The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Before the Court are defendants' motion for summary judgment and plaintiff's opposition thereto. Plaintiff Melba Heasley, a 72-year-old Caucasian woman, alleges that her employer, D.C. General Hospital, failed to accommodate her disability and otherwise discriminated against her on the basis of her disability, age, and race by changing her work responsibilities, ridiculing her, and eventually terminating her employment. Plaintiff has brought suit against the District of Columbia and the District of Columbia Health and Hospitals Public Benefit Corporation asserting that defendants' failure to accommodate her disability and wrongful termination violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"); the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. ("Rehabilitation Act"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626, et seq. ("ADEA"); and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Plaintiff also claims that defendants violated her due process rights; she was retaliated against in violation of the District's Worker's Compensation Statute, D.C. Code § 36-1542; and that defendants' actions constituted gross negligence and intentional infliction of emotional distress. Defendants respond, inter alia, that plaintiff was not disabled and was terminated, not for any discriminatory reason, but because she was absent from work without leave for an extended period of time. Defendants have moved for summary judgment on all claims, and for the reasons set forth below, defendants' motion will be granted.
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). To survive summary judgment, the non-movant must provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
Local Civil Rule 7.1(h) provides that "[a]n opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the part of the record relied on to support the statement." The parties "are obligated, pursuant to Local Rule [7.1(h)], to identify the material facts and point to evidence of record that supports their respective positions." United States v. BCCI Holdings (Luxembourg), S.A., 977 F. Supp. 1, 6 (D.D.C. 1997) (citing Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150-51 (D.C. Cir.1996)). Under Rule 7.1(h), "the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." In contravention of this explicit mandate, plaintiff has not submitted a Rule 7.1(h) statement, and thus has failed to controvert any of the facts set forth by defendants in their Statement of Material Undisputed Facts [hereinafter Defs.' Statement], including the facts relating to her conduct prior to termination. Given this failure, the facts as set forth by defendants are taken as true and can be summarized briefly as follows.
Plaintiff Melba Heasley, a Caucasian, was born on January 24, 1929, making her 70 years old at the relevant time period. From 1987 to the present, she has been employed full time as a clerical worker at the United States Social Security Administration. From 1988 until her termination on February 26, 2000, plaintiff also worked as a part-time clerical worker at D.C. General Hospital ("D.C. General"), where her schedule required three four-hour shifts per week. After working in various departments in D.C. General, in either 1995 or 1996 plaintiff was transferred to the Medical Records Department where she worked as a medical records technician ("MRT") until her termination. MRTs are responsible for maintaining D.C. General's patient charts and making those charts available to medical personnel. Performance of these functions requires the completion of a variety of tasks, including sorting paperwork generated by the hospital's medical units, filing that paperwork in patient charts, re-shelving the patient charts in the file room stacks, pulling charts from the stacks, delivering charts to locations within and outside D.C. General, and assisting medical personnel with questions regarding records. Plaintiff's supervisor, the file room manager, was Madeleine Freeman, who at the relevant time was 49 years old. Freeman's supervisor was the director of the Medical Records Department, Stephanie Jordan.
In February 1999, plaintiff was assigned more filing, which required more physical exertion than plaintiff's previous duties. The February filing increase was not accompanied by any change in plaintiff's job title, hours, schedule or in her salary and benefits. In March 1999, plaintiff complained to Jordan that she suffered from knee and back pain and that these conditions made it difficult for her to do the filing assignments. Plaintiff requested a return to her previous sedentary duties to accommodate her condition. At Jordan's request, plaintiff provided medical documentation regarding her condition by letter dated March 13, 1999. She included a physician's statement dated March 1, 1999, which reflected a diagnosis of "knee pain" and indicated that plaintiff was "unable to tolerate standing at work for extended periods." (Defs.' Statement ¶ 20, Ex. 17.) In April 1999, after a union representative approached Freeman on behalf of plaintiff regarding her complaints, Freeman and Jordan reviewed plaintiff's medical documentation and decided that plaintiff could continue to do filing, but permitted her to "work at her own pace and sit down when she needed to do so." (Id. ¶ 22.)
After May 22, 1999, plaintiff stopped coming to work. On May 27, 1999, she filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging failure to accommodate her disability and race discrimination. *fn1 On June 9, 1999, plaintiff filed a workers' compensation claim, and the next day she notified Freeman that she had done so. On June 18, plaintiff indicated in a letter to Jordan that she had been denied an accommodation by Freeman and also provided notice of her workers' compensation claim. Jordan responded on June 21, reiterating that plaintiff should return to work at her own pace and take breaks as necessary. On August 18, 1999, a final order was entered dismissing plaintiff's workers' compensation claim.
Plaintiff had been absent from work on May 17, 20, and 29. To excuse these absences, on June 4, 1999, she provided Freeman a doctor's note dated June 3, 1999. The physician's note diagnosed plaintiff with osteoarthritis of the left knee. (Id. ¶ 27, Ex. 21.) Plaintiff did not return to work, however, and in a letter dated July 7, 1999, Jordan requested additional medical documentation for plaintiff's continuing absence past June 3. Plaintiff acknowledged receipt of Jordan's letter, but in response provided only a "Verification of Treatment," which indicated that she had received medical treatment but offered no diagnosis or prognosis regarding her ability to work. (Id. ¶¶ 30-31, Ex. 27.) On August 30, 1999, Jordan sent a follow-up letter to plaintiff, informing her that if she did not report to work by September 10 with the appropriate documentation justifying her absence, she would be considered absent without leave. Plaintiff failed to respond before the deadline.
Almost five months after plaintiff stopped coming to work, on October 21, 1999, Jordan sent plaintiff a notice of proposed removal. The notice cited plaintiff's absence without leave and failure to provide appropriate medical documentation. Jordan sent a second notice of proposed removal on November 4, 1999, which again cited plaintiff's absence without leave and the lack of documentation and indicated that plaintiff could contact a "disinterested designee," Ann Anderson, within ten days of receipt of the letter. (Id. ¶ 36, Ex. 31.) Plaintiff received this letter and responded with a letter of resignation on November 11, 1999. Almost two weeks later, in a letter dated November 23, plaintiff retracted her resignation. Her letter claimed that the November 4 notice of termination contained "many false statements" and requested an extension of time to seek legal counsel. (Id. ¶ 39, Ex. 33.) Plaintiff submitted nothing further and defendants never responded. By letter dated February 22, 2000, plaintiff's employment at D.C. General was terminated effective February 26, 2000.
On May 17, 2000, the EEOC issued plaintiff a right-to-sue letter. On August 16, 2000, plaintiff brought this lawsuit alleging discrimination on the basis of disability, age, and race, violation of due process, and tort claims based on intentional infliction of emotional distress and gross negligence. Plaintiff asks for reinstatement to her position at D.C. General, as well as compensatory and punitive damages.
A. Failure to Accommodate
Plaintiff makes two disability-related claims, the first of which is addressed here, and the second in Part I.B, infra. First, she claims that defendants failed to accommodate her disability, and second, that defendants discriminated against her on the basis of her alleged disability. (Plaintiff's Reply to Defendants' Motion for Summary Judgment [hereinafter Pl.'s Opp.] at 9-16.) As to both of these claims, defendants argue that plaintiff cannot establish a prima facie case because she cannot sustain her claim that she was disabled. (Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment [hereinafter Defs.' Mem.] at 33-38.
To establish a prima facie case of failure to accommodate a disability, plaintiff must demonstrate that (1) she has a disability, and (2) with a reasonable accommodation, she could perform the essential functions of her job. Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). Plaintiff also must be able to specify the reasonable accommodation she seeks. Id. Significantly, the ADA does not protect every impaired individual who suffers an adverse employment action; rather, "the ADA more specifically prohibits discrimination by an employer 'against a qualified individual with a disability because of' that disability. . . . Far from protecting all impaired individuals from any sort of adverse employment action, the ADA protects a much more narrowly defined class of persons from particular types of discriminatory acts by employers." Id. at 860 (quoting 42 U.S.C. § 12112(a)).
Without citation to any legal authority, plaintiff asserts that her knee and back conditions rise to the level of a disability within the meaning of the ADA, but with a reasonable accommodation she could still work as an MRT. (Complaint ¶¶ 58, 62; Pl.'s Opp. at 9-16.) Defendants challenge both plaintiff's claim of a ...