Alexander v. Washington Metropolitan Area Transit Authority

 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.