Jaiyeola v. Dist. of Columbia, 10–CV–578.

CourtCourt of Appeals of Columbia District
Citation40 A.3d 356
Docket NumberNo. 10–CV–578.,10–CV–578.
PartiesAdesina F. JAIYEOLA, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
Decision Date29 March 2012

40 A.3d 356

Adesina F. JAIYEOLA, Appellant,

No. 10–CV–578.

District of Columbia Court of Appeals.

Argued May 26, 2011.Decided March 29, 2012.

[40 A.3d 359]

Neil R. Lebowitz, Columbia, MD, for appellant.

James C. McKay, Jr., Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

GLICKMAN, Associate Judge:

Adesina Jaiyeola appeals from a grant of summary judgment to the District of Columbia in his employment discrimination case. Mr. Jaiyeola complained that the District of Columbia Public Service Commission (“PSC”) violated the federal Rehabilitation Act of 1973 and the District's Human Rights Act by discriminatorily refusing to reinstate him to his job because he was, or was regarded as, physically disabled. In awarding summary judgment to the District, the trial court concluded that appellant's claims were barred by the statute of limitations and, in part, by appellant's failure to give proper notice of his claims to the District as required by D.C.Code § 12–309 (2001). We conclude otherwise and reverse and remand for further proceedings.


Appellant's claims arise from his employment with the PSC as a pipeline safety engineer. In 1998, appellant was in a car accident while on the job and sustained injuries to his neck and back. He continued to work intermittently until December 15, 2000, when, still suffering from neck pain and with his physician recommending surgery, he went on unpaid leave and began receiving temporary total disability benefits.

[40 A.3d 360]

In September 2001, appellant asked to be allowed to return to his job at the PSC. An independent medical examiner evaluated appellant and reported that he could return to work subject to two “permanent” restrictions—that he not lift more than 30 pounds or engage in prolonged neck or back flexion. In light of this report, the PSC denied appellant's request.

Appellant made several further attempts to be reinstated. Between September 2001 and December 2002, he communicated with his former supervisor and the Director of Human Resources for the PSC, but they told him he was too injured to return to work. Beginning in January 2003, appellant presented evidence that his physical condition had improved and that he could return to work with fewer or no restrictions on his activity.1 The PSC did not respond affirmatively to appellant's submissions.2 Unable to convince the PSC to allow him to return, appellant resigned in December 2004 to take a position as a pipeline safety engineer with the Maryland Public Safety Commission at a lower salary.3

On November 10, 2003 (roughly a year prior to his resignation), appellant filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), in which he charged the PSC with discriminating against him on account of his disability and failing to make reasonable accommodations to enable him to return to work. Pursuant to the EEOC's worksharing agreement with the District of Columbia Office of Human Rights (“OHR”), the complaint was cross-filed with the OHR, but it was investigated by the EEOC. Two years later, on November 29, 2005, the Department of Justice provided appellant with a right-to-sue notice. 4 Appellant filed suit in the Superior Court on February 2, 2006. As subsequently amended,5 his complaint charged the PSC with having discriminated

[40 A.3d 361]

against him on the basis of his actual or perceived disability, in violation of the District's Human Rights Act (“HRA”) 6 and Section 504 of the federal Rehabilitation Act of 1973.7

The District eventually moved for summary judgment on the grounds that appellant's claims were time-barred under the relevant statutes of limitations; that his claims under the HRA for unliquidated damages also were barred by his failure to give proper notice under D.C.Code § 12–309; and that appellant could not establish a prima facie case of unlawful discrimination under either the HRA or the Rehabilitation Act because he could not show that he was disabled or regarded as being disabled within the meaning of those laws. The trial court awarded the District summary judgment on the first two grounds and found it unnecessary to decide whether appellant could establish a prima facie case of disability discrimination. This appeal followed.


Appellant argues that the District waived its objections under applicable statutes of limitations and § 12–309 by failing to assert them as affirmative defenses in its answer to his amended complaint. Appellant further contends that his claims are not time-barred, and that his failure to comply with the notice requirements of § 12–309 does not prevent him from presenting his claims under the HRA for liquidated damages, or from suing the PSC (as distinct from the District of Columbia). The District largely (though not entirely) disagrees with these contentions. In addition, the District argues that we should affirm the judgment in its favor because appellant cannot establish that he was disabled or regarded as disabled, even though the trial court did not rely on that ground. Appellant rejoins that this latter issue is not ripe for our consideration because he had not completed necessary discovery, but that even in its present, incomplete state, the record does not support the District's position. We review the trial court's rejection of appellant's waiver claim for abuse of discretion 8; our review of the other arguments presented to us is de novo. 9

A. Waiver of Affirmative Defenses

Because § 12–309 and statutes of limitations provide affirmative defenses, Civil Rule 8(c) requires them to be “set forth affirmatively” in the answer to the complaint,10 and they “may be waived if not promptly pleaded.” 11 The District ran

[40 A.3d 362]

the risk of waiver in this case, as it neglected to assert either defense in its answer to the amended complaint and waited two years before raising the defenses for the first time in its summary judgment motion. Nonetheless, we cannot find that the trial court abused its discretion in rejecting appellant's waiver claim. We have held that, absent unfair surprise or other substantial prejudice to the plaintiff, or interference with the administration of justice, a defendant may raise an affirmative defense in a pre-trial motion despite having neglected to assert it in answer to the complaint.12 Appellant “had and exercised a full and fair opportunity” 13 to respond to the District's tardy invocation of the statutes of limitations and § 12–309, and he has not shown that he was unfairly disadvantaged in any other respect. We conclude that “[t]here was no prejudice and hence no waiver.” 14

B. The Statute of Limitations Governing Rehabilitation Act Claims

As pertinent here, § 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 subjected to discrimination under any program or activity receiving Federal financial assistance.” 15 The Rehabilitation Act does not have its own statute of limitations, so courts must look elsewhere for the limitations period that

[40 A.3d 363]

applies to it. When the District moved for summary judgment, it argued that § 504 claims are subject to the federal statute of limitations that governs claims under Title I of the Americans with Disabilities Act (“ADA”), namely, § 706 of Title VII of the Civil Rights Act of 1964.16 Because appellant's EEOC complaint was cross-filed with the OHR, § 706 of Title VII would dictate a limitations period of 300 days.17 The trial court agreed with the District and applied the ADA/Title VII limitations period to appellant's Rehabilitation Act claim. However, the District now concedes,18 and we agree, that it erred in urging the trial court to look to the ADA for the applicable statute of limitations.

Although § 504 of the Rehabilitation Act adopts the applicable standards of liability set forth in the ADA,19 § 505 specifies (in pertinent part) that “[t]he remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 ... shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [§ 504 of the Rehabilitation Act].” 20 The Rehabilitation Act thus directs us to look first to the provisions of Title VI for the limitations period that governs claims under § 504.21 Unfortunately, however, Title VI does not

[40 A.3d 364]

have its own statute of limitations either.22 Furthermore, the general federal statute of limitations, 28 U.S.C. § 1658 (2006), does not apply to the Rehabilitation Act because it only governs actions arising under statutes passed after December 1, 1990.23

“When Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.” 24 Our task, therefore, is to identify the District law “most closely analogous to” § 504 and borrow its limitations period, unless doing so would “stymie the policies underlying the federal cause of action.” 25 “[T]he most analogous statute need not be identical” to § 504 26; federal statutes rarely have a precise mirror image in state law. To select the best fit, we are charged with identifying the “essence” of the claim embodied in the federal act and seeking out a District law that can be boiled down to the same or highly similar ingredients.27

Two candidates in the District of Columbia Code present themselves: the three-year statute of limitations for personal injury claims,28 and the one-year limitations period for complaints of unlawful discrimination under the HRA....

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