SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

DORETHA BARBER,
1870 Alabama Avenue SE
Washington, D.C. 20020,

Plaintiff, JURY TRIAL DEMANDED

v.

DISTRICT OF COLUMBIA,
c/o Office of the Attorney General
441 4th Street NW
Washington, D.C. 20001,

Defendant.

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

(Disability Discrimination under D.C. Human Rights Act)

INTRODUCTION

Plaintiff Doretha Barber asserts her right under the disability discrimination provisions of

the District of Columbia Human Rights Act to keep her job as a sanitation worker at the D.C.

Department of Public Works (“DPW”) while using her doctor-approved medication that

ameliorates her debilitating back pain and has no effect on her work performance.

Ms. Barber suffers from degenerative disc disease. The condition regularly causes her to

experience back spasms that leave her unable to walk, stand, or lift, and triggers migraines so

painful that they often bring her to tears. When traditional treatments for Ms. Barber’s back proved

inadequate, her primary care physician suggested she consider using medical marijuana. An

authorized provider recommended Ms. Barber for the District’s medical marijuana program in fall

2018. Ms. Barber has found that the medication significantly improves her condition.

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 Ms. Barber has never used marijuana at work or come to work impaired. Nor does she seek

to do so. Instead, she asks only that DPW excuse her from its rules that prohibit her from using

medical marijuana at home. DPW has refused to do so. It also denied other reasonable

accommodation requests that she made.

DPW has placed Ms. Barber on forced leave and she is not receiving pay. Additionally,

DPW has made clear that if she cannot pass a urinalysis test when she returns to work, she will

lose her job. DPW’s conduct has caused Ms. Barber great hardship. She files this action to secure

a return to work and obtain compensation for the harms wrought by DPW’s unlawful refusal to

accommodate her disability.

JURISDICTION

1. This Court has subject matter jurisdiction over this action pursuant to D.C. Code § 1-204.31(a)

which vests the Court with “jurisdiction of any civil action or other matter (at law or in equity)

brought in the District.”

2. Ms. Barber’s claims arise under the D.C. Human Rights Act (DCHRA), D.C. Code § 2-1401.01

et seq. She files them pursuant to D.C. Code § 2-1403.16(a), which provides that “[a]ny person

claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action

in a court of competent jurisdiction for damages and such other remedies as may be

appropriate.”

3. The notice requirement of D.C. Code § 12-309 does not apply to any action brought against

the District of Columbia under the Human Rights Act. D.C. Code § 2-1403.16(c).

4. Ms. Barber has no duty to exhaust administrative remedies before the Court may hear her

complaint. See D.C. Code § 2-1403.16(b); Davis v. District of Columbia, 949 F. Supp. 2d 1,

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 13 (D.D.C. 2013) (citing § 2-1403.16(b) for the proposition that the DCHRA does not contain

an exhaustion requirement).

PARTIES

5. Plaintiff Doretha Barber is a D.C. resident who lives at 1870 Alabama Avenue SE, Washington

D.C. 20020.

6. Defendant District of Columbia is a municipal corporation, the local government of

Washington, D.C., and operates and governs the D.C. Department of Public Works pursuant

to the laws of the District of Columbia. In this case, the District of Columbia acted through its

departments, agents, employees, and servants, including the D.C. Department of Public Works

and its officials and agents.

FACTS

7. Ms. Barber is a lifelong D.C. resident who raised four children as a single mother.

8. Ms. Barber was born with scoliosis (a sideways curvature of the spine) and has suffered from

back problems her entire life.

9. Ms. Barber was diagnosed with degenerative disc disease in January 2014.

10. Ms. Barber’s back condition causes her to experience spasms that reverberate through her

lower back, up her spine, into her neck, and through her cranium.

11. The spasms wake her up in the middle of the night and, untreated, prevent her from walking,

standing, or lifting.

12. Her back condition also prompts migraines that make it difficult for Ms. Barber to lift her head

and are so painful that they have often brought her to tears.

13. Ms. Barber’s back condition has caused her to miss significant amounts of work during her

time as an employee at the Department of Public Works.

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14. To treat Ms. Barber’s disability, her doctors prescribed Flexeril, but that medication had the

side effect of making her drowsy—so drowsy that she often had to miss work.

15. Her doctors also prescribed prescription-strength ibuprofen.

16. Ms. Barber found that the ibuprofen made her spasms less painful, but only when she took a

dosage that her primary care physician, Dr. Maurice Wright, deemed dangerous given her

bodyweight.

17. Dr. Wright suggested that Ms. Barber consider medical marijuana as a way of treating her back

condition.

18. In fall 2018, Ms. Barber met with Evette Hernandez, a medical provider authorized under D.C.

law to recommend medical marijuana to qualifying patients. Hernandez recommended that

Ms. Barber use medical marijuana to treat her back condition.

19. Ms. Barber possesses a medical marijuana card and is enrolled in the District’s Medical

Marijuana Program, see D.C. Code § 7-1671.01 to 7-1671.13, which gives her the right under

District of Columbia law to obtain and use medical marijuana.

20. Ms. Barber adopted a routine whereby she consumed medical marijuana each day after work,

stopping her consumption by around 10 pm, well before the start of her shift, which is around

6:30 am.

21. She has never consumed medical marijuana at work, nor has she ever come to work impaired.

22. Ms. Barber’s use of medical marijuana has significantly improved her condition. The

medication has caused her to experience spasms less frequently.

23. The spasms that Ms. Barber still suffers are generally less painful than the ones she experienced

when she was not using medical marijuana. They generally do not prevent her from walking,

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 standing, or lifting. And the medical marijuana allows Ms. Barber to sleep through the night,

rather than waking up due to pain, as she did when she was not using the medication.

24. Medical marijuana also ameliorates Ms. Barber’s migraines. While she continues to have

headaches with her spasms, they are less painful and do not prevent her from lifting her head.

25. Ms. Barber first began working at DPW in 2009, when she accepted a temporary job as an

RW-05 office assistant. The role required her to perform administrative tasks such as managing

payments to employees in the District’s PeopleSoft payment system and recording employees’

route assignments.

26. She transferred to a position as an RW-04 Sanitation Worker in 2013 because the job, although

a grade lower, was a step higher. The new position paid $3 more per hour and was a permanent

position, unlike the office assistant role.

27. Ms. Barber’s responsibilities as a sanitation worker include raking leaves, trash, and other

debris from the District’s streets and alleyways and salting walkways during the winter.

28. Ms. Barber’s job description does not include driving a vehicle.

29. Ms. Barber does not use power machinery, such as leaf blowers or power tools, as part of her

job as a sanitation worker.

30. Sometime after Columbus Day (October 8), 2018, Ms. Barber asked a DPW official, whom

she recalls having been Jerry Stanback, DPW’s Associate Administrator, to temporarily detail

her to an office position from November through January because doing so would help with

her back condition.

31. This period, often referred to by DPW employees as “leaf season,” is particularly grueling

because it involves bending over to rake piles of leaves which are often weighed down by

water or ice.

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32. This work increases Ms. Barber’s back pain even when she uses medical marijuana.

33. Mr. Stanback knew that Ms. Barber was born with scoliosis and suffered from a serious back

condition at the time she made this request.

34. Additionally, Ms. Barber had informed DPW about her back condition as early as 2014 or

2015 when she asked for medical leave to treat that disability.

35. The official with whom Ms. Barber spoke in October 2018 responded to Ms. Barber’s request

by stating that, because she worked as a sanitation worker, she had to remain in the field.

36. The official did not offer to investigate whether DPW had any job openings for office workers.

Nor did the official propose any alternative accommodations or invite Ms. Barber to meet to

discuss her accommodation request further.

37. The official never discussed Ms. Barber’s request for accommodation with her again.

38. DPW regularly hires temporary clerical workers, sanitation workers, and other temporary

employees to work from November to January to meet the increased demands that arise during

leaf season.

39. Indeed, in 2016 or 2017, DPW assigned Ms. Barber to temporarily perform clerical duties

during leaf season. During that period, she entered payroll and performed other administrative

tasks. After leaf season ended, Ms. Barber returned to her regular duties as a sanitation worker.

40. On information and belief, DPW hired temporary clerical workers during leaf season 2018.

41. Additionally, on October 8, 2018, there existed three open clerical assistant positions in DPW,

all of which were grade-level five.

42. Because Ms. Barber had worked in a grade-level five clerical role at DPW from 2009 to 2013

before voluntarily transferring to her sanitation worker position, and because she temporarily

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 performed clerical duties during the period when she was working as a sanitation worker, she

was qualified for these positions.

43. DPW has also permitted other people with titles similar to Ms. Barber’s to perform office tasks.

44. For example, according to DPW’s February 2019 response to the D.C. Council’s performance

oversight questions, the job titles of Jessie Denise Leocadio, Dana Roach, and Lisa Payton are,

respectively, “motor vehicle operator,” “sanitation worker,” and “sanitation worker.”

DEPARTMENT OF PUBLIC WORKS, PERFORMANCE OVERSIGHT QUESTIONS, App. at 19, 23, 24,

(Feb. 2019), at https://dccouncil.us/wp-content/uploads/2019/02/dpw.pdf. On information and

belief, all three individuals are primarily, if not exclusively, responsible for performing clerical

and administrative responsibilities in DPW offices. On information and belief, none of them

has a disability.

45. Ms. Barber experienced significant amounts of back pain during leaf season 2018.

46. She informed her immediate supervisor of her back pain. He told her that she could sit in one

of DPW’s trucks when she experienced pain, but warned her that if anyone else saw her, she

would be sent home without pay.

47. Even when Ms. Barber took time to rest in the truck—doing so carefully to avoid detection—

she still felt increased pain in her back due to the heavy physical work required of her during

leaf season.

48. Nonetheless, Ms. Barber continued executing her duties during leaf season.

49. DPW did not discipline or reprimand Ms. Barber at any point during leaf season 2018.

50. In June 2019, Barber learned that DPW would begin requiring employees in positions

designated safety sensitive to submit to random drug and alcohol testing—a policy it had

announced the prior year but yet to implement.

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51. DPW uses a urinalysis test that assesses the presence of marijuana metabolites (and metabolites

of other drugs) in employees’ urine.

52. The urinalysis test does not test for or disclose whether the employee is impaired at the time

of submitting the sample.

53. People who are completely unimpaired when they give a sample will still test positive for

marijuana if they have consumed marijuana within days, or even weeks, of the test.

54. Ms. Barber, and other medical marijuana cardholders like her, would not test negative unless

they stopped using medical marijuana altogether.

55. In a statement presented to D.C. Councilmember Mary Cheh, and read during a June 18, 2019

D.C. Council hearing, DPW Acting Director Chris Geldart made clear that DPW would not,

under any circumstances, permit an employee who was using medical marijuana to remain in

a position it designated as safety sensitive.

56. According to the District’s personnel manual, DPW has classified all its sanitation worker

positions as safety sensitive.

57. However, a July 2019 job posting for a sanitation worker position in the District government

did not classify the role as safety sensitive.

58. Vendors that perform drug tests on behalf of District agencies must follow “all procedures

stated in 49 CFR Part 40 and District government procedures, as applicable, for all drug and

alcohol testing for applicants and employees.” 6-B DCMR § 425.1. The cited provisions of the

Code of Federal Regulations permit vendors to test for only five categories of drugs, see 49

CFR § 40.85, excluding benzodiazepines, antihistamines, and other types of medications that

can affect work performance. Ms. Barber is aware of no “District government procedure” that

allows or requires vendors to test for drugs other than the ones listed in 49 CFR § 40.85.

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59. On June 25, 2019, Ms. Barber went to the office of DPW’s Human Capital Administration to

disclose her possession of a medical marijuana card.

60. Once there, she was referred to Dejuan Hogan, a substance abuse specialist who works in

Human Capital Administration.

61. Ms. Barber informed Mr. Hogan of her status and explained that she was born with scoliosis,

suffered from back spasms, and used medical marijuana to treat her condition.

62. Mr. Hogan told Ms. Barber that she needed to find an alternative medication. Ms. Barber

responded that she had tried alternatives and they didn’t work.

63. In early July 2019, Ms. Barber received a letter from DPW stating that she could not resume

her duties as a sanitation worker until she passed a drug test.

64. The letter said that Ms. Barber had to attend substance abuse counseling.

65. Ms. Barber did not (and does not) have a substance abuse problem.

66. The letter stated that while Ms. Barber participated in substance abuse treatment, she could not

continue working but that she could take paid leave for the period and, when that expired,

unpaid leave.

67. Ms. Barber had little to no paid leave remaining when she received the letter. As a result, she

went on unpaid leave in mid-July 2019.

68. Shortly after receiving the letter, Ms. Barber contacted Mr. Hogan, explained that she needed

a paycheck, and asked if there was something else she could do.

69. Mr. Hogan responded that there were no positions in which he could place her.

70. At or around the time Ms. Barber made her request, there were four vacant clerical assistant

positions in DPW, all of which were designated grade-level five.

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71. Because Ms. Barber had worked in a grade-level five clerical role at DPW from 2009 to 2013

before voluntarily transferring to her sanitation worker position, and because she temporarily

performed clerical duties during the period when she was working as a sanitation worker, she

was qualified for these positions.

72. Mr. Hogan did not explain how he determined that no openings existed or offer to revisit the

matter if a position for which Ms. Barber qualified became available. He also did not offer to

help transfer her to a position in a different government agency if she could identify one for

which she was qualified. Nor did he indicate that DPW would consider allowing her to continue

using medical marijuana at home after work, provided that she report to duty unimpaired.

73. In order to enable herself to pass a drug test, Ms. Barber stopped regularly using medical

marijuana in late July. She has only taken the medication once in the intervening months.

74. Since ceasing her usage of medical marijuana, Ms. Barber has experienced more severe spasms

than she did when she was regularly using medical marijuana.

75. Ms. Barber has not received a full paycheck from DPW since mid-July 2019.

76. Although Ms. Barber found part-time employment and has received support from her partner,

she still has experienced severe financial distress during this period—falling behind on car

payments, overdrawing her checking account, and skipping meals.

77. Ms. Barber was able to fulfill her responsibilities as a sanitation worker when she was using

medical marijuana off-duty.

78. Ms. Barber has never been suspended, reprimanded, or otherwise disciplined at DPW for her

work performance, save for one incident that was ultimately resolved in her favor after her

union intervened.

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79. District regulations require DPW to provide its supervisors “training in drug abuse detection

and recognition, documentation, intervention, and any other appropriate topics.” 6-B DCMR

§ 434.1.

80. No supervisor has ever accused Ms. Barber of coming to work impaired or using medical

marijuana on her employer’s property.

81. She has never done so.

82. If DPW accommodated Ms. Barber’s disability by assigning her to an office job, or by allowing

her to use medical marijuana at home after work while continuing to work as a sanitation

worker, she would be able to perform the responsibilities of her job without suffering the

frequent, disabling pain that she experiences without that medication.

CLAIMS FOR RELIEF

D.C. Human Rights Act

I. Denial of Reasonable Accommodation in October 2018

83. The District of Columbia Human Rights Act (DCHRA) requires that employers make

reasonable accommodations for otherwise qualified employees with disabilities. D.C. Code §

2-1402.11(a); Barrett v. Covington & Burling LLP, 979 A.2d 1239, 1250 (D.C. 2009).

84. In October 2018, Ms. Barber requested a reasonable accommodation for her back condition in

the form of a temporary transfer to a clerical role. Because Ms. Barber’s back condition

qualifies as a disability and because, with the benefit of an accommodation, she can perform

the essential responsibilities of a clerical position, DPW violated its obligations under the

DCHRA by refusing to grant Ms. Barber a reasonable accommodation in response to her

October 2018 request.

II. Denial of Reasonable Accommodation Since July 2019

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85. In July 2019, the District denied Ms. Barber reasonable accommodation for her disability by

making clear that, as a matter of policy, she cannot remain in her role as a sanitation worker as

long as she uses medical marijuana as a treatment. The District then refused to accommodate

her or engage her in an interactive process when she expressly requested an accommodation

from DPW Human Resource Administration official Dejuan Hogan. Ms. Barber remains

unaccommodated today. Because Ms. Barber’s back condition qualifies as a disability and

because she can perform the responsibilities of a job she holds or desires with accommodation,

DPW’s failure to accommodate her has violated her rights under the DCHRA.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Barber requests that this Court:

(a) RULE that the Defendant District of Columbia violated Plaintiff’s rights under the

DCHRA by denying her October 2018 reasonable accommodation request;

(b) RULE that the Defendant District of Columbia violated Plaintiff’s rights under the

DCHRA by denying her a reasonable accommodation in July 2019 and is continuing

to violate her rights under the DCHRA by denying her a reasonable accommodation

since that time;

(c) ORDER the Defendant District of Columbia to accommodate Plaintiff Barber’s

disability by allowing her to resume work as an RW-4 Sanitation Worker or by

allowing her to work in another position for which she is qualified, and by excusing

her from any rule or policy that would prevent her from remaining in such a position,

or otherwise penalizing her, for using medical marijuana outside of work hours, so long

as she remains in the District of Columbia’s Medical Marijuana Program and so long

as she does not report to work impaired;

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 (d) ENTER JUDGMENT awarding Plaintiff Barber back pay and other compensatory

damages against the District of Columbia in an amount appropriate to the evidence

adduced at trial;

(e) ENTER JUDGMENT awarding Plaintiff Barber her costs and reasonable attorneys’

fees in this action as provided in D.C. Code §§ 2-1403.16(b) & 2-1403.13(a); and

(f) GRANT Plaintiff Barber such other and further relief as this Court may deem just and

proper.

JURY DEMAND

Plaintiff demands a trial by jury of all issues so triable.

Respectfully submitted,

/s/ Michael Perloff

Michael Perloff (D.C. Bar No. 1601047)
Scott Michelman (D.C. Bar No. 1006945)
Arthur B. Spitzer (D.C. Bar No. 235960)
American Civil Liberties Union Foundation
of the District of Columbia
915 15th Street NW, Second Floor
Washington, D.C. 20005
(202) 457-0800
mperloff@acludc.org

October 4, 2019 Counsel for Plaintiff

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