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March 30, 2000


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 Disabilities Act.

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 behavior.
• 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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