UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AL P. WILLIAMS,

Plaintiff,

v. No. 23-cv-3466 (DLF) FORT MYER CONSTRUCTION CORPORATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Al Williams brings this employment action against his former employer, Fort Myer

Construction Corporation (Fort Myer). Before the Court is Williams’s Motion for Summary

Judgment, Dkt. 37, and Fort Myer’s Motion to Amend Answer, Dkt. 39. For the reasons that

follow, the Court will deny Williams’s motion and grant Fort Myer’s motion.

I. BACKGROUND

In March 2022, Williams was hired by construction company Fort Myer. Pl.’s Aff. in

Supp. of Mot. Summ. J. (Pl.’s Aff.) ¶ 2, Dkt. 37-3; Def.’s Statement of Genuine Issues and

Disputed Facts (Def.’s SOF) ¶¶ 1–2, Dkt. 40-1. Williams claims that he was hired as “Sedrick

Battle’s office assistant,” rather than as a laborer, because Battle knew that Williams had been

experiencing seizures for approximately two years. See Pl.’s Aff. ¶ 3. According to Fort Myer,

Williams “held the title of skilled laborer” and “never held the position of administrative assistant.”

Def.’s SOF ¶ 3; see Def.’s Ex. D (Employment Contract), at 1, Dkt. 40-4; Def.’s Ex. F (Payroll

Screenshot), at 1, Dkt. 40-6. Whatever his official role, Williams’s responsibilities at Fort Myer included office work

and fieldwork on construction sites, where he performed tasks such as “line taping.” Def.’s SOF

¶ 6; Pl.’s Aff. ¶ 7. Williams notes that his position “involved minimal driving” between the office

and work sites. Pl.’s Aff. ¶ 7. Fort Myer, for its part, claims that “driving was a critical,

indispensable component of [Williams’s] job.” Def.’s SOF ¶ 7; see Battle Aff. ¶¶ 7, 12, Dkt. 40-

3.

In November 2022, Williams was hospitalized and diagnosed with “intractable epilepsy.”

Pl.’s Aff. ¶ 10; see generally Pl.’s Ex. 5 (Letters from Dr. Malla), Dkt. 37-8. As part of that

diagnosis, Williams’s doctor restricted him from “driving” and “working with heavy machinery.”

Letters from Dr. Malla at 3. When Williams returned to work, the general superintendent

instructed him to obtain a doctor’s note. See Pl.’s Aff. ¶ 13; Def.’s SOF ¶ 9; Battle Aff. ¶ 11.

When Williams informed Battle that he had been diagnosed with epilepsy and could no longer

drive, Battle directed Williams to Human Resources. See Def.’s SOF ¶ 10; Battle Aff. ¶ 11; see

also Pl.’s Aff. ¶ 15. Williams alleges that, when he presented a doctor’s note describing his

“diagnosis, request for reasonable accommodations, and authorization to work,” Human

Resources “told [him] to go home and to await a response.” Pl.’s Aff. ¶ 15. According to Fort

Myer, Williams told Human Resources only that “he was suffering from headaches” and did not

provide his doctor’s note until February 2024. Def.’s SOF ¶¶ 10–13; see Def.’s Ex. B (Page Aff.),

¶¶ 5, 8–9, Dkt. 40-2.

In December 2022, Williams asked Human Resources “if there was any progress with [his]

issue and how [he] could possibly be accommodated at Fort Myer.” Pl.’s Aff. ¶ 18; see Pl.’s Ex.

4 (Emails Between Williams and Fort Myer), at 5, Dkt. 37-7. Williams alleges that Human

Resources told him to apply for “paid leave benefits,” “short[-]term disability benefits,” and

2 “unemployment benefits,” and informed him that he would be “terminated” after being on paid

leave. Pl.’s Aff. ¶ 21. Fort Myer maintains that Human Resources “advised Williams of his right

to apply for D.C. medical paid leave” in November 2022 “[a]s a matter of routine.” Def.’s SOF

¶¶ 10–11; see Page Aff. ¶¶ 5–6. In any event, Williams applied for and was granted paid leave

until January 27, 2023. Pl.’s Aff. ¶¶ 27–28; see Page Aff. ¶¶ 5–7. On January 31, 2023, Fort Myer

laid off Williams due to lack of work that the company attributed to the seasonal nature of its

business. See Def.’s SOF ¶ 14; Def.’s Ex. G (Separation Information), at 1, Dkt. 40-7 (“We are a

construction company and during this time hours decrease.”); Page Aff. ¶ 13 (“FMCC was entering

the winter months when FMCC’s work was reduced substantially due to the cold weather.”); Pl.’s

Aff. ¶ 29.

On September 28, 2023, Williams filed this lawsuit in the Superior Court of the District of

Columbia. Notice of Removal ¶ 1, Dkt. 1. Two months later, Fort Myer removed the case to

federal court. See generally Notice of Removal. Williams’s operative complaint alleges violations

of the Americans with Disabilities Act (ADA),

et seq., the D.C. Human Rights

Act (DCHRA),

et seq., and the federal and D.C. Family and Medical Leave

Acts,

et seq.;

et seq. See generally Fourth Am. Compl.,

Dkt. 32. In October 2024, Williams moved for summary judgment on his ADA and DCHRA

failure to accommodate claims. See Pl.’s Mot. for Summ. J., Dkt. 37; Pl.’s Mem. of Law in Supp.

of Mot. for Summ. J. (Pl.’s Mem.) 5–16, Dkt. 37-1. Fort Myer opposed Williams’s motion, see

Def.’s Opp’n, Dkt. 40, and simultaneously moved to amend its answer to add an affirmative

defense, Def.’s Mot. to Amend Answer, Dkt. 39.

3 II. LEGAL STANDARDS

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

if the moving party “shows 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); see Anderson v. Liberty Lobby

Inc.,

, 247–48 (1986). A “material” fact is one that could affect the outcome of the

lawsuit. See Liberty Lobby,

; Holcomb v. Powell,

(D.C. Cir.

2006). A dispute is “genuine” if a reasonable jury could determine that the evidence warrants a

verdict for the nonmoving party. See Liberty Lobby,

; Holcomb,

.

In reviewing the record, the court “must draw all reasonable inferences in favor of the nonmoving

party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson

Plumbing Prods.,

(2000).

Rule 15(a) instructs that “[t]he court should freely give leave [to amend a pleading] when

justice so requires.” Fed. R. Civ. P. 15(a)(2). To evaluate a motion to amend, the Court considers

the Foman factors: “(1) undue delay; (2) prejudice to the opposing party; (3) futility of the

amendment; (4) bad faith; and (5) whether the [party] has previously amended the [pleading].”

Howell v. Gray,

(D.D.C. 2012); see Foman v. Davis,

(1962). “‘Although the grant or denial of leave to amend is committed to a district court’s sound

discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason,’

such as the [Foman] factors.” Shea v. Clinton,

(D.D.C. 2012) (quoting Firestone

v. Firestone,

(D.C. Cir. 1996)). The party opposing the amendment “bears the

burden of showing why an amendment should not be allowed.” Abdullah v. Washington,

(D.D.C. 2008).

4 III. ANALYSIS

A. Failure to Accommodate

To prevail on a failure to accommodate claim under the ADA or DCHRA, a plaintiff must

show that (1) he was a qualified individual with a disability; (2) the employer had notice of his

disability; and (3) the employer denied his request for a reasonable accommodation. Waggel v.

George Washington Univ.,

, 1371 (D.C. Cir. 2020); see Hodges v. District of

Columbia,

(D.D.C. 2013) (same standard applies to ADA and DCHRA

failure to accommodate claims). As to the first element, an individual is “qualified” if he “can

perform the essential functions” of his employment “with or without reasonable accommodation.”

(8). If a plaintiff cannot perform his work unaccommodated, he must show that

“with a reasonable accommodation . . . he can perform the essential functions of the job.”

Saunders v. Galliher & Huguely Assocs., Inc.,

(D.D.C. 2010) (citing

Flemmings v. Howard Univ.,

(D.C. Cir. 1999)). Under EEOC regulations,

“[t]he term essential functions means the fundamental job duties of the employment position the

individual with a disability holds.”

(n)(1) (emphasis omitted). “In determining

whether a function is essential to a particular position,” the Court grants the employer “substantial

deference.” McNair v. District of Columbia,

(D.D.C. 2014). Evidence of a

function’s essentiality includes “[t]he employer’s judgment as to which functions are essential,”

(n)(3)(i), and “[w]ritten job descriptions,”

§ 1630.2(n)(3)(ii).

The record before the Court reflects a genuine dispute as to whether Williams was qualified

to perform the essential functions of his employment position. The parties disagree on two

fundamental issues: the nature of Williams’s role and, in turn, the essential functions thereof.

5 Williams claims that he was a qualified individual because he was employed as an

administrative assistant and could still perform his administrative duties under an accommodation

to be excused from driving. Pl.’s Mem. 10–13. To support this claim, Williams describes his

employment as an administrative assistant in an affidavit, see Pl.’s Aff. ¶¶ 2–3, and provides text

messages that show that he performed some administrative tasks for Battle, see Pl.’s Mem. 12; see

generally Pl.’s Ex. 8 (Text Messages Between Battle and Williams), Dkt. 37-11. Williams admits

that his position involved “minimal driving [to] get to the construction or work site location from

the office,” which he ceased once “diagnosed with epilepsy and restricted from driving.” Pl.’s

Aff. ¶ 7. Still, he argues that he “was fully capable of performing his administrative assistant job

except the occasional driving it required,” Pl.’s Mem. 2; see Pl.’s Aff. ¶¶ 7, 15, 23, and that other

Fort Myer employees could have driven him to job sites “when needed,” Pl.’s Aff. ¶ 23.

Fort Myer disagrees with Williams’s account. In its opposition, Fort Myer provides

documentation showing that it employed Williams as a “skilled laborer,” and not as an

administrative assistant. Employment Contract at 1 (citation modified); see Payroll Screenshot at

1. Fort Myer also points to an affidavit from Battle stating that, although Williams assisted with

some in-office tasks, his job mostly took place “in the field” and required him to drive to work

sites daily. Battle Aff. ¶ 7; see Def.’s Opp’n 3–4, 7; Def.’s SOF ¶ 6. Fort Myer further notes that

its written job description for a “Skilled Laborer – Asphalt Screedman” states that the employee

“[m]ust have a valid driver’s license with a clean driving record.” Def.’s Ex. E (Job Description),

at 1, Dkt. 40-5; see Def.’s Opp’n 3, 7;

(n)(3)(ii).1 As such, Fort Myer asserts

1 In his reply, Williams offers a different description for a “Skilled Laborer – Asphalt” that states that a “[v]alid driver’s license [is] preferred.” Pl.’s Ex. 2 (Job Description), at 1, Dkt. 41-2; see Pl.’s Reply 23 n.8, Dkt. 41. But because Williams’s employment contract specifies only that Williams held the “position of [a] full-time Skilled Laborer,” it is not clear which job description is more accurate. Employment Contract at 1.

6 that “driving was a critical, indispensable component of [Williams’s] job” as a skilled laborer.

Def.’s Opp’n 3; see

.

The record thus reflects two fundamental disagreements: (1) whether Williams was

employed as an administrative assistant or as a skilled laborer; and (2) whether driving was an

essential function of Williams’s employment. Both disputes materially affect whether Williams

could have “perform[ed] the essential functions of the employment position” under a reasonable

accommodation to be excused from driving.

(8). By providing Battle’s

affidavit, a written job description, and Williams’s employment status and payroll information,

Fort Myer has discharged its duty of coming forward with evidence from which a reasonable jury

could find that driving was an essential function of Williams’s job. Solomon v. Vilsack,

(D.C. Cir. 2014). Drawing “all reasonable inferences” in Fort Myer’s favor, a jury could

find that Williams was hired as a skilled laborer and not as an administrative assistant. Reeves,

. And in light of the “substantial deference” the Court grants the employer in

determining whether a function is essential, McNair,

, a jury could also find

that driving was an essential function of Williams’s employment and that Williams could not

perform that function under his requested accommodations. Because there remains “at least one

genuine issue of material fact” as to whether Williams was qualified, the Court will deny

Williams’s motion for summary judgment. Muhammad v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2018).

B. Leave to Amend Answer

Fort Myer seeks to amend its answer under Rule 15(a) to include an affirmative defense of

undue hardship. See

(d) (“It may be a defense . . . that a requested or necessary

accommodation would impose an undue hardship on the operation of the covered entity’s

7 business.”); see generally Def.’s Mot. to Amend Answer. Williams argues that the Court should

deny the motion pursuant to the Foman factors of undue delay, prejudice, futility, bad faith, and

whether the party has previously amended its pleading. Pl.’s Opp’n 2, Dkt. 42. The Court

disagrees.2

Fort Myer’s amendment would not cause undue delay. Because the Court did not consider

Fort Myer’s proposed affirmative defense in deciding Williams’s summary judgment motion, see

supra Section III.A, Fort Myer’s motion has “not be[en] used to defeat or delay summary

judgment,” Pl.’s Opp’n 3. It is also “unlikely that the addition of this [defense] will significantly

complicate or lengthen the [litigation],” Djourabchi v. Self,

(D.D.C. 2006), as the

question whether Fort Myer faced undue hardship in providing Williams’s requested

accommodation is inextricably linked to the ongoing dispute over whether Williams was employed

as an administrative assistant or as a skilled laborer, see Def.’s Opp’n 8 (“Manufacturing an

administrative job for a skilled laborer . . . would impose undue financial and administrative

burdens.” (citation modified)); Pl.’s Mem. 11 n.4 (“[Fort Myer] had already been [accommodating

Williams in his role as an administrative assistant] for approximately six months.”). Nor is Fort

2 The D.C. Circuit has not addressed whether Rule 15’s liberal standard or Rule 16’s good cause standard applies to circumstances where, as here, a party moves to amend a pleading after the scheduling order deadline for amendment has passed. See Headfirst Baseball LLC v. Elwood,

, 151–52 (D.D.C. 2016); see also Minute Order of June 12, 2024 (“[O]n or before June 22, 2024, any motions to amend pleadings shall be filed.”); Def.’s Mot. to Amend Answer 4 (served on November 13, 2024). Compare Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”), with Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”). The parties, however, appear to agree that Rule 15 and the Foman factors provide the relevant legal standards for their dispute. See Def.’s Mot. to Amend Answer ¶ 11; Pl.’s Opp’n 2 & n.1. The Court therefore assumes that Rule 15 is the correct standard for the purposes of resolving Fort Myer’s motion to amend. See Wannall v. Honeywell, Inc.,

, 428–29 (D.C. Cir. 2014) (affirming district court’s holding that “the plaintiff waived Rule 26(e) because he did not raise the argument in his opposition to the defendant’s motion to strike” (citation modified)).

8 Myer seeking to add any “new factual allegations.” Harrison v. Rubin,

(D.C.

Cir. 1999); see Def.’s Mot. to Amend Answer ¶ 8. Rather, Fort Myer’s amendment is more

consistent with a “technical correction[],” for which “delay, without a showing of prejudice, is not

a sufficient ground for den[ial].” Harrison,

. And, even if the amendment

represents a change in legal theory, Fort Myer “is not bound by the legal theory on which [it]

originally relied” unless Williams is “prejudiced on the merits by [that] change.”

(citation

modified).

Fort Myer’s amendment would not unduly prejudice Williams. Williams had notice of an

undue hardship defense—he preemptively rebutted the defense in his complaint, see Fourth Am.

Compl. ¶ 36, and argued against the merits of the defense in his summary judgment motion, see

Pl.’s Mem. 11 n.4; cf. Lenkiewicz v. Castro,

, 147–49 (D.D.C. 2015)

(allowing the defendant to amend its answer to add an undue hardship defense where the plaintiff

“fully argued against the merits” of the defense in its summary judgment briefing). Williams

objects that it is prejudicial to introduce an affirmative defense after the close of discovery. Pl.’s

Opp’n 7–8. But, to the extent that Williams is prejudiced by the amendment due to a lack of further

discovery, the Court may grant a limited re-opening of discovery upon request. See Ellis v.

Georgetown Univ. Hosp.,

(D.D.C. 2009) (“[A]ny potential prejudice would

be ameliorated by supplemental discovery related to, what it characterizes as, [the party’s] ‘new’

claims.”).3

3 Considering that, even prior to Fort Myer’s motion to amend, Williams requested to conduct a deposition of Battle “after discovery closed,” Pl.’s Opp’n 5 n.2, such an extension of discovery would assist—and not prejudice—Williams.

9 Neither is Fort Myer’s amendment futile. For a complaint, amendment is futile “if the

proposed claim would not survive a motion to dismiss.” Hettinga v. United States,

(D.C. Cir. 2012). To survive a motion to dismiss, a plaintiff’s complaint must contain factual

matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). But a defendant’s answer need only “affirmatively state” an affirmative

defense to satisfy Rule 8(c)’s pleading requirement. Fed. R. Civ. P. 8(c)(1); see Paleteria La

Michoacana v. Productos Lacteos,

, 190–93 (D.D.C. 2012); Moore v. United

States,

(D.D.C. 2018).4 As is “common practice in this court,” Paleteria

La Michoacana,

, a singular sentence suffices, see Moore,

. Fort Myer’s proposed amendment—“Fort Myer asserts that providing the requested

accommodation of creating an administrative position for Plaintiff would have been unreasonable

and would have created a significant financial and administrative burden by funding an

unnecessary position and creating a fundamental alteration of Fort Myer’s company structure,”

Def.’s Mot. to Amend Answer ¶ 8—meets that standard.

There is also no indication that Fort Myer acted in bad faith. Rather than showing that Fort

Myer engaged in dilatory tactics, the record suggests that Fort Myer inadvertently omitted its

affirmative defense. See Kontrick v. Ryan,

(2004) (“An answer may be amended

to include an inadvertently omitted affirmative defense.”). Though Fort Myer failed to explicitly

4 The D.C. Circuit has not yet identified the appropriate standard for determining whether an affirmative defense in an answer is futile under Foman. United States v. All Assets Held at Bank Julius,

, 70–71 (D.D.C. 2017). Some courts in this district have concluded that it is not appropriate to apply the heightened plausibility pleading requirement to affirmative defenses. See, e.g., Paleteria La Michoacana, 905 F. Supp. 2d at 190–93; Moore,

; Malibu Media, LLC v. Parsons, 12-cv-1331,

, at *3 (D.D.C. May 31, 2013); Taylor Energy Co. v. United States ex rel. U.S. Coast Guard Nat’l Pollution Funds Ctr., 20-cv-1086,

, at *5 (D.D.C. Oct. 14, 2020). The Court agrees and applies the “traditional notice standard set by Rule 8(c).” Moore,

.

10 raise the affirmative defense of undue hardship in its first answer, as it had the burden to do, Fort

Myer clearly denied Williams’s allegation that “[t]he accommodation was reasonable and did not

pose an undue hardship on the employer.” Fourth Am. Compl. ¶ 36; see Ans. ¶¶ 36–39, Dkt. 34

(“The allegations contained in Paragraphs 36–39 of the Fourth Amended Complaint are denied.”).

Additionally, “[w]ith respect to bad faith, . . . delay alone is an insufficient ground to deny the

motion unless it prejudices the opposing party.” United States ex rel. Scott v. Pac. Architects &

Eng’rs (PAE), Inc.,

, 20 (D.D.C. 2018) (citation modified).5

Finally, because Fort Myer’s motion represents its first request to amend, there is no

“repeated failure to cure deficiencies by amendments previously allowed.” Foman,

; see also Def.’s Opp’n 8 n.1. Thus, each Foman factor weighs in Fort Myer’s favor.

Williams separately invokes Rule 6(b) to argue that Fort Myer “failed to state any reason

of excusable neglect” that would justify an extension of time. Pl.’s Opp’n 4 (citation modified);

see Fed. R. Civ. P. 6(b)(1)(B). But any lack of excusable neglect does not bar the Court from

granting leave to amend under Rule 15. Rule 6 merely allows a court to extend a party’s time to

act for good cause. See Fed. R. Civ. P 6(b)(1) (“When an act may or must be done within a

specified time, the court may, for good cause, extend the time.”). Rule 15, for its part, explicitly

instructs that the Court “should freely give leave” to amend “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). Therefore, in accordance with the Foman factor analysis, the Court will grant

Fort Myer’s motion to amend its answer under Rule 15(a).

For the foregoing reasons, it is

5 Williams cites Fort Myer’s refusals to settle or provide settlement counteroffers as evidence of bad faith or dilatory tactics. See Pl.’s Opp’n 4–6. But the Federal Rules of Civil Procedure “are not intended to impose settlement on unwilling litigants.” In re Eddy,

(D.C. Cir. 1992) (unpublished table decision) (per curiam) (citation modified).

11 ORDERED that the plaintiff’s Motion for Summary Judgment, Dkt. 37, is DENIED. It

is further

ORDERED that the defendant’s Motion to Amend Answer, Dkt. 39, is GRANTED.

SO ORDERED.

DABNEY L. FRIEDRICH September 30, 2025 United States District Judge

12