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.
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.
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
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
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
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.
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;
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
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
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. § 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 ...