United States District Court, District of Columbia
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
Plaintiff alleges that, shortly after she began working at
exhibited an unwillingness both to control smoking by fellow
employees at the entrance of the building where she worked and
to ensure that local hotels that hosted ACS business meetings
made reasonable accommodations for her disabilities.
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 to assist
her with her problems.
Defendant further asserts that, on December 8, 1994, before
the episode with the EEO officer, Mr. Brannen and his superior
decided to terminate plaintiff — she was still a probationary
employee at this point — based on their perception "that the
agency was unable to continue employing plaintiff given her
behavior, even though she was doing very good work." Id. They
decided to wait a month to effect the termination because of the
upcoming holiday season, and, on January 31, 1995, Mr. Brannen
informed plaintiff by letter that she was being terminated
during her probationary period, effective February 14, 1995.
In December 1994, before she learned that she would be
terminated, plaintiff, who is Jewish, complained to ACS
management about "the display of Christian Christmas decorations
in the ACS offices," Complaint at 3. That complaint, according
to plaintiff, was "deemed by her supervisors and the managers of
the ACS to be yet another example of her uncooperativeness and
abrasiveness," id., and plaintiff asserts that it was one of
the reasons for her termination.
Plaintiff has exhausted her administrative remedies. She filed
timely complaints with the Equal Employment Office ("EEO") based
on disability and religion. After a hearing, an Administrative
Law Judge ruled against plaintiff. The Agency accepted the
Administrative Law Judge's decision, and plaintiff received
notification of the Agency's Final Decision on May 16, 1998.
The allocation of the burden of proof in Rehabilitation Act
cases in which an employer denies making an employment decision
because of plaintiffs alleged disability follows the McDonnell
Douglas burden-shifting approach. See Barth v. Gelb,
2 F.3d 1180, 1186 (D.C. Cir. 1993) (citing Doe v. New York Univ.,
666 F.2d 761, 776 (2d Cir. 1981)).
Prima facie Case — Disability Claim
Plaintiff has been challenged by defendant's motion to
establish a prima facie case of disability discrimination, but
she has failed to do so. The Court will assume arguendo that
MCS is a disability under the Rehabilitation Act.*fn2 The
fatal flaw in plaintiffs case is not her claim to suffer from
MCS, but the complete lack of proof that the behavior found
unacceptable by her superiors was "related to or a manifestation
of the disability." Pltf. Memorandum at 6. Plaintiff has neither
adduced nor proffered any evidence, nor pointed to anything in
the record, that would establish that her disabilities caused
her behavioral problems.
Plaintiff has attempted to construct an argument to the effect
that, as a disabled person, she is more sensitive to what she
perceives to be intolerable risk factors in the workplace, so
that the seeming insensitivity to these factors by defendant
others) only served to alienate her and make her less
cooperative in her dealings with her colleagues. The attempt is
unsuccessful. It is true that uncooperative behavior exhibited
by an employee in response to discrimination (e.g., a female
employee's failure to cooperate because of the sexist attitudes
of her male colleagues) cannot be used as a basis for adverse
action against that employee, see McKenna v. Weinberger,
729 F.2d 783, 790 (D.C. Cir. 1984). But plaintiffs behavioral
problems transcend "failure to cooperate" and are completely
lacking in any credible explanation supported by science or law.
Defendant points out with some force that, even if plaintiffs
novel argument were accepted, plaintiff has repeatedly conceded
that she was not suffering from respiratory distress when the
incidents alleged by defendant occurred. Thus, even if her
behavior were a manifestation of her disability, she could not
argue that the behavior that resulted in her dismissal was a
manifestation of her disability.
Prima facie Case — Religion Claim
Plaintiff concedes that she was dismissed "because of her
alleged conduct," Pltf. Memorandum at 4, and that defendant's
decision to terminate her employment was made before she
voiced her concerns about the office Christmas decorations.
These concessions effectively dispose of plaintiffs claim of
religious discrimination. Counsel nevertheless submits that
religion was a factor — albeit a "minor factor" — in defendant's
decision and that it was used to "reinforce" defendant's prior
decision to terminate plaintiff. The assertion is unsupported in
Employer's Proffered Nondiscriminatory Reason
Even if plaintiff had succeeded in making out a prima facie
case of discrimination, she has put forward no evidence to
demonstrate that defendant's proffered nondiscriminatory reason
for her dismissal — that her behavior and her inability to
interact well with her professional colleagues — is pretextual.
An appropriate order accompanies this memorandum.
For the reasons set forth in the accompanying memorandum, it
is this 29th day of March 2000,
ORDERED that defendant's motion for summary judgment [# 13]
is granted. It is
FURTHER ORDERED that plaintiff's motion for summary judgment
[# 9] is denied.