                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


____________________________________
                                    )
APRYL N. FEATHERSTON,               )
                                    )
               Plaintiff,           )
                                    )
                                    )                Civil Action No. 07-1933 (PLF)
                                    )
DISTRICT OF COLUMBIA,               )
                                    )
               Defendant.           )
____________________________________)


                           MEMORANDUM OPINION AND ORDER

               Pending before the Court is defendant’s motion for summary judgment under Rule

56 of the Federal Rules of Civil Procedure on the remaining counts of the complaint brought

under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”) (Count I) and the

Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (Count II). See Order of January 17, 2012

[Dkt. # 51] (dismissing all other counts of the complaint). Defendant asserts that the

Rehabilitation Act claim is barred by the District’s one-year statute of limitations as announced

this year in an opinion issued by the District of Columbia Court of Appeals (“DCCA”) and that

plaintiff “cannot make out a prima facie claim” under the ADA. Defendant District of

Columbia’s Mot. for Summ. J. at 1 [Dkt. # 56]. Upon consideration of the motion, plaintiff’s

opposition [Dkt # 57], defendant’s reply [Dkt. # 58], the relevant parts of the record and the

relevant case law, the Court will deny defendant’s motion.
               A. Timeliness of the Rehabilitation Act Claim

               Defendant wants this Court to apply the District’s one-year statute of limitations

to plaintiff’s Rehabilitation Act claim in light of the DCCA’s decision in Jaiyeola v District of

Columbia, 40 A.3d 356 (D.C. 2012). After a lengthy analysis, the DCCA applied the one-year

statute of limitations governing claims under the District of Columbia Human Rights Act

(“HRA”) to a Rehabilitation Act claim rather than the District’s three-year statute of limitations

governing personal injury claims. See id. at 366-68. In doing so, the DCCA recognized that it

was going against the majority of federal courts that have found a Rehabilitation Act claim to be

most closely analogous to a personal injury claim for statute of limitations purposes. Id. at 364.

The DCCA surmised that such is the case in this jurisdiction only because “it appears that [the

judges of this Court] have not considered the HRA statute of limitations as an alternative.” Id. at

364-65.

               This Court will not dwell on this issue for two reasons. First “a particular state's

characterization of a federal claim for purposes of determining which statute of limitations is

applicable is not binding on a federal court.” Banks v. Chesapeake and Potomac Telephone Co.,

802 F.2d 1416, 1420 (D. C. Cir. 1986). Second, the judges of this Court have long struggled

with this very issue. See Stewart v. District of Columbia, Civil Action No. 04-1444, 2006 WL

626921, at *8-9 (D.D.C. March 12, 2006) (examining cases). Thus, the argument addressed in

Jaiyeola was not novel and defendant therefore could have advanced it in its two previous

dispositive motions challenging the timeliness of plaintiff’s claims. See Opinion of January 17,

2012 [Dkt. # 52] at 16 (refusing “to respond in detail” to defendant’s argument that plaintiff’s

Rehabilitation Act claim was untimely since the argument was “previously considered and


                                                 2
rejected”) (citing Memorandum Opinion and Order of May 5, 2009 [Dkt. # 22] at 4-5).

Defendant therefore is estopped from asserting this additional theory in support of its limitations

defense.1


               B. Sufficiency of the ADA Claim

               The Court is baffled by defendant’s attack on plaintiff’s prima facie case at this

late stage of the proceedings. The Court previously denied defendant’s motion for summary

judgment as to plaintiff’s ADA claim arising out of “discrete acts that occurred on or after”

December 24, 2005. Opinion at 15. Defendant has not moved for reconsideration of that ruling,

and the contents of the Disability Certificate upon which defendant now relies have been in the

record since the commencement of this action.2


       1
                Judge Kollar-Kotelly in Stewart, Judge Urbina in Adams v. District of Columbia,
740 F. Supp. 2d 173, 184 (D.D.C. 2010), and Judge Bates in Long v. Howard University, 512 F.
Supp. 2d 1, 11-12 (D.D.C. 2007), have adopted the personal injury three-year statute of
limitations in opinions whose reasoning this Court finds persuasive. Furthermore, even if the
one-year limitations period applied, there is a factual question as to when it started to run –
October 6, October 10, or October 11, 2006 – and thus whether suit was timely instituted.
       2
                Defendant argues that it is entitled to judgment in part because “plaintiff’s
physician certified her for regular duty” in January 2005, and it therefore had no notice of her
disability on December 24, 2005 and beyond. Def.’s Statement of Material Facts Not in Dispute
¶ 4 (citing Amended Complaint ¶ 30); see Mem. of Points and Authorities in Supp. of Def.
District of Columbia’s Mot. for Summary Judgment at 8-9. The fact that plaintiff was certified to
return to work is not dispositive of her ADA claim because “when the employee alleges pure
discrimination on the basis of a disability[,] the claimed limitation need have nothing to do with
the employee's ability to work.” Adams v. Rice, 531 F.3d 936, 944 (D.C. Cir. 2008).
Furthermore, the Rehabilitation Act covers individuals, such as plaintiff, who have a record of a
disability and claim that “they once suffered from a physical or mental impairment that
substantially limited a major life activity, recovered from the impairment, but nonetheless faced
employment discrimination because of it.” Id. at 946. And “[t]he standards used to determine
whether [the Rehabilitation Act] has been violated in a complaint alleging employment
discrimination . . . shall be the standards applied under [the ADA] as such sections relate to
                                                                                       (continued...)

                                                 3
               Furthermore, the United States Court of Appeals for the District of Columbia

Circuit has instructed that in employment discrimination cases in general and in ADA cases in

particular, “the prima facie case is a largely unnecessary sideshow.” Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). When no direct evidence of discrimination is

alleged, “if an employer asserts a legitimate, nondiscriminatory reason for an adverse

employment action,” – as the defendant does in this case – “the district court must conduct one

central inquiry in considering an employer's motion for summary judgment . . . : whether the

plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted

non-discriminatory reason was not the actual reason and that the employer intentionally

discriminated against the plaintiff on a prohibited basis.” Id. The Court finds that summary

judgment is unwarranted because a reasonable jury presented with plaintiff’s testimony and

proffered evidence could find for plaintiff on that “central” question, which goes to both the

ADA claim and the surviving Rehabilitation Act claim. See Hamilton v. Geithner, 666 F.3d

1344, 1351 (D.C. Cir. 2012) (“Because in appropriate cases a ‘factfinder's disbelief of the

reasons put forward by the defendant’ may support an inference of intentional discrimination . . .,

we do not routinely require plaintiffs ‘to submit evidence over and above rebutting the

employer's stated explanation in order to avoid summary judgment.’ ”) (citing St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).



       2
        (...continued)
employment.” 29 U.S.C. § 794(d); see Cummings v. Norton, 393 F.3d 1186, 1190 n.2 (10th Cir.
2005) (“ ‘Because the language of disability used in the ADA mirrors that in the Rehabilitation
Act, we look to cases construing the Rehabilitation Act for guidance when faced with an ADA
challenge . . .,’ and vice versa.”) (quoting Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th
Cir.1999)).

                                                 4
               In the Disability Certificate dated January 5, 2005, plaintiff’s doctor stated that he

was continuing to treat plaintiff for carpal tunnel syndrome even though she could return to work

and recommended her for surgery. Mem. of Points and Authorities in Supp. of Def. District of

Columbia’s Mot. for Summary Judgment, Ex. C [Dkt. # 56-3]. In addition, plaintiff has

proffered medical evidence dated March 11, 2005, after the date of the Certificate, showing that

she continued to suffer from bilateral carpal tunnel syndrome and stating her limitations as

“avoid[ing] repetitive motion activities involving use of both wrists.” Declaration of Allyson

Himelfarb, Ex. F. [Dkt. # 57-1, at 26]. As the Court previously observed, plaintiff alleges that

after her return to work, “her supervisors . . . intimidate[d] and harass[ed] her by favoring more

junior employees’ leave requests, criticizing her attire, and generally imposing demeaning

requirements not related to [the] performance of her duties but rather intended to harass her and

retaliate against her for her disability.” Opinion at 5 (citing Compl. ¶ 31); see also id. at 12-13

(noting defendant’s “unjustifiably narrow view” of plaintiff’s ADA claim and the “the broad

range of discriminatory actions [plaintiff alleges were] taken against her that continued until her

termination in October 2006"). Plaintiff’s credibility and the credibility of Clerk of Court Duane

Delaney and members of his staff are questions for the jury, not for the Court on summary

judgment. See Muhammad v. District of Columbia, Civ. Action No.08-0859, ___ F. Supp. 2d

___, 2012 WL 3195114, at *3 (D.D.C. Aug. 8, 2012) (“On a motion for summary judgment, the




                                                  5
Court must ‘eschew making credibility determinations or weighing the evidence . . . .’”) (quoting

Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007)). Accordingly, it is hereby

               ORDERED that Defendant’s motion for summary judgment on the remaining

Counts I and II of the complaint [Dkt. # 56] is DENIED.



                                             /s/_____________________________
                                             PAUL L. FRIEDMAN
                                             United States District Judge

DATE: December 11, 2012




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