No. 15-7143

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

 

Manu Kennedy,

          Plaintiff/Appellant,

 

v.

 

Muriel Bowser, et al.,

          Defendant/Appellee.

 

 

On Appeal from the United States District Court

for the District of Columbia, No. 1:13-cv-1384-CRC

Hon. Christopher R. Cooper, United States District Judge

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

PHILIP M. KOVNAT

Attorney

 

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

 

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................. i

 

TABLE OF AUTHORITIES……………………………………………………..iii

 

STATEMENT OF INTEREST........................................................................ 1

 

STATEMENT OF THE ISSUE....................................................................... 2

 

STATEMENT OF THE CASE....................................................................... 2

 

A.    Statement of Facts................................................................................. 2

 

B.     The District Court’s Decisions............................................................. 9

 

ARGUMENT................................................................................................ 10

 

A.    EMS’s 2009 and 2010 Refusals to Accommodate Each Constitute Independently Discriminatory Acts.................................................................................. 10

 

B.     Ricks and Its Progeny Do Not Support the District Court’s Conclusion.       21

 

C.    The District Court’s Policy Concerns Do Not Support Its Decision. 29

 

D.    EEOC Guidance Supports Kennedy’s Position................................ 32

 

CONCLUSION............................................................................................. 35

 

CERTIFICATE OF COMPLIANCE............................................................ 36

 

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS 37

 

CERTIFICATE OF SERVICE....................................................................... 38

 

 

Table of Authorities

     Page(s)

Cases

Arrocha v. City Univ. of New York,
878 F. Supp. 2d 364 (E.D.N.Y. 2012)...................................................... 31

Bazemore v. Friday,
478 U.S. 385 (1986)................................................................................... 22

Cherosky v. Henderson,
330 F.3d 1243 (9th Cir. 2003)...................................................... 23, 25, 29

Delaware State College v. Ricks,
449 U.S. 250 (1980)............................................................................ passim

Edelman v. Lynchburg College,
535 U.S. 106 (2002) .................................................................................. 34

Elzeneiny v. District of Columbia,
125 F. Supp. 3d 18, 35 (D.D.C. 2015)...................................................... 13

Ervine v. Desert View Regional Medical Center Holdings, LLC,
753 F.3d 862 (9th Cir. 2014)........................................................ 15, 16, 22

Floyd v. Lee,
968 F. Supp. 2d 308 (D.D.C. 2013).................................................... 20, 29

Graehling v. Village of Lombard,
58 F.3d 295 (7th Cir. 1995).......................................................... 25, 26, 27

Hall v. The Scotts Co.,
211 F. App’x 361 (6th Cir. 2006)............................................................. 18

Hill v. Hampstead Lester Morton Court Partners LP,
581 F. App’x 178 (4th Cir. 2014)........................................... 15, 17, 27, 28

Kapche v. Holder,
677 F.3d 454 (D.C. Cir. 2012)............................................................ 16, 28

Landgraf v. USI Film Products,
511 U.S. 244 (1994)................................................................................... 30

Ledbetter v. Goodyear Tire & Rubber Co.,
550 U.S. 618 (2007)............................................................................ passim

Lorance v. AT& T Technologies,
490 U.S. 900 (1989)................................................................................... 25

Lytes v. D.C. Water & Sewer Authority,
572 F.3d 936 (D.C. Cir. 2009).................................................................. 29

Martin v. Southwestern Virginia Gas Co.,
135 F.3d 307 (4th Cir. 1998)........................................................ 26, 27, 28

Mayers v. Laborers’ Health & Safety Fund of North America,
478 F.3d 364 (D.C. Cir. 2007)...................................................... 13, 14, 28

McMenemy v. City of Rochester,
241 F.3d 279 (2d Cir. 2001)..................................................................... 33

Morgenstein v. Morgan Stanley DW Inc.,
No. 05-2123, 2007 WL 315090 (D.D.C. Jan. 31, 2007)..................... 28, 29

National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002)............................................................................ passim

Order of Railroad Telegraphers v. Railway Express Agency,
321 U.S. 342 (1944)................................................................................... 32

Parisi v. Boeing Co.,
400 F.3d 583 (8th Cir. 2005).................................................................... 31

Potter v. District of Columbia,
558 F.3d 542 (D.C. Cir. 2009).................................................................... 7

Pouncil v. Tilton,
704 F.3d 568 (9th Cir. 2012)........................................................ 15, 17, 18

Scott v. Weinberger,
416 F. Supp. 221 (D.D.C. 1976)............................................................... 31

Skidmore v. Swift,
323 U.S. 134 (1944)................................................................................... 33

Stewart v. Dist. of Columbia,
No. 04-1444, 2006 WL 626921 (D.D.C. Mar. 12, 2006)................... 28, 29

Tobin v. Liberty Mutual Insurance Co.,
553 F.3d 121 (1st Cir. 2009).............................................................. passim

Statutes, Regulations, and Rules

28 U.S.C. § 1292(b)....................................................................................... 10

42 U.S.C. § 12102(4)(A)................................................................................ 19

Fed. R. App. P. 29(a)....................................................................................... 1

Pub. L. No. 111-2, 123 Stat 5........................................................................ 13

Pub. L. No. 110-325, 122 Stat. 3553............................................................... 1

Pub. L. No. 110-325, 122 Stat. 3553, Sec. 2(b)(4)-(5)................................... 20

Other Authorities

Q&A on the Final Rule Implementing the ADA Amendments Act of 2008 32

EEOC Compliance Manual § 2 IV............................................................... 33

 

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged with the interpretation and enforcement of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). In 2008, Congress enacted the ADA Amendments Act (“ADAAA”), effective January 1, 2009, to expand the definition of “disability.” See generally Pub. L. No. 110-325, 122 Stat. 3553.

In this case, the district court refused to apply the ADAAA’s more expansive definition of disability to plaintiff Manu Kennedy’s 2009 and 2010 requests for reasonable accommodation, which were denied by his employer, because Kennedy had previously asked for, and was denied, a reasonable accommodation in 2008, before the amendments became applicable. The district court’s failure to apply the ADA’s post-amendments definition of disability to Kennedy’s failure-to-accommodate claim presents an important issue concerning the ADAAA’s applicability. The EEOC therefore offers its views to the Court. See Fed. R. App. P. 29(a).

 

STATEMENT OF THE ISSUE[1]

Does the ADAAA’s expanded definition of disability apply to Kennedy’s requests for accommodation in 2009 and 2010, even though he first sought a reasonable accommodation for the same condition in 2008?

STATEMENT OF THE CASE

A.        Statement of Facts

Kennedy was employed as a firefighter by the District of Columbia Fire and Emergency Medical Services Department (“EMS”) for eleven years. A151 (3/20/15 Mem. Op. at 3.) EMS policy requires “firefighters to be clean-shaven so that they can safely wear their respirators.” A149 (3/20/15 Mem. Op. at 1.) Kennedy, however, suffers from pseudofolliculitis barbae (“PFB”), a condition that causes severe ingrown hairs in his beard area, which in turn causes skin inflammation, bacterial infection, and abnormal cell growth. A15 (Compl. ¶¶ 37-43.) The only effective remedy for PFB is to stop shaving. A15 (Compl. ¶ 44.)

In May 2008, in compliance with EMS’s clean-shaven policy, Kennedy had no facial hair, but he reported to a doctor at EMS’s clinic that “he had a spot on his face that would not heal due to PFB.” A151 (3/20/15 Mem. Op. at 3.) The clinic doctor stated that he “could not issue a shaving waiver.” A21 (Compl. ¶ 109.) After this clinic visit, Kennedy saw his personal physician, who recommended that Kennedy avoid shaving. A22 (Compl. ¶ 111.) When he presented this recommendation to EMS’s clinic on May 30, 2008, EMS placed Kennedy on “limited duty.” A22 (Compl. ¶ 112.)[2]

About a month later, Kennedy visited a dermatologist, who advised him to maintain a beard of at least 1/8 of an inch in length. A22 (Compl. ¶¶ 114-117.) In early July 2008, Kennedy submitted documentation to EMS’s Battalion Fire Chief Kevin Begley, demonstrating his diagnosis of PFB and his dermatologist’s recommendation. A22 (Compl. ¶ 118.) EMS then ordered Kennedy to submit a “Special Report regarding his inability to shave.” A23 (Compl. ¶¶ 129-130.) In this Special Report, Kennedy stated that he believed EMS’s actions were discriminatory and expressly requested an accommodation for his PFB. A23 (Compl. ¶ 131.)

In response, EMS’s Battalion Fire Chief Maxim Saunders issued a memorandum to Kennedy, notifying him of a “hearing to address [his] noncompliance with” the clean-shaven policy. A24 (Compl. ¶ 135.) Several days later, Chief Saunders informed Kennedy that he would be suspended for his noncompliance with the shaving policy and that he was being “placed on administrative leave” effective immediately. A24 (Compl. ¶ 138.) Two days after that, Kennedy filed a charge of discrimination with the EEOC alleging, among other things, that EMS discriminated against him on the basis of his PFB in violation of the ADA. A12 (Compl. ¶¶ 7-8.)

In early August 2008, EMS suspended Kennedy for 36 hours due to his noncompliance with the clean-shaven policy. A25 (Compl. ¶¶ 145-146.) That same month, Kennedy successfully passed a Fit Test, demonstrating that he could safely wear a respirator, despite his short beard. A26 (Compl. ¶¶ 151-152.)[3] Although he passed the Fit Test, EMS upheld its charges of noncompliance against Kennedy. A26 (Compl. ¶¶ 153-154.) Kennedy then took a months-long leave of absence to treat depression, stress, and adjustment disorder. A152 (3/20/15 Mem. Op. at 4); A27 (Compl. ¶¶ 163-165.) Upon his return, in January or February 2009, he was assigned to limited duty in the Training Academy. A28 (Compl. ¶¶ 173-174.)

On March 17, 2009, while still in the Training Academy, Kennedy visited a doctor at EMS’s clinic and “reiterated his request for accommodation for his PFB.” A28 (Compl. ¶¶ 177-178.) The EMS doctor recommended that Kennedy remain on limited duty. A29 (Compl. ¶ 179.) And just days later, on or around March 23, 2009, EMS notified Kennedy “that he was being subjected to the Involuntary Retirement Process.” A29 (Compl. ¶ 182.)

In April 2009, Kennedy amended his original charge of discrimination to reflect his “renewed requests” for accommodation and EMS’s subsequent denials. A245 (11/16/15 Mem. Op. at 4.) After Kennedy amended his charge, it appears that EMS did not implement its decision to subject him to the involuntary retirement process because in September 2009, he was still assigned to limited duty, and he “attempted to be Fit Tested” again. A29 (Compl. ¶ 189.) However, EMS refused to allow Kennedy to undergo a Fit Test. A29 (Compl. ¶ 190.) So, in response, on October 8, 2009, Kennedy again sought an “accommodation of being permitted to maintain 1/8 of an inch of facial hair.” A30 (Compl. ¶ 192.) It appears that EMS ignored this request for ten months.

Then, in August 2010, while still on limited duty in the Training Academy, Kennedy reported for “Firefighter Refresher Training,” but EMS Captain Michael Knight ordered Kennedy to “shave his 1/8 of an inch of facial hair before participating in the Refresher Training.” A35 (Compl. ¶¶ 247-248.) The next day, Kennedy reported for the Refresher Training again, despite Captain Knight’s order, and he completed the training, even though he continued to maintain 1/8 of an inch of facial hair. A35 (Compl. ¶¶ 251-252.) Three weeks later, Kennedy again attempted to undergo a Fit Test, but Deputy Fire Chief William Flint of EMS’s Risk Management Division would not permit Kennedy to undergo a Fit Test because of his beard and “because he was not claiming a religious exemption” to the clean-shaven policy. A36 (Compl. ¶¶ 254-255.)[4] Kennedy then told Deputy Flint, on September 24, 2010, “that he had been requesting a reasonable accommodation for his [PFB] since July 2008.” A36 (Compl. ¶ 256.) Nonetheless, EMS once more required Kennedy to submit a Special Report to “explain why he did not shave, in violation of” EMS’s policy. A36 (Compl. ¶ 258.)

EMS then charged Kennedy with “neglect of duty” and “insubordination” for his “noncompliance with the [clean-shaven] [p]olicy.” A37-A38 (Compl. ¶¶ 273-274.) Kennedy appealed this decision, asking that the “charges against him be dropped and that no further action be taken against him.” A38 (Compl.¶ 280.) This appeal failed and EMS assigned Kennedy, for the duration of his tenure, to restricted duty because he continued to wear a beard. A39 (Compl. ¶¶ 285-287.)

In 2012, the EEOC issued a determination on Kennedy’s charge of discrimination, finding reasonable cause to believe that discrimination had occurred. A226-A227 (determination letter). The Commission attempted conciliation and, when that failed, referred the case to the Department of Justice, which issued Kennedy a Notice of Right to Sue. A152-153 (3/20/15 Op. at 4-5.)

Kennedy filed suit on September 11, 2013, alleging inter alia that EMS failed to provide an accommodation for his PFB in violation of the ADA. A47-A49 (Compl. ¶¶ 373-389.) EMS moved to dismiss in part, arguing that Kennedy’s PFB is not a covered disability under the pre-amendments interpretation of the Act, and that “his claims arose prior to the effective date of the ADAAA.” A86 (Mem. in Supp. of Partial Mot. to Dismiss at 1.) In other words, EMS did not dispute that Kennedy’s PFB constitutes a covered disability under the post-amendments definition of that term. Rather, it asserted that the ADA claims in this case relate back to 2008, and the “denial of a repeat request for previously denied accommodations do[es] not constitute a new discriminatory act[.]” A134 (Reply in Further Supp. of Mot. to Dismiss at 6) (internal citations and quotations omitted).

B.          The District Court’s Decisions

The district court granted EMS’s motion to dismiss. The court agreed with EMS that “pre-amendment liability standards govern this case” because “each of [Kennedy’s] requests and allegations of discrimination emanated from the July 2008 request and denial.” A156-A157 (3/20/15 Mem. Op. at 8-9) (citing inter alia Del. State Coll. v. Ricks, 449 U.S. 250, 261 n. 15 (1980), for the proposition that “mere requests to reconsider” do “not create a new instance of discrimination” (internal alterations omitted)). Having found that the pre-amendments definition of disability applies, the court further held that PFB did not substantially limit Kennedy in a major life activity. A157-A160 (3/20/15 Mem. Op. at 9-12.)

Kennedy then filed a Motion to Alter or Amend Judgment, requesting reinstatement of his failure-to-accommodate claim or, alternatively, certification for interlocutory appeal under 28 U.S.C. § 1292(b). A214-A225 (Mot. to Alter or Amend J.) The district court denied the motion to alter judgment, ruling “that a plaintiff cannot circumvent time constraints—whether a statute of limitations or the effective date of new legislation—by requesting reconsideration of the denial of an earlier request.” A245-A246 (11/20/15 Mem Op. at 4-5.) The court did, however, agree with Kennedy that a “substantial ground for difference of opinion” exists on this issue and certified Kennedy’s ADA challenge for “immediate appeal under 28 U.S.C. § 1292(b).” A248-A249 (11/20/15 Mem. Op. at 7-8.)

ARGUMENT

A.        EMS’s 2009 and 2010 Refusals to Accommodate Each Constitute Independently Discriminatory Acts.

The ADAAA’s definition of disability applies to Kennedy’s failure-to-accommodate claim because, pursuant to decisions of the Supreme Court and this Court, each request for, and denial of, an ADA accommodation constitutes a discrete discriminatory act. As the district court and the parties recognized, the most instructive precedents in determining which version of the substantive law should apply here are those decisions that explain when a claim accrues or occurs for timeliness purposes. See, e.g., A156 (3/20/15 Mem. Op. at 8) (relying on Ricks and other cases decided in the “statute of limitations context”).

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court set forth several principles relevant to this issue. First, it distinguished between discrete discriminatory acts, which constitute separate causes of action, and hostile acts that together make out a single cause of action. See id. at 110, 114 (identifying “termination, failure to promote, denial of transfer, [and] refusal to hire” as examples of “[d]iscrete acts” because these acts can be said to “occur[ ] on the day that [they] happen[ ]”).[5] The Court in Morgan also explained that “[e]ach discrete discriminatory act starts a new clock,” i.e., commences a new limitations period, and “[t]he existence of past acts . . . does not bar employees from filing charges about related discrete acts so long as the [more recent] acts are independently discriminatory . . . .” Id. at 113. Thus, Morgan instructs that to determine when a claim accrues, courts must decide whether the claim is based on an “independently discriminatory” discrete act, and if it is, then it accrues as of the date of that act, notwithstanding a prior, related discrete act.

Then, in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 631 (2007), the Supreme Court clarified that a discrete discriminatory act accrues when two elements come together: “discriminatory intent” and “an employment practice.” Therefore, the Court explained, the limitations period runs from that date, “not from the date when the effects of this [employment] practice [a]re felt.” Id. at 627. Further, the Ledbetter Court established that “if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.” Id. at 628 (emphasis added) (citing Morgan, 536 U.S. at 113); see also id. at 636 (“[A] freestanding violation may always be charged within its own charging period regardless of its connection to other violations.”).[6]  

The question then becomes whether an employer’s refusals to accommodate constitute independently discriminatory acts as that term is contemplated in Morgan and Ledbetter. The answer to this question came in Mayers v. Laborers’ Health & Safety Fund of North America, 478 F.3d 364 (D.C. Cir. 2007), in which this Court applied Morgan and said that an employer’s failure to provide special tools to the plaintiff for her arthritis “was a discrete act of discrimination that ended, at the latest, in June 2000[.]” See id. at 368-69 (distinguishing refusal-to-accommodate claims from hostile-work-environment claims because a refusal to accommodate ordinarily can be said to occur on a particular day); see also Elzeneiny v. Dist. of Columbia, 125 F. Supp. 3d 18, 35 (D.D.C. 2015) (applying Mayers and Morgan to hold that failures to accommodate are properly categorized as discrete discriminatory acts). It is thus settled law in this Circuit that an employer’s refusals to accommodate are discrete, independently discriminatory acts.

It follows from these cases that each time EMS denied Kennedy’s requests for an accommodation, a new failure-to-accommodate claim accrued. Indeed, if refusals to accommodate are discrete discriminatory acts under Morgan, as this Court held in Mayers, and “a fresh violation takes place” every time a discrete act is committed, as the Supreme Court held in Ledbetter, each of EMS’s refusals did—despite what the district court said—“create new instances of discrimination.” A242 (11/16/15 Mem. Op. at 1.) The amended definition of disability thus applies to these “new instances of discrimination,” and it does not matter that there was a prior, related refusal to accommodate in 2008. The district court’s holding to the contrary simply ignores the lessons of Morgan and Ledbetter.

Kennedy’s position is also supported by the overwhelming weight of authority from other circuits. Indeed, in a series of recent decisions, several courts of appeals have applied the principles of Morgan and Ledbetter and held that renewed requests for, and denials of, an accommodation give rise to independent failure-to-accommodate claims subject to a fresh statutory clock. See Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862 (9th Cir. 2014); Hill v. Hampstead Lester Morton Court Partners LP, 581

F. App’x 178 (4th Cir. 2014); Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012); and Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121 (1st Cir. 2009).

In Tobin, for example, the plaintiff, who suffered from bipolar disorder, “repeatedly asked Liberty Mutual,” his employer, for an accommodation under the ADA. 553 F.3d at 127. Some of these requests fell outside the 300-day statutory limitations period, while others occurred within that timeframe. Id. at 134. Liberty Mutual argued that Tobin’s failure-to-accommodate claim was untimely, asserting that “the statute of limitations began to run . . . when the company first rejected his requests” for accommodation. Id. at 129. The First Circuit rejected this argument, stating “it is apparent from the Supreme Court’s discussions in Morgan and Ledbetter that an employee who renews his request for particular accommodations may bring suit based on a new ‘discrete act’ of discrimination if the employer again denies his request.” Id. at 131 (quoting Morgan, 536 U.S. at 113); see also id. at 133 (holding that “[t]he pivotal question” is simply “whether Tobin made a specific request for accommodation that was denied during the statutory period[ ]”). The same reasoning applies here.

Similarly, in Ervine, the Ninth Circuit extended this logic to a Rehabilitation Act case. There, the court held that the plaintiff, who was deaf and asked her healthcare provider for interpreters as an accommodation, had a timely claim, though the defendant first refused to provide her with an accommodation outside the two-year limitations period, because she renewed her request for interpreters, and was denied again, which “cause[d] a new claim to accrue and a new limitations period to run.” 753 F.3d at 870; see also id. (“A claim under the Act will not be untimely merely because similar, even identical, violations of the Act occurred outside the statutory period.”).[7] Likewise, EMS’s rejections of Kennedy’s post-January 1, 2009, requests for accommodation caused “a new claim to accrue,” even though a “similar, even identical” request and denial occurred in 2008.

The Fourth Circuit took the same approach in Hill, another Rehabilitation Act case. There, the plaintiff, an amputee, requested a ramp for her home in 2004, which the defendant denied; four years later, the plaintiff unsuccessfully requested a ramp again. 581 F. App’x at 179-80. The district court in Hill found, like the district court here, that “subsequent denials of [the] proposed accommodations . . . amounted to mere requests to reconsider[.]” Id. at 180. The Fourth Circuit reversed, holding that the latter denial “constitute[d] an allegedly independent and discrete act of discrimination.” See id. at 181 (relying on Morgan, Ledbetter, and Tobin).

Also instructive is Pouncil. In that case, as an accommodation under the Religious Land Use and Institutionalized Persons Act a prison inmate, Madero Pouncil, requested and was denied the opportunity to have conjugal visits with his wife. 704 F.3d at 570. Thereafter, while still in prison, Pouncil married a second wife and again requested conjugal visits. Id. at 571. The issue on appeal was whether the prison’s denial of Pouncil’s request for conjugal visits with his second wife was time-barred because the prison had already denied Pouncil’s request for conjugal visits with his first wife. Id. at 571-72. The Ninth Circuit, after a thorough discussion of decisions such as Morgan, Ledbetter, and Ricks, ruled that the prison’s second denial gave rise to a freestanding cause of action. See id. at 583 (“[A] later denial pursuant to the same policy is an independently wrongful ‘discrete act’ that starts the statute of limitations running, notwithstanding the prior denial.”) (quoting Morgan, 536 U.S. at 113).[8]

Thus, the courts of appeals have overwhelmingly held that a refusal to accommodate is a discrete discriminatory act, and each time that act occurs it causes a new claim to accrue, regardless of its connection to a prior, related act. This conclusion carries even greater force where, as here, there has been a material change in the underlying circumstances between the initial and subsequent requests for accommodation. That point is articulated in Tobin, in which the court said:

[I]f an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed. Indeed, in the context of disability discrimination, any other approach would fail to take into account the possibility of changes in either the employee’s condition or the workplace environment that could warrant a different response from the employer to renewed requests for accommodation.

 

553 F.3d at 132-33 (quoting Ledbetter, 550 U.S. at 628). Tobin’s reasoning is compelling in this case because just as changes in “the employee’s condition or the workplace environment . . . could warrant a different response from the employer to renewed requests for accommodation,” so too could a modification in the law, e.g., an explicit instruction from Congress to construe the “definition of disability . . . in favor of broad coverage.” See 42 U.S.C. § 12102(4)(A).

As one district court observed, however, “Tobin did not hold that ‘changes in either the employee’s condition or the workplace environment’ were necessary to re-start the limitations clock: the ‘pivotal question’ was simply ‘whether the employee made a specific request for accommodation that was denied during the statutory period.” Floyd v. Lee, 968 F. Supp. 2d 308, 324 (D.D.C. 2013) (quoting Tobin, 553 F.3d at 133 (emphasis added) (internal alterations omitted)). Therefore, a renewed request for, and denial of, an accommodation gives rise to a new claim with or without a change in circumstances. Put differently, the new circumstances are not dispositive; they merely bolster the logic behind the conclusion that each denied request for an ADA accommodation constitutes a freestanding discriminatory act. And, the difference in circumstances is relevant here of course because the ADAAA’s definition of disability is critical to the merits of Kennedy’s ADA claim. See generally Pub. L. No. 110-325, 122 Stat. 3553, Sec. 2(b)(4)-(5) (stating that the purposes of the ADA amendments are to reject Supreme Court decisions that “create[d] a demanding standard for qualifying as disabled” and to “convey that the question of whether an individual’s impairment is a disability . . . should not demand extensive analysis”) (internal citations and quotation marks omitted).

Accordingly, this case involves a series of discrete refusals to accommodate. Because some of these occurred in 2009 and 2010, the ADA amendments apply to Kennedy’s claim. EMS’s 2008 denial does not, in other words, forever bar Kennedy from benefitting from the ADAAA’s expanded definition of disability. This conclusion fits with Morgan’s rule that the “existence of past acts” does not bar a claimant from filing claims about related discrete acts. 536 U.S. at 113. And a contrary holding would be at odds with Ledbetter, which instructs that “if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.” 550 U.S. at 628.

B.          Ricks and Its Progeny Do Not Support the District Court’s Conclusion.

The district court wrongly concluded that “pre-amendment liability standards govern this case,” A157 (3/20/15 Mem. Op. at 9), based on Ricks and several decisions applying Ricks. That case involved a college professor’s challenge to his denial of tenure under Title VII. 449 U.S. at 254-55. The Supreme Court held that the limitations period for his claim began to run when the college notified him that he would not receive tenure, not on the actual date of his termination. Id. at 259. This was because, the Court explained, the termination was not itself a separate act of discrimination but merely the “delayed, but inevitable, consequence of the denial of tenure”—which occurred months earlier. Id. at 257-58.

By contrast, here, EMS’s post-January 2009 refusals to accommodate were not the inevitable consequence of EMS’s refusal to accommodate in 2008. See Ervine, 753 F.3d at 871 (“Nothing about the Rehabilitation Act claims suggests that failure to provide interpreters was merely a delayed but inevitable consequence of a prior discriminatory decision.”). Rather, EMS’s 2009 and 2010 refusals stemmed from Kennedy’s renewed requests. And there was nothing “inevitable” about them. After all, Congress had amended the relevant law in the interim. Cf. Bazemore v. Friday, 478 U.S. 385, 396 (1986) (“A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII’s effective date, and to the extent that an employer continued to engage in that pattern or practice, it is liable under the statute.”) (Brennan, J., concurring in part but joined by all other Justices on this point). Each time Kennedy sought accommodations in 2009 and 2010, therefore, EMS was under a renewed obligation to determine whether its refusals comported with the ADA, as amended. Cf. Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003) (finding that refusals to accommodate, even when based on a single policy, constitute separate “individualized decisions”). Ricks does not suggest otherwise.

In fact, this case itself provides a good illustration of the difference between independent discriminatory acts and the “inevitable” effects of a prior act. For example, EMS subjected Kennedy to various disciplinary proceedings after January 2009 due to his noncompliance with the clean-shaven policy. Had Kennedy’s argument been that the ADA amendments apply to EMS’s 2008 refusal to accommodate his PFB because the consequences of that refusal took effect in 2009, this case might be akin to Ricks and the district court’s ruling might have been correct. Yet, because independently discriminatory refusals to accommodate accrued anew in 2009 and 2010, Kennedy need not point to these disciplinary proceedings to establish that the ADAAA’s definition of disability should apply.

The district court based its decision on an excerpt from a footnote in Ricks, stating that “[m]ere requests to reconsider . . . cannot extend the limitations period.” A156 (3/20/15 Mem. Op. at 8) (quoting Ricks, 449 U.S. at 261 n. 15). Unlike this case, however, Ricks was a reconsideration case: Ricks’s complaint challenged only the tenure denial, not the termination of his employment. Ricks, 449 U.S. at 257 & n.8. Ricks was not alleging that a later event—such as the denial of a grievance or his termination—was a discrete discriminatory act. The Court rejected the argument that a reconsideration request in the tenure context should alter the usual timeliness rules and toll the limitations period. Id. at 262 & n.15.

What is more, Ricks actually supports the conclusion that the ADAAA should apply to Kennedy’s claim here. The Supreme Court in Ricks noted that Ricks would have had a timely claim if he had alleged that the college took a subsequent discriminatory act against him after it decided to deny him tenure. 449 U.S. at 258. Specifically, the Court stated: “In order for the limitations period to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.” Id.; see also Lorance v. AT& T Techs., 490 U.S. 900, 906-07 (1989) (explaining that the holding in Ricks turned on the plaintiff’s failure to allege an independently discriminatory act after he received notice of the denial of tenure). Unlike Ricks, Kennedy has alleged that EMS committed discriminatory acts after its original refusal to provide an accommodation in 2008—the 2009 and 2010 refusals to accommodate. Thus, this case is analogous to the hypothetical scenario posed in Ricks, not Ricks itself, and the outcome accordingly should be different. Cf. Cherosky, 330 F.3d at 1248 (noting that the limitations period on the plaintiff’s claim would have “run anew” had there been “a subsequent denial”).

The district court also cited several cases applying Ricks. A156 (3/20/15 Mem. Op. at 8.) But these decisions are equally unavailing. For example, the district court referred to Graehling v. Village of Lombard, 58 F.3d 295, 297 (7th Cir. 1995), for the proposition that “[a]n employer’s refusal to undo a discriminatory decision is not a fresh act of discrimination.” In Graehling, the plaintiff, a police officer who suffered from various mental and physical impairments, alleged that he was coerced by his employer to resign on January 10, 1991, before the ADA went into effect. Id. at 296. When this allegedly coerced resignation occurred, however, the parties agreed that it would not take effect for more than two years, so that the plaintiff could accrue the necessary years of service for his pension to vest. Id. Days before the effective date of the plaintiff’s resignation, after the ADA became applicable, he asked to continue working, a request his employer denied. Id. Addressing whether the ADA applied, the Graehling court explained that “a separation at a time established by an earlier decision is not a fresh act of discrimination.” Id. at 296-97 (citing inter alia Ricks). Graehling is akin to Ricks, and thus likewise distinguishable here, because no act of discrimination occurred after the allegedly coerced resignation in January 1991. The separation from employment in Graehling was, as in Ricks, the “delayed, but inevitable” effect of a single prior decision.

The district court also invoked Martin v. Southwestern Virginia Gas Co., 135 F.3d 307 (4th Cir. 1998). In that case, the plaintiff, who was disabled by an on-the-job injury, was informed that he would be terminated on June 30, 1992, before the ADA became applicable, but the termination was not to occur until three months later, which happened to be after the Act was to take effect. 135 F.3d at 309. Days before his discharge, the plaintiff “requested ‘reasonable accommodation’ for his disability in accordance with the ADA,” which his employer ignored. Id. Following Ricks and Graehling, the Martin court held that the cause of action accrued “when [the employer] informed him that his discharge . . . was imminent,” and that the defendant’s “refusal to consider Martin’s request for reasonable accommodation was merely a consequence of [its] previous unequivocal decision to discharge[.]” Id. at 310 (citing inter alia Graehling).

Although Martin might appear to support the district court’s conclusion, its continuing validity in the wake of Morgan and Ledbetter is doubtful. Indeed, the Fourth Circuit itself implicitly recognized this in Hill, the Rehabilitation Act case discussed above, in which the court held that a subsequent request for, and denial of, an accommodation “constitutes an allegedly independent and discrete act of discrimination.” 581 F. App’x at 181 (relying on inter alia Morgan, Ledbetter, and Tobin). Given that Rehabilitation Act claims involve “the same standards used to determine liability under the [ADA],” Kapche v. Holder, 677 F.3d 454, 460 (D.C. Cir. 2012), it is difficult to reconcile Martin with Hill. In any event, neither decision is binding on this Court and, for reasons discussed above, Hill is the better view in light of Morgan and Ledbetter.

Nor should this Court be influenced by other District of Columbia district court decisions to conclude otherwise. See Morgenstein v. Morgan Stanley DW Inc., No. 05-2123, 2007 WL 315090 (D.D.C. Jan. 31, 2007) (holding that a failure-to-accommodate claim accrues when a request for accommodation is first denied, and a freestanding violation does not arise with a new request and denial); Stewart v. Dist. of Columbia, No. 04-1444, 2006 WL 626921 (D.D.C. Mar. 12, 2006) (same). The principal flaw with Morgenstein and Stewart is that neither decision properly analyzes the distinction between “discrete acts” and their “inevitable consequences.” Further, both cases were decided before Ledbetter and Mayers. Therefore, the Morgenstein and Stewart courts did not have the benefit of this Court’s ruling that ADA failures to accommodate are discrete discriminatory acts under Morgan; nor did they have the guidance provided by Ledbetter’s meticulous parsing of the conceptual distinction between “discrete unlawful practice[s]” and their “adverse effects.” 550 U.S. at 628. In other words, given the current state of the law, these district court decisions are questionable and carry little significance. See, e.g., Floyd, 968 F. Supp. 2d at 324-25 (observing that circuit court decisions, including Tobin and Cherosky, are in tension with Morgenstein and Stewart).

C.         The District Court’s Policy Concerns Do Not Support Its Decision.

A concern underpinning the district court’s reasoning is that plaintiffs like Kennedy could “circumvent the non-retroactivity of the ADA amendments” simply by re-requesting an accommodation. A157 (3/20/15 Mem. Op. at 9.) It is true that the ADAAA does not have retroactive effect, but that fact misses the point here. As this Court has explained, retroactivity turns on whether a statute applies in a manner that “affect[s] substantive rights, liabilities, or duties on the basis of conduct arising before its enactment.” Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 278 (1994) (internal alterations omitted)).

Kennedy’s failure-to-accommodate claim does not depend on any “conduct arising before [the ADAAA’s] enactment.” Ledbetter explains why: namely, that a cause of action accrues at the moment in time when “an employment practice” joins together with “discriminatory intent.” 550 U.S. at 631. Here, both of these elements happened simultaneously in July 2008, when EMS’s Battalion Chief Saunders first denied Kennedy’s requests for accommodation. But both came together again in 2009 and 2010, when Kennedy’s renewed requests were met with new refusals from different EMS officials. Kennedy’s position is thus entirely consistent with the principle that the ADAAA does not apply retroactively.

The district court also expressed a concern that if each denial of a request for accommodation constitutes an independently discriminatory act, an employee could evade statutes of limitations by re-requesting the same accommodation. A245-A246 (11/16/15 Mem. Op. at 4-5.) (“[A] plaintiff cannot circumvent . . . a statute of limitations . . . by requesting reconsideration of the denial of an earlier request.”). But this concern reveals the district court’s failure to appreciate the significance of Morgan. In that case, the Supreme Court cited “refusal to hire” as an example of one discrete act capable of commencing a new limitations period. 536 U.S. at 114. And nothing would bar a plaintiff from re-applying to the same job each time a new opening occurs—which would, in turn, “start[ ] a new clock” on a refusal-to-hire claim. Id. at 113; see also Parisi v. Boeing Co., 400 F.3d 583, 586 (8th Cir. 2005) (explaining that a limitations period commences each time a plaintiff alleges a discriminatory refusal to hire); Arrocha v. City Univ. of N.Y., 878 F. Supp. 2d 364, 369 (E.D.N.Y. 2012) (conducting individual timeliness analysis for each of plaintiff’s four applications in a failure-to-hire case). If each of an aggrieved job applicant’s unsuccessful applications commences a new limitations period under Morgan, the same principle should apply to each of an employee’s unsuccessful requests for an ADA accommodation.

Moreover, Kennedy’s renewed requests for accommodation were not attempts to revive otherwise untimely claims. See generally Scott v. Weinberger, 416 F. Supp. 221, 224 (D.D.C. 1976) (explaining that the purpose of requiring the “filing of an EEO claim within a specific time period” is to “prevent[ ] surprises through the revival of claims that have been allowed to slumber”) (quoting Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49 (1944)). Rather, Kennedy filed an EEOC charge within days of EMS’s first denial of his requests and amended his charge to reflect renewed requests and renewed denials. Thus, although one might be able to envision a scenario in which the accrual rule from Morgan could be abused in the context of requests for accommodation, this is no such case. The district court’s concerns in this regard are therefore misplaced.

D.        EEOC Guidance Supports Kennedy’s Position.

The position advanced here is not only supported by decisions of the Supreme Court, this Court, and several other circuits, it is also consistent with the Commission’s longstanding views on this topic. As the district court acknowledged, a Commission publication states that “the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) . . . after January 1, 2009.” See Q&A on the Final Rule Implementing the ADA Amendments Act of 2008, http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm (emphasis added) (last visited April 29, 2016). The district court rejected this Q&A, but it is in accord with the EEOC Compliance Manual, a document created to help employers comply with anti-discrimination laws, which states, “[B]ecause an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.” EEOC Compl. Man., § 2 IV, Threshold Issues, Timeliness (emphasis added).

The Compliance Manual is entitled to deference inasmuch as its position is based on the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Skidmore v. Swift, 323 U.S. 134, 140 (1944); see also McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) (explaining that EEOC Compliance Manual is entitled to Skidmore “respect”). The Commission’s position is correct in light of the cases discussed above, and the Commission has consistently held this view since the ADAAA took effect in January of 2009.

The district court said that the EEOC’s guidance in this regard “is difficult to square” with a Commission regulation, 29 C.F.R. § 1601.12(b), which provides, in part, that amendments to an EEOC charge “relate back to the date the charge was first received.” A249 (11/16/15 Mem. Op. at 8 n.3.) This is incorrect. The purpose of § 1601.12(b) is to allow EEOC complainants, after the time for filing a charge has expired, to cure technical defects or substantive omissions in an otherwise timely charge. See, e.g., Edelman v. Lynchburg Coll., 535 U.S. 106, 115 (2002) (explaining that § 1601.12(b) is meant to “ensure[ ] that the lay complainant, who may not know enough to verify on filing, will not risk forfeiting his rights inadvertently”). 29 C.F.R. § 1601.12(b) does not speak to what substantive legal standards apply in establishing a claim of discrimination asserted in such a charge. Thus, the EEOC’s guidance regarding the ADAAA’s applicability in these circumstances is fully consistent with § 1601.12(b).

 

CONCLUSION

For the foregoing reasons, the district court’s judgment should be reversed and the case remanded for further proceedings.

 

 

 

 

 

 

 

 

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,517 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

 

 

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

 

Dated: May 2, 2016

 

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS

I hereby certify that (1) all required privacy redactions (in this document, none) have been made to this document, (2) the hard copies to be submitted to the Court are exact copies of the version submitted electronically, and (3) the electronic submission was scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro OfficeScan, version 11.0.4150 (updated May 2, 2016) and, according to that program, is free of viruses.

 

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

 

 

Dated: May 2, 2016

CERTIFICATE OF SERVICE

I, Philip M. Kovnat, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system, which will send a notice of the filing to all registered counsel of record. I also certify that I filed an original and eight hard copies of the foregoing brief with the Court by next business day delivery, postage pre-paid, this 2^nd of May, 2016.

 

 

 

 

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov