CESARANO v. REED SMITH LLP, 07-CV-1065.

• Decision Date: 04 March 2010
• Docket Number: No. 07-CV-1065.,07-CV-1065.
• Citation: 990 A.2d 455
• Parties: Danielle R. CESARANO, Appellant, v. REED SMITH LLP, Appellee.
• Court: D.C. Court of Appeals

990 A.2d 455

Danielle R. CESARANO, Appellant, v. REED SMITH LLP, Appellee.

No. 07-CV-1065.

District of Columbia Court of Appeals.

Argued February 24, 2009.

Decided March 4, 2010.

Bruce A. Fredrickson, with whom Cedar P. Carlton, Washington, DC, was on the brief, for appellant.

Jonathan R. Mook, with whom Bernard J. DiMuro, Alexandria, VA, was on the brief, for appellee.

Stephen Z. Chertkof, with whom Douglas B. Huron, Washington, DC, was on the brief of the Metropolitan Washington Employment Lawyers Association as amicus curiae for appellant.

Before REID and FISHER, Associate Judges, and KING, Senior Judge.

REID, Associate Judge:

Appellant, Danielle R. Cesarano, appeals the trial court's dismissal of her employment discrimination claims on the ground that they are time barred. We affirm the dismissal of her claims pertaining to the alleged failure of appellee, Reed Smith LLP, to grant her reasonable accommodation due to her disability, as well as her claim relating to her leave status. However, we reverse the trial court's dismissal of her wrongful termination claim and remand that claim to the trial court for trial.

FACTUAL SUMMARY

The record in this case reveals that on October 24, 2003, Ms. Cesarano filed a complaint against her employer, Reed Smith. She alleged that she was employed as an associate around March 20, 2000, and was assigned to the litigation department. On April 29, 2001, while she was attending a Reed Smith trial training program, Ms. Cesarano's dominant hand was burned. As a result of her right hand injury, she developed complex regional pain syndrome/reflex sympathetic dystrophy, a physiological disorder affecting the neurological body system. The disorder, characterized as permanent, caused extreme pain and resulted in medical limitations on her activities. She required physical therapy, occupational hand therapy, nerve block procedures, and she had to take prescribed medication.¹

Based upon the recommendation of her physician, Ms. Cesarano took a leave of absence from June 13 to July 12, 2001, for treatment of her hand injury. During her leave of absence, Ms. Cesarano requested accommodations by Reed Smith for her disability. Specifically, she requested (1) a reduced-hour schedule, (2) voice recognition software, and (3) an operator's headset for her telephone. Upon her return to Reed Smith, Ms. Cesarano worked four hours per day. Around July 19, 2001, she complained about the difficulty of working without voice recognition software. In response, Richard Sullivan, her supervisor at the law firm, allegedly informed Ms. Cesarano "that if she was still injured, she was `of no use to anyone.'" Ms. Cesarano experienced difficulty in obtaining sufficient work assignments at Reed Smith to meet the billing expectations of the firm.²

On July 20, 2001, Ms. Cesarano complained to her employer that she was receiving neither reasonable accommodation for her disability, nor enough work to generate billable hours. Reed Smith's managing partner of the firm's District of Columbia office, Douglas Spaulding, advised Ms. Cesarano "that she had experienced a `stutter step' in her career," that the firm could not "carry her," and that she might be "pushed out" of the firm. Sometime later, Ms. Cesarano transmitted a letter to Reed Smith from her doctor; the letter stated that a second medical leave of absence was necessary. The second period of leave commenced around August 6, 2001, and extended to October 24, 2001. Ms. Cesarano was treated with physical therapy and medicine. When she returned to work, partners at Reed Smith advised her "not to seek substantive billable work until she could work without restrictions." Although she tried to obtain billable work, she obtained only a few assignments.

By January 2, 2002, Ms. Cesarano notified Reed Smith that she could increase her hours of work from four to eight per day. In her self-evaluation report to the firm, she expressed "hope" that she would get more billable work, and she continued her search for such work within the firm. Ms. Cesarano was encouraged by positive comments from the firm on her efforts to promote Reed Smith through the Greater Washington Board of Trade, and her participation in a pro bono case with a partner from the Pittsburgh office during 2001 and 2002. Nevertheless, she continued to complain about the lack of billable assignments.

In March 2002, Ms. Cesarano notified the Human Resources office of the firm that her doctor had recommended that she obtain an ergonomic evaluation of her worksite. Her doctor sent a letter to the firm in early April 2002, indicating that she was restricted to a work day of eight hours and needed an ergonomic worksite evaluation. Approximately one month later, Ms. Cesarano received a performance evaluation with a rating of "Meets Expectations Minus." Mr. Sullivan related to her the need for 200 billable hours per month before he could recommend her retention. In response, Ms. Cesarano "expressed concern to Mr. Sullivan about his statement given the medical restrictions on her workday." Mr. Sullivan interpreted Ms. Cesarano's reaction as an indication that "she could not do the work." Ms. Cesarano repeated her work restrictions and her request for accommodations.

Ms. Cesarano's ergonomic worksite evaluation was completed around June 6, 2002. She maintained that "Reed Smith never provided her with a worksite that fully conformed to the ergonomic evaluation." However, Ms. Cesarano's "billable hours significantly increased toward the end of the summer 2002." But, in her September 6, 2002 self evaluation, she noted the difficulty in finding billable work despite her new eight-hour work schedule, and she asserted that the firm had denied her reasonable accommodation. Ms. Cesarano received another performance evaluation in late October 2002; apparently because of her low annualized chargeable hours, she was again given a rating of "Meets Expectations Minus." On October 28, 2002, she received notice that she would be terminated from the firm effective November 11, 2002.

Ms. Cesarano alleged five causes of action. Although no count is labeled wrongful termination, it is apparent from an examination of her various counts that she alleged wrongful termination. Significantly, both the trial court and the parties recognized through rulings and pleadings that the case included a wrongful termination claim. Count I, "Retaliation and interference in violation of the District of Columbia Human Rights Act" ("DCHRA"), emphasized her July 6, 2001 request for voice recognition software and a part-time schedule as accommodation for her disability, and Reed Smith's alleged retaliation against her "for requesting accommodation." She claimed that "Reed Smith's retaliatory and threatening responses to her requests for accommodation and references to her physical limitations interfered with her rights to inform Reed Smith of her disability and request reasonable accommodation in violation of Section 2-1402.61(a)(1) of the DCHRA."

Count II focused on alleged disability discrimination under the DCHRA, D.C.Code § 2-1401.02(5A). She highlighted Reed Smith's actions in removing her from a case on which she was working at the time of her accident and the firm's alleged position that, despite her qualifications and experience, she should not expect billable work until she returned to full-time employment. She specifically alleged that "by terminating her on the purported basis of insufficient billable hours, Reed Smith terminated her on account of disability and handicap"; and that "in terminating her, Reed Smith failed to retain an employee who had become physically handicapped while on the job. . . ."

Count III, "Failure to provide reasonable accommodations in violation of the DCHRA," averred, in part, that Reed Smith failed to provide voice recognition software in response to her request until early August 2001; did not accommodate her with an eight-hour workday, despite her December 2001 and January 2002 requests; ignored her request for an ergonomic work site, as well as her March 2002 request for an ergonomic worksite evaluation until June 6, 2002, but then took no action regarding the results of the evaluation — all in violation of specified sections of the DCHRA.

In Count IV, "Retaliation and interference in violation of the District of Columbia Family and Medical Leave Act ("DCFMLA")," Ms. Cesarano alleged that "instead of providing her individualized notice of her rights to job restoration upon completion of her protected leave, Reed Smith began threatening her job security and otherwise retaliating against her for taking medical leave." She maintained that she was removed from Reed Smith's payroll when she began her medical leave, that she communicated her fear of job loss to Reed Smith due to her injury; and in response, Mr. Spaulding said, on July 20, 2001, "she should be concerned about her job because Reed Smith might just push her out," and Reed Smith notified her, in late October 2002, that she would be terminated, "purportedly for lack of billable hours."³

Count V, entitled, "Sex discrimination in violation of the DCHRA," contained allegations concerning (1) the differential treatment of males and females in the firm; (2) hostile treatment of female associates by a female partner; (3) verbal abuse by a male partner; (4) yelling, name calling and retaliation by two male partners and a female partner when she asked the female partner, in November 2000, to be relieved of working with the male partner; (5) her support by other members of the firm and the assignment of adequate billable work until her injury; (6) removal from one of her cases and replacement by a male associate; (7) instructions around Winter 2002, "to follow a strategy of writing off hours that purportedly would help her gain respect at the firm"; (8) instruction around March 2002 "to seek the advice of `one of the guys' to verify the...