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July 3, 2001


The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge.


Plaintiff Arthur Trawick has brought this suit against the Architect of the Capitol ("AOC"), in his official capacity, pursuant to the Congressional Accountability Act, 2 U.S.C. § 1311(a)(3), alleging that he was disciplined, suspended, and ultimately terminated because of his disabilities and in retaliation for protected activity. Defendant responds that plaintiff has failed to establish a prima facie case of disability discrimination and retaliation and that defendant disciplined and terminated plaintiff for repeated absences without leave, attendance problems, and incidents of sleeping on the job. Because plaintiff has failed to establish a prima facie case of discrimination and retaliation and failed to offer any evidence that defendant's stated reasons for disciplining and terminating plaintiff are pretextual, the Court will grant summary judgment in favor of defendant on all counts.


Plaintiff was employed by the AOC beginning in April/May 1995, as a fireman/Boiler Plant Worker ("BPW") in the Capitol Power Plant ("CPP"). Def. St. of Facts ¶ 2. The CPP operates central steam and refrigeration plants to provide heating and air conditioning to approximately 15 million square feet of building space on and around the 275 acres of the Capitol complex, including the U.S. Capitol, three Senate Office Buildings, four House Office Buildings, the Supreme Court, three Library of Congress Buildings, the House and Senate garages, the Capitol Police Headquarters, and the Union Station complex. Id. ¶ 1. Plaintiff's responsibilities included: (1) performing adjustments to oil and coal burning components of boilers, and performing preventative maintenance to that equipment; (2) inspecting burning conditions in the firebox, and adjusting grate speed, coal spreader, or oil valve opening to suit conditions; (3) performing or assisting with repairs to mechanical equipment and boiler components; (4) assisting the engineers with tasks as assigned; (5) inspecting the boilers; (6) operating on an assigned watch; and (7) cleaning the "burning gun" in the boilers. Id. ¶ 2. Plaintiff's duties contributed to maintaining the safety conditions in the CPP and to producing the steam necessary for heating and air conditioning in the surrounding buildings. Id. ¶ 3. During his tenure at the AOC, plaintiff worked three different shifts — day shift (6 a.m. — 2 p.m.), swing shift (2 p.m. — 10 p.m.), and night shift (10 p.m. — 6 a.m.) — and only one fireman is on duty during each of these shifts. Id. ¶ 5.

Plaintiff alleges that during his employment, he suffered from medical skin disabilities, including chloracne and eventually lymphoma skin cancer, which resulted from his exposure to Agent Orange during his military service in Vietnam, and that management was aware that the medication he was taking to treat these skin disorders had the recurring and residual side effect of causing drowsiness. Am. Compl. ¶¶ 18-21. Plaintiff also alleges that he informed management in 1995 that he suffered from Post-Traumatic Stress Disorder ("PTSD") as a result of his military service in Vietnam, and that in April 1998 he was diagnosed with "a disability of substance abuse." Am. Compl. ¶¶ 22-25.
Within his first year at AOC, defendant had concerns about plaintiff's poor attendance and failure to follow proper leave procedures. Def. St. of Facts ¶ 6. On June 24, 1996, defendant issued plaintiff a warning letter to communicate defendant's concern about his poor attendance, failure to follow proper leave procedures, and excessive use of leave. Id. The letter also informed plaintiff that future unauthorized absences would be charged as absence without leave ("AWOL") and may result in further disciplinary action, including official reprimand, suspension without pay, and termination. Id. The letter further advised plaintiff that if he were "experiencing problems of a personal nature, including alcoholism or drug abuse," the Employee Assistance Program ("EAP") provided "counseling and information on an entirely confidential basis." Id.
On November 21, 1996, plaintiff received a proposed Official Reprimand for continued AWOL, which was confirmed on December 23, 1996. Id. ¶ 7. The Official Reprimand listed eight separate dates on which plaintiff was AWOL — March 12, 1996, May 21, 1996, September 24, 1996, October 8, 1996, October 21, 1996, October 22, 1996, November 15, 1996, and November 16, 1996. Id. Plaintiff admits that he was AWOL on each of these dates. Id. Plaintiff was also notified that "in the event there are additional instances of AWOL from the date of the proposed Official Reprimand, you may be suspended from your position without pay." Id.

After the Official Reprimand, plaintiff incurred additional incidents of AWOL in 1997. Id. ¶ 8. On October 2, 1997, defendant proposed to suspend plaintiff from his position for 10 days, listing eighteen separate instances of AWOL between May 23, 1997 and June 20, 1997. Id. By letter dated December 5, 1997, plaintiff's supervisor Leonard Gibson concurred with the proposal to suspend plaintiff for continued AWOL and failure to follow proper procedure for requesting leave, but reduced the proposed suspension to three days. Id. ¶ 9. Plaintiff accepted the suspension and was suspended without pay for three days in January 1998. Def. Exs. I & J. After the suspension, plaintiff again incurred numerous AWOLs in February and March 1998. Def. St. of Facts ¶ 10. In April 1998, defendant suggested, and plaintiff received permission, to use leave for an in-patient substance abuse treatment program. Id. Plaintiff alleges that he successfully completed the treatment program and was released on May 12, 1998. Am. Compl. ¶ 26. Plaintiff was AWOL on nine separate occasions after the January suspension, including several times after he had returned from in-patient substance abuse treatment. Def. St. of Facts ¶ 10. In addition, on July 29, 1998, plaintiff was observed sleeping at a table in the boiler room while he was on duty. Id. Plaintiff's supervisor Edward Baranowski woke him up and plaintiff became belligerent, hitting a table with his fist and pushing his chair away. Id.*fn1 Plaintiff admits that he was sleeping on duty and that he had done so on other occasions. Id.

On August 18, 1998, Gibson wrote to the Employee Relations Specialist, Barbara Willoughby, stating that "EAP sessions . . . are not accomplishing their intended objective." Id. ¶ 11. Therefore, he requested that defendant issue "a proposed termination for failure to properly schedule leave in advance and for failure to report for duty at his assigned time." Id. On September 1, 1998, plaintiff contacted the Office of Equal Opportunity and Conciliation Programs complaining of Baranowski's handling of the July 29, 1998 incident and alleging that Barakowski's mannerisms and tone of voice created a hostile environment. Pl. Exs. B & C. On October 13, 1999, the proposed termination was issued. Def. Ex. K. After a hearing on February 19, 1999, plaintiff was notified on March 4, 1999 that he was terminated effective March 5, 1999. Def. St. of Facts ¶ 12; Def. Ex. L.


Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).
The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "While summary judgment must be approached with special caution in discrimination cases, . . . a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence." Calhoun v. Johnson, 1998 WL 164780 at *3 (D.D.C. March 31, 1998), aff'd, 1999 WL 825425 (D.C. Cir. Sept. 27, 1999) (citation omitted). In addition, LCvR 7.1(h) provides that an opposition to a motion for summary judgment "shall be accompanied by a separate concise statement of genuine issues setting forth all materials facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include reference to the part of the record relied on to support the statement."

Plaintiff does not set forth any facts in his statement to contest that he was absent without leave on numerous occasions, that he had attendance problems, that he slept on the job, or that he received a series of warnings and reprimands for this conduct.*fn2 Plaintiff's statement instead contends that (1) defendant did not inform plaintiff of the "policies, practices, regulations and procedures" that governed his use of leave; (2) defendant did not determine that plaintiff was not a qualified individual with a disability or that he was not performing the essential functions of the job; and (3) plaintiff never received an unsatisfactory performance evaluation and was never charged with a violation of a safety code or safety procedures, and (4) all disciplinary actions, including his termination, were ultra vires acts by defendant in the absence of a legislatively mandated personnel policy. See Pl. St. of Facts ¶¶ 7-12. The only material factual assertion in plaintiff's statement is that the proposal of his termination was issued only after he initiated EEOC activity. Id. ¶ 12.*fn3

In his papers, plaintiff repeatedly cites without page or paragraph reference his Complaint and his Amended Complaint,*fn4 which are not verified, see id. ΒΆΒΆ 7-9, and provides no citation to a specific paragraph of his 50 paragraph unsigned "affidavit," which is attached to the opposition after Exhibit 7. Plaintiff's statement of material facts cites no other documents in the record. Plaintiff's general references to the pleadings and his unsigned affidavit to support his assertions, contravene both Fed.R.Civ.P. 56(e) and LCvR 7.1(h) and ignore this Circuit's opinion in Twist v. Meese, 854 F.2d 1421 (D.C. Cir. 1988), wherein the Court cautioned that the burden is on the parties, not on the court, to "identify the pertinent parts of the record, to isolate the facts that are deemed to be material, and to distinguish those facts which are disputed from those that are undisputed." Id. at 1425. Given plaintiff's failure to refute any of the specific factual assertions that defendant has proffered, see Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996), defendant's Statement of Facts ...

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