The opinion of the court was delivered by: ATTRIDGE
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].
...[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.
[Phillips rpt., def's mot., exh. G]. Dr. Phillips released the plaintiff to return to work on "regular duty status" as of December 16, 1993. [Def's mot., exh. 3 to exh. C].
On December 20, 1993, Kalekiristos returned to work [EEOC compl., def's mot., exh. L]; on this same day, Ms. Lynch, an assistant housekeeping manager, reported to Ms. Ellis that Kalekiristos was not wearing his lift belt. [Def's mot., exh. 4 to exh. C]. Kalekiristos was verbally warned by Ms. Ellis about failing to wear his lift belt. [Id. ]. A personnel file written account of the verbal warning states that Kalekiristos had been verbally warned of the same violation prior to his work-related injury. [Id. ]. Although Kalekiristos does not deny he received the warning, he "adamantly denies that he did not wear his belt on the occasion at issue" and that "as far as he remembers he wore the belt under his jacket." [Pl's opp. at 4; see also pl's dep., 178:8-17]. As discussed under "disparate treatment" at 53 of this memorandum order, whether the plaintiff was wearing his belt on this date or prior to his work-related injury is not a genuine issue of material fact to the instant dispute.
Late in December or early in January 1994, Kalekiristos was reassigned by Ms. Lynch
to the position of "PM Line Runner", which is a 3:00 pm to 11:30 pm shift. [Pl's dep., 50:13-19]. The hotel states that the reassignment was related to its "preparations to subcontract out its laundry operation", and that all employees in the Mayflower Laundry Department were reassigned to other jobs throughout the hotel. [Def's pts & auth. at 4]. The plaintiff "hotly contest[s]" this fact, arguing that the transfer "constituted pretextual conduct on the part of the defendant." [Pl's opp. at 5]. The plaintiff contends that he "was never given a reason as to why the change in shift." [Id.; pl's dep., 50:13 - 51:8]. He also alleges that a March 14, 1994, letter from General Manager Jim Biggar, supports his contention that the hotel was not planning to contract out the service as early as December, and that it did not make the decision until March 1994. [Pl's opp. at 5 and exh. 4]. Kalekiristos does not dispute, however, that 18 other laundry attendants, among whom he ranked 14th in seniority, were also reassigned as a result of the contract. [See pl's opp., exh. 4]. As discussed in the Title VII "pretext argument" section at 52 of this memorandum opinion, this dispute does not create a genuine issue of material fact.
In his new position of PM Linen Runner, Kalekiristos was responsible for "fully stocking the eighteen linen closets on the Mayflower's nine guest floors." [Def's pts & auth. at 4; pl's workers' comp. dep., 13:3-15:23].
On December 30, 1993, Kalekiristos returned to Dr. Ellis. His examination disclosed a "decrease of the cervical range of motion[, although c]ervical and thoracolumbar orthopedic tests remain relatively constant." [Ellis rpt., def's mot., exh. I]. He placed no restrictions on the plaintiff's major life activities, including working.
On January 5, 1994, Kalekiristos followed up with Dr. Phillips, who reported:
[The plaintiff] has multiple non-anatomic and non-physiologic findings. I do not feel that there is anything wrong with this patient. I feel that there is gross exaggeration of his symptom complex. I feel that the patient does not need any orthopedic care, follow-up, or physical therapy. The EMG's and nerve conduction studies which were done to ensure that I was not being misled in my impression are normal. Patient can be working in his full and ordinary occupation. He has been told that there is no need for routine orthopedic follow-up.
[Phillips rpt., def's mot., exh. H].
On January 26, 1994, Kalekiristos returned to Dr. Ellis, who reported "improvement of the cervical range of motion. Cervical and thoracolumbar orthopedic tests remain relatively constant." [Dr. Ellis rpt., def's mot., exh. I]. Dr. Ellis did not place the plaintiff on light duty nor did he restrict the plaintiff from any major life activities. [Id. ].
On February 24, 1994, Ms. Ellis counseled plaintiff for failing to completely stock the third and tenth floor linen closets on February 23 [def's mot., exh. 6 to exh. C]; Kalekiristos refused to sign the written memorandum. [Def's mot., exh. 5 to exh. C]. Ms. Ellis told him that, if he was unable to fully stock the linen closets, he was "to leave a note in [her] office." [Def's mot., exh. 6 to exh. C; pl's dep., 71:6-19]. On February 25, Ms. Ellis found that the second, third, fourth, fifth, eighth and ninth floors were not completely stocked and Kalekiristos had left no note. [Def's mot., exh. 6 to exh. C]. Therefore, Kalekiristos was advised that "any further failure to complete work assignments as instructed will result in further disciplinary action." [Id. ]. He refused to sign this written warning. [Id. ].
On March 1, 1994, Kalekiristos received a written warning from Ms. Ellis for failing, on February 28, to completely stock the nine guest floors and failing to leave a note; he was further warned "if Abraha fails to finish work assignments on a timely [and] consistent basis or if he fails to leave a note for laundry manager regarding unfinished work assignments, strict disciplinary action may occur including termination." [Def's mot., exh. 7 to exh. C]. Kalekiristos refused to sign the written warning. [Id. ].
On March 4, 1994, Kalekiristos followed up with Dr. Ellis, who noted "examination demonstrates a fluctuation of the cervical and thoracolumbar range of motion. There is mild improvement of the cervical orthopedic tests." [Ellis rpt., def's mot., exh. I]. Dr. Ellis imposed no restrictions on any of the plaintiff's major life activities, including working. [Id. ].
Kalekiristos returned to work on March 14, 1994, following the suspension. [Def's mot., exh. 9 to exh. C]. On this same day, the hotel issued a memorandum to all "Team Members" announcing the consolidation of the laundry services, and that the last day for processing linen and terry would be Saturday, March 26, 1994. [Pl's opp., exh. 4]. All employees were assigned, in the order of seniority, personnel appointments to discuss "current job opportunities" with Naomi Schmuckler, Assistant Director of Human Resources, and Ms. Maye. [Id. ]. Kalekiristos, 14th in seniority of 19 employees being displaced, was scheduled for a 1:20 pm meeting on March 16. [Id. ]. Also on March 14, the plaintiff was counseled by Ms. Swim, regarding his return to work from disciplinary suspension, advising him that it was more important - "of super importance", that he leave an accurate shortage list than to complete the stocking of the closet. [Def's mot., exh. 9 to exh. C]. That evening the plaintiff failed to stock all of the linen closets and again failed to leave an accurate note for the manager, which resulted in suspension on March 15 by Ms. Ellis. [Def's mot., exh. 10 to exh. C]. Mr. Rick Whitehurst, President of Union Local 25, was present during the disciplinary session, as was Ms. Schmuckler [id. ]; the plaintiff refused to sign the disciplinary report. [Id. ].
Kalekiristos' opposition to the motion for summary judgment disputes that these counseling sessions with his supervisors (which are numbers 18
, 19, 20, 22, 23 and 24 of the defendant's Local Rule 108 statement of material facts not in dispute) ever took place. He argues, "that he never spoke to his immediate supervisors about his job performance as a p.m. linen runner." [Pl's opp. at 7, citing pl's dep., tr. 204:20 - 208:7]. Indeed, during his 1996 deposition, the plaintiff stated that he did not remember "that [he] ever spoke with Ms. Ellis or Ms. Maye about [his] performance as the p.m. linen runner and was never counseled by them." [Pl's dep., tr. 204:20-208:7]. However, he also admitted "they [did] talk to [him] about not completing stocking of the linen closets." [Id.]. Moreover, the plaintiff told Dr. Kurzrok on April 8, 1994, just a couple weeks after his discharge, that the hotel "gave him three warnings then fired him" [Kurzrok rpt., def's mot., exh. K]; his EEOC complaint filed January 6, 1995, states he "received three written disciplinary reports, and [he] was subsequently terminated on March 24, 1994 [EEOC compl., def's mot., exh. L]; and in his sworn answers to interrogatories served two days prior to the October 1996 deposition, Kalekiristos identified Ms. Ellis as someone with knowledge regarding the instant dispute, describing her as:
Plaintiff's supervisor who was [sic] issued three written warning reports on 3/1/94, 3/9/94, and 3/15/94 and counselled [sic] Plaintiff relative to his ability to complete his work assignments and to leave a note if he did not. Plaintiff informed her of his physical inability to complete his job assignments.
[Pl's opp., exh. 9 at 3, P D]. The Court finds there is no genuine dispute as to whether three written warnings were issued. With regard to the dispute over verbal warnings issued February 24th and 25th, the plaintiff's mere conclusory denials, allegations and assertions unsupported by any evidence do not create a genuine issue of material fact. [See discussion of job performance at 38 of this memorandum opinion.].
On March 24, 1994, Kalekiristos was terminated for "inability to complete work assigned." [Def's mot., exh. 11 to exh. C]. Present at the disciplinary session were Ms. Swim, Ms. Maye, and Ms. Schmuckler; Kalekiristos refused to sign the personnel action form. [Id. ]. He never filed a grievance pursuant to the hotel grievance procedure to protest his discharge or any other aspect of his treatment during his employment by the defendant. [Pl's dep., 215:1-218:6].
After his termination, Kalekiristos' position was temporarily filled by a then-current Mayflower employee, Mr. Terrance Henry, and permanently filled in May 1994, by Mr. John Mannah, a black native of Sierra Leon. [Def's pts & auth. at 6-7; def's mot., exh. 13 to exh. C; Mannah affidavit, def's mot., exh. J]. Mr. Mannah remained in the position of PM Linen Runner until December 1994, at which time he was promoted to the hotel accounting department as a night auditor. [Mannah affidavit, def's mot., exh. J]. The plaintiff disputes this material fact [no. 25], arguing, "Plaintiff contends that Terrance Henry is the person who replaced his position at the Mayflower Hotel when he was terminated." [Pl's opp. at 7]. He refers the Court to his answers to defendant's interrogatories for proof of his assertion. [Pl's opp. at 7, citing exh. 9]. The answers, however, only list Henry's name, but state nothing with regard to what information Henry could provide [pl's opp., exh. 9, at 2, P C]; further, in the same interrogatory answers, the plaintiff names a Mr. Denton James as the person who "replaced plaintiff when he was terminated on March 24, 1994." [Pl's opp., exh. 9, at 4, P L]. Additionally, in his deposition Kalekiristos repeatedly states he really does not know who replaced him. [Pl's dep., 148:21- 149:1; 172:5-11]. The hotel does not dispute that Henry, an African-American, was his temporary replacement. [Def's mot., exh. 13 to exh. C]. As discussed in the Title VII section at 50-51, the plaintiff's dispute over whether Mannah replaced him does not create a genuine issue of material fact.
As noted on page 9 supra, on April 8, 1994, Kalekiristos followed up with Dr. Kurzrok, the neurologist to whom he was referred by his chiropractor, Dr. Ellis. [Kurzrok rpt., def's mot., exh. K]. Kalekiristos reported he was continuing to receive physical therapy from Dr. Ellis; he also reported that he received three warnings from his employer, and was then fired. [Id. ]. By this April visit, Dr. Kurzrok had received Kalekiristos' prior medical records and results from the studies he requested, e.g., the cervical and lumbar spine films taken on December 27, 1993, MRI of the brain taken on December 17, 1993, MRIs of the cervical and lumbar spines, needle EMG/nerve conduction studies, an electroencephalogram, and brainstem auditory evoked responses. [Kurzrok rpt., def's mot., exh. K]. Dr. Kurzrok's comments and recommendations were as follows:
COMMENT: Patient reports that neck pain and low back pain are no better with time and are not helped by physical therapy. Yet objective findings are lessening on examination and thus patient is clearly improving with time and physical therapy. I suspect that patient still has a significant degree of neck and low back discomfort and that is why he is unable to see his own improvement.
RECOMMENDATIONS: 1. Follow-up and physical therapy as per Dr. Ellis. 2. Patient could return to work (if such job existed) at least light duty. Further recommendations as per Dr. Ellis. 3. Discharged from [Dr. Kurzrok's] care at this juncture. [He] would be happy to reevaluate Mr. Kalekiristos in the future should he or any of his caretakers so desire.
[Kurzrok rpt., def's mot., exh. K]. On May 11, 1994, Kalekiristos was referred by his attorney in conjunction with his workers' compensation claim to Dr. Sagar Nootheti, an orthopedic surgeon, for a medical examination. [Def's stmt. of material facts, no. 32 (undisputed)].
Dr. Nootheti reviewed the records of Drs. Phillips and Cohen but did not review the MRIs or other studies. Dr. Nootheti diagnosed the patient as follows:
1. Chronic lumbosacral strain, possible disc herniation with left side radiculopathy, facet joint injury, L4-5, S1.
The patient has been treated with extensive physical therapy with minimum improvement...At present, the patient is suffering from chronic pain syndrome with facet arthropathy and possible disc degeneration and chronic lumbar disc disease affecting L4-5, S1. The patient at present needs possible epidural injections to the lower back to relieve the symptoms. He also needs a work hardening program. If this does not help the problems, he may need surgery after further investigations.
[Nootheti rpt., pl's opp., exh. 13; def's mot., exh. M]. Nowhere in the report does Dr. Nootheti place any limits on the plaintiff's major life activities, including working. [Id. ].
On September 30, 1994
, Kalekiristos began employment with Diplomat Parking. [Def's mot., exhs. 3 and 4 to exh. A]. On his June 1, 1994, employment application, which the plaintiff completed in his own handwriting [pl's dep., 110:15-22], Kalekiristos left blank portions of the "physical record" section, which specifically asked him to identify "any physical defects" and to detail prior injuries, and any defects in hearing, vision and/or speech. [Def's mot., exh. 3 to exh. A].
In the section of the application that asks the job applicant to identify and state the reason for leaving former employment, Kalekiristos stated "department closed" as his reason for leaving his position at the hotel. [Id. ]. And the section that asks: "What Foreign Languages Do You Speak Fluently?", the plaintiff wrote two languages, one being "English", and he circled that he writes English fluently. [Id. ].
A "Termination Report" was submitted as "exhibit 4 to exhibit A" of the defendant's motion. It is unclear who completed the report, but it states that Kalekiristos was employed by Diplomatic Parking until March 27, 1995, at which time he quit because he "did not like work". [Def's mot., exh. 4 to exh. A]. Kalekiristos disputes this fact, stating he "stopped working because of pain." [Pl's mot. at 8; pl's dep., 7:6-21]. The reason he left this job in March 1995 is immaterial to the instant dispute.
On January 6, 1995, Kalekiristos filed a complaint with the Equal Employment Opportunity Commission, alleging that he was discriminated against between December 20, 1993, and March 24, 1994, on the basis of race, national origin and disability. [EEOC compl, def's mot., exh. L]. He contended that "[his] employer refused to tell [him] the reason [he] was fired, however, during the [unemployment] compensation appeal hearing, my employer asserted that I was fired for misconduct." [Id]. His EEOC complaint further alleged, "after the hearing, the examiner found that I was not fired for misconduct, I was fired because of my medically documented disability." [Id. ]. The plaintiff submitted no evidence of the Board's finding.
On March 23, 1995, Kalekiristos' workers' compensation claim was dismissed because he failed to attend a medical examination by a physician selected by the employer. [Order, def's mot., exh. N]. His appeal of the dismissal to the District of Columbia Court of Appeals was dismissed March 7, 1996, for failure to exhaust administrative remedies. [Order, def's mot., exh. P].
On January 4, 1996, Kalekiristos was examined by Dr. Richard Edelson, a neurologist, for injuries resulting from an altercation with a Citibank branch office teller in December 1995.
Dr. Edelson reported the plaintiff stated that prior to this altercation/injury "his general health had been excellent. He has no underlying medical illnesses and is on no medications. He does not smoke or drink. He was involved in an automobile accident in 1993, but had full recovery." [Edelson rpt., def's mot., exh. O]. The report makes no mention of neck or back pain, nor of the August 29, 1993, washer-loading accident. [Id. ].
Mr. Kalekiristos would appear to be suffering from a severe post traumatic stress reaction. He has developed characteristic symptoms following the assault on his person by the bank teller. This stressful syndrome would be markedly distressing to anyone and has been experienced with fear, terror and helplessness. The patient now avoids stimuli associated with the event, namely Black American males and continues to obsess that he may be victimized again by the assailant. He has continued to experience distressing dreams in which he is grabbed and choked, although these occur now to a lesser degree. Persistent symptoms of increased arousal that were not present before the trauma include difficulty falling or staying asleep (including traumatic nightmares) and middle or terminal sleep disturbances. Mr. Kalekiristos continues to make progress and I feel supportive psychotherapy and medication continue to be warranted.
At the defendant's request, Kalekiristos was examined by Dr. Robert Gordon, an orthopedic surgeon, on September 12, 1996. [Gordon rpt., def's mot., exh. S]. Dr. Gordon reported that the plaintiff complained of low back pain, "particularly if he is sitting for very long or if he is lying in bed for very long." [Id. ]. After reviewing Dr. Phillips' records and examining the patient, Dr. Gordon observed, "there is nothing in my examination of the patient or my review of the medical records that have thus far been provided that indicate [sic] that anything other than muscular strain may have occurred." [Id. ]. He also reviewed the MRI report, noting "at least according to the report which [he] has reviewed, it appears to have shown some pre-existing congenital or degenerative changes, but there was no indication of any acute abnormalities related to this accident." [Id. ]. Dr. Gordon concluded,
based on [his] examination of the patient and [his] review of the medical records that have thus far been provided, [he] see[s] no objective evidence of any residual or permanent impairment as a result of the 8-29-93 accident. If his work was quite strenuous then certainly is [sic] would have been reasonable for him to have missed several weeks of work as a result of this injury but there was nothing to indicate to [him] that any prolonged period of disability would have been appropriate. There is also nothing, in [his] opinion, that indicates that there are any residuals from this accident that would preclude [the plaintiff] from any type of work activity that he was capable of doing prior to the 8-29-93 injury.
A. Title I of the Americans with Disabilities Act of 1990
Title I of the Americans with Disabilities Act [ADA] provides that:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). Kalekiristos complains that "upon [his] return to work at the Stouffer Mayflower Hotel as a laundry attendant in December 1993, defendant ...forced him to do the work normally assigned to three people, i.e. stock ten hotel floors linen closets with towels, linen, etc. Previously, plaintiff was assigned to stock only three (3) floors. Plaintiff was forced to transfer from day to evening shift to perform his new job duties...[and that the] new job duties were forced upon plaintiff even though defendant knew that plaintiff was suffering from a physical disability that without reasonable accommodation, would not allow him to perform the said work duties. Had plaintiff been reasonably accommodated by defendant, he would have been able to competently complete his job related duties." [Pl's amend. compl. at 3-4, PP 1-2].
The hotel has moved for summary judgment on the grounds that the plaintiff cannot establish the elements of a claim of disability discrimination: specifically, that he was suffering from a physical impairment that substantially limited a major life activity while he was employed at the Mayflower. The defendant further argues that despite the lack of impairment, the laundry department accommodated his complaints. [Def's pts & auth. at 12-20].
In the instant action, the plaintiff proffers no direct evidence that he was fired because of a disability: he offers no evidence of discriminatory remarks or actions by his employer regarding his alleged disability, nor does he offer any information regarding the abilities of other hotel employees. In fact, he repeatedly stated that he was never given a reason for his termination. [Pl's workers' comp. dep., 72:2-4; 72:21-23; exh. 1 at 4 to pl's workers' comp. dep.]; See Flasza v. TNT Holland Motor Express, Inc., 159 F.R.D. 672, 676 (N.D. Ill. 1994).
Because, as in the instant action, direct evidence of employment discrimination is rare, an ADA plaintiff may rely on the burden-shifting method established in the Title VII case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See, e.g., Whitbeck v. Vital Signs, Inc. 934 F. Supp. 9, 13 (D.D.C. 1996); Henry v. Guest Servs., Inc., 902 F. Supp. 245, 250 (D.D.C. 1995). To prove a claim under McDonnell, an ADA plaintiff bears the burden of producing evidence establishing that: (1) he belongs to a protected class, i.e, has a disability recognized under the ADA; (2) he is qualified for the position and performs the essential functions of the job satisfactorily with or without reasonable accommodations; (3) he was dismissed despite his qualifications and performance; and (4) he was ultimately replaced by a person sufficiently outside the protected class to create an inference of discrimination. See id., 411 U.S. at 802; St. Mary's, 509 U.S. 502, 505.
, 125 L. Ed. 2d 407, 113 S. Ct. 2742
If a plaintiff establishes a prima facie case, a rebuttable "presumption [arises] that the employer unlawfully discriminated against the employee." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). A defendant then has the burden of producing evidence contesting the plaintiff's prima facie case and/or of producing evidence of some legitimate, nondiscriminatory reason for the adverse personnel action. McDonnell Douglas, 411 U.S. at 802. The defendant satisfies this burden by "producing admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257. If the defendant meets its burden of production, the "ultimate burden" shifts back to the plaintiff to show that the proffered reasons for the discharge were "a pretext for discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). To carry this burden, the plaintiff must produce evidence that "both that the [proffered] reason was false, and that discrimination was the real reason." Id. At all times a plaintiff bears the ultimate burden of proving that he has been the victim of illegal discrimination based on his disability. See id. at 506-511.
B. The Prima Facie Case: "Qualified Individual With A Disability"
The ADA forbids discrimination "against a qualified individual with a disability because of the disability of such individual". 42 U.S.C. § 12112(a); see, e.g., Wooten v. Farmland Foods, 58 F.3d 382, 385 (8th Cir. 1995). Therefore, an ADA plaintiff bears the initial burden of producing evidence that he is a qualified individual with a disability. "Merely having a disability does not automatically extend the protections of the ADA to that individual. Congress specifically limited the ADA's protections to only those disabled individuals who are otherwise qualified to hold the position in question". Dockery v. North Shore Med. Ctr., 909 F. Supp. 1550, 1555 (S.D. Fla. 1995).
Title I of the ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an ...