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September 7, 2000


The opinion of the court was delivered by: Urbina, District Judge.


Granting the Defendant's Motion for Summary Judgment


This matter comes before the court upon the defendant's motion for summary judgment. The plaintiff, Susan Weigert, alleges that the defendant, Georgetown University, violated the Americans with Disabilities Act of 1990 by discharging her from her position and retaliating against her for lodging complaints with the Affirmative Action Office.*fn1 After careful review of the parties' submissions, supporting evidence and deposition testimony, the court concludes that the defendant is entitled to summary judgment on the plaintiff's claims.


In late 1990, Georgetown University hired Susan Weigert to work as a researcher in the Department of Psychiatry. See Compl. ¶ 11. Beginning in 1992, Ms. Weigert received both written and verbal warnings about her behavior and interactions with co-workers and supervisors, informing her that if she did not change her behavior, further disciplinary action would be taken. See Defendant's Motion for Summary Judgment ("Mot. for Summ. J.") at 7-8.

Meanwhile, within a few months after beginning her employment, Ms. Weigert informed her supervisor, Dr. Bonnie Green, that she had a disability caused by a neurological condition, and requested accommodations for her disability. See Mot. for Summ. J. at 4 n. 1. Although the parties agree that the defendant tried to accommodate those requests, Ms. Weigert states that the defendant's responses were not always adequate. See id. at 2-3; see also Plaintiff's Opposition to Defendant's Partial Motion to Dismiss, Or, in the Alternative, for Summary Judgment ("Opp'n") at 36. In November 1992, after complaining orally that the defendant's accommodations were inadequate, the plaintiff filed an internal complaint with the defendant's Office of Affirmative Action Programs ("AAO"), requesting that the AAO devise a plan to provide her with "suitable working conditions." Mot. for Summ. J. at 14.

The AAO conducted an investigation of Ms. Weigert's complaint, during which time Ms. Weigert took paid administrative leave. Id. The AAO concluded that there was "no evidence to support [the plaintiff's] complaint of discrimination based on disability, harassment, and retaliation." Mot. for Summ. J., Ex. 20, Findings on Ms. Weigert's Discrimination Complaint, January 20, 1993. In late January, after the AAO issued its determination, Ms. Weigert received a departmental memorandum regarding her inappropriate behavior. See Mot. for Summ. J. at 16, Ex. 22, Departmental Memorandum, January 26, 1993. Ms. Weigert returned to work in February 1993. See id. Ms. Weigert also received an annual performance evaluation stating that she had not met the University's standards for affirmative action because of her previous racially and ethnically insensitive remarks directed at African-Americans. See Mot. for Summ. J. at 16.


A. Legal Standard

Summary judgment is proper and the movant is entitled to judgment as a matter of law when the movant proves that based on the pleadings, depositions and other evidence submitted to the court, there is no genuine issue as to material fact. See FED. R. CIV. P. 56(c). The movant has the burden of establishing that no genuine issue of material fact is in dispute. See FED. R. CIV. P. 56(c); National Cable Television Ass'n., Inc. v. FCC, 479 F.2d 183, 186 (D.C.Cir. 1973). The substantive law on which a claim rests determines which facts are "material." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a fact bears on an essential element of a claim or defense, then it is material. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In addition, "[a]ll evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmoving party." Celotex, 477 U.S. at 325, 106 S.Ct. 2548; Childers v. Slater, 44 F. Supp.2d 8, 15 (D.D.C. 1999). For any non-movant, "including a discrimination plaintiff, to survive a motion for summary judgment, he must do more than present conclusory allegations of discrimination; concrete particulars must be presented to substantiate the discrimination claim." Siragy v. Georgetown Univ., 1999 WL 767831, at *2 (D.D.C. Aug. 20, 1999) (citing Kalekiristos v. CTF Hotel Management Corp., 958 F. Supp. 641, 645 (D.D.C. 1997)).

The D.C. Circuit has observed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C.Cir. 1997), vacated o.g., 156 F.3d 1284 (D.C.Cir. 1998); Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).

B. Exhaustion of Administrative Remedies and Timely Filing of a Charge

The defendant contends that Ms. Weigert failed to exhaust her administrative remedies because she did not file a charge with the EEOC within 300 days of making her last request for accommodation from her employer. See Mot. for Summ. J. at 2-3. Ms. Weigert responds that she filed an EEOC complaint on December 30, 1993, after her alleged discriminatory or retaliatory discharge on April 30, 1993, thereby satisfying the 300-day time period. See Opp'n at 44-45. She further states that her claim is not based on the defendant's failure to grant her requests for reasonable accommodations.*fn2 See Opp'n at 52. The defendant thereafter replies that it mistakenly believed that the plaintiff was asserting a reasonable-accommodation claim and that, in light of the plaintiff's assertion, the court need not consider its exhaustion argument.*fn3 See Def.'s Reply in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Reply") at 13 n. 7. Because the parties agree that the plaintiff has not alleged a reasonable accommodation claim, the defendant's motion for summary judgment for failure to exhaust administrative remedies is denied.

C. Claims under the Americans with Disabilities Act

The purpose of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12112 (a) and 12203, is broad and remedial and is designed to provide "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12112 (a). To accomplish this purpose, the ADA prohibits employers from discriminating against a "qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112. The ADA defines disability in relevant part as "a physical or mental impairment that substantially limits one or more of [a person's] major life activities." 42 U.S.C. § 12102 (2)(A), (C). However, Congress specifically limited the ADA's protection to those "qualified individuals with a disability" who, with or without reasonable accommodation, can perform the essential functions of the positions they hold. 42 U.S.C. § 12111 (8). The ADA provides that consideration be given to the employer's judgment in determining what functions are essential, See 42 U.S.C. § 12111 (8).

D. Disability Discrimination

For ADA claims, this court has adopted the Supreme Court's approach in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), "the seminal case establishing the burden of proof in employment discrimination cases under Title VII." Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9, 13 (D.D.C. 1996); see also Miller v. American Coalition of Citizens with Disabilities, 485 A.2d 186, 189 (D.C. 1984). Under this test, a plaintiff must establish, by a preponderance of the evidence, a prima facie case of discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The plaintiff has the initial burden of showing that a reasonable juror could find that she (1) has a disability within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the position with or without reasonable accommodations; and (3) was discharged because of her disability. See Swanks v. Washington Metro. Area Transit Auth., 179 F.3d 929, 933 (D.C.Cir. 1999).

After the plaintiff establishes a prima facie case, the burden shifts to the defendant to show a legitimate, nondiscriminatory reason for its challenged employment practice. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir. 1998). Should the employer succeed in presenting such a reason, the burden shifts back to the plaintiff to establish that the articulated reason is pretextual. See id. The purpose of this framework is "to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Consequently, "an employer's fear that the jury will draw an adverse inference from a false explanation is a vital element of the McDonnell Douglas burden-shifting procedure. Without it, employers would have little incentive to look for and present the real reasons for their employment decisions." Aka, 156 F.3d at 1293.

The plaintiff's "attack on the employer's explanation must always be assessed in light of the total circumstances of the case." Id. at 1291. These circumstances include "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). Additionally, a plaintiff is not required to introduce additional, independent evidence of discrimination at this point to avoid summary judgment. See id. at 2109.

1. Ms. Weigert Must First Establish That She Was Disabled

To establish the first element of a prima facie case, an individual must show that she is disabled within the meaning of the ADA. A plaintiff is disabled if she: (1) has a physical or mental impairment that substantially limits one or more of her major life activities; (2) has a record of such an impairment; or (3) has been regarded as having such an impairment. See 42 U.S.C. § 12102 (2)(A)-(C); see also Siragy, 1999 WL 767831 at *2. In this case, Ms. Weigert has alleged facts that satisfy the first and third prongs of this definition. See Opp'n at 38.

a. Physical or Mental Impairment

The inquiry into a claim of physical or mental impairment consists of a two-part analysis. Ms. Weigert must establish both the existence of an impairment and that the impairment substantially limited one or more of her major life activities. See Kalekiristos v. CTF Hotel Management Corp., 958 F. Supp. 641, 656 (D.D.C. 1997); accord Harris v. H & W Contracting Co., 102 F.3d 516, 520 (11th Cir. 1996). Under the ADA, Ms. Weigert "has the burden of establishing with medical evidence the existence of the alleged disability, and presenting the documentation during the term of employment, not following termination." Kalekiristos, 958 F. Supp. at 657. Whether a plaintiff is "disabled" as a matter of law is a "highly fact-sensitive issue, requiring an individualized inquiry and case by case determination." Dutton v. Johnson Cty. Bd. of Cty. Commissioners, 859 F. Supp. 498, 506 (D.Kan. 1994). In this case, Ms. Weigert alleges that she suffered from four disorders: an unspecified neurological condition; hypothyroidism; impairment from her medications; and claustrophobia.

i) Hypothyroidism

Ms. Weigert alleges that she suffered a physical impairment in the form of an endocrine disorder known as hypothyroidism.*fn4 Accordingly, she has the burden of establishing that she had this impairment during the term of her employment.*fn5 See Kalekiristos, 958 F. Supp. at 657. In October 1992, a nuclear medicine scan indicated that Ms. Weigert's thyroid was "completely normal." See Deposition of Dr. Priscilla Dale, May 9, 2000 ("Dale Dep.") at 22. While employed by the defendant, Ms. Weigert also underwent blood tests which showed no sign that she had hypothyroidism or that "she might develop it within the near future." Dale Dep. at 30.

According to Ms. Weigert's current treating physician, the symptoms she suffered while employed by the defendant are consistent with a diagnosis of hypothyroidism. See Opp'n at 46 (citing Affidavit of Kenneth C.N. Chen, M.D., dated June 16, 2000, ¶ 5). The plaintiff also submits the pharmacological findings of her expert, Dr. Emmeline Edwards, to demonstrate that some of the medicines she was taking had the potential to alter the results of a thyroid function test. See Opp'n at 45-46 (citing Deposition of Emmaline Edwards, dated March 22, 2000, at 42-43). The court notes that the latter submission is mere speculation that cannot meet the plaintiff's burden of "establishing with medical evidence the existence of the alleged disability." Kalekiristos, 958 F. Supp. at 657.

In any case, the plaintiff's claim is defective for a more fundamental reason. The reports of her current treating physician and expert, which constitute the sole evidence proffered in support of the hypothyroidism diagnosis, were prepared after the plaintiff was terminated from her job. "[R]eports about which the defendant employer had absolutely no knowledge nor access prior to terminating the plaintiff cannot serve as the sole evidentiary basis of establishing an element of a prima facie case of disability discrimination." Id. Accordingly, the plaintiff has failed to establish that she suffered a thyroid-related disability during her employment.

Ms. Weigert cites Dotson v. Electro-Wire Products, 890 F. Supp. 982, 987 (D.Kan. 1995), for the premise that the existence of a disability does not depend so much on the name or diagnosis of the impairment as it does on the effect the impairment has on an individual. See Opp'n at 45. However, the plaintiff's reliance on Dotson is misplaced. Although the ADA does "not attempt a laundry list of the impairments that are disabilities," 29 C.F.R. ยง 1630.2 (j), the plaintiff must present evidence contemporaneous with the relevant employment period. Indeed, the C.F.R. and Dotson require the plaintiff to establish the threshold diagnosed impairment. Because both experts prepared their reports after the plaintiff was terminated, they cannot alone establish her physical impairment. The court ...

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