Alexander v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2016 Decided June 24, 2016

No. 15-7039

CARLOS ALEXANDER,

APPELLANT

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01959)

Donna R. Williams Rucker argued the cause and filed the

briefs for appellant.

Gerard J. Stief argued the cause and filed the brief for

appellee.

Before: MILLETT, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

PER CURIAM: Carlos Alexander brought this disability

discrimination action under Section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. § 701 et seq., against his former

employer, the Washington Metropolitan Area Transit

Authority (“Authority”). The district court granted summary

2

judgment to the Authority on the ground that Alexander failed

to come forward with sufficient evidence that he had a

“disability” as defined in the Act. In so holding, however, the

district court failed to properly consider the record evidence

as applied to all three of the Act’s alternative definitions of

“disability.” We accordingly reverse and remand.

I

Alexander has suffered from alcoholism since

approximately 1980. The Authority hired him in 1999 as an

Automatic Train Control Mechanic Helper. In 2007, he

transferred to a Communications Mechanic Helper position.

One day in April 2007, Alexander’s supervisor smelled

alcohol on his breath. A breathalyzer test came up positive

for alcohol. Shortly thereafter, Alexander was suspended and

referred to the Authority’s Employee Assistance Program.

Alexander returned to work in December 2007, subject to

periodic alcohol tests. In January 2009, Alexander proved

unable to comply with the Authority’s internal Employee

Assistance Program as he again tested positive for alcohol

while at work. As a result, he was terminated. During the

exit interview, Alexander was told that he could apply to be

rehired in one year if he completed an intensive alcohol

dependency treatment program. Accordingly, Alexander

enrolled in the Chemical Dependency Intensive Outpatient

Program at Washington Hospital Center, completing it in

January 2010. He then sought to be rehired by the Authority

on several occasions, three of which are the subject of his

complaint. In April 2010, Alexander applied for a

Communications Mechanic Helper position and received a

contingent offer of employment, but was later notified that

“screening/Physical ha[d] disqualified [him].” J.A. 272.

Alexander submitted a second application for a

3

Communications Mechanic Helper position in August 2011,

but was informed a few days later that he had again been

disqualified. Two months later, Alexander applied for an

Automatic Fare Collections Mechanic Helper position, but

was not hired.

On September 13, 2010, after the Authority’s first refusal

to rehire him, but before the second and third decisions,

Alexander filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) claiming that the

Authority had violated the Americans with Disabilities Act

(“ADA”) by not rehiring him because of his history of

alcoholism. The Authority denied the allegation and claimed

Alexander was not hired because he had falsified information

on his medical form and failed to produce documentation of

his completed alcohol dependency treatment program. On

March 28, 2012, the EEOC issued a Letter of Determination

finding reasonable cause to believe that the Authority’s

decision not to hire Alexander violated the ADA because

evidence indicated that Alexander “is a qualified individual

with a disability” who had not falsified his medical form and

who had adequately documented his completion of a

treatment program. J.A. 261–262. When conciliation failed,

the EEOC issued Alexander a “right to sue” letter on

September 7, 2012.

Alexander filed his complaint in the United States

District Court for the District of Columbia, alleging violations

of the Rehabilitation Act and the ADA, although Alexander

later dismissed his ADA claim. The district court

subsequently granted summary judgment for the Authority.

The court held that Alexander’s claim was timely filed, but

that Alexander had not established that he is “an individual

with a disability within the meaning of the [Rehabilitation]

Act” because he failed to point to any evidence in the record

4

“demonstrat[ing] that his alcohol dependency substantially

limits at least one of his major life activities.” J.A. 305.

II

We review de novo the district court’s grant of summary

judgment, and will affirm only if the record demonstrates both

that “‘there is no genuine issue as to any material fact,’ and

that ‘the moving party is entitled to a judgment as a matter of

law.’” Solomon v. Vilsack, 763 F.3d 1, 8 (D.C. Cir. 2014)

(quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604

(D.C. Cir. 2010)).

A. Disability Discrimination

Section 504 of the Rehabilitation Act provides that “[n]o

otherwise qualified individual with a disability * * * shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving

Federal financial assistance.” 29 U.S.C. § 794(a). The Act

expressly incorporates the liability standards set out in the

ADA. See id. § 794(d); 29 C.F.R. § 1614.203(b).

Accordingly, to prevail on a claim of discrimination under the

Rehabilitation Act, a plaintiff must first establish that he has a

“disability” as defined in the ADA. See 29 U.S.C. §§ 705(9),

705(20)(B). The ADA provides a three-pronged definition of

the term: “(A) a physical or mental impairment that

substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment[.]” 42 U.S.C.

§ 12102(1). In September 2008, Congress enacted the ADA

Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.

3553, to ensure “a broad scope of protection” for individuals

under the ADA (and consequently, the Rehabilitation Act), 42

U.S.C. § 12101 note. Of particular relevance here, Congress

5

directed that “[t]he definition of disability * * * shall be

construed in favor of broad coverage * * *, to the maximum

extent permitted by the terms [of the ADA].” 42 U.S.C.

§ 12102(4)(A).

The district court ruled that Alexander had failed to

establish that he is disabled within the meaning of the

Rehabilitation Act because he failed to come forward with

sufficient evidence showing that his alcoholism “substantially

limits one or more major life activities,” 42 U.S.C.

§ 12102(1)(A). The district court’s analysis, however,

focused on only the first definition of “disability”—an actual

and substantially limiting “physical or mental impairment”—

and failed to consider whether Alexander met either the

record-of-impairment or regarded-as-impaired definitions of

disability. Compounding the error, the district court also

applied an outmoded statutory standard, overlooking material

changes to the governing law worked by the 2008

Amendments.

The district court’s central error was in failing to consider

at all whether the Authority “regarded” Alexander as “having

* * * an impairment,” 42 U.S.C. §§ 12102(1)(C), or

discriminated against him for having a “record of * * *

impairment,” id. §12102(1)(B), even though Alexander’s

claim implicated both definitions. The district court

explained that, in its view, “Alexander does not allege either

as the basis for his claim.” J.A. 304. But both Alexander’s

complaint and his opposition to summary judgment make

clear that he was also alleging discrimination on both record-

of and regarded-as grounds. See, e.g., J.A. 11 (Complaint

¶ 24) (alleging Alexander was informed that “he was not

eligible to be rehired because of his previous unsuccessful

completion of the Employee Assistance Program,” i.e., his

second violation of the Authority’s alcohol policy and

6

resulting termination); id. at 12 (Complaint ¶ 35) (claiming

that “WMATA does not have a written policy pertaining to

non-compliance with the Employee Assistance Program,” but

nevertheless the Authority’s “representatives were not willing

to rehire him because they feared that rehiring him would

open the gates for others”); id. at 15–16 (Complaint ¶¶ 65, 67)

(alleging that the Authority “was aware that [Alexander]

suffered from alcoholism” prior to his non-selection and

“intentionally discriminated against [him] because of his

disability”); id. at 56 (Opp. to Mot. for S.J. 16 (“Alexander

Opp.”)) (stating that Alexander “was not hire[d] because of

his history of a disability”); id. at 57 (Alexander Opp. 17)

(same).

Considering those alternative definitions was critical. In

particular, after the 2008 Amendments, the regarded-as prong

has become the primary avenue for bringing the type of

discrimination claim that Alexander asserts. See 29 C.F.R.

§ 1630.2(g)(3) (“Where an individual is not challenging a

covered entity’s failure to make reasonable

accommodations[,] * * * it is generally unnecessary to

proceed under the ‘actual disability’ or ‘record of’ prongs

* * *. In these cases, the evaluation of coverage can be made

solely under the ‘regarded as’ prong of the definition of

disability[.]”). Critically, while the district court’s decision

relied heavily on what it deemed to be insufficient evidence

that Alexander’s alcoholism substantially limited any major

life activity, the 2008 Amendments eliminate any such

requirement for a regarded-as claim. See 42 U.S.C.

§ 12102(3) (“An individual meets the requirement of ‘being

regarded as having such an impairment’ if the individual

establishes that he or she has been subject to an action

prohibited under this chapter because of an actual or

perceived physical or mental impairment whether or not the

impairment limits or is perceived to limit a major life

7

activity.”) (emphasis added); see also 29 C.F.R. § 1630 app.

at 380 (2009) (“‘Any individual who has been discriminated

against because of an impairment * * * should be bringing a

claim under the third prong of the definition which will

require no showing with regard to the severity of his or her

impairment.’”) (quoting Joint Hoyer-Sensenbrenner

Statement on the Origins of the ADA Restoration Act of

2008, H.R. 3195 at 4); 29 C.F.R. § 1630.2(g)(3) (regarded-as

claim “does not require a showing of an impairment that

substantially limits a major life activity[.]”).

Instead, Alexander needed only to show that the

Authority took “a prohibited action against [him] because of

an actual or perceived impairment.” 29 C.F.R. § 1630.2(l)(2).

There is no dispute in this case that Alexander’s alcoholism is

an “impairment” under the ADA and the Rehabilitation Act.

See J.A. 306 (District Court Op. 310) (finding that Alexander

adequately “provid[ed] evidence that he has an impairment

(alcohol dependency) that affects major life activities”); see

also H.R. Rep. No. 485, 101st Cong., 2d. Sess. pt. 2, at 51

(1990) (“physical or mental impairment” under the ADA

includes “drug addiction and alcoholism”); Bailey v. Georgia-

Pacific Corp., 306 F.3d 1162, 1167 (1st Cir. 2002) (“There is

no question that alcoholism is an impairment for purposes of

* * * analysis under the ADA.”) (listing cases).

In addition, Alexander came forward with sufficient

evidence from which a reasonable jury could conclude that

the Authority refused to hire him because of his alcoholism.

Alexander’s deposition testimony and sworn affidavit attest

that he was told by Authority representatives at the time of his

termination that he would be eligible for rehire in one year’s

time if he successfully completed a substance abuse program,

a contention supported by the Authority’s written drug and

alcohol policy itself, as well as a letter from a union official

8

about the conversation. There also is no dispute that

Alexander successfully completed the Washington Hospital

Center’s alcohol dependency treatment program and waited a

year before applying to be rehired. Yet when he did apply,

the Authority told him that he “couldn’t come back * * *

because [he] failed the [Employee Assistance] program that

got [him] fired in the first place, and Metro don’t have

revolving doors.” J.A. 90; see also id. at 107 (“They said I

couldn’t come back because I failed the [Employee

Assistance] program and got terminated.”).

Alexander further testified that, after applying for the

Automatic Fare Collections Mechanic Helper position, he was

pulled out of the line to take the practical entrance exam by

Rita Watkins, an Authority human resources representative,

who “remember[ed]” him as “the one that can’t have safety-

sensitive positions.” J.A. 99, 289; see also id. at 106–107

(“[S]he told me she remembered me as the one that was

disqualified and couldn’t come back because of safety-

sensitive something.”). But Alexander also produced

evidence suggesting that Automatic Fare Collections

Mechanic Helper was not a safety-sensitive position. See id.

at 106 (testifying that Watkins told him that some positions in

the Automatic Fare Collections department “are non-safety”).

Compare id. at 266 (listing job code 5226 for the Automatic

Fare Collections Mechanic Helper position), with Alexander

Opp. at Exhibit 14, Alexander v. WMATA, 82 F. Supp. 3d 388

(D.D.C. 2015) (No. 1:12-cv-01959-TSC), ECF No. 22 (not

including job code 5226 on “List of Safety Sensitive

Functions”).

In addition, Alexander testified that, during a meeting

with Dr. Lisa Cooper-Lucas, the Authority’s medical office

manager and the person who made the decision to disqualify

him, she offered shifting reasons for the Authority’s refusal to

9

rehire Alexander. She initially said that Alexander had been

disqualified for lying on his medical questionnaire form by

marking a box indicating he had never been in a drug

treatment program. When Alexander challenged that

accusation, Cooper-Lucas asserted that the real reason for

disqualification was that Alexander needed to wait two years,

not one, before he could be rehired. When Alexander

countered that version with the information he received from

the union and other Authority personnel, Cooper-Lucas “got

mad or upset” and upped the requirement to three years. J.A.

93. Alexander questioned “how can it take three if it don’t

take two[?],” which led Cooper-Lucas to declare that he

“can’t come back at all.” Id. Alexander further testified that

Cooper-Lucas’s boss later informed him that, despite “no

policy preventing [him] from coming back,” he would not be

rehired “because it will open the floodgates for people like

[him].” Id. at 96.

Deposition testimony from Authority witnesses likewise

supports Alexander’s claim. Cooper-Lucas confirmed that

she presided over the Authority’s Employee Assistance

Program at the time of Alexander’s participation, and thus

was aware of Alexander’s alcoholism before he was

terminated. J.A. 200–202. She admitted she had no reason to

believe that Alexander was drinking at the time of his rehire

applications “to the point where there is a concern about his

ability to function in a safety-sensitive program,” id. at 222,

and that his physical exam revealed no evidence of drug or

alcohol use. Yet she insisted that Alexander was nonetheless

“too much of a risk for a safety sensitive position,” id. at 218–

219. Both Cooper-Lucas and Romina Parahoo, a human

resources official, also conceded that they could not recall any

employee who had been terminated for violating the

substance abuse policy and was later rehired.

10

Further, the record calls into question the non-

discriminatory reasons that the Authority asserted for refusing

to rehire Alexander. Cooper-Lucas testified that she

disqualified Alexander because he had falsified information

on his pre-employment medical form and lacked required

documentation showing he had been assessed by a substance

abuse professional trained on U.S. Department of

Transportation regulations. But she had no recollection of

ever providing either of those reasons to Alexander.

Moreover, the record indicates how a reasonable jury could

conclude that Alexander’s allegedly false answer on the

medical form could have been accurate: he checked “no” for

whether he had ever had “drug rehab/counseling.” Alexander

Opp. at Exhibit 17, Alexander, 82 F. Supp. 3d 388 (No. 1:12-

cv-01959-TSC), ECF No. 22 (emphasis added). See also J.A.

at 92 (“And I said [to Cooper-Lucas], if I marked that, then

that had to be a mistake, an oversight, because I said I was in

your [Employee Assistance] program.”); id. at 232 (counsel

pointing out to Cooper-Lucas that the form “says specifically

drug”). Alexander also showed that nothing in the

Authority’s drug and alcohol policy requires that substance

abuse programs be approved by the federal Department of

Transportation. See id. at 281 (“The applicant must also

provide evidence of having successfully completed an alcohol

or drug treatment program.”).

Beyond those errors with respect to the regarded-as

definition of disability, the district court further erred by

enforcing too strict a definition of the “substantially limits”

showing needed for Alexander’s actual-disability and record-

of-impairment claims. Under the 2008 Amendments, the

substantially-limits requirement “is not meant to be a

demanding standard,” 29 C.F.R. § 1630.2(j)(1)(i), or to

require “extensive analysis,” id. § 1630.2(j)(1)(iii). See also

42 U.S.C. § 12101 note (one purpose of the 2008

11

Amendments is “to convey congressional intent that the

standard created by the Supreme Court * * * for ‘substantially

limits’ * * * ha[d] created an inappropriately high level of

limitation necessary to obtain coverage under the ADA”).

Given the legal standard prescribed by the 2008

Amendments, we hold that Alexander came forward with

sufficient evidence to permit a reasonable jury to find that his

alcoholism “substantially limit[ed]” major life activities

“compared to most people in the general population.” 29

C.F.R. § 1630.2(j)(1)(ii). For example, Alexander stated in

response to interrogatories that “sleeping, daily care

activities[,] and depression” are the “major life activity or

activities * * * affected by [his] disability.” J.A. 255. An

expert medical report from Dr. Roberta Malone provides

additional detail, explaining that Alexander has a “debilitating

diagnosis of alcoholism,” id. at 246, and his condition

“dramatically [a]ffects major life activities, including the

ability to care for himself, walking, concentrating, and

communicating,” id. at 248. The report catalogs Alexander’s

long and difficult history of alcohol dependency, including

that Alexander had a “stated daily history of consuming a six-

pack of beer or half a pint of rum”; that “[h]e also noted

periods of time during which he could not recollect events

following his consumption of alcohol (consistent with

blackouts), as well as a more general deterioration in his

ability to sleep regularly”; that he previously continued to use

alcohol “despite a clearly declared motivation to re-commit

himself to his work, and even in the face of the considerable

occupational difficulties it presented”; and that he met the

DSM-IV-TR criteria of “[i]mportant social, occupational, or

recreational activities given up or reduced because of

drinking.” Id. at 247–248. The report further indicates that

Alexander had been assessed a DSM-IV-TR Axis V “Level of

12

function” score of “55-60 (occupational difficulty).” Id. at

246. *

In sum, the district court erred in granting summary

judgment because a reasonable jury considering the proffered

evidence could conclude both that Alexander has a qualifying

“disability” under all three definitions of the term in the

Rehabilitation Act, and that the Authority refused to rehire

him because of his disability.

B. Statute of Limitations

As an alternative ground for affirmance, the Authority

maintains that Alexander’s Rehabilitation Act claim is barred

by the statute of limitations. See Dandridge v. Williams, 397

U.S. 471, 475 n.6 (1970) (“The prevailing party may * * *

assert in a reviewing court any ground in support of [its]

judgment, whether or not that ground was relied upon or even

considered by the trial court.”); MBIA Ins. Corp. v. F.D.I.C.,

708 F.3d 234, 247 n.8 (D.C. Cir. 2013) (an appellee may

“urge in support of a decree any matter appearing in the

record, although [its] argument may involve an attack upon

the reasoning of the lower court or an insistence upon a matter

overlooked or ignored by it”) (quoting Freeman v. B & B

Assoc., 790 F.2d 145, 150–151 (D.C. Cir. 1986)) (alteration in

original). We review de novo the district court’s finding that

Alexander’s claim was timely, and conclude that the district

court rightly rejected the Authority’s argument. See, e.g.,

Jung v. Mundy, Holt & Mance, P.C., 372 F.3d 429, 432 (D.C.

Cir. 2004).

Because the Rehabilitation Act does not specify its own

limitations period, courts generally “‘borrow’ one from an

*

At the time of the report, Alexander had been in remission for

about four years.

13

analogous state cause of action, provided that the state

limitations period is not inconsistent with underlying federal

policies.” Spiegler v. District of Columbia, 866 F.2d 461,

463–464 (D.C. Cir. 1989). Alexander argues that the District

of Columbia’s three-year statute of limitations for personal

injury claims should apply. The Authority argues for the one-

year statute of limitations of the District of Columbia Human

Rights Act. See Jaiyeola v. District of Columbia, 40 A.3d

356, 368 (D.C. 2012) (applying the Human Rights Act

limitation period to discrimination claims under the

Rehabilitation Act).

We need not decide which limitations period applies

because Alexander’s claim was timely either way. If the

three-year personal-injury limitations period applies, the

complaint was filed on December 5, 2012, which was well

within three years of the Authority’s rehiring denials in June

2010, August 2011, and October 2011.

If the Human Rights Act limitation applies, there is no

dispute that the complaint came more than one year after

those adverse rehiring decisions. But generally when a

federal court borrows a limitations period from state law, that

law’s tolling provisions come along as part of the package.

That is because, “[i]n virtually all statutes of limitations the

chronological length of the limitation period is interrelated

with provisions regarding tolling.” Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 464 (1975); see also

Hardin v. Straub, 490 U.S. 536, 539 (1989) (“Courts thus

should not unravel state limitations rules unless their full

application would defeat the goals of the federal statute at

issue.”). The Human Rights Act provides that “[t]he timely

filing of a complaint with the [District of Columbia Office of

Human Rights], or under the administrative procedures

established by the Mayor * * * shall toll the running of the

14

statute of limitations while the complaint is pending.” D.C.

CODE § 2-1403.16(a). Importantly, that tolling provision is

also “triggered by the timely filing of a complaint with the

EEOC” pursuant to a worksharing agreement between the

EEOC and Office of Human Rights. Jaiyeola, 40 A.3d at

369.

The Authority argues that the Supreme Court’s decision

in Johnson forecloses Alexander’s reliance on the tolling

provision. In that case, the Court held that a plaintiff’s pursuit

of an EEOC charge for a Title VII claim did not toll the

limitations period for his 42 U.S.C. § 1981 claim, noting that

the remedies available under Title VII and under Section

1981, “although related, and although directed to most of the

same ends, are separate, distinct, and independent.” Johnson,

421 U.S. at 461.

This case is very different from Johnson for two reasons.

First, the ADA claim that Alexander exhausted is not

“separate, distinct, and independent,” but instead is closely

akin to Alexander’s Rehabilitation Act claim. The

Rehabilitation Act, in fact, incorporates many of the standards

and regulations set by the ADA, see 29 U.S.C. § 794(d); 29

C.F.R. § 1614.203(b), including provisions that govern

Alexander’s claim in this case, such as the definition of

“disability,” see 29 U.S.C. §§ 705(9)(B), 705(20)(B).

Second, the relevant state statute of limitations in Johnson did

not have any tolling provision, and so the Court deferred to

the State’s judgment “in setting a limit, and exceptions

thereto, on the prosecution of a closely analogous claim.” 421

U.S. at 464. This case is exactly the opposite because District

law mandates tolling.

The Authority also argues that tolling should not apply

because Alexander was not required to exhaust administrative

15

remedies before bringing suit under Section 504 of the

Rehabilitation Act. But nothing in the Human Rights Act

limits tolling to mandatory exhaustion. Indeed, the Human

Rights Act itself does not inflexibly command exhaustion,

and its tolling provision applies generally to any time period

“while [an administrative] complaint is pending.” See D.C.

CODE § 2-1403.16; cf. Simpson v. District of Columbia Office

of Human Rights, 597 A.2d 392, 396 (D.C. 1991) (under the

Human Rights Act, “[a]n aggrieved individual may elect to

file a complaint with [the Office of Human Rights] or in any

court of competent jurisdiction”) (emphasis added).

Accordingly, Alexander’s complaint was timely filed

under both the three-year and one-year limitations periods

provided by District law.

III

The judgment of the district court is reversed and the case

is hereby remanded for further proceedings consistent with

this opinion.

So ordered.