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TURNER v. DISTRICT OF COLUMBIA

August 25, 2005.

ROSALIE L. TURNER, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



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

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
I. INTRODUCTION
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 denied.

  II. BACKGROUND

  A. Factual Background

  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. ¶ 62.

  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.

  B. Procedural History

  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.

  III. ANALYSIS

  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 judgment. Id.

  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 ...


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