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October 12, 1995


The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on Defendant's motion for summary judgment. The Plaintiff brought this case under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101- § 12213, alleging in count I that the Defendant discriminated against him because of his disability (depression) by denying him emergency medical leave benefits, harassing him, and terminating him. In count II, Plaintiff alleges that the Defendant harassed and ultimately fired him in retaliation for filing complaints with the Fairfax County Human Rights Commission (FCHRC) and the Equal Employment Opportunity Commission (EEOC).

 Defendant denies the charges and maintains that it fired Plaintiff for poor work performance. More specifically, Defendant contends that Plaintiff cannot establish a prima facie case of discrimination or retaliation. Further, even if Plaintiff can meet its initial burden, Defendant claims it has articulated legitimate, non-discriminatory reasons for its challenged conduct, which the Plaintiff has been unable to show are pretextual.


 Plaintiff, Henry, was employed by Defendant, Guest Services, Inc., from November 1985 until he was terminated on May 5, 1995. During this time, Plaintiff worked as a food services manager at facilities managed by Defendant at the National Gallery of Art and the Smithsonian Institution National Air and Space Museum.

 Over the course of several years, Plaintiff struggled with depression, for which he first sought treatment in 1990. In July, 1991, Plaintiff missed approximately one month of work due to his depression. Plaintiff, who was experiencing marital troubles and receiving counselling from Defendant regarding his poor work performance, became increasingly depressed. In early May, 1992, he attempted to kill himself.

 Following his suicide attempt, Plaintiff was absent from work from May 6, 1992, until November 17, 1992. At the time, Plaintiff requested 90 days of emergency medical leave. In September, 1992, while the request was pending and Defendant had not paid any benefits, *fn1" Plaintiff filed a complaint with the Fairfax County Human Rights Commission (FCHRC). The complaint alleges that Defendant's failure to pay him emergency medical leave entitlements constituted disability discrimination. In late November, 1992, shortly after Plaintiff returned to work, Defendant paid the emergency medical leave entitlements.

 Upon his return to work, the Plaintiff was assigned to the National Air & Space Museum. About five months later, in mid-April, 1993, Plaintiff filed a discrimination charge with the EEOC, alleging that he had been harassed due to his disability, *fn2" and reiterating his FCHRC charge of discriminatory delay in payment of emergency medical leave. Plaintiff also dismissed his FCHRC complaint.

 During the course of his employment, Plaintiff's performance evaluations continuously and consistently declined. From a high of 89.9 in April, 1987, Plaintiff's reviews steadily slipped to a low of 64.49 in July, 1993. Despite his unsatisfactory performance, Defendant did not terminate Plaintiff, but instead encouraged him to improve his work performance. By September, 1993, Plaintiff had brought his performance back up to 71.3, slightly above the unsatisfactory level.

 In February, 1994, Plaintiff was responsible for overseeing the cleaning of the restaurant at the National Gallery of Art, which had been closed 11 days for repair. As part of this responsibility, Plaintiff supervised a cleaning crew, which was at reduced strength since several employees had not shown up for work. Following the cleaning, the Administrator of the National Gallery of Art conducted a walk-through and was dismayed by the lack of cleanliness in the area which Plaintiff had supervised. The Administrator was particularly upset over the ovens, which still contained food left from before the restaurant was closed. The Administrator informed Defendant of her dissatisfaction. The following day, Defendant terminated Plaintiff.

 On about February 24, 1994, the Plaintiff filed another charge with the EEOC. The complaint alleged that Defendant retaliated against the Plaintiff for his earlier filing of his EEO complaint by harassing and eventually terminating him. On September 2, 1994, the EEOC issued right-to-sue notices. Shortly thereafter, Plaintiff commenced this lawsuit.


 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mere allegations or denials of the adverse party's pleadings are not enough to prevent issuance of summary judgment. The adverse party's response to the summary judgment motion must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Pro. 56(e).

 The Supreme Court set forth the governing standards for issuance of summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In Celotex, the Supreme Court recognized the vital need for summary judgment motions to the fair and efficient functioning of the justice system:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Proc. 1. . . .
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

 Id. at 327. (citation omitted).

 The plaintiff, as the non-moving party, is "required to provide evidence that would permit a reasonable jury to find" in his favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (per curiam) (citing Celotex, supra). The moving party is entitled to summary judgment where "the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex at 323. Any factual assertions contained in affidavits and other evidence in support of the moving party's motion for summary judgment shall be accepted as true unless the facts are controverted by the non-moving party through affidavits or other documentary evidence. See Local Rule 108(h).

 In resolving the summary judgment motion, all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505. The inferences, however, must be reasonable, and the non-moving party can only defeat a motion for summary judgment by responding with some factual ...

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