The opinion of the court was delivered by: Reggie B. Walton, District Judge
This matter is before the Court on the Defendants' Motion for Summary Judgment ("Defs.' Mot."). The plaintiff initiated the claims in this action against the defendants pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, et seq., and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701, et seq., following the termination of his employment from the District of Columbia's Office of the Chief Financial Officer. The defendants assert, in part, that the plaintiff is unable to state a claim upon which relief can be granted under either the ADA or the Rehabilitation Act because he has not established a prima facie case of disability discrimination. Upon consideration of the parties' submissions and for the reasons set forth below, the Court will grant the defendants' summary judgment motion.
The events giving rise to the filing of the plaintiff's complaint began in 1981 when the District of Columbia government hired the plaintiff to work in its Department of Budget and [ Page 1]
Planning as a budget analyst. Defs.' Mot., Exhibit ("Ex.") C (Deposition of Charles Haynes, dated February 27, 2002) at 10-12. On April 26, 1996, authority over the plaintiff's position transferred from the Mayor of the District of Columbia to the Office of the Chief Financial Officer ("CFO"). Defendants LcvR 7.1(h) Statement of Material Facts In Support of Their Motion for Summary Judgment ("Defs.' Stat. of Facts") ¶ 1. Following this transfer, the plaintiff's "job duties were changed" and his new responsibilities required the plaintiff to have "substantial interaction with representatives from various city agencies[,] . . . visit these agencies monthly to confer with managerial officials regarding expenditures and planning matters[,] . . . [and] create financial spreadsheets and other presentations for persons within his office for use at meetings with various governmental agencies . . . on a daily basis[.]" Id. ¶¶ 4-5. While the plaintiff and his co-workers were permitted to work flexible hours prior to this transfer of authority, the CFO at the time, Anthony Williams*fn1, "terminated this liberal attendance policy and required all budget and accounting personnel to report for work from 8:15 a.m. to 4:45 p.m., except when the demands of the budget cycle required some employees to work beyond 4:45 p.m." Id. ¶ 7. During periods of heightened demands, "affected employees were permitted to report to work as late as 9:30 a.m." Id. At some point in 1992, the plaintiff developed a "medical condition, which seemed to be exacerbated by the work environment." Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Opp'n"), Ex. A (Affidavit of Charles Haynes) ¶ 11. Plaintiff described his condition "as a sense of insects crawling on [his] skin causing severe irritation, occurring shortly after [he] arrive[d] at work." Id. In May 1996, the plaintiff, along with several co-workers, filed a formal complaint with the District of [ Page 2]
Columbia's Office of Occupational Safety and Health claiming an environmental problem existed in the Office of Budget and Planning. Id., Ex. D (Plaintiff's Memorandum to Gloria W. Boddie). In response, on June 28, 1996, the District of Columbia sprayed for "bugs and other flying insects." Id. Following the extermination effort, the plaintiff continued to experience these symptoms, id., Ex. A ¶ 14, and between April and September 1997 he submitted three complaints about his continued discomfort which he alleged was caused by the environmental conditions in the office, id., Ex. E (Memorandum to Gloria W. Boddie from Charles Haynes dated April 11, 1997).
In 1997, the plaintiff began seeing an allergist, Dr. James Mutcherson, regarding his condition. Id., Ex. A ¶ 15. Dr. Mutcherson opined that the plaintiff's work environment exacerbated his condition, id., Ex. B (Deposition of Dr. James A. Mutcherson dated February 21, 2002) at 21-22, and diagnosed the plaintiff to be a highly allergic individual, id., Ex. N (Letter from Dr. Mutcherson to the defendants regarding Haynes' medical condition dated Jan. 21, 2000).
Around the same time plaintiff started receiving medical treatment, the defendants began to complain to the plaintiff about his work attendance and the time he was reporting to work. On September 17, 1997, the plaintiff received a memorandum from a supervisor "informing him that he needed to comply with the attendance policy and report to the Office by no later than 9:30 a.m." Defs.' Stat. Of Facts ¶ 8 (citing Defs.' Mot., Ex. H (Memorandum from Bilal Salahuddin, Director of Data Management, to Haynes titled "Memo of Understanding")). In response to the defendants' concerns, the plaintiff acknowledged that his "work productivity [h]a[d] fallen or at least, that [he was] not performing up to the levels that [he] can," and that [t]his is evident by [ Page 3]
the way [his] work hours have panned out over time — not necessarily due to late work hours but primarily to [his] inability to rest adequately and sleep reasonably well through each night. Pl.'s Opp'n, Ex. E (Memorandum to Gloria W. Boddie from Charles Haynes dated April 11, 1997). The plaintiff informed the defendants that he was attempting to "observe more `normal' work hours" and attributed his employment problems to the environmental conditions at his workplace. Id. The plaintiff also explained that "[b]ecause [he] personally [could not] show direct, in hand evidence of what [he] fe[lt was] bothering [him], it [was] hard for [him] to adequately explain or describe it." Id. On September 30, 1997, the plaintiff's supervisor sent another memorandum to the plaintiff acknowledging that he had shown "substantial improvement" in the time that he was arriving at work since the issuance of the September 17 memorandum, but that he had "been absent without leave between the hours of 9:30 a.m. (which is the latest time at which one may arrive) and 11:00 a.m. on several occasions. . . ." Defs.' Mot., Ex. I (Memorandum from Bilal Salahuddin to Haynes regarding "[a]bsence without leave and pay suspension" dated September 30, 1997). After receiving this second memorandum, the plaintiff apparently discussed with his Supervisor "the fact that he was working late because of his job assignments and he was not sleeping. [The plaintiff also informed his supervisor at that time that] he believed it was unfair to expect him to work and complete assignments after hours and then come to work the next day by 9:30 a.m." Defs.' Stat. of Facts ¶ 9 (citing Defs.' Mot., Ex. C at 102-06).
On September 15, 1998, the plaintiff received a performance appraisal from the defendants stating that he "[n]eed[ed] to adjust his work schedule so that he can work during regular working hours and become a more effective team player." Pl.'s Opp'n at 4 (quoting Pl.'s Opp'n, Ex. A ¶ 18). In a further response he submitted on September 25, 1998, the plaintiff [ Page 4]
offered an in-depth explanation of his allergic condition, stating, in part, that he has
continued to endure suffering and hardship, . . .
experience health and wellness problems, suffer from a
noticeable decline in concentration and productivity
(both personal and occupational), endure deep
frustration and stress, and suffer from chronic
fatigue resulting from having to endure this . . .
ordeal coupled with an inability to rest adequately
during normal sleeping hours at home.
Defs.' Mot., Ex. G (Comment on Employee Performance Evaluation from Charles Haynes) at 2. The plaintiff also complained that the District of Columbia failed to test the air quality of his working environment, which he suggested had apparently been promised to him. Id. The plaintiff indicated that he not only had to see an allergist at his own expense but that he also had to submit a dust sample for analysis to an independent laboratory which revealed a "high exposure level for environmental mold, and a low exposure level for dust mite allergen*fn2
." Id. In his deposition, the plaintiff further explained his sleeping problems, stating that on some nights he obtained no sleep while on other nights he received four hours of sleep. Id., Ex. C at 74. According to the plaintiff, "[i]n 1998 and on several prior occasions, [he] requested accommodations for [his] medical condition, including testing the work area for mold(s) and mites and other airborne organisms and to eliminate the problem, and a flexible work schedule which would allow [him] to come to work at later times when [he] suffered sleep deprivation." Pl.'s Opp'n, Ex. A ¶ 24.
On January 25, 1999, the plaintiff met with his supervisor and another department manager to discuss complaints about his work performance, and the plaintiff was told that "his [ Page 5]
failure to work during the regular business hours was preventing him from being fully productive and was becoming an inconvenience to his co-workers." Defs.' Stat. of Facts ¶ 12. (citing Defs.' Mot., Ex. C at 121-22). The plaintiff explained that "his work hours were dictated by the nature of his work (receiving assignments late in the day) as well as his skin condition. . . ." Id. (citing Defs.' Mot., Ex. C at 125-26). In response to the plaintiff's complaints, the defendants hired specialists to test the air quality, which resulted in a finding that there were no significant air quality problems. Id. (citing Defs.' Mot., Ex. C at 128-30, Ex. K (Haynes' Employee Performance Evaluation). On May 5, 1999, after receiving the results of the air quality test, the plaintiff's supervisor informed the plaintiff "that [the Office of the Chief Financial Officer] would no longer tolerate [the plaintiff's] excuses for failing to report within normal duty hours[,]" Defs.' Stat. of Facts at ¶¶ 12-13 (citing Defs.' Mot., Ex. C at 131-32), and that starting on May 10, 1999, the plaintiff was required to work his assigned tour of duty from 9:30 a.m. to 6:00 p.m., Defs.' Mot., Ex. J (Memorandum from John Nitz, Director of Data Management, to Haynes dated May 5, 1999). And in this May 5 Memorandum, the plaintiff's supervisor specifically asked the plaintiff to submit any test results, including doctors visits, with respect to the environmental problem the plaintiff was complaining about. Id. The plaintiff acknowledged in his deposition that "prior to [his] termination . . . [he] never provided any physician reports or medical documentation from the physicians that [he] visited to any of [his] supervisors, human resources, or anyone else in management[.]" Defs.' Mot., Ex. C at 79. However, the plaintiff states in an affidavit submitted to the Court that in the "correspondence concerning [his] medical condition, [he] identified six medical doctors who had treated [him] for [his] medical condition . . . [and that he] informed [his] supervisors that [he] had seen an allergist and was informed that [ Page 6]
[he] was highly allergic to organic and inorganic allergens." Pl.'s Opp'n, Ex. A ¶ 23. The plaintiff further states that he "offered to provide a report from [his] allergists, describing [his] medical condition [,but his] supervisors declined this offer to obtain a report from [his] allergist*fn3." Id.
On September 30, 1999, the plaintiff received another performance evaluation that once again reflected that "he ha[d] still failed to maintain a work schedule that meets his assigned tour of duty." Defs.' Mot., Ex. K (Haynes' Employee Performance Evaluation). During his deposition, the plaintiff acknowledged that in 1999 he typically reported to work between the hours of 1:00 p.m. and 1:30 p.m., and sometimes as late as 5:00 p.m. Defs.' Stat. of Facts ¶ 15 (citing Defs.' Mot., Ex. C at 147-49). In his affidavit, the plaintiff stated that he responded to his last performance evaluation by again indicating that his "work schedule was a direct result of the airborne parasites which made [him] ill, and ultimately resulted in sleep deprivation." Pl.'s Opp'n, Ex A ¶ 28.
On January 14, 2000, the plaintiff's employment was terminated "for his refusal to work within his tour of duty, his inability to provide accurate work product and his failure to participate in important meetings during the regular working hours." Defs.' Stat. of Facts ¶ 16 (citing Defs'. Mot., Ex. D ...