The defendant, the CTF Hotel Management Corporation, t/a the Renaissance Mayflower Hotel (CTF) has moved for summary judgment pursuant to rule 56(c) of the Federal Rules of Civil Procedure, on the grounds that the plaintiff's, Abraha B. Kalekiristos', evidence following the conclusion of discovery is insufficient to prove the essential elements of either of his causes of action: (1) disability-based discrimination under Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. or (2) race- and national origin-based discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Pursuant to 28 U.S.C. § 636(C), the parties consented to proceed before a U.S. Magistrate Judge for all purposes, including the entry of final judgment. On January 29, 1997, this Court issued an order entering summary judgment in favor of defendant CTF Hotel Management Corporation against the plaintiff. [ # 29]. Following is the memorandum opinion setting forth the Court's reasons.
I. Summary Judgment Standard
Summary judgment is appropriate "where there is no genuine issue as to any material fact." FED. R. CIV. P. 56(c). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In such case, the moving party is entitled to summary judgment as a matter of law. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48.
A material dispute of fact "is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth", Hirschhorn v. Sizzler Restaurants Int'l, Inc., 913 F. Supp. 1393, 1397 (D. Nev. 1995); "[a] dispute of fact 'is genuine...if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1099 (S.D. Ga. 1995)(quoting Anderson, 477 U.S. at 248). "A mere 'scintilla' of evidence does not suffice to support the nonmovant's position." Haysman, 893 F. Supp. at 1099. If the moving party makes a sufficient showing pursuant to Rule 56(c), then the nonmoving party must come forward with affidavits and/or other evidence as provided by Rule 56(e), setting forth specific facts showing that there is a genuine issue for trial; the party opposing summary judgment may not rest upon the mere allegations or denials of the adverse party's pleading. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Viewing all facts and inferences in a light most favorable to the non-moving party, Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994)(citing Anderson, 477 U.S. at 250), if that party, as in the instant action, responds only with conclusory allegations and fails to advance sufficient Rule 56 evidence on the issues of the case for which it has the burden of proof at trial, the party cannot overcome a summary judgment against it. Haysman, 893 F. Supp. at 1099. "After drawing inferences favorable to the [nonmovant], summary judgment will be granted only if all reasonable inferences defeat the [nonmovant's] claims." Hirschhorn, 913 F. Supp. at 1397. Courts do not weigh conflicting evidence or make credibility determinations; only where the nonmovant's evidence is insufficient to allow a reasonable jury to return a verdict in its favor as a matter of law, or is merely colorable or not significantly probative, then the movant is entitled to summary judgment. Anderson, 477 U.S. at 249. "'Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (5th Cir. 1996)(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990), quoted in Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)).
Summary judgment is granted in employment discrimination cases only when the plaintiff cannot establish a material factual dispute on each element of the prima facie case. Weber v. American Express Co., 994 F.2d 513, 515-16 (8th Cir. 1993). Courts exercise special caution when considering whether to grant summary judgment in employment discrimination cases when the employer's intent is at issue, Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); however, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 40 (2d Cir. 1994). For any nonmovant, including a discrimination plaintiff, to survive a motion for summary judgment, he or she must do more than present conclusory allegations of discrimination; "concrete particulars" must be presented to substantiate the discrimination claim. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985)("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.")
The Court has examined Mr. Kalekiristos' amended complaint and his opposition to the summary judgment motion according to the preceding considerations and finds that the plaintiff failed to establish a genuine issue of any material facts for which he bears the burden at trial, thus summary judgment in favor of the defendant is appropriate as a matter of law.
The following are undisputed material facts as well as undisputed and disputed - as noted - immaterial facts as provided by the parties in the summary judgment motion, opposition and the entire record:
Abraha B. Kalekiristos, a naturalized U.S. citizen as of April 1996, is a black male of Ethiopian descent; he lived in Sudan for about six years before emigrating to the United States on January 25, 1990. He settled in Washington, D.C. on January 26, 1990, and he was hired by the defendant on March 9, 1990, as an employ at will
, where he remained gainfully employed until terminated on March 24, 1994.
Kalekiristos worked with two other laundry attendants on the 7:00 am to 3:00 pm shift. They were jointly responsible for sorting laundry, loading and unloading washers and dryers, and stocking linen closets on the nine guest floors. [Def's pts & auth. at 2; pl's dep., 18:3 -19:13].
It appears Kalekiristos also worked, at least during July 1992, the 10:00 am to 7:00 pm shift [see def's mot., exh. 2 to exh. C], and a shift that began at 8:30 am in March of 1992. [See def's mot., exh. 1 to exh. C].
On March 14, 1992, Kalekiristos was given a written warning for calling in 45 minutes late on a day his shift started at 8:30 am. [Id. ]. He disputes that he was being reprimanded for calling in sick and asserts instead that he arrived late, at 9:15 am, on March 13. [Pl's opp. at 4; pl's dep., 178:22-182:4]. Nevertheless, the parties agree that a written warning was issued to him by Ms. Louise Ellis, one of the plaintiff's supervisors, for not reporting before 9:15 am. [Id. ]. Ms. Ellis is African American. [Def's pts & auth. at 2; pl's dep., 182:5-6]. Although the reprimand acknowledged in writing by Kalekiristos states he previously received a verbal warning about calling in after his shift had begun, he now denies that he ever received such a warning. [Pl's dep., 181:14-21]. These disputes are immaterial as the reprimand occurred almost two years prior to the alleged discrimination period.
On July 6, 1992
, Kalekiristos again was counseled by Ms. Ellis - this time for failing to clear the laundry chutes at the end of his shift.
[Def's mot., exh. 2 to exh. C]. Also in attendance during this counseling session were Ms. Margie Maye and Ms. Margaret Swim. [ Id. ]. Ms. Swim, the Human Resources Department Benefits Manager, is white [def's pts & auth. at 3; pl's dep. 180:9]; Ms. Maye is the plaintiff's union shop steward and is African-American. [Def's pts & auth. at 3; pl's dep., 185:4-5].
Just over a year later, August 29, 1993, while Kalekiristos was loading towels into a washing machine he experienced back pain and fell to the floor. [Pl's dep. 20:10 - 22:9]. He was taken by ambulance to George Washington University Medical Center Emergency Room and released the same day with a physician's note stating he should not lift anything weighing more than 15 pounds. [Pl's dep., 22:10 - 23:1]. On return to work the following day, Kalekiristos delivered the physician's restrictions to Mr. Alan Schaefer, who informed him there was no light work available. [Pl's dep., 23:2-7].
Shortly thereafter, Kalekiristos was referred by his former attorney to Dr. Jeffrey Phillips, an orthopedic surgeon, for medical evaluation. [Pl's dep., 23:8-24:6]. Dr. Phillips placed the plaintiff on sick leave on September 3, 1993, retroactive to the date of injury - August 29, 1993. [Def's mot., exh. 3 to exh. C]. He also instituted a program of twice a week physical therapy consisting of heat, electrical stimulation and massage [Cohen rpt., def's mot., exh. D]; no medications were prescribed. [Id. ]. Dr. Phillips' physical therapy program ended on November 1, 1993. [See Kurzrok rpt., def's mot., exh. F].
On October 6, 1993, Kalekiristos was referred by his former attorney for a medical evaluation by Dr. John B. Cohen, also a board certified orthopedic surgeon. [Cohen rpt., def's mot., exh. D]. Dr. Cohen found the x-ray films of the cervical spine and lumbar spine to be "unremarkable." [Id. ]. And, despite the plaintiff's physical complaints of chronic pain, Dr. Cohen concluded that "the patient's subjective complaints of pain are not correlated by his objective findings." [Id.]. Dr. Cohen further noted:
[The plaintiff] is now six weeks post-injury. He has no definite neurological deficit...his range of motion of his lumbar spine was fair...If necessary, an MRI scan should be obtained to rule out any significant interdiskal pathology but I believe I need to review the records of his treating physician first, prior to making the determination. My overall impression is that this gentleman's complains [sic] of pain are not substantiated by [Dr. Cohen's] objective findings.
[Id. ]. MRIs of the neck and low back were ordered later in October. [Kurzrok rpt., def's mot., exh. F].
On November 11, 1993, while Kalekiristos was on leave from his work-related injury, he was involved in a motor vehicle accident [pl's dep., 25:22-26:3], and taken by ambulance to the Washington Hospital Center, where x-rays of the chest and neck were "reportedly ok." [Kurzrok rpt., def's mot., exh. F]. After receiving an injection and a prescription for Motrin for pain, he was released. [Id.]. A neck injury purportedly caused by the motor vehicle accident was treated by Dr. David Ellis, a chiropractor, beginning November 18, 1993. [Ellis rpt., def's mot., exh. E; Kurzrok rpt., def's mot., exh. F].
Kalekiristos complained to Dr. Ellis of neck and back pain and stiffness, difficulty sleeping, loss of memory, nervousness, chest pain, and shoulder pain. [Ellis rpt., def's mot., exh. E]. Full spine x-rays taken by Dr. Ellis "demonstrated alteration from normal structure including multiple osseous deviations." [Id. ]. Dr. Ellis was of the opinion that:
...[the plaintiff] is suffering from acute traumatic cervical, thoracic and lumbar sprain/strain with a subluxation syndrome which is accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation that is superimposed on a preexisting cervical and lumbar strain/sprain.
[Id. ]. Dr. Ellis' report mentioned the work-related injury by date and notes that the plaintiff "was on full disability at the time of the accident." [Id. ]. However, he placed no restrictions on the plaintiff's activities [id. ], and prescribed physical therapy. [Kurzrok rpt., def's mot., exh. F]. He also referred Kalekiristos to Dr. Neal Kurzrok, a neurologist. [Id. ].
Upon hearing the plaintiff's litany of complaints and after physical examination, Dr. Kurzrok recommended (1) continued physical therapy by Dr. Ellis; (2) "disability as per Dr. Phillips", noting the plaintiff had an appointment with Dr. Phillips for the following day; and (3) continued use of Motrin. [Id. ]. He also prescribed Fioricet and recommended various diagnostic examinations. [Id. ]. Dr. Kurzrok advised the plaintiff to return in approximately four months, and to call him if any problems arose in the interim. [Id.]. Kalekiristos did not return until the four month follow up appointment -- April 8, 1994, which was after the date of his discharge from employment. [See Kurzrok rpt., def's mot., exh. K].
The day following Dr. Kurzrok's exam, December 15, 1993, Kalekiristos attended his scheduled appointment with Dr. Phillips. His report of that date notes that "EMG's and nerve conduction studies are normal" and that:
The patient has multiple complaints; he also has multiple non anatomic and non physiologic findings. [Dr. Phillips] does not feel there is anything significantly wrong with him. He is being allowed to return to work. He does not need any continuing workup or therapy. As a routine, to make sure he goes back to work, I will see him in three weeks.