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PLOTKIN v. SHALALA
March 30, 2000
DR. JUDITH PLOTKIN, PLAINTIFF,
DONNA SHALALA, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Robertson, District Judge.
Before the Court are cross-motions for summary judgment. A
motions hearing was held on March 15, 2000. For the reasons set
forth below, plaintiffs motion will be denied and defendant's
motion will be granted.
Plaintiff Dr. Judith Plotkin brings this religious and
disability discrimination action pursuant to 42 U.S.C. § 1981,
Title VII, the Civil Rights Act of 1991, and the Rehabilitation
Act of 1973.*fn1
Plaintiff, a Ph.D. biogeneticist and statistician, was a
probationary employee with the Administration of Child Services
(ACS) of the Department of Health and Human Services from May 1,
1994 until February 1995. She alleges that she suffers from
"multiple disabilities including a potentially life threatening
tobacco product induced asthma [multiple chemical sensitivity
(MCS)] and a back condition which necessitated a spinal fusion
that requires Plotkin to walk with a cane," Complaint at 2.
These conditions, she asserts, qualify her as a disabled person
under the Rehabilitation Act, Title VII, and the Americans with
Defendant's version of the facts is that, within one month of
her employment with ACS, plaintiff began to display an
extraordinary pattern of inappropriate behavior:
• In June 1994, during an emergency evacuation of
the building, plaintiff became involved in an
altercation with a floor warden concerning her
refusal to exit the building and follow the
evacuation instructions, because, she maintained,
she was physically unable to walk down seven flights
of stairs as instructed. A few days after the
incident, plaintiffs supervisor, Patrick Brannen,
overheard plaintiff screaming at another employee
regarding the evacuation incident and subsequently
told plaintiff that her behavior was inappropriate.
• Two weeks after the evacuation, another agency
employee filed a formal complaint with plaintiffs
supervisor concerning an incident in which plaintiff
allegedly demanded in an obstreperous manner that
the employee, who was smoking on a sidewalk in front
of the ACS building, move further away from the
building. Mr. Brannen informed again plaintiff that
her behavior was inappropriate, but he apparently
attempted to address her concerns by notifying her
that, if she arrived at work late to avoid the
early-morning smokers on the sidewalk in front of
the building, she would not be penalized.
• About a week later, plaintiff, while preparing for
a meeting at a local hotel with the American Public
Welfare Association (APWA), allegedly demanded of an
APWA representative that the APWA ensure that all
APWA-rented space, including the lobby and hallways,
be smoke-free, and that the smoking ban be enforced.
APWA filed a complaint about the aggressive manner
in which plaintiff allegedly made her demands. Mr.
Brannen once again spoke to plaintiff about her
behavior, this time informing her that her
attendance at the conference was not mandatory and
that, if the hotel smoking policy were not
acceptable to her, she could opt not to attend.
• The following month, an incident occurred in an
employee lounge: a fellow employee had placed her
food in a microwave oven to be heated, when
plaintiff allegedly "shoved her aside, pushed her
hand away and tried to unplug the microwave while
yelling at [the employee] in a demeaning manner,"
Deft. Memorandum at 6, prompting the employee to
summon security personnel; Mr. Brannen and another
of plaintiffs superiors spoke to plaintiff about
this incident and this time referred her to the
Employee Assistance Program (EAP) to discuss any
problems that might have been affecting her
• After her referral to EAP, plaintiff continued to
have behavioral difficulties. She became involved in
various altercations with other people using the
agency fitness center. In October 1994, during an
agency meeting, plaintiff went to the back of the
room and demanded that a fellow employee give up his
chair for her; when he refused, she pushed aside
another employee as she exited the room. Plaintiff
asserts that this dispute stemmed from a
disagreement over what chair was required to
accommodate her back ailment.
• Later that month, plaintiff allegedly called the
sales representative for a Washington hotel about
arrangements for an upcoming ACS meeting at the
hotel. According to defendant, "plaintiff had called
and been rude, loud and threatening, had demanded
that the entire hotel be non-smoking, and had
threatened Ms. Da Silva with a law suit," Deft.
Memorandum at 7.
• Finally, and perhaps most inexplicably, in
December 1994, plaintiff was verbally abusive to an
EEO officer who apparently was attempting ...
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