Barrett v. Covington & Burling Llp, No. 07-CV-1301.

• Decision Date: 10 September 2009
• Docket Number: No. 07-CV-1301.
• Citation: 979 A.2d 1239
• Parties: Kathleen BARRETT, Appellant, v. COVINGTON & BURLING LLP, Appellee.
• Court: D.C. Court of Appeals

979 A.2d 1239

Kathleen BARRETT, Appellant, v. COVINGTON & BURLING LLP, Appellee.

No. 07-CV-1301.

District of Columbia Court of Appeals.

Argued March 11, 2009.

Decided September 10, 2009.

Heather G. White, Washington, 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.

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 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 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 "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "`[T]here 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, 106 S.Ct. 2505) (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 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, 114 S.Ct. 367, 126 L.Ed.2d 295 (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, 122 S.Ct. 2061, 153 L.Ed.2d 106 (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 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...