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HISLER v. GALLAUDET UNIVERSITY

October 21, 2004.

FRAN HISLER, Plaintiff,
v.
GALLAUDET UNIVERSITY Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OF COUNT I AND MOTION TO DISMISS COUNT III
I. INTRODUCTION
The plaintiff, Fran Hisler, brings this three-count complaint against her former employer, Gallaudet University. The plaintiff alleges in count I that the defendant acted in violation of both the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C §§ 12101-12213, and the Rehabilitation Act, as amended, 29 U.S.C. §§ 701-796i, by improperly terminating her employment and failing to accommodate her disability. In count II, the plaintiff claims that the defendant failed to notify her of her rights under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") pursuant to 29 U.S.C. § 1166(a)(1). The plaintiff alleges in count III that the defendant did not grant her appropriate pension credits towards her Civil Service Retirement System ("CSRS") retirement benefits.

  This matter comes before the court on the plaintiff's partial motion for summary judgment, specifically requesting that the court stay count I or, in the alternative, dismiss count I without prejudice, and further requesting summary judgment on count III ("Pl.'s Mot."), as well as the defendant's cross-motion for summary judgment as to count I and the defendant's motion to dismiss count III ("Def.'s Mot."). After a careful review of the submissions of both parties, the court, pursuant to its discretionary powers, grants the plaintiff's voluntary dismissal of count I, contingent on her acceptance of the terms and conditions that the court imposes in its discretion. FED. R. CIV. P. 41(a)(2). The court grants the defendant's motion to dismiss for lack of subject matter jurisdiction on count III. Finally, by request of the parties, the court dismisses count II with prejudice. Pl.'s Mot. at 13; Def.'s Opp'n at 2 n. 1.

  II. BACKGROUND

  A. Factual Background

  From July 1983 to September 1986, the defendant, a government corporation that receives financial support from the federal government, employed the plaintiff as an occupational therapist at Kendall Demonstration Elementary School. Am. Compl. ¶¶ 6-8; Pl.'s Mot. at 2; Def.'s Mot. at 1; Def.'s Mot. Ex. 1 at 2-3.*fn1 Federal policies govern the administration of certain employment rights and benefits for the defendant's employees. Id.

  In June of 1986, upon exposure to the Epstein-Barr virus during the course of her employment at Kendall School, the plaintiff was diagnosed with Chronic Fatigue Immune Dysfunction Syndrome ("CFIDS"). Am. Compl. ¶ 8; Def.'s Mot. at 2. Subsequently, due to her medical condition, the plaintiff applied for and received benefits under the Federal Employees Compensation Act ("FECA") from the Office of Workers' Compensation Programs ("OWCP") of the Department of Labor, for approximately ten years. Def.'s Mot. Ex. 1 at 2. The plaintiff's OWCP benefits ceased shortly after the defendant, in 1995, contracted with a private insurance company for its workers' compensation benefits, thereby ending its participation in programs authorized by FECA, including OWCP. Pl.'s Mot. at 3; Def.'s Mot. Ex. 1 at 2. Consequently, the plaintiff's eligibility under FECA and her OWCP benefits terminated. Id. The plaintiff received further compensation from the defendant's private insurer from May 5, 1996 through January 18, 1998. Id.

  During the approximate twelve-year period, 1986 through 1998, that the plaintiff was receiving workers' compensation benefits from OWCP and later through a private insurer, she also requested that the defendant provide employment accommodations for her disability. Am. Compl. ¶ 10; Def.'s Statement of Material Facts Not in Dispute ("Def.'s Statement") ¶ 1. The plaintiff and the defendant did not agree on the extent to which the plaintiff could work nor on the necessary accommodations. Am. Compl. ¶¶ 10-12; Def.'s Statement ¶¶ 4, 6. Despite the plaintiff's dissatisfaction with the defendant's job offers, on January 18, 1998, the plaintiff made an attempt to return to work as a kiosk attendant for the defendant. Pl.'s Mot. at 3-4; Def.'s Statement ¶ 1. But shortly thereafter, the plaintiff stopped working and went on leave-without-pay due to her illness. Def.'s Mot. Ex. 25; Am. Compl ¶¶ 14-16. The defendant required the plaintiff to produce medical documentation supporting her claimed inability to work. Def.'s Mot. Ex 25. The defendant claims that the plaintiff abandoned her position, while the plaintiff claims that she was terminated. Am. Compl. ¶¶ 14-16; Def.'s Statement ¶ 6. Nevertheless, subsequent to the parties ending their employment relationship, the plaintiff filed a claim with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 4. On January 18, 1999, the plaintiff received her "Rights to Sue" letter from the EEOC. Id. She then filed suit against the defendant in this court alleging the claims listed in count I of her amended complaint.*fn2 Id.

  In the meantime, following the plaintiff's employment termination in 1998, the plaintiff also filed for disability retirement benefits under CSRS. Pl.'s Mot. at 3-4; Def.'s Mot. at 3. There were difficulties with the plaintiff's pension credit calculations from the outset. While initially the defendant agreed to credit the plaintiff's pension for the May 4, 1996 through January 18, 1998 period, the Office of Personnel Management ("OPM") later discovered that the plaintiff had been overpaid because the May 4, 1996 through January 18, 1998 period was incorrectly included in the service credit calculation. Def.'s Mot. Ex. 1 at 3.

  The plaintiff requested that OPM reconsider the exclusion of the above period. Def.'s Mot. Ex. 1 at 15. The plaintiff bootstrapped an argument to her request for reconsideration that the defendant erred by not adjusting the calculations with incremental merit raises for her projected salary. Id. The OPM affirmed its earlier decision of her overpayment, yet only briefly mentioned the inclusion of merit increases because it considered the issue to be in the defendant's "exclusive purview." Pl.'s Opp'n at 10; Def.'s Mot. Ex. 1 at 15. The plaintiff appealed the OPM decision with the Merit System Protection Board ("MSPB"). Id. The MSPB dismissed the appeal but gave the plaintiff the option of requesting a board review of its ruling. Def.'s Mot. Ex. 1 at 19-20. The plaintiff accordingly submitted a request to the MSPB, which it dismissed in a "final order" because first, the plaintiff failed to bring forth new, previously unavailable evidence and second, there was no outcome-determinative error in law or regulation. Def.'s Mot. Ex. 2 at 1-2.

  At the end of her administrative review rope, the plaintiff still had judicial review at her disposal. MSPB stipulated in its final order that 5 U.S.C. § 7703 vested the plaintiff with a right to appeal the board decision in the United States Court of Appeals for the Federal Circuit. Def.'s Mot. Ex. 2 at 1. Instead of appealing to the Federal Circuit, the plaintiff brought this claim, as count III, to this court along with her ADA, Rehabilitation Act, and COBRA violation claims.

  B. Procedural History

  Following the plaintiff's receipt of her "Dismissal and Notice of Rights to Sue" letter from the EEOC, the plaintiff filed the instant suit on September 8, 1999, seeking reinstatement to her former position with appropriate accommodations and damages. Am. Compl. at 1; Hisler v. Gallaudet Univ., 2002 U.S. Dist. LEXIS 3080, at *2 (D.D.C. Jan. 10, 2002). The original complaint alleged that the defendant acted in violation of both the ADA and the Rehabilitation Act. Hisler, 2002 U.S. Dist. LEXIS at *2. The plaintiff's counsel at the time filed a motion for leave to withdraw from the case, which the court granted in an order dated December 6, 1999. Id. On November 15, 1999, the defendant filed its answer to the plaintiff's complaint. Id. The plaintiff's new counsel entered an appearance on November 19, 1999, however, on February 9, 2002, the plaintiff's new counsel filed a motion for leave to withdraw from the case, which the court granted. Id.

  On July 18, 2000, the court issued an order staying and administratively closing the case until the plaintiff secured new representation. Hisler, 2002 U.S. Dist. LEXIS 3080, at *2. On November 22, 2000, the defendant filed a motion to dismiss for failure to prosecute. In an order on November 30, 2000, the court directed the plaintiff to show cause by January 8, 2001 as to why the plaintiff's case should not be dismissed for failure to prosecute. The plaintiff filed a timely response on January 8, 2001. The court found the response sufficient and denied the defendant's motion to dismiss. Order dated April 6, 2001, at 2.

  On January 10, 2002, the court granted the plaintiff's motion for leave to file an amended complaint and granted the defendant's motion to extend time for discovery. On that same day, the plaintiff filed her amended complaint, adding two claims premised on the defendant's failure to notify her of COBRA rights and the failure to appropriately calculate pension credits. Am. Compl. ¶¶ 2, 18-24. The plaintiff also relied on the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(c)(1)(B) and 29 U.S.C. § 1132(e) to support her contention that this court has subject matter jurisdiction to hear her claims.

  The parties actively continued the litigation of the case. Then, on May 5, 2003, the court granted the parties' joint motion to stay proceedings until the conclusion of the mediation process before Magistrate Judge Facciola.

  In its March 10, 2004 order, the court struck the parties' dispositive motion submissions and set a revised briefing schedule. The court instructed the parties to submit new briefing that would clarify arguments on the plaintiff's alleged entitlement to merit salary increases and the defendant's alleged failure to make disability annuity payments. Order dated March 10, 2004, at 2. The court further directed the parties to brief the question of subject matter jurisdiction in light of Graham v. Ashcroft, 358 F.3d 931 (D.C. Cir. 2004). Id. On April 30, 2004, the plaintiff submitted a motion for partial summary judgment. In her motion, the plaintiff dismisses count II with prejudice; requests that the court either stay count I or, in the alternative, permit the plaintiff to voluntarily dismiss count I without prejudice; and moves for summary judgment on count III. Pl.'s Mot. at 1-2. On May 3, 2004, the defendant filed a cross-motion for summary judgment as to count I and to dismiss count III for lack of subject matter jurisdiction. On May 13, 2004, the defendant filed its opposition to the ...


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