The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me by Judge Huvelle for all purposes including trial pursuant to LCvR 73.1(a). Currently pending is Defendant's Motion for Summary Judgment For the reasons set forth below, defendant's motion for summary judgment will be denied.
STATEMENT OF FACTS NOT IN DISPUTE*fn1
Plaintiff, Gwendolyn B. Smith ("Smith"), began working for defendant, the District of Colombia, Department of Mental Health ("Department"), as a Mental Health Specialist in March 1971. Answer ¶ 10. During the time of her employment relevant to this lawsuit, Smith's rank was a DS-0601-11. Id. at ¶ 4.
Leaving to serve her country in the Gulf War, she continued her employment for thirty years until her recent retirement. Plaintiff s Opposition to Summary Judgment ("P. Opp."), Plaintiff's Responses to Defendant's First Discovery Interrogatories at ¶ 14; Answer ¶ 10. While serving in the Gulf War, Smith contracted an upper respiratory bacterial infection. P. Opp., May 18, 1999 Letter From Dr. Singh at 1. The extreme medication required to treat the infection is believed to have caused Smith's type 11 diabetes and hypertension. Id. Smith also suffered an injury to her back and shoulder in the line of duty. P. Opp., December 4, 1997 Letter From Secretary of the Army at 1.
Sometime in the year 2000, after returning from the war, Smith was informed by the Department that she was required to make home visits to her client's houses for the purpose of completing housing inspections. Defendant's Motion for Summary Judgment ("D. Mot."), Smith Deposition at 17-18. Initially, Smith claimed that this type of visit was not part of her job function and, therefore, would not complete visits for the purpose of inspecting client housing. Id. She did, however, continue to make home visits when her patients "decompensated" into an emergency situation. Id.
Shortly thereafter, on May 16, 2000, Smith filed a complaint with the District of Colombia Office of Human Resources ("OHR") which was cross-filed with the Equal Employment Opportunity Commission ("EEOC") and became charge #100-AO-0702. Answer's 7. In her complaint, Smith alleged discrimination based on disability, claiming she was disabled as a result of injuries and conditions she sustained during the war. Id. Plaintiff's complaint was dismissed on November 20, 2000, because the EEOC was unable to determine whether Defendant violated either Title VII or the Americans with Disabilities Act ("ADA"). Id.
Smith requested accommodations for her disabilities from defendant, including a request that she be excused from making home visits, on January 3, 2001. D. Mot., Exhibit C at 2. Dr. Myrtle Yearwood ("Yearwood"), Smith's Manager, sent the request to the OHR for consideration on January 10, 2001. D. Mot., Exhibit D at 1. Before the OHR could respond to the request, Yearwood was notified by Venida Hamilton ("Hamilton"), the Region 1/11 Director, of Smith's continued failure to make home visits. D. Mot., Yearwood Deposition, March 12 2001 Memorandum from Venida Hamilton to Dr. Yearwood at 1. Until Yearwood received notice from the OHR regarding the requested accommodations, she assigned Smith's home visits to other case managers beginning March 15, 2001. D. Mot., Yearwood Deposition, March 15. 2001 Memorandum from Dr. Yearwood to Venida Hamilton at 1.
On March 22, 2001, David Prince ("Prince"), the EEO specialist, concluded that (1) Smith met the criteria of an individual with a disability, but was not a qualified individual with a disability; (2) Smith was nevertheless entitled to some accommodation; and (3) her medical condition did not substantially limit her ability to perform the essential functions of her position as a Mental Health Specialist. D. Mot., Smith Deposition, March 22. 2001 Letter from David Prince to Gwendolyn Smith, Exhibit 7 at 2. Smith signed a performance evaluation, which was completed by Yearwood and made record of Smith's assertion that she could not perform home visits because of her disability. D. Mot., Exhibit E at 1.
In June 2001, Smith's entire case load was given to other workers within her Department. Answer I[ 11. Smith was notified on June 14, 2001, that she was going to be reassigned to the Comprehensive Psychiatric Emergency Program ("CPEP") for 120 days beginning on June 20, 2001. D. Mot., Exhibit F at 1. However, Smith refused to accept the reassignment and on June 19, 2001, sent a letter to Hamilton explaining that her doctor, Dr. Dpinder Singh ("Dr. Singh"), instructed her to remain on sick leave. D. Mot., Singh Deposition, Letter from Gwendolyn Smith to Mrs. Venida Hamilton at 1. Smith requested advance sick leave, on July 16, 2001, until her accommodation request was settled. D. Mot., Exhibit A at 1-3. Yearwood denied the request and suggested that Smith request Leave Without Pay ("LWOP") instead. Id.
On July 9, 2001, prior to making her request for advanced sick leave, Smith was informed by defendant that they had begun the process of terminating her. Id. at 4. On August 14, 2001, notice of recommendation for termination had been given to the Division of Human Resources and was subsequently sent to Smith's attorney. Id. at 4-5. Documented in the recommendation were a number of incidences of Smith's refusal to follow the direction of her immediate supervisor, Mr. Kevin Martin ("Martin"). D. Mot., Exhibit A at 6-9.
Smith filed a second complaint with the OHR and the EEOC on November 28, 2001, alleging retaliation for filing the initial complaint as well as failure to implement reasonable accommodations. Id. at 9. The second complaint became charge #100-A2-00144. Complaint at ¶ 8. It too, however, was dismissed because the EEOC found insufficient evidence to support a charge of retaliation, and on December 18, 2001, the EEOC issued a right to sue letter to Smith. Id. On March 15, 2002, Smith initiated this lawsuit against defendant.
Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The burden of establishing that there is no genuine issue of material fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Nat'l Cable Television Ass'n, Inc. v. Fed. Communications Co 'n, 479 F.2d 183, 186 (D.C. Cir. 1973). The substantive law determines which facts are material, thus, only factual disputes that affect the outcome of the case will preclude summary judgment. Anderson et al. v. Liberty Lobby Inc. et al., 477 U.S. 242, 248 (1986).
When a party fails to make a sufficient showing of an essential element of their case, for which they have the burden of proof at trial, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 322. When the evidence is insufficient for a jury to reasonably find in favor of the nonmoving party, there is no need for a trial. Anderson et al. v. Liberty Lobby Inc. et al., 477 U.S. at 250.
Since, as will be explained, the ADA requires an employer to provide reasonable accommodations to qualified persons with a disability, 42 U.S.C. § 12111(8) (2000), the first question presented is whether plaintiff can produce sufficient evidence to permit a jury to conclude that she is disabled.
Title I of the ADA defines disability with respect to an individual as: "A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such an impairment; or C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (2000).
In the first instance, it is not enough that the plaintiff merely has an impairment. The disability must substantially limit one or more major life activities. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). The definitions included in the Department of Health, Education, and Welfare's ("HEW") regulations for the Rehabilitation Act can be used to interpret the meaning of "impairment" and "major life activity" as used in the ADA. Id. at 194-95.
A physical impairment is defined as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine." 45 C.F.R. § ...