HODGES v. DISTRICT OF COLUMBIA

Filing 15

MEMORANDUM OPINION. Signed by Judge John D. Bates on 08/12/2013. (lcjdb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RONALD W. HODGES,
Plaintiff,
v.

Civil Action No. 12-1675 (JDB)

DISTRICT OF COLUMBIA,
Defendant.

MEMORANDUM OPINION
Plaintiff Ronald Hodges brings this action against defendant the District of
Columbia, alleging violations of the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. §§ 12101 et seq., as amended, the District of Columbia Human Rights Act of
1977 (“DCHRA”), D.C. Code §§ 2-1401 et seq., as amended, and the Family and
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.1 Now before the Court
is the District’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or,
alternatively, for summary judgment. For the reasons set forth below, the District’s
motion will be granted in part and denied in part.

1

Although the caption of Hodges’s complaint lists only the District of Columbia as a
defendant, the complaint’s text refers to the District of Columbia Office of the Inspector
General (“OIG”) and Charles Willoughby, the Inspector General, as defendants as well.
See Compl. [Docket Entry 1-1] ¶¶ 2, 6-7 (Oct. 11, 2012). Upon challenge by the District
that neither OIG nor Willoughby is subject to suit, see Def.’s Mot. to Dismiss [Docket
Entry 5] at 6-7 (Nov. 30, 2012) (“Def.’s Mot.”), Hodges “concedes and stipulates to the
dismissal of all claims against the Office of the Inspector General or Charles Willoughby
in his official or individual capacity,” see Pl.’s Opp’n to Def.’s Mot. [Docket Entry 10] at
4 n.1 (Feb. 19, 2013) (“Pl.’s Opp’n”).
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FACTS
For purposes of the District’s motion, the allegations of Hodges’s complaint are
accepted as true. Hodges was hired as a Supervisory Auditor in the District of Columbia
Office of the Inspector General in August 2008. See Compl. ¶ 9. He claims to have had
the requisite skill, education, and experience for the position at all times relevant to this
action. See id. ¶ 10.
In early 2010, Hodges began experiencing “significant lumbar pain.” See id. ¶ 11.
On June 8, 2010, an MRI revealed that he had “a disc herniation, a disc osteophyte with
facet degenerative changes, and a lumbar disc bulge.” Id. ¶ 12. Hodges alleges that these
physical impairments limited his ability to sit, work, sleep, walk, and concentrate. See id.
¶¶ 42, 53. He began treatment for the condition on July 22, with his doctor requiring a
complete work restriction until July 27. Id. ¶ 13. Hodges alleges that he “experienced
constant pain” and that his physician “advised additional medical care to treat the
condition.” See id. ¶ 15.
On July 30, Hodges informed Ronald King, the Assistant Inspector General for
Audits, that he would need to undergo continued treatment and would be unable to work.
See id. ¶ 17. Hodges requested leave without pay and short term disability. Id. ¶ 16. In an
August 6 letter, King acknowledged receipt of Hodges’s notice and requested that
Hodges have his doctor complete a Medical Certification by Health Care Provider form.
See id. ¶ 19.
Hodges’s chiropractor, Dr. Nguyen, completed the medical certification form,
which Hodges submitted on August 13. See id. ¶ 20. Dr. Nguyen described Hodges’s
condition as a lumbar disc bulge, decreased range of motion, muscle spasms, and sciatica

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radiculopathy. Id. ¶ 21. Dr. Nguyen stated that Hodges’s condition would last three to six
months and that Hodges would experience a six- to eight-week “incapacity duration”
beginning July 22, 2010. See id. ¶ 22. Dr. Nguyen called for Hodges to receive treatment
three times a week for four to six weeks, after which he would receive treatment once or
twice per week for one month. See id. ¶ 24. Dr. Nguyen stated that it was “necessary” for
Hodges to “work intermittently or a less than full schedule for approximately three
months,” and that Hodges could not perform work that required prolonged sitting. See id.
¶¶ 23, 26. Dr. Nguyen also stated that it was “necessary” for Hodges to “be absent from
work due to the distance and recovery time needed for treatment.” See id. ¶ 27.
In an August 16 letter, King denied Hodges’s request for leave without pay. Id.
¶ 28. King instead offered the following accommodations: that Hodges should stand,
stretch, and walk around to avoid prolonged sitting, and that he would not be required to
lift objects weighing more than five pounds. See id. ¶ 29. King also advised Hodges that
he was being placed on absent without leave (AWOL) status effective August 16, as he
was able to work but failed to report for duty. See id. ¶¶ 30-31.
Nine days later, on August 25, 2010, Inspector General Willoughby notified
Hodges that he was being terminated as Supervisory Auditor, effective September 10,
2010. See id. ¶¶ 36-37. Willoughby specified that the termination occurred for
disciplinary reasons, “specifically because Mr. Hodges had been absent without leave
since August 16, 2010.” See id. ¶ 37.
After filing a discrimination complaint with the District of Columbia Office of
Human Rights, which was cross-filed with the Equal Employment Opportunity
Commission, Hodges filed suit against the District in the Superior Court of the District of

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Columbia, alleging violations of the ADA, the DCHRA, and the FMLA. See id. ¶¶ 2, 38.
The District removed the case to this Court pursuant to 28 U.S.C. § 1441(a). See Notice
of Removal [Docket Entry 1] ¶ 2 (Oct. 11, 2012).
STANDARD OF REVIEW
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “‘a short
and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam). Although “detailed factual allegations” are not necessary, to provide the
“grounds” of “entitle[ment] to relief,” plaintiffs must furnish “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly,
550 U.S. at 555 (internal quotation marks omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570); accord Atherton v. D.C. Office of the Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009).
“[I]n passing on a motion to dismiss . . . the allegations of the complaint should be
construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see
also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs
must be given every favorable inference that may be drawn from the allegations of fact.
See Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113

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(D.C. Cir. 2000). However, the Court need not accept as true “a legal conclusion couched
as a factual allegation,” nor inferences that are unsupported by the facts set out in the
complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)) (internal quotations marks omitted).
When, on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment
under Rule 56.” Fed. R. Civ. P. 12(d). “The decision to convert a motion to dismiss into a
motion for summary judgment . . . is committed to the sound discretion of the trial court.”
Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006).
Here, the District has moved for summary judgment on Hodges’s DCHRA claims
for unliquidated damages, and it has provided an affidavit in support of its motion. See
Aff. of Tamonica Heard [Docket Entry 5-1] (Nov. 30, 2012). Accordingly, the Court will
treat the District’s motion as it relates to these claims as one for summary judgment.
Summary judgment is appropriate where the pleadings and evidence demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary
judgment bears the initial responsibility of demonstrating the absence of a genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A fact is
‘material’ if a dispute over it might affect the outcome of a suit under governing law;
factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment
determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party may
successfully support its motion by identifying those portions of the record, including

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“affidavits or declarations,” which it believes demonstrate the absence of a genuine
dispute of material fact. Fed. R. Civ. P. 56(c)(1)(A); see also Celotex, 477 U.S. at 323.
Summary judgment is appropriate if the non-movant fails to offer “evidence on which the
jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
DISCUSSION
I.

The District’s Motion to Dismiss
A.

Hodges’s ADA and DCHRA Claims

Hodges alleges that the District violated the ADA and the DCHRA by failing to
make a reasonable accommodation for his disability and by discriminating against him on
the basis of that disability. See Compl. at 7-14. In analyzing the sufficiency of Hodges’s
DCHRA claims, the Court will apply the standards applicable to claims brought under the
ADA. See McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 5-6 (D.C.
Cir. 2010); Chang v. Inst. for Pub.-Private P’ships, Inc., 846 A.2d 318, 324 (D.C. 2004)
(“Because the DCHRA definition of ‘disability’ closely resembles the definition of
disability found in the [ADA] . . . we have considered decisions construing the ADA as
persuasive in our decisions construing comparable sections of the DCHRA.” (alterations,
citation, and internal quotation marks omitted)).
The ADA prohibits discrimination in the workplace “against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). “Disability” is defined under
the ADA as “(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.” Id. § 12102(1).

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Before 2008, the Supreme Court had narrowly interpreted what constituted a
“disability.” See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195-98 (2002);
Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999). The Court had held that
the term “substantially limits” was to be “interpreted strictly to create a demanding
standard for qualifying as disabled,” and that an impairment had to “prevent[] or severely
restrict[] the individual” from engaging in a major life activity. See Toyota, 534 U.S. at
197-98. The Court had also stated that an impairment had to be “permanent or long
term.” See id. at 198.
Congress responded by passing the ADA Amendments Act of 2008 (“ADAAA”)
in order to “reinstat[e] a broad scope of protection” under the ADA and “reject” the
narrow interpretations set forth in Sutton and Toyota. See Pub. L. No. 110-325, § 2(b),
122 Stat. 3553, 3554. As amended, the ADA explicitly states that the definition of
“disability” “shall be construed in favor of broad coverage.” 42 U.S.C. § 12102(4)(A).
New regulations issued pursuant to the ADAAA similarly provide that the term
“substantially limits” is “not meant to be a demanding standard” and “shall be construed
broadly in favor of expansive coverage.” 29 C.F.R. § 1630.2(j)(1)(i). Indeed, “[a]n
impairment need not prevent, or significantly or severely restrict, the individual from
performing a major life activity in order to be considered substantially limiting.” Id.
§ 1630.2(j)(1)(ii). And “[t]he effects of an impairment lasting or expected to last fewer
than six months can be substantially limiting” for purposes of establishing a disability
under the ADA. See id. § 1630.2(j)(1)(ix). The impairment need only “substantially
limit[] the ability of an individual to perform a major life activity as compared to most
people in the general population.” Id. § 1630.2(j)(1)(ii).

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Hodges asserts two types of claims under the ADA and the DCHRA: a failure to
accommodate claim and a discrimination claim. To state a claim for failure to
accommodate, a plaintiff must allege facts sufficient to show that (1) he had a disability
within the meaning of the ADA; (2) his employer had notice of his disability; (3) he
could perform the essential functions of the position with reasonable accommodation;
and (4) his employer refused to make such accommodation. See Gordon v. District of
Columbia, 480 F. Supp. 2d 112, 115 (D.D.C. 2007). To state a disability discrimination
claim, a plaintiff must allege facts sufficient to show that (1) he had a disability within
the meaning of the ADA; (2) he was qualified for the position with or without reasonable
accommodation; and (3) he suffered an adverse employment action because of his
disability. See Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C.
Cir. 2001) (en banc).
The District argues that Hodges has failed to state any claim under the ADA or
the DCHRA because he cannot show that he had a “disability” within the meaning of the
ADA. The District’s argument rests on the fact that Hodges’s condition was “short-term”
or “temporary” and therefore, according to the District, not “substantially limiting.” See
Def.’s Mot. at 8, 10 (“Plaintiff alleges that his condition was expected to be at its wors[t]
for six to eight weeks but the remnants of the condition could remain for up to three to six
months.”). In so arguing, however, the District relies on pre-ADAAA caselaw and
regulations. Before the 2008 amendments to the ADA, courts had found that impairments
lasting less than one year were not “substantially limiting.” See, e.g., Etheridge v.
FedChoice Fed. Credit Union, 789 F. Supp. 2d 27, 36 (D.D.C. 2011);2 Duncan v. Harvey,
2

In its reply, the District asserts that Etheridge is a “post 2008 amendment case.” See
Def.’s Reply to Pl.’s Opp’n [Docket Entry 14] at 2 (Mar. 8, 2013) (“Def.’s Reply”). But
8

479 F. Supp. 2d 125, 131 (D.D.C. 2007) (“Courts are seemingly unanimous in the view
that impairments whose effects last less than one year are insufficient to demonstrate a
substantial limitation on a major life activity.”). And pre-amendment regulations
indicated that a temporary impairment might not be substantially limiting. See Toyota,
534 U.S. at 196 (citing 29 C.F.R. § 1630.2(j)(2) (2001)); Def.’s Mot. at 9. But in passing
the ADAAA, Congress rejected restrictive judicial interpretations of the term
“substantially limits,” see ADAAA § 2(b), and the post-amendment regulations make
clear that “[t]he effects of an impairment lasting or expected to last fewer than six months
can be substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ix).
Because the conduct alleged in Hodges’s complaint occurred in 2010, the
ADAAA and the new regulations apply. See ADAAA § 8. Hence, the fact that Hodges’s
impairment was expected to be temporary is not a bar to his ADA or DCHRA claims.
Hodges alleges that he had “a disc herniation, a disc osteophyte with facet degenerative
changes, and a lumbar disc bulge,” and that all of these were “physical impairments that
substantially limited his ability to sit, work and/or to engage in other major life
activities.” Compl. ¶ 41. He further alleges that his impairment “substantially limited his
ability to sit for prolonged time periods and substantially limited [him] in other major life
activities, such as, but not limited to, work, sleeping, walking, and concentration.” Id.
¶ 42. Aside from its attempt to argue that a temporary condition cannot be substantially
limiting, the District has not offered any reasons why Hodges’s condition did not
constitute a “disability” within the meaning of the ADA. See 42 U.S.C. § 12102(1)

while the case was decided in 2011, the conduct at issue took place before the effective
date of the ADAAA, and hence the pre-amendment definition of “disability” applied. See
Etheridge, 789 F. Supp. 2d at 35 n.12.
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(defining disability); see also id. § 12102(2)(A) (listing sleeping, walking, concentrating,
and working as major life activities). Taking Hodges’s allegations as true, and giving the
term “substantially limits” a broad construction, see 29 C.F.R. § 1630.2(j)(1)(i), the Court
concludes that Hodges has pled factual matter sufficient to show that he had a “disability”
within the meaning of the ADA.
The District’s only other argument for dismissal relates to Hodges’s failure to
accommodate claims. The District appears to contend that, because OIG offered to allow
Hodges “to take breaks to stand up, stretch and walk around and avoid lifting anything
over five pounds,” Hodges cannot show that OIG refused to make a reasonable
accommodation, as is required to state a failure to accommodate claim. See Def.’s Mot. at
10-11; see also Gordon, 480 F. Supp. 2d 115. But not every accommodation will be a
reasonable accommodation. Hodges has alleged that the District “failed to provide [him]
with a reasonable accommodation” and asserts that the accommodation offered to him
was “ineffectual on its face.” See Compl. ¶¶ 44, 46 (indicating that reasonable
accommodations would include modified work schedule and/or telecommuting); Pl.’s
Opp’n at 37; see also 42 U.S.C. § 12111(9)(B) (“reasonable accommodation” may
include “job restructuring, part-time or modified work schedules . . . and other similar
accommodations”). In short, the parties dispute the reasonableness of the accommodation
offered by the District—an issue that is not appropriately decided on a motion to dismiss.
See Di Lella v. Univ. of D.C. David A. Clarke Sch. of Law, 570 F. Supp. 2d 1, 8 (D.D.C.
2008).
As the District does not contest the sufficiency of Hodges’s ADA or DCHRA
claims on any other grounds, its motion to dismiss these claims will be denied.

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B.

Hodges’s FMLA Claims

Hodges also alleges that the District violated his rights under the FMLA. The
FMLA provides an eligible employee twelve weeks of unpaid leave during any twelvemonth period if a “serious health condition” prevents the employee from performing the
functions of his or her job. 29 U.S.C. § 2612(a)(1)(D). The statute prohibits an employer
from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to
exercise, any right provided under [the FMLA],” and from “discharg[ing] or in any other
manner discriminat[ing] against any individual” for engaging in activity protected by the
FMLA. See id. § 2615(a)(1)-(2); Roseboro v. Billington, 606 F. Supp. 2d 104, 107-08
(D.D.C. 2009). Hodges asserts that the District is liable under theories of interference and
retaliation.
To state an FMLA interference claim, a plaintiff must allege facts sufficient to
show, among other things, that (1) he was entitled to take leave because he had a “serious
health condition,” (2) he gave his employer adequate notice of his intention to take leave,
and (3) his employer denied or otherwise interfered with his right to take leave. See
Deloatch v. Harris Teeter, Inc., 797 F. Supp. 2d 48, 64-65 (D.D.C. 2011).
The District argues that Hodges’s interference claim should be dismissed because
Hodges “did not have a ‘serious health condition’” that entitled him to take leave. See
Def.’s Mot. at 12. For purposes of the FMLA, a “serious health condition” is one that
involves “inpatient care” or “continuing treatment by a health care provider.” 29 U.S.C.
§ 2611(11); 29 C.F.R. § 825.113(a). The requirement that a condition involve
“continuing treatment” can be met by a showing of, among other things, “[i]ncapacity
and treatment,” “[c]hronic conditions,” or “[c]onditions requiring multiple treatments.”

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29 C.F.R. § 825.115(a), (c), (e). Incapacity and treatment qualifies if there is a period of
incapacity of more than three consecutive days and subsequent treatment or a subsequent
period of incapacity. Id. § 825.115(a). Incapacity means “inability to work, attend school
or perform other regular daily activities due to the serious health condition, treatment
therefore, or recovery therefrom.” Id. § 825.113(b). Subsequent treatment could involve:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care provider, or
by a provider of health care services (e.g., physical therapist) under orders
of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion, which
results in a regimen of continuing treatment under the supervision of the
health care provider.
Id. § 825.115(a)(1)-(2).
The District contends that Hodges cannot make out an interference claim because
he did not face “incapacity and treatment.” Def.’s Mot. at 13 (asserting that Hodges “fails
to allege facts sufficient to establish one day of incapacitation, let alone three”).3 Hodges
responds that his condition did cause “incapacity and treatment” because “his doctor
required a complete work restriction” from July 22 to July 27, 2010—a six-day period of
incapacity—and because he was under doctor’s orders to continue treatment three times a
week for four to six weeks and one to two times per week for one month after that. See
Compl. ¶¶ 13, 24; Pl.’s Opp’n at 20-21. In addition, Dr. Nguyen stated on Hodges’s
medical certification form that Hodges’s condition involved “a 6-8 week incapacity
duration” and that, as a result of his continuing treatment, Hodges would be “unable to
3

The District also appears to argue that Hodges was not entitled to take FMLA leave
because he did not require inpatient care. See Def.’s Mot. at 12-13. This argument is
plainly refuted by the statute, which provides that a “serious health condition” is a
condition that involves either inpatient care or continuing treatment. See 29 U.S.C.
§ 2611(11).
12

perform work that required prolonged sitting.” Compl. ¶¶ 22, 26. Dr. Nguyen also stated
that it was “necessary” for Hodges to work “intermittently or a less than full schedule”
for about three months and for Hodges “to be absent from work due to the distance and
recovery time needed for treatment.” Id. ¶¶ 23, 27.
Taking as true the allegations in the complaint and drawing all inferences
favorable to Hodges, the Court concludes that he has sufficiently pled that he suffered
from a “serious health condition” as defined by the FMLA. Specifically, Hodges has
alleged enough to show “incapacity and treatment” – he was incapacitated for a period of
more than three consecutive days beginning July 22, 2010 and underwent treatment at
least twice in the thirty days after that date. See 29 C.F.R. §§ 825.113(b), 825.115(a);
Compl. ¶¶ 13, 17, 22, 24.4 And from Dr. Nguyen’s statements it can be inferred that
Hodges’s condition and continuing treatment rendered him unable to perform the
functions of his job. See 29 U.S.C. § 2612(a)(1)(D). The District does not dispute the
adequacy of Hodges’s notice or otherwise challenge the sufficiency of Hodges’s factual
allegations supporting his interference claim. Nor does the District address Hodges’s
FMLA retaliation claim in its motion or reply. Accordingly, the District’s motion to
dismiss Hodges’s FMLA claim will be denied.
II.

The District’s Motion for Summary Judgment
In the alternative, the District moves for summary judgment on Hodges’s claims

for unliquidated damages under the DCHRA. Under D.C. Code § 12-309, a plaintiff may
4

Hodges also argues that his back impairment was a “[c]hronic condition[]” or a
“[c]ondition[] requiring multiple treatments,” two alternative bases for finding
“continuing treatment.” See 29 C.F.R. § 825.115(c), (e); Pl.’s Opp’n at 21-24. Because
the Court finds that Hodges has sufficiently stated an interference claim based on his
“incapacity and treatment,” it need not address the alternative ways in which “continuing
treatment” might be shown.
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only assert claims against the District for unliquidated damages if he has provided written
notice to the Mayor of his alleged injury or damage within six months after sustaining the
injury or damage. See D.C. Code § 12-309. Here, Hodges concedes that he did not
provide the required six-month notice. See Pl.’s Opp’n at 40. Hence, his claims for
unliquidated damages under the DCHRA are barred. See Blocker-Burnette v. District of
Columbia, 730 F. Supp. 2d 200, 203 (D.D.C. 2010) (citing Owens v. District of
Columbia, 993 A.2d 1085, 1087-88 (D.C. 2010) (holding that § 12-309 applies to
DCHRA claims)).
Hodges correctly argues, however, that his failure to provide notice does not
affect his ability to recover liquidated damages or equitable relief. See Caudle v. District
of Columbia, No. 08-205, 2008 WL 3523153, at *2 (D.D.C. Aug. 13, 2008); Pl.’s Opp’n
at 41. “‘A debt is liquidated if at the time it arose, it was an easily ascertainable sum
certain.’” Minter v. District of Columbia, No. 10-516, 2012 WL 925715, at *8 (D.D.C.
Mar. 19, 2012) (quoting District of Columbia v. Campbell, 580 A.2d 1295, 1300 (D.C.
1990)). Back pay awards are easily ascertainable and thus qualify as liquidated damages.
Blocker-Burnette, 730 F. Supp. 2d at 204-05. Moreover, in employment discrimination
cases, back pay awards are considered a form of equitable relief, which is not barred by
§ 12-309. See id. at 205. Attorney’s fees also are not affected by § 12-309 because they
“are not generally considered damages at all under District of Columbia law.” Id. On the
other hand, compensatory damages that are not easily ascertainable, such as emotional
distress and pain and suffering, are unliquidated and hence are barred if the notice
required by § 12-309 is not given. See Elzeneiny v. District of Columbia, 699 F. Supp. 2d
31, 35 (D.D.C. 2010).

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In his complaint, Hodges seeks awards of front and back pay, compensatory
damages for emotional distress and other losses, and attorney’s fees and costs. See
Compl. ¶¶ 69-71, 78-80. Pursuant to § 12-309, Hodges may not recover front pay,
emotional distress damages, or any other unliquidated damages under the DCHRA. But
to the extent that Hodges’s DCHRA claims seek back pay, lost retirement benefits,
attorney’s fees, or any other liquidated damages or equitable relief, they may proceed.
CONCLUSION
For these reasons, the Court will grant the District’s motion for summary
judgment as to Hodges’s claims for unliquidated damages under the DCHRA. As to
Hodges’s remaining claims, the District’s motion to dismiss will be denied. A separate
order will issue on this date.

/s/
JOHN D. BATES
United States District Judge

Dated: August 12, 2013

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