Turner v. District of Columbia Office of Human Rights, 010721 DCCA, 19-CV-0669

Docket Nº19-CV-0669
Opinion JudgeDEAHL, ASSOCIATE JUDGE
Party NameTamu Turner, Appellant, v. District of Columbia Office of Human Rights and District of Columbia Public Schools, Appellees.
AttorneyS. Micah Salb was on the brief for appellant. Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKahn, Solicitor General, Carl J. Schifferle, Acting Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellees.
Judge PanelBefore Easterly, McLeese, and Deahl, Associate Judges.
Case DateJanuary 07, 2021

Tamu Turner, Appellant,

v.

District of Columbia Office of Human Rights and District of Columbia Public Schools, Appellees.

No. 19-CV-0669

Court of Appeals of The District of Columbia

January 7, 2021

Submitted September 15, 2020

Appeal from the Superior Court of the District of Columbia (CAP-1294-18) (Hon. Michael L. Rankin, Trial Judge)

S. Micah Salb was on the brief for appellant.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKahn, Solicitor General, Carl J. Schifferle, Acting Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellees.

Before Easterly, McLeese, and Deahl, Associate Judges.

DEAHL, ASSOCIATE JUDGE

Tamu Turner, a former mathematics teacher employed by District of Columbia Public Schools ("DCPS"), filed a complaint alleging she was not provided a reasonable accommodation for a disability she sustained after a student attacked her. Following an investigation and without conducting a hearing, the District of Columbia Office of Human Rights ("OHR") found there was no probable cause to support Ms. Turner's allegations that DCPS failed to reasonably accommodate her disability. Ms. Turner sought review of that determination in D.C. Superior Court, which upheld OHR's decision.

Ms. Turner now appeals the Superior Court's judgment, asserting that substantial evidence did not support OHR's finding of no probable cause. We agree and reverse the decision of the Superior Court and remand the case to OHR for further proceedings consistent with this opinion.

I.

In October of 2015, a student assaulted Ms. Turner during a break between classes. Following the assault, Ms. Turner began experiencing panic attacks and was eventually diagnosed with Post-Traumatic Stress Disorder. Approximately one month after the assault, Ms. Turner went on leave because her PTSD made it too difficult for her to work in a classroom environment.

Around November 12, 2015, Ms. Turner began coordinating with DCPS to determine an appropriate workplace accommodation that would allow her to return to work, whenever she was able to do so. She first requested to teach remotely from home via Skype, or to work remotely as a Science, Technology, Engineering, and Mathematics coordinator. DCPS rejected these suggestions because there were no teaching positions available that could be performed remotely, and there was no such coordinator position at Anacostia High School, where she worked. DCPS instead offered to shorten Ms. Turner's work day, decrease the number of students in her classroom, and rearrange her schedule so she would not have to teach alone. Ms. Turner rejected these options as they still required her to be in the classroom, which she believed would continue to trigger her PTSD.

On December 21, 2015, Ms. Turner submitted an application requesting three months of leave-running retroactively from November 25, 2015-under the District of Columbia Family and Medical Leave Act ("FMLA"), D.C. Code § 32-501, et seq. (2019 Repl.). Ms. Turner's application was granted and she was placed on unpaid medical leave through February 26, 2016. In tandem with her FMLA leave application, Ms. Turner submitted an application requesting accommodations under the Americans with Disabilities Act ("ADA"). Ms. Turner's ADA application included three noteworthy documents: (1) a letter from Ms. Turner dated November 24, 2015, asking DCPS to reassign her to a central office position and to consider her "for any of the specialists or managerial positions that support the District of Columbia Schools on the DCPS website"; (2) a letter dated December 4, 2015, from Ms. Turner's physician, Dr. Tanya Alim, stating that Ms. Turner "will need to work from home and eventually be reassigned when her symptoms are manageable which varies from patient to patient, but may take at least six months to resume normal duties and responsibilities"; and (3) a physician's report from December 15, 2015-also authored by Dr. Alim-stating that Ms. Turner's incapacity would last for three months, until February 28, 2016, approximately two days after the date her FMLA leave was expected to conclude.

In early February 2016, Ms. Turner inquired about the status of her ADA application and was told that DCPS was still processing her request. She followed up again two weeks later, asking for a final determination and whether DCPS was considering her request for reassignment. On February 16, 2016, DCPS responded to Ms. Turner's request for accommodation by offering to extend her unpaid leave for an additional four months through the end of the school year, until June 30, 2016. The letter also notified Ms. Turner that DCPS was "unable to reassign [her] to a non-teaching role" at that particular time because reassignment did "not qualify as a reasonable accommodation under the ADA," but that she could forward her resume and DCPS would consider reassigning her at a later time. DCPS did not explain why reassignment was not reasonable under the ADA, but during OHR's preliminary investigation, it became clear that DCPS understood Ms. Turner's ADA application-and more pointedly, Dr. Alim's December 4, 2015 letter-to indicate that, unless she could work from home, she needed to take leave for at least six months. Two days after receiving DCPS's letter, Ms. Turner responded by forwarding her resume along with a list of vacant positions printed from the DCPS website.

After waiting more than a month for DCPS to respond to her email, Ms. Turner filed an internal complaint with DCPS's Equal Employment Opportunity Office. She then filed an administrative charge with OHR alleging that DCPS discriminated against her on the basis of her disability in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1402.11(a) (2016 Repl.), when it failed to reasonably accommodate her disability by denying her request for reassignment to a central office position and instead extended her unpaid leave through June 30, 2016. Following a preliminary investigation, OHR concluded there was no probable cause to support Ms. Turner's allegations. Ms. Turner petitioned the Superior Court for review, which upheld OHR's decision. Ms. Turner then timely brought this appeal.

II.

The central issue on appeal is whether substantial evidence supports OHR's conclusion that no probable cause existed to believe DCPS failed to accommodate Ms. Turner's disability from the end of February 2016, through June 30, 2016. OHR's no probable cause determination was based on documentation which it believed indicated Ms. Turner could not perform the essential duties of any position before June 30, 2016; the first being her medical records and the second being her application for long-term disability in January 2016. DCPS now defends OHR's decision on the same basis. We disagree and conclude substantial evidence did not support OHR's finding of no probable cause.

We review a trial court's affirmance of a no probable cause finding "in the same fashion in which we would review [OHR's] decision if it were appealable directly to [our court]." Sparrow v. District of Columbia Office of Human Rights, 74 A.3d 698, 703 (D.C. 2013) (internal quotations marks omitted) (quoting District of Columbia Office of Human Rights v. District of Columbia Dep't of Corr., 40 A.3d 917, 923 (D.C. 2012)). That is, we affirm if OHR's decision "is supported by substantial evidence and otherwise in accordance with law." Sparrow, 74 A.3d at 703 (quoting Vogel v. District of Columbia Office of Planning, 944 A.2d 456, 462 n.10 (D.C. 2008)).

Once a complaint alleging a violation of the DCHRA is filed, OHR conducts a preliminary investigation to determine whether probable cause supports the complainant's allegations. 4 DCMR §§ 711-16 (2020). A finding of no probable cause divests the complainant of a right to a hearing. See id. §§ 716-18 (probable cause finding necessary to trigger the conciliation and public hearing processes). OHR's role at the probable cause stage is limited to determining whether credible, probative, and substantial evidence exists to conclude...

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