” Smith checked the boxes for “Retalia-

tion” and “Disability.” In part, Smith’s complaint stated she

“believe[d] that [she had] been discriminated against because of

[her] disability, in violation of the Americans with Disabilities

Act of 1990, as amended.” The EEOC dismissed her complaint

and issued a “right to sue” letter on November 20, 2000,

informing her that she had 90 days to file suit.

On January 3, 2001, Smith requested additional accommo-

dations, including not being counted as “absent without leave”

for time she missed, as well as being excused from home visits.

On March 12, 2001, a DMH director noted Smith’s patients had

not been receiving home visits over the previous three months

and found this “unacceptable.” Smith informed the DMH she

was unable to make home visits due to her disability; all of her

patients were then assigned to other employees. Later that

month, the District sent Smith a letter stating that “conducting

‘home visits’ [was] an essential function of [her] position.” The

District found her to be an “individual with a disability,”2 and

thus entitled to reasonable accommodations, but concluded there

2

We express no opinion as to whether Smith’s health

problems qualify her as disabled under the ADA. This question will

have to be resolved on remand.

4

were “[n]o [p]robable [g]rounds to support a finding that [her]

rights in the workplace [were] being violated.”

The DMH also filed disciplinary charges against Smith

based on her refusal to acknowledge Kevin Martin as her

designated supervisor. Smith admitted that she would not accept

Martin as her supervisor, claiming he lacked the educational

background to give her instructions. Smith stated that if she was

given an instruction she viewed as “wrong,” she would not

comply: “I don’t come out and say, no, I’m not going to do it. I

just don’t do it.”

On June 14, 2001, the DMH ordered Smith to report for a

120-day detail at the Comprehensive Psychiatric Emergency

Program’s (CPEP) Crisis Hotline at D.C. General Hospital.

Smith informed the DMH she would be unable to report to the

CPEP, claiming the hospital was too far from her home and

driving there would “compromise [her] health and place [her] in

a position for potential and/or imminent severe medical compli-

cations.” On July 9, 2001, the DMH notified Smith she had no

accumulated leave time available and that it was instituting

disciplinary measures against her. On August 14, 2001, the

DMH denied Smith’s request for an advance of 328 hours of

sick leave because regulations did not allow such a large

advance and informed her she was going to be terminated. The

stated grounds for her removal were “insubordination” (i.e.,

“refusal to carry out assigned duties and responsibilities”),

“inexcusable neglect of duty” (i.e., “negligence in performing

official duties, including failure to follow verbal or written

instructions”), and “insubordination and discourteous treatment”

(i.e., “knowingly making false or unfounded face-to-face and

written discourteous statements concerning [her] immediate

supervisor”).

5

On October 22, 2001, after the 120-day detail to CPEP

would have ended, Smith notified the DMH that she was ready

and medically able, given accommodations, to return to work.

She was not given another assignment, however, and filed

another complaint with the D.C. Office of Human Rights and the

EEOC on November 23, 2001. In the section of the complaint

form designated “cause of discrimination,” Smith again checked

the boxes for “Retaliation” and “Disability.” Smith alleged that

since she filed her first EEOC complaint, the District had

“retaliated against [her] by not allowing [her] a reasonable

accommodation for [her] disability.” On December 18, 2001, the

EEOC dismissed Smith’s complaint and issued her another

“right to sue” letter, stating that she had 90 days to file suit.

Smith retired from the DMH before disciplinary actions were

finalized.

Smith filed suit in the United States District Court for the

District of Columbia on March 15, 2002, alleging disability

discrimination and retaliation in violation of the ADA.3 The

District moved for summary judgment on both claims. The

district court denied the motion with respect to the discrimina-

tion claim, finding genuine issues of material fact as to whether

home visits were essential to Smith’s job and whether a reason-

able accommodation was possible. Smith v. District of Colum-

bia, 271 F. Supp. 2d 165, 172 (D.D.C. 2003) (Smith I). How-

ever, the court granted summary judgment to the District on the

3

In her complaint, Smith claimed the District’s acts violated

42 U.S.C. § 2000e-5 et seq. (part of Title VII of the Civil Rights Act

of 1964) and 42 U.S.C. § 12101 et seq. (the ADA). We note that the

parties have at times referred to Smith’s retaliation claim as arising

under Title VII and at other times as arising under the ADA. As Smith

alleges that she was retaliated against for filing a complaint of

disability discrimination, we analyze her retaliation claim under the

ADA, namely 42 U.S.C. § 12203(a).

6

retaliation claim, finding Smith had not established a prima facie

case. Id. at 173. The court found her temporary reassignment to

CPEP was not an adverse action, and Smith did not present “a

single reason or scrap of evidence permitting the inference” that

her request for sick leave was denied as retaliation rather than

because her request exceeded the amount allowed by regulation.

Id.4

The district court had set December 27, 2002, as the

deadline for the District to file motions for summary judgment.

On April 9, 2004, ten days before the scheduled start of trial, the

District again moved for summary judgment, arguing Smith’s

disability discrimination claim should be dismissed as untimely.

The district court granted the motion on April 19, 2004, finding

Smith had 90 days after the EEOC sent her first “right to sue”

letter to file suit on her disability discrimination claim, but that

she had waited almost 16 months to do so. Smith v. District of

Columbia, No. 02cv00481, 2005 WL 488824, at *1 (D.D.C.

Feb. 28, 2005) (unpublished opinion) (Smith III). The district

court also found Smith’s second EEOC complaint alleged only

retaliation, not disability discrimination; thus, it held that Smith

had not exhausted her administrative remedies with respect to

4

The District later moved for summary judgment on the

discrimination claim for a second time, arguing that Smith had

submitted a “Total and Permanent Disability Cancellation Request” to

the Federal Family Education Loan Program. Smith v. District of

Columbia, 295 F. Supp. 2d 53 (D.D.C. 2003) (Smith II). In that

request, Smith had certified she was “totally and permanently

disabled, rendering her unable to work, even on a limited basis.” Id.

at 54 (internal quotation marks omitted). The District claimed this

statement was incompatible with Smith’s current claim that she could

still perform the essential functions of her job. Id. at 54-55. The

district court denied the motion, holding that Smith was not estopped

by her previous statement, as the loan cancellation request had not

been approved. Id. at 55-56.

7

her attempt to renew her claim of disability discrimination. Id.

at *2-3. Although Smith protested the District’s late filing, the

trial court concluded the District’s “dilatoriness . . . [did] not

amount to the kind of delay and ‘game playing’ that have led the

courts to hold that the defendant has waived the failure to

exhaust defense.” Id. at *3. At the same time, the district court

attempted to “cure the prejudice [Smith] suffered without

nullifying the congressional policy . . . that the courts enforce

the procedural requirements Congress mandated” in the ADA.

Id. “All of the fees and costs generated since the District’s filing

of its answer were completely unnecessary,” the district court

reasoned, as the District could have moved to dismiss the

complaint at that early point; hence, the district court ordered the

District to pay all costs and attorney’s fees incurred by Smith

since that point, except those incurred in response to this final

motion. Id.

II

As a preliminary matter, we find that we have jurisdiction

to hear Smith’s appeal. After the district court granted summary

judgment on Smith’s disability discrimination claim, the parties

filed several motions contesting the costs and attorney’s fees and

asking for reconsideration. Smith also filed a notice of appeal.

The District then filed a motion in this court requesting that we

hold the case in abeyance pending the resolution of the district

court motions. We denied the District’s motion but directed the

parties to address this jurisdictional issue further in their briefs.

As the District now concedes, none of the relevant motions was

filed in the district court within ten days after the grant of

summary judgment, as Federal Rule of Civil Procedure 59(e)

requires. Hence, the motions were not timely, and do not affect

the timeliness of Smith’s notice of appeal. See Fed. R. App. P.

4(a).

8

III

We review de novo the district court’s decision to grant

summary judgment. See Haynes v. Williams, 392 F.3d 478, 481

(D.C. Cir. 2004). We affirm only if, viewing the evidence in the

light most favorable to Smith, no reasonable jury would find in

her favor. See Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir.

2005).

Employers may not retaliate against employees who file

complaints of disability discrimination under the ADA. See 42

U.S.C. § 12203(a). In analyzing Smith’s retaliation claim, we

use the burden-shifting framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Although the framework was developed for Title VII

cases, our sister circuits have all accepted its application to ADA

retaliation suits under § 12203(a), as we do now. See Brown v.

City of Tucson, 336 F.3d 1181, 1186-87 (9th Cir. 2003); New

England Health Care Employees Union v. R.I. Legal Servs., 273

F.3d 425, 429 (1st Cir. 2001); Rhoads v. FDIC, 257 F.3d 373,

391-92 (4th Cir. 2001); Shaner v. Synthes, 204 F.3d 494, 500

(3d Cir. 2000); Silk v. City of Chicago, 194 F.3d 788, 799 (7th

Cir. 1999); Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th

Cir. 1999); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183

F.3d 155, 159 (2d Cir. 1999); Walborn v. Erie County Care

Facility, 150 F.3d 584, 588-89 (6th Cir. 1998); Sherrod v. Am.

Airlines, Inc., 132 F.3d 1112, 1121-22 (5th Cir. 1998); Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287

(11th Cir. 1997); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997); see also Brown v. Brody, 199 F.3d 446, 456

n.10 (D.C. Cir. 1999) (“Courts of appeals routinely apply the

same standards to evaluate Title VII claims as they do ADA

claims, ADEA claims, and even ERISA claims.”).

9

Under this framework, the plaintiff must establish the three

elements of a prima facie case of retaliation: first, that she

“engaged in protected activity”; second, that she “was subjected

to adverse action by the employer”; and third, that “there existed

a causal link between the adverse action and the protected

activity.” Jones v. Wash. Metro. Area Transit Auth., 205 F.3d

428, 433 (D.C. Cir. 2000) (internal quotation marks and

citations omitted). “Such a showing raises ‘a rebuttable pre-

sumption of unlawful discrimination’ and shifts to the defendant

the burden to ‘rebut the presumption by asserting a legitimate,

non-discriminatory reason for its actions.’” Id. (citations

omitted). If the defendant does so, “the McDonnell Douglas

framework disappears, and we must decide whether a reasonable

jury could infer intentional discrimination” from the plaintiff’s

prima facie case and any other evidence the plaintiff offers to

show that the actions were discriminatory or that the non-

discriminatory justification was pretextual. Murray, 406 F.3d at

713.

Clearly, Smith engaged in a statutorily-protected activity

when she filed her first EEOC complaint. See Holbrook v. Reno,

196 F.3d 255, 263 (D.C. Cir. 1999). Smith claims the District

took adverse actions against her by detailing her to CPEP,

denying her request for advance sick leave, and effectively

suspending her and forcing her to retire. Assuming, without

deciding, that these acts do qualify as “adverse actions,” and that

a causal connection between her EEOC complaint and the

District’s actions did exist, Smith’s case still fails under the

McDonnell Douglas framework. The District presented legiti-

mate, non-discriminatory reasons for its actions: it detailed

Smith to CPEP in an attempt to give her a position that would

not require home visits; it denied her request for advance sick

leave because she requested more leave than regulations

allowed; and it instituted disciplinary actions against her in

response to her negligence and insubordination (including

10

discourteous treatment of her supervisor). Smith did not provide

evidence on which a reasonable jury could conclude that these

proffered justifications were mere pretext and that discrimina-

tory animus motivated the District’s actions. The District’s non-

discriminatory justifications for its actions remain completely

unrebutted. Therefore, summary judgment was properly granted

on Smith’s retaliation claim.

IV

The same cannot be said of Smith’s disability discrimina-

tion claim. Smith argues that the district court abused its

discretion in entertaining the District’s late motion for summary

judgment. The District filed its third motion for summary

judgment on April 9, 2004, contending that Smith’s disability

discrimination claim was not timely, as she did not file it in the

district court within 90 days after her first “right to sue” letter

was issued. Although the District concedes it never moved for

an extension of the December 27, 2002, deadline for filing

summary judgment motions, the district court granted the late

motion without discussing the lack of a request for an extension.

Federal Rule of Civil Procedure 6(b) governs extensions of

time for various filings with the trial court. When a court sets a

deadline, the court may, for cause, exercise its discretion “upon

motion made after the expiration of the specified period” and

permit the belated action “where the failure to act was the result

of excusable neglect.” Fed. R. Civ. P. 6(b). In Lujan v. National

Wildlife Federation, the Supreme Court noted the distinction

between this provision and Rule 6(b)(1), which allows a court to

grant an extension if a “request” is made before the time for

filing expires. 497 U.S. 871, 896 n.5 (1990). By contrast, the

Court emphasized that post-deadline extensions may be granted

only “for cause shown” and “upon motion.” Id. at 896. Any

post-deadline motion “must contain a high degree of formality

11

and precision, putting the opposing party on notice that a motion

is at issue and that he therefore ought to respond.” Id. at 896 n.5.

We review the district court’s decisions under Rule 6(b) for

abuse of discretion. See In re Vitamins Antitrust Class Actions,

327 F.3d 1207, 1209 (D.C. Cir. 2003).

We have been quite deferential to Rule 6(b) decisions in the

past, even affirming a deadline extension that was granted

without a formal finding of excusable neglect when the court

found no prejudice to the other party.5 See Yesudian ex rel.

United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.

2001). In Yesudian, however, we found that the Rule 6(b)(2)

motion requirement may have been satisfied by a memorandum

5

The danger of prejudice to the other party is one of the

factors to be considered in making a determination of “excusable

neglect.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

507 U.S. 380, 388 (1993) (construing Bankr. R. 9006(b)); see also

Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969, 971

(D.C. Cir. 2001) (applying the Pioneer analysis to Rule 6(b)). Other

factors to be considered in this equitable determination include “the

length of the delay and its potential impact on judicial proceedings, the

reason for the delay, including whether it was within the reasonable

control of the movant, and whether the movant acted in good faith.”

Pioneer, 507 U.S. at 395. Although the district court did not make a

formal finding of excusable neglect, we note that the Pioneer factors

would not have supported the district court’s acceptance of the

District’s late motion, even if the District had filed a formal request for

an extension. First, the district court found Smith would suffer

prejudice from the District’s late filing; the award of costs and

attorney’s fees was aimed at remedying the prejudice. Second, the

length of the delay was well over a year, not just a few days. Third, the

District did “not even attempt to justify . . . ignoring the deadlines”; no

reason for the delay was presented. Smith III, 2005 WL 488824, at *3.

Only one of the four factors—that the District did not appear to act in

bad faith—supports the court’s decision.

12

filed by the requesting party. Id. Here, the District concedes that

it never moved for an extension of the deadline. In the absence

of any motion for an extension, the trial court had no basis on

which to exercise its discretion. See Lujan, 497 U.S. at 896

(stating that “any postdeadline extension must be ‘upon motion

made’”). Under these circumstances, then, we are compelled to

conclude that the district court abused its discretion in entertain-

ing the late motion for summary judgment on Smith’s disability

discrimination claim.

V

For the above reasons, we affirm the district court’s grant

of summary judgment on Smith’s retaliation claim, but reverse

the grant of summary judgment on the discrimination claim and

remand for trial on that claim only.

So ordered.