                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                  )
MURIELENE GORDON,                 )
                                  )
               Plaintiff,         )
                                  ) Civil Action No. 05-1907 (EGS)
               v.                 )
                                  )
DISTRICT OF COLUMBIA,             )
                                  )
               Defendant.         )
                                  )


                          MEMORANDUM OPINION

     Plaintiff Murielene Gordon brings this action against the

District of Columbia (“the District”) for violations of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §

12101 et seq., the Rehabilitation Act (“RA”), 29 U.S.C. § 794,

and the District of Columbia Human Rights Act (“DCHRA”), D.C.

Code § 2-1401 et seq., alleging that the District failed to

accommodate her disability while she was employed by the District

as an art teacher.    Currently pending before the Court are

defendant’s motion for summary judgment and plaintiff’s motion

for partial summary judgment.    Upon consideration of the motions,

and responses and replies thereto, the applicable law, and the

entire record, this Court GRANTS IN PART defendant’s motion for

summary judgment with respect to the statutes of limitations




                                  1
under the ADA and DCHRA and DENIES plaintiff’s cross-motion for

partial summary judgment.

I.    STANDARD OF REVIEW

      Under Federal Rule of Civil Procedure 56(c), summary

judgment is appropriate if the pleadings on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.     Fed. R. Civ. P. 56(c).   Material

facts are those that “might affect the outcome of the suit under

the governing law.”      Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).     The party seeking summary judgment bears the

initial burden of demonstrating an absence of genuine issue of

material fact.      Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).      In

considering whether there is a triable issue of fact, the court

must draw all reasonable inferences in favor of the non-moving

party.    Tao, 27 F.3d at 638.

II.    BACKGROUND

      Murielene Gordon was employed by the District as a teacher

from 1979 until her retirement in 2006.     Beginning in 1990, she

was employed as an art teacher at Ballou Senior High School.

Plaintiff has degenerative arthritis, which affects her mobility

and manual dexterity.      She alleges that while at Ballou, she did

not have access to an accessible bathroom, she did not have keys


                                    2
to locked emergency doors, the heating and cooling system was

non-functional, the shelves were too high, she did not have

access to a copier, and mandatory meetings were held on the

second floor of the buildings which she could not access.     Compl.

¶¶ 7-8, 11-14.

     Plaintiff is able to navigate the stairs into her house, up

to her second floor, and down to her basement.      See Def.’s Mot.

Ex. 1 (“Gordon Dep.”) at 10-13.     Until 2004, she used public

transportation to commute to work and was able to walk to and

from the bus stop, which were distances up to a city block.

Plaintiff was capable of bathing and dressing herself without

assistance.     Id. at 299-304.   With respect to her ability to

work, plaintiff stated that she maintained her full-time status

until retirement and that she was at all times capable of

performing her job at a high level despite her arthritis.      See

id. at 88-92.

     According to plaintiff, she required the use of a cane to

walk in 2002 and 2003, and thereafter required the use of a

walker.   See Pl.’s 2/11/08 Opp’n Ex. 21 (“Gordon Aff.”) at 1.

When she used a cane, it took her at least five minutes to



     1
        As discussed below, there have been multiple rounds of
summary judgment briefing in this case. In the current round of
briefing, plaintiff incorporated the exhibits previously filed
with the Court. Unless otherwise noted, all citations to court
documents in this Memorandum Opinion refer to the most recent
round of briefing.

                                    3
traverse a single flight of stairs.   With her walker, it takes at

least seven or eight minutes to do so.   In either case,

traversing staircases causes “extreme pain.”   Id.   In 2002 to

2003, plaintiff would go down to the basement in her house at

most once a month, and since then does so even more rarely, if

ever.   The bathroom in her house is located on the second floor.

At least since 2003, plaintiff has used a portable toilet so that

she does not have to climb the stairs.   She also stated that if

she ever forgets something upstairs after coming downstairs, she

either asks someone else to retrieve it, or does without it.      See

Gordon Dep. at 16.

     Plaintiff admitted that she could walk to and from the bus

stop until 2004, but explained that she could do so only at a

sharply diminished pace.   See Gordon Dep. at 300.   A city block

that able-bodied people could walk in less than ten minutes would

take plaintiff at least twenty to twenty-five minutes with her

cane, and thirty-five to forty minutes with her walker.    It would

take even longer in inclement weather.   During these one-block

walks, plaintiff would have to take a break and rest at least

once.   If sidewalks were icy or slippery, plaintiff could not

walk at all and would call in sick to work.    See Gordon Aff. at

3.

     While plaintiff can bathe herself and brush her teeth, both

activities cause great pain and take more time than average.      For


                                 4
instance, plaintiff cannot brush her teeth for more than one

minute without taking a break.     See id. at 1.    Due to pain,

plaintiff has not worn makeup since 2000 and cannot style her own

hair.   See id.   Since 2001, she has required assistance in order

to shampoo her hair.   Plaintiff cannot wear clothes or shoes that

are fastened with buttons or laces.      Finally, plaintiff was

limited in her ability to cook, and thus only ate meals that

required less than five minutes of preparation or that could be

prepared using a microwave oven.       See id. at 2.

     Plaintiff was approved for sick leave in July 2002 for

physical therapy relating to her arthritis.        See Compl. ¶ 16.   On

August 9, 2002, plaintiff called principal Art Bridges and

informed him that she would not return to Ballou for the start of

the new school year due to her health problems.        See Gordon Aff.

at 2.   According to plaintiff, Bridges told plaintiff to “sit

tight,” that he was going to transfer her to another school, and

that she was a “liability” because she could not run out of the

school if there was a fire.     Id. at 3.   According to Bridges, he

expected plaintiff to return.    See Pl.’s 2/11/08 Opp’n Ex. 5

(“Bridges Aff.”) at 39.

     On September 16, 2002, plaintiff faxed Bridges information

that her sick leave bank request had been approved and called

Bridges to inquire as to her teacher status, to which Bridges

responded that he was going downtown to fill out the transfer


                                   5
forms.    Plaintiff told Bridges that she may not be able to run

out of the building in case of a fire, but that if she had a key

to unlock the exit doors in her classroom she would not need to

run.    Bridges did not respond.     See Gordon Aff. at 3.   In

November 2002, plaintiff started to make numerous phone calls to

Bridges about returning to work and about the status of her

transfer, but she was never able to reach him despite leaving

messages for him.     Id. at 3-4.    On February 26, 2003, plaintiff

received a letter from Ballou informing her that she was on

absent without leave (“AWOL”) status and that she must report to

work by March 10, 2003.    Plaintiff did not report to work.      Id.

at 4.

       Plaintiff filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) on April 18, 2003, alleging

disability and age discrimination under the ADA and Age

Discrimination in Employment Act.        This EEOC complaint followed

the filing of an internal discrimination complaint that was

dismissed as unsubstantiated.       See Pl.’s Opp’n at 3; Pl.’s

2/11/08 Opp’n at Exs. 14, 15.       Also, in March 2003, plaintiff was

ordered by the District to undergo a “fitness for duty”

examination.    Pl.’s 2/11/08 Opp’n at Ex. 10.     After performing a

physical examination, Dr. Samuel J. Scott confirmed that

plaintiff suffered from arthritis that “severely affected” her

mobility.    Id.   Dr. Scott concluded that plaintiff was fit for


                                     6
duty with accommodations that included no standing for more than

five minutes at a time, no walking up or down stairs, and no

walking more than fifty yards at a time.     Id.

       Plaintiff brought suit in this Court on September 28, 2005,

alleging that defendant violated the ADA, the RA, and the DCHRA

by failing to accommodate her disability.    On August 1, 2006,

during discovery, defendant filed a motion for summary judgment,

arguing that plaintiff was not disabled under the ADA and that

plaintiff failed to show that the District failed to accommodate

plaintiff’s disability.    On March 26, 2007, this Court denied

defendant’s motion for summary judgment.    The parties completed

discovery, and on January 11, 2008, defendant renewed its motion

for summary judgment on different grounds.    On July 16, 2008,

this Court denied the motion for summary judgment without

prejudice, ordering the parties to address the split among

District Court judges regarding the RA’s statutory time

limitations.    On August 14, 2008, defendant again renewed its

motion for summary judgment.    Plaintiff opposed defendant’s

motion and, on September 8, 2008, filed her own motion for

partial summary judgment.

III.    DISCUSSION

       Defendant bases its claim for summary judgment on five

grounds: (1) plaintiff’s claims are time-barred; (2) plaintiff’s

accommodation claims under the DCHRA are precluded due to


                                  7
plaintiff’s failure to comply with D.C. Code § 12-309; (3)

plaintiff failed to plead viable claims under the DCHRA during

the period of October 11, 2002, through April 11, 2003; (4)

plaintiff has not shown that she is disabled under the ADA, RA,

or DCHRA; and (5) plaintiff has not shown that she was

discriminated against on the basis of her disability.

     A.    Time-Bar

     Defendant claims that plaintiff’s claims under the ADA, the

RA, and the DCHRA are time-barred according to corresponding

statutes of limitation and notice rules.

            i.   ADA Claims

     The ADA does not include its own statute of limitations.

Instead, the ADA adopts the procedures set forth in Title VII of

the 1964 Civil Rights Act (“Title VII”), as amended, 42 U.S.C. §

2000e et seq., in particular the statute of limitations period

set forth in 42 U.S.C. § 2000e-5.     See 42 U.S.C. § 12117(a) (“The

powers, remedies, and procedures set forth in sections 2000e-4,

2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the

powers, remedies, and procedures this subchapter provides . . .

to any person alleging discrimination on the basis of disability

in violation of any provision of this chapter.”).    An

administrative complaint must be filed with the EEOC within 180

days of the alleged unfair employment practice.     Id. § 2000e-

5(e)(1).    If the complainant has first instituted proceedings


                                  8
with a state or local agency, the limitations period is extended

to a maximum of 300 days, or within thirty days after receiving

notice that the state or local agency has terminated proceedings

under the state or local law, whichever is earlier.     Id.

       Plaintiff simultaneously filed her complaint with the D.C.

Office of Human Rights (“DCOHR”) and the EEOC “on or about April

18, 2003.”    See Compl. ¶ 19.   Plaintiff did not file her

complaint with the DCOHR first, so the 300-day extended

limitations period is inapplicable.     Therefore, plaintiff’s

claims under the ADA are limited to the 180-day period from

October 18, 2002 to April 18, 2003; all other claims are time-

barred.    Summary judgment is GRANTED on this issue.

            ii.   RA Claims

       Plaintiff makes claims under § 504 of the RA, 29 U.S.C. §

794.    See Compl. ¶ 1.   The RA, like the ADA, does not have an

explicitly prescribed statute of limitations period.     There is

some disagreement in this jurisdiction over which statute of

limitations should be used for RA cases: the limitations period

used in cases brought under the ADA (which in turn incorporates

the Title VII limitations period), or a limitations period “drawn

from the appropriate state statute” – in this case, the

District’s limitations period for personal injury claims.        See

Stewart v. District of Columbia, No. 04-1444, 2006 WL 626921, at

*9-10 (D.D.C. Mar. 12, 2006) (describing the split among judges


                                   9
on this Court and collecting cases).   Plaintiff urges the Court

to adopt the three-year statute of limitations period for

personal injury actions, while Defendant argues that the Court

should use the period applied to ADA and Title VII claims.2

     The disagreement about the appropriate limitations period

arises from a tension between two sections of the RA.   First, the

RA explicitly adopts the “remedies, procedures, and rights set

forth in Title VI of the Civil Rights Act of 1964” (“Title VI”)

for claims brought under § 504.    29 U.S.C. § 794a(a)(2) (emphasis

added).   Second, the RA was amended in 1992 to state, “[t]he

standards used to determine whether [Section 504] has been

violated in a complaint alleging employment discrimination shall

be the standards applied under title I of the Americans with

Disabilities Act.”   29 U.S.C. § 794(d) (emphasis added).    The

question thus hinges on whether or not “standards” includes

“powers, remedies, and procedures.”

     In Turner v. District of Columbia, the court adopted the

limitations period used in the ADA.    383 F. Supp. 2d 157, 176-77

(D.D.C. 2005).   The court in Turner assumed that the term


     2
       Defendant also urges the Court to go even further and
apply the District’s one-year limitations period for intentional
torts or DCHRA claims rather than the three-year period for
personal negligence actions, because “plaintiff’s claims are more
akin to intentional tort or discriminatory claims.” Def.’s Mot.
at 9. The Court rejects this argument. See Doe v. Se. Univ.,
732 F. Supp. 7, 8-9 (D.D.C. 1990) (rejecting the same argument
and applying the District’s three-year limitations period to an
RA claim).

                                  10
“standards” logically includes the terms “powers,” “remedies,”

and “procedures.”     See id.    The court did not address §

794a(a)(2)’s incorporation of Title VI’s “remedies, procedures,

and rights.”     See id.

     In Stewart, on the other hand, another judge on this Court

adopted the District’s three-year limitations period.          Stewart,

2006 WL 626921, at *11.    The court held in that case that the

tension between § 794a(a)(2) and § 794(d) can be explained by

interpreting § 794(d) as doing “nothing more than incorporat[ing]

the ADA’s standards of liability.”        Id. at *10.   In particular,

the Stewart court pointed out that the standards adopted in §

794(d) are only adopted for the purpose of determining whether §

504 has been violated.     Id.; see also 29 U.S.C. § 794(d) (“The

standards used to determine whether [Section 504] has been

violated . . . shall be the standards applied under title I of

the [ADA].”).

     This Court is persuaded by the analysis set forth in Stewart

and holds that the District’s three-year statute of limitations

for personal injury claims applies to RA claims.        Accordingly,

plaintiff’s claims under the RA are limited to the period from

April 18, 2000 to April 18, 2003.        Summary judgment is DENIED on

this issue.

          iii.    DCHRA Claims




                                    11
     Defendant argues that plaintiff’s claims under the DCHRA are

limited to events that occurred between October 11, 2002, and

April 11, 2003.   Plaintiff has failed to respond to this argument

in any of her filings, including those in response to defendant’s

earlier motions for summary judgment, except to clarify that she

sent her notice by fax and mail on or about April 4 rather than

April 11, 2003.   Because of her failure to respond, plaintiff

concedes the point.    See, e.g., Hopkins v. Women’s Div., Gen. Bd.

Of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It

is well understood in this Circuit that when a plaintiff files an

opposition to a motion . . . addressing only certain arguments

raised by the defendant, a court may treat those arguments that

the plaintiff failed to address as conceded.”).     Plaintiff’s

claims under the DCHRA are therefore limited to the period from

October 4, 2002, to April 4, 2003.

     B.   Disability Under the ADA, RA, and DCHRA

     Defendant contends that plaintiff is not disabled under the

ADA, RA, or DCHRA.    Plaintiff notes that this Court decided this

issue in March 2007.   Defendant filed a motion for summary

judgment on August 1, 2006, arguing, inter alia, that plaintiff

is not disabled under the ADA.   On March 26, 2007, this Court

denied that ground of defendant’s motion and ruled that

“plaintiff can demonstrate . . . that she is disabled within the

meaning of the ADA and [the RA].”     See Gordon v. District of


                                 12
Columbia, 480 F. Supp. 2d 112, 117 (D.D.C. 2007).     In denying

defendant’s motion, this Court held that there was sufficient

evidence, drawing all inferences in plaintiff’s favor, to defeat

a grant of summary judgment on the issue of plaintiff’s

disability.   Defendant presents no new evidence to alter that

conclusion.   Therefore, this Court’s previous ruling is

controlling and summary judgment on this issue must be DENIED.

     C.   Failure to Accommodate

     Defendant contends that plaintiff has not shown that

defendant’s failure to reasonably accommodate her disability

prevented her from performing the essential functions of her job.

This Court, however, already decided this issue in its earlier

denial of summary judgment noting that defendant misread the ADA.

See id. at 118.   In the present motion for summary judgment,

defendant makes exactly the same argument as it presented in its

previous motion, presenting no new arguments nor identifying any

change of law.    This Court’s previous ruling is controlling and

summary judgment on this issue must be DENIED.

     D.   Disparate Treatment

     To sustain a claim under the ADA, RA, or DCHRA, plaintiff

must show that (1) she suffered an adverse employment action (2)

because of her disability.      Adeyemi v. District of Columbia, 525

F.3d 1222, 1226 (D.C. Cir. 2008) (ADA); Barth v. Gelb, 2 F.3d

1180, 1186 (D.C. Cir. 1993) (RA); Hamilton v. Howard Univ., 960

                                   13
A.2d 308, 314 (D.C. 2008) (DCHRA).   Defendant argues that

plaintiff cannot prove disparate treatment because she cannot

satisfy either element of the prima facie case.

     An adverse employment action is “a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing significant change in benefits.”    Broderick v.

Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006).    An adverse

action occurs “when an employee ‘experiences materially adverse

consequences affecting the terms, conditions, or privileges of

employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.’”

Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting

Forkkio v. Powell, 306 F.3d 1127, 1130-31 (D.C. Cir. 2002)).

     In its motion for summary judgment, defendant addresses only

two of plaintiff’s claims.3   In her OHR/EEOC complaint, plaintiff

avers that the District: (1) refused to permit her to return to

work since late October 2002, and (2) placed her on absent

without leave status in February 2003.   Both complaints fall

within the ADA, the RA, and the DCHRA’s statutes of limitations.

See supra Section III.B.

     With regard to whether the District refused to permit


3
   Defendant’s motion fails to address plaintiff’s numerous
failure-to-accommodate claims dating from 1999. See Compl. ¶¶
11-15.

                                14
plaintiff to return to work, there is a genuine issue of material

fact that precludes granting summary judgment.   Plaintiff insists

that Bridges told her to “sit tight,” that he was going to

transfer her to another school, and that she was a “liability”

because she could not run out of the school if there was a fire.

Plaintiff also claims that she made repeated calls to Bridges

about her teacher status and about her transfer.   Bridges, on the

other hand, stated that he expected plaintiff to return, but that

she did not.   The precise exchange that occurred between

plaintiff and Bridges is material because it may be sufficient to

sustain a disparate treatment claim.   While plaintiff continued

to receive paychecks during that time, plaintiff was forced to

use sick pay to continue receiving those paychecks.

     Being forced to use sick pay is an objective and tangible

harm and may therefore constitute an adverse employment action.

See Turner v. Dist. of Columbia, 383 F. Supp. 2d 157, 178-79

(D.D.C. 2005) (concluding that a genuine issue of material fact

existed as to whether plaintiff had suffered an adverse

employment action where she alleged that she was denied the use

of sick days to which she was qualified); Washington v. White,

231 F. Supp. 2d 71, 78 (D.D.C. 2002) (“A leave restriction

presumably limits the circumstances under which an employee may

take leave that has been earned, and might be considered an

adverse personnel action insofar as it restricts plaintiff’s


                                15
ability to take leave to which he would otherwise be entitled.”).

Moreover, if Bridges forced plaintiff to use her sick pay because

her disability was a “liability” to Ballou, then the adverse

action was suffered because of plaintiff’s disability.    Whether

plaintiff was placed on AWOL is not an independent claim but a

direct result of her claim that the District did not permit her

to return to work.   Plaintiff would not have been placed on AWOL

status had her sick leave not run out, but she alleges her sick

leave ran out because she was forced to use it.

     Plaintiff can demonstrate that she has suffered disparate

treatment on the basis of her disability.    Summary judgment on

this issue is DENIED.

     E.   Plaintiff’s Cross-Motion for Partial Summary Judgment

     In her cross-motion, plaintiff moves for partial summary

judgment solely on the ground that she is a qualified individual

with a disability under the ADA, RA, and DCHRA.    Plaintiff argues

that this Court previously decided that she is disabled.    This is

a misreading of the Court’s March 26, 2007 opinion.    In the

opinion denying summary judgment, this Court found that

“plaintiff can demonstrate . . . that she is disabled within the

meaning of the ADA and Rehabilitation Act.”    Gordon, 480 F. Supp.

2d. at 117 (emphasis added) (footnote omitted).    Furthermore,

that ruling was based on accepting the non-moving party’s

(plaintiff’s) evidence as true.    In the context of the present


                                  16
motion, however, the non-moving party is the defendant.

Therefore the decision of the Court on defendant’s earlier motion

for summary judgment is not dispositive.

     More fundamentally, this Court’s earlier denial of summary

judgment for defendant is irrelevant to plaintiff’s current

motion because of the different standards of proof to which the

parties are held.   Indeed, the flaw in plaintiff’s reasoning is

highlighted by her argument that she is entitled to partial

summary judgment because “a reasonable jury could find in her

favor” on the issue of her disability.    Pl.’s Reply at 5.

Although the Court agrees with this assessment, see Gordon, 480

F. Supp. 2d. at 115-17, such a conclusion is sufficient only to

preclude a grant of summary judgment for defendant, not to

support a grant of summary judgment in plaintiff’s favor.     See

Anderson, 477 U.S. at 251-52 (explaining that the summary

judgment standard mirrors that of a directed verdict, and

concluding that “the inquiry under each is the same: whether the

evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must

prevail as a matter of law”).   Rather, plaintiff is entitled to a

finding that she is disabled as a matter of law only if no

reasonable jury could agree with defendant that she does not have

“‘a physical or mental impairment that substantially limits one

or more major life activities.’”     Gordon, 480 F. Supp. 2d at 116


                                17
(quoting 42 U.S.C. § 12102(2)(A)); see also Anderson, 477 U.S. at

252 (“[T]he judge must ask himself . . . whether a fair-minded

jury could return a verdict for the [non-moving party] on the

evidence presented.”).    The Court does not believe that plaintiff

has met this burden.

      Plaintiff testified that she walks up steps to enter her

home and needs to use even more stairs to reach her bedroom on

the second level and the laundry room in the basement.      See

Gordon Dep. at 11, 13.    Also, prior to 2004, plaintiff regularly

walked between her home and the bus stop and between another bus

stop and her work.     See id. at 299-301, 329.   Plaintiff also

stated, however, that she avoided using stairs as much as

possible because traversing them causes her “extreme pain,” see

Gordon Aff. at 1; Gordon Dep. at 16, and that she took

significantly longer than the average person to walk down a

sidewalk, see Gordon Aff. at 3.    Based on these facts, the Court

concludes that whether – and the extent to which – plaintiff was

substantially limited in a major life activity is not a question

that the Court can appropriately resolve at this stage.     In

short, neither party is entitled to judgment as a matter of law

on this issue, the resolution of which will be for a jury.

Therefore, plaintiff’s motion for partial summary judgment is

DENIED.

IV.   CONCLUSION


                                  18
     Defendant’s motion for summary judgment is GRANTED with

respect to the statutes of limitations under the ADA and the

DCHRA and DENIED on all other grounds.    As a result, plaintiff’s

ADA claims are limited to the time period of October 18, 2002 to

April 18, 2003; plaintiff’s RA claims are limited to the time

period of April 18, 2000 to April 18, 2003; and plaintiff’s DCHRA

claims are limited to the time period of October 4, 2002 to April

4, 2003.   Moreover, a reasonable jury could find that plaintiff

was disabled under the ADA, RA, and DCHRA, and that plaintiff has

suffered disparate treatment on the basis of her disability.

Given the facts of this case, however, a reasonable jury could

also find that plaintiff was not disabled.    Accordingly,

plaintiff’s cross-motion for partial summary judgment on the

issue of plaintiff’s disability is DENIED.    An appropriate Order

accompanies this Memorandum Opinion.



     SO ORDERED.

Signed:    Emmet G. Sullivan
           United States District Judge
           March 31, 2009




                                19
