The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO
DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
The plaintiff, Rosalie Turner, is a doctor and former employee
of the Southeast Sexually Transmitted Disease Clinic ("S.E.
Clinic") at D.C. General Hospital. Defendant District of Columbia
provides services through the D.C. Department of Health and D.C.
General Hospital. The plaintiff sues the defendant under
42 U.S.C. § 1983, the Equal Pay Act, the Americans with Disabilities
Act, the Rehabilitation Act, and for intentional infliction of
emotional distress. The plaintiff alleges that she suffered
adverse employment actions and a hostile work environment as a
result of a custom or policy of the District of Columbia (the
"district") to discriminate against women during her three-decade
long career as a physician employed by the District of Columbia
Department of Health ("DOH"). Also, the plaintiff claims that she
was discriminated against because of her medical illnesses.
Furthermore, she claims that she was retaliated against for
filing a complaint with the District Office of Human Rights.
Finally, the plaintiff seeks damages for intentional infliction
of emotional distress under District of Columbia law. This matter comes before the court on the defendant's motion to dismiss or in
the alternative for summary judgment.
Because plaintiff's involuntary discharge, failure to inform of
salary enhancement, and pre-February 22, 2000 ADA and RA claims
are time-barred, because plaintiff fails to establish a prima
facie case of sex discrimination for understaffing, constructive
discharge, and forced job description re-writing, because
plaintiff fails to establish a prima facie case under the Equal
Pay Act, and because plaintiff fails to establish a prima facie
case of hostile work environment and intentional infliction of
emotional distress, defendant's motion for summary judgment, as
to those claims, is granted. Because a genuine issue of material
fact exists whether the S.E. Clinic supervisors denied plaintiff
use of sick days in retaliation for a complaint she filed,
defendant's motion for summary judgment as to that claim is
The plaintiff alleges as follows. The plaintiff, a physician,
was employed at the S.E. Clinic in the district from August, 1972
to September, 2004. Am. Compl. ¶ 18. The Clinic is operated by
the DOH. Id. ¶ 6. The plaintiff, originally hired as Chief
Medical Officer of the S.E. Clinic ("Clinic Chief") in 1972, was
promoted to Bureau Chief of STD Control for the district ("Bureau
Chief") in 1976. Id. ¶¶ 19-20. The plaintiff was the first
woman to hold the Bureau Chief position. Id. ¶ 21. Although the
Bureau Chief position had previously been a full-time position,
id. ¶ 22, the plaintiff was required by DOH officials to
perform the duties of both Bureau Chief and Clinic Chief, id. ¶
24. Despite numerous requests for administrative support and
additional personnel as the S.E. Clinic began to undergo a
staffing shortage, DOH officials "failed or refused to attend to such needs or to replace such
staff as positions became vacant." Id. ¶ 29. The plaintiff
states that the district had sufficient funds to hire the staff
members the plaintiff requested. Id. ¶ 30. The plaintiff
requested and received permission in October of 1977 to return
solely to the position of Clinic Chief, id. ¶ 33, an action she
claims she was forced to take as a result of the "intolerable
working conditions" of being required to perform the duties of
both positions simultaneously and understaffing at the S.E.
Clinic, id. ¶¶ 31, 35.
Similar conditions at the clinic, according to the plaintiff,
persisted and worsened. Id. ¶ 37. In 1989, several employees
left the S.E. Clinic, causing another staffing shortage. Id. ¶
38. Because the conditions worsened, the plaintiff was forced to
assume additional duties outside of her position, including
"duties normally performed by non-professional, supervisory, and
administrative staff, including but not limited to: (1)
performing time-keeping duties, and (2) ordering, checking and
maintaining medicine, general office supplies, and clerical and
medical equipment stock." Id. ¶ 39.
Additional preventative health technicians at the S.E. Clinic
departed in the early 1990s. Id. ¶¶ 42-43. The Northwest Clinic
("N.W. Clinic") was evicted or lost its lease, Opp'n Ex. A ¶ 3
(Turner Aff.), which resulted in the merging of the N.W. and S.E.
Clinics in 1995, Am. Compl. ¶ 44. As a result of this merger, six
N.W. Clinic employees five physicians, a nursing assistant, and
a preventative health technician, were transferred to the S.E.
Clinic. Id. ¶ 45. Within one month of this transfer, however,
all but two of those physicians had left the S.E. Clinic, id. ¶
49, due to the "extreme differences in working conditions"
between the two clinics, including a "greater patient-to-doctor
ratio on a daily basis, more extreme cases, and a marked surge in
cases of genital ulcer disease and syphilis among patients
attending the [S.E. Clinic]," id. ¶ 47. Additionally, although
nursing assistant Mrs. Britt had performed some of the duties at the N.W. Clinic that the plaintiff was performing at the S.E.
Clinic, such as ordering medicine and supplies, Britt was
directed not to perform such duties at the S.E. Clinic following
the merger. Id. ¶ 49.
The plaintiff alleges that the DOH failed to inform her of a
salary enhancement program until 1983, although she was eligible
for the program beginning in 1979. Id. ¶ 56. The results of
understaffing also prevented the plaintiff from participating in
a management enhancement training course. Id. ¶ 55. In March
1999, the plaintiff became "seriously ill" with hypertension and
diabetes, illnesses the plaintiff alleges are "directly
attributable to the long-standing and unreasonable physical
demands, stress, and duress of the working conditions[.]" Id. ¶
In May of 1999, the plaintiff informed the Administrator of
Preventative Health Services, Dr. Calderone, of her condition and
her need for "accommodation." Id. ¶ 65. Dr. Calderone directed
the acting Bureau Chief, Pete Moore, to "immediately find money"
to hire an additional physician for the S.E. Clinic, and promised
to hire a second physician in October. Id. ¶ 66. No additional
physicians were hired, however, and the plaintiff submitted a
request to "retreat" from her position as Clinic Chief to a less
demanding position the position of medical officer on August
23, 1999. Pl.'s Original Opp'n at 33;*fn1 Am. Compl. ¶
71.*fn2 DOH officials "agreed to accommodate plaintiff's
illness by permitting her to move into the existing medical
officer position," Am. Compl. ¶ 184, and the plaintiff's
resignation as Clinic Chief became effective on November 7, 1999.
Pl.'s Original Opp'n at 34. On October 4, 1999, Pete Moore called the plaintiff and
demanded that the "existing and long-standing" job description
for the position of medical officer be changed to add more
responsibilities and duties before the plaintiff would be allowed
to assume it and receive the same pay as her male predecessor,
Dr. Elliot. Id. ¶¶ 74, 77; Pl.'s Opp'n Ex. A ¶ 10. The medical
officer job description was rewritten using "broad language" in
order to force the plaintiff "to perform any and every duty in
the clinic at the whim of her supervisors[.]" Id.
In March 2000, Dr. Shukdeo Sankar, a male, was hired as the new
Clinic Chief. Am. Compl. ¶ 82. The plaintiff alleges that Dr.
Sankar has since received the additional staff and support that
the plaintiff repeatedly requested to no avail while Clinic
Chief. Id. ¶ 85. DOH officials have not required that Dr.
Sankar perform all of the duties in his job description as Clinic
Chief, as they required of the plaintiff. Id. ¶ 88. Rather, Dr.
Sankar has required the plaintiff to perform some duties included
in his job description, and not included in her job description
as a medical officer. Id. ¶ 90. The plaintiff also alleges that
Dr. Sankar has denied her the legitimate use of sick days, id.
¶ 192, and ridiculed her for taking some sick days, id., after
he learned she had filed a complaint with the D.C. Office of
Human Rights ("OHR"), see Pl.'s Opp'n, Ex. B.
The plaintiff alleges that these actions constitute a district
"policy or custom," set intentionally or as a result of
deliberate indifference of discriminatory treatment of women, and
discriminatory treatment against her because of her illnesses.
Am. Compl. ¶¶ 96-97.
The plaintiff filed her complaint on July 31, 2002. In June
2003, the court denied the defendant's motion to stay the
proceedings. Turner v. District of Columbia, 268 F. Supp. 2d 23
(D.D.C. 2003). The district filed a motion to dismiss, or in the
alternative, for summary judgment, on September 4, 2003, which the plaintiff filed an
opposition to on October 21, 2003. The defendant filed a reply
ten days later. In July, 2004, the court ordered the parties to
submit further briefing on why the plaintiff's claim against the
district under § 1983 should not be dismissed where that claim
failed to allege that "execution of . . . official policy or
custom is responsible for the deprivation of constitutional
rights." July 28, 2004 Order (citing Morgan v. District of
Columbia, 824 F.2d 1049, 1058 (D.C. Cir. 1987)). Following the
submission of further briefing by both parties, the court granted
the plaintiff leave to amend her complaint to correct her
allegations, and the plaintiff filed her amended complaint on
November 1, 2004. The defendant filed its motion to dismiss or in
the alternative for summary judgment currently before the court
on January 7, 2005. The court now turns to that motion.
A. Legal Standard for a Motion for Summary Judgment*fn3
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex,
477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255. A nonmoving party, however, must establish more than
"the mere existence of a scintilla of evidence" in support of its
position. Id. at 252. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex,
477 U.S. at 322. By pointing to the absence of evidence proffered by
the nonmoving party, a moving party may succeed on summary
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (internal
citations omitted). Finally, the D.C. Circuit has directed that because it is
difficult for a plaintiff to establish proof of discrimination,
the court should view summary-judgment motions in such cases with
special caution. See Aka v. Washington Hosp. Ctr.,
116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds,
156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v.
Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Legal Standard for 42 U.S.C. § 1983 Claims
To determine municipal liability under 42 U.S.C. § 1983, the
district court must conduct a two-step inquiry. Baker v.
District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003).
First, the court determines whether the plaintiff establishes a
predicate constitutional violation. Id. If so, the court then
determines whether the complaint states a claim that a custom or
policy of the municipality caused the violation. Id.; Monell
v. Department of Social Services of N.Y., 436 U.S. 658, 694
(1978). The second prong requires a determination of whether "a
policy or custom of the District of Columbia caused ...