Carlos Alexander v. WMATA , 826 F.3d 544 ( 2016 )


Menu:
  •  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.