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