The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Reginald Green, the plaintiff in this civil lawsuit, filed this action under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111-12117 (2006), and the District of Columbia Human Rights Act of 1977 ("DCHRA"), D.C. Code § 2-1401.01 (2001), against the defendants, American University and its former president Benjamin Ladner, for allegedly failing to accommodate his disability and for wrongfully terminating his employment. Complaint ("Compl.") ¶¶ 1-2. The plaintiff also asserts a tort claim against the defendants for wrongful termination of his employment. Compl. ¶¶ 1, 32, 34. Currently before the Court is the defendants' motion for summary judgment ("Defs.' Mot.") pursuant to Rule 56 of the Federal Rules of Civil Procedure. After carefully considering the various submissions by the parties,*fn1 the Court concludes that the defendants' motion must be granted in part and denied in part.
The following facts are either admitted or not in dispute.*fn2 On May 3, 2004, the plaintiff contacted defendant American University ("the University") inquiring about several job vacancies at the University. Statement of Undisputed Material Facts in Support of Defendants' Motion for Summary Judgment ("Defs.' Stmt.") ¶ 1; Statement of Genuinely Disputed Issues of Material Fact in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Stmt.") ¶ 1; Defs.' Mot., Exhibit ("Ex.") 1 (Deposition of Reginald Green) ("Green Dep.") at 37-38. In his written correspondence with the University, the plaintiff represented that he was capable of performing a broad range of jobs including providing security services, operating office machinery, and processing passports and classified materials. Defs.' Stmt. ¶ 1; Pl.'s Stmt ¶ 1; Defs. Mem., Ex. 1 (Green Dep.) at 38-43. After his application for employment was processed, the plaintiff was interviewed by Dr. Ladner and two other University employees "for the position for driver for the President." Defs.' Stmt. ¶ 2; Pl.'s Stmt. ¶ 2.
On July 14, 2004, the plaintiff underwent a pre-hiring Commercial Driver Fitness Determination that included completing a Medical Examination Report ("Medical Report"). Defs.' Mot., Ex. 1 (Green Dep.) at 66. The plaintiff indicated on the Medical Report that he had "[an] illness or injury in the last five years" and "digestive problems." Defs.' Mot., Ex. 1, Attachment ("Attach.") (Medical Report). The plaintiff also listed his current medications and indicated they were used "sometime[sic] for anal fissure." Id. Upon completing the first two sections of the Medical Report, the plaintiff met with a physician to discuss the answers he provided in the Medical Report. Defs.' Stmt. ¶ 4; Pl.'s Stmt. ¶ 4. The physician asked if the plaintiff's doctor had given him any restrictions due to his anal fissure condition, and the plaintiff replied that he had not been given any restrictions. Defs.' Stmt. ¶ 4; Pl.'s Stmt. ¶ 4. Accordingly, the physician recorded the plaintiff's response on the Medical Examination Report as "No Limitations." Defs.' Stmt. ¶ 4; Pl.'s Stmt. ¶ 4.
On August 16, 2004, the defendants hired the plaintiff as a Chauffer/Office Assistant to Dr. Ladner, who was the President of the University at the time. Compl. ¶ 10; Answer ¶ 10. The plaintiff's duties included providing chauffeuring services for Dr. Ladner, other University officials, and Mrs. Ladner (Dr. Ladner's wife), along with caring for the vehicles he drove and performing various administrative duties. Defs.' Mot., Ex. 1, Attach. (Driver's Duties and Responsibilities) ("Driver's Duty Document").
Margaret Clemmer, the plaintiff's direct supervisor, met with the plaintiff shortly after his employment commenced and provided him with the Drivers Duties Document and a document entitled "For Conversation with Reggie" ("Conversation Document"). Defs.' Stmt. ¶ 14; Pl.'s Stmt. ¶ 14. The Conversation Document provided advice concerning how the plaintiff should avoid various performance problems that had plagued prior drivers. Defs.' Mot., Ex. 1, Attach. (Conversation Document). Some of the relevant advice included "no tail-gating," "no jerky driving," and "minimize bathroom stops on long trips --... [o]ne [stop] is acceptable-zero is preferable." Id. When the plaintiff expressed concern about his inability to drive for long periods of time without using the restroom, Ms. Clemmer informed him that previous drivers were actually taking smoke breaks and not really using the restroom. Defs.' Mot., Ex. 1 (Green Dep.) at 94-95.
The plaintiff contends that on November 30, 2004, he requested a single accommodation from the University, which was to take bathroom breaks during an upcoming trip to Philadelphia, Pennsylvania. Defs.' Stmt. ¶ 23; Pl.'s Stmt ¶ 23; Defs.' Mot., Ex. 1 (Green Dep.) at 85-86, 90. According to the plaintiff, Ms. Clemmer discussed the plaintiff's request with Dr. Ladner and Ms. Clemmer told the plaintiff that Dr. Ladner "said it would be okay" for him to stop to use the bathroom. Id. at 96.
On December 2, 2004, while returning to the District of Columbia following the Philadelphia trip, the plaintiff asked Dr. Ladner if he could stop to use the bathroom. Id. at 161-62; Defs.' Stmt. ¶ 25; Pl.'s Stmt ¶ 25. The plaintiff contends that Dr. Ladner was "adamant about continuing to go on to D.C." Id. at 162. The plaintiff then told Dr. Ladner that he had to use the bathroom and that he was "going to soil the seat" if he didn't stop to do so. Id. The plaintiff testified that Dr. Ladner "turned blue and pink in the face and mumbled some words" as the plaintiff proceeded to a rest stop to use the bathroom. Id.
Shortly after the Philadelphia trip, Dr. Ladner informed Ms. Clemmer of his intention to terminate the plaintiff's employment, citing several performance issues during the Philadelphia trip as the basis for his termination. Defs.' Mot., Ex. 4 (Clemmer Dep.) 58-60. However, Dr. Ladner did not identify the bathroom stop as one of those reasons. Id. at 60. The plaintiff's employment was terminated on December 3, 2004, the day following the completion of the Philadelphia trip. Defs.' Stmt. ¶ 30; Pl.'s Stmt. ¶ 30; Defs.' Mot., Ex. 1 (Green Dep.) at 11.
Following his termination, the plaintiff filed a charge of discrimination with the District of Columbia Human Rights Commission (the "Commission") on December 21, 2004. Defs.' Mot., Ex. 1 (Charge of Discrimination) ("DCHRA Charge"). The DCHRA Charge of Discrimination alleged, interalia, that the plaintiff was denied the accommodation of using the restroom on the Philadelphia trip and was terminated thereafter. Id. The Commission dismissed the DCHRA Charge of Discrimination with a "no probable cause determination." Compl. ¶ 16. The plaintiff filed a request for reconsideration and the Commission affirmed the "no probable cause" finding on January 24, 2006. Compl. ¶ 17. The United States Equal Employment Opportunity Commission ("EEOC") reviewed the Commission's findings and issued a Dismissal and Notice of Rights dated August 28, 2006. Compl., Attach. (Dismissal and Notice of Rights) ("EEOC Dismissal"). The plaintiff filed his Complaint in the Superior Court of the District of Columbia on November 27, 2006, and the defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1367(a), and 1441 (2006) on the ground that a federal question was being raised by the plaintiff.
Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one that is capable of affecting the outcome of the litigation, and a genuine issue of material fact exists if due to the fact "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, a court must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in [his] favor." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (internal citation and quotation marks omitted); see also Greene v. Amritsar Auto Servs. Co., 206 F. Supp. 2d 4, 7 (D.D.C. 2002). The party moving for summary judgment may not rely solely on conclusory allegations, but must also set forth facts that are significantly probative. Anderson, 477 U.S. at 249-50 (citations omitted). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Id. at 255. To survive a motion for summary judgment in a case of this type, the non-moving party must show that a reasonable jury could conclude from all of the evidence that an "adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc)). However, if the Court concludes that "the non[-]moving party has failed to make a sufficient showing on an essential element of h[is] case with respect to which he has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
(A) The Plaintiff's Administrative Charge of Discrimination
The defendants first argue that the plaintiff's administrative Charge of Discrimination alleged only that he was not given the reasonable accommodation of being permitted "to use the bathroom on long car trips" and that he is therefore restricted to pursuing that claim before this Court. Defs.' Mot. at 4-5. In fact, the plaintiff alleges nothing more, as his administrative complaint asserts that the defendants failed to accommodate his disability and then wrongfully terminated him because of his request for the accommodation. Defs.' Mot., Ex. 1 (DCHRA Charge). Therefore, the only claims the plaintiff has pled in this action were included in his administrative Charge of Discrimination and accordingly they are properly before this Court.
(B) The Plaintiff's ADA and DCHRA Claims
The plaintiff alleges that he was denied a reasonable accommodation for his disability and that he was wrongfully terminated because of his disability in violation of both the ADA and DCHRA. The standard for establishing a prima facie case of discrimination in the employment context under both the ADA and DCHRA*fn3 is satisfied by the plaintiff showing (1) that he had a disability within the meaning of the statutes; (2) that the defendant had notice of his disability; (3) that with reasonable accommodations he could perform the essential functions of his job; and (4) that the defendant refused to provide the requested accommodation, or that the defendant terminated his employment due to his disability. See Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001); Thompson v. Rice, 422 F. Supp. 2d 158, 165-66 (D.D.C. 2006); Norden v. Samper, 503 F. Supp. 2d 130, 144 (D.D.C. 2007). The Court will address whether the plaintiff has satisfied each of these elements below.
(1) The Plaintiff's Evidence of his Disability The ADA defines a person with a "disability," in part, as having either: "(A) a physical... impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2) (2006). The defendants argue that the plaintiff does not have an impairment, and is not substantially limited in the major life activity of eliminating bodily waste based on the severity of his symptoms and the absence of relevant medical records. Defs.' Mot. 8-12.*fn4 On the other hand, the plaintiff argues that his condition, which is similar to irritable bowel syndrome ("IBS") and causes fecal urgency, is an impairment that substantially limits the major life activity of eliminating bodily waste. Pl.'s Opp'n at 6-14.
The first step of the Court's analysis in assessing whether the plaintiff has a qualifying disability is to determine whether the plaintiff has a physical impairment. EEOC regulations define a physical impairment as: "(1) Any physiological disorder, or condition. affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine." 29 C.F.R. § 1630.2(h)(1) (2008) (emphasis added). To receive ADA and DCHRA protection, the existence of a disability must be demonstrated at the time the plaintiff requested and was refused a reasonable accommodation. Heasley v. D.C. Gen. Hosp., 180 F. Supp. 2d 158, 167 (D.D.C. 2002). It is the impairment itself, not the medical diagnosis of the condition, that determines whether a particular ailment qualifies as an impairment under the Act. Scarborough v. Natsios, 190 F. Supp. 2d 5, 20 (D.D.C 2002).
The defendants contend that the plaintiff has presented no evidence of an impairment and has failed to produce any medical records concerning his condition during the relevant time period. Defs.' Mot. at 8. The medical records submitted by the plaintiff do not document the continuous presence of his condition during the relevant period, but rather document his condition both before and after his employment.*fn5 However, the plaintiff's medical records do indicate that on April 14, 2004 he had "rectal pain and fecal urgency which ha[d] been bothering him" and that nitroglycerin had been alleviating these problems. See Defs.' Stmt.¶ 33. In addition, as stated earlier, the plaintiff completed a medical examination report when he applied for employment with the defendants, which listed his current medications and indicated they were used "sometime[sic] for anal fissure." Defs.' Mot., Ex. 1, Attach. (Medical Report). Moreover, the plaintiff testified that during the relevant time period he "physically [had] bowel movement[s] maybe three or four times [a day]... [and] in one day's time [felt] like [he had] to go to the bathroom about 10 to 15 times." Defs.' Mot., Ex. 1 (Green Dep.) at 130. Significantly, while employed by the University, the plaintiff testified that he soiled himself on one occasion. Id. at 135-36. Collectively, the plaintiff's evidentiary submissions affirm the existence of a physiological disorder or condition affecting his digestive system. Additionally, there is evidence in the record that supports an inference that the plaintiff had the potential of soiling himself while on the job when he felt the urge to have a bowel movement, particularly during the trip back from Philadelphia when he indicated that if he was unable to stop he would soil himself. Pl.'s Opp'n at 10, 15-16. Given that a medical diagnosis is not specifically required under the ADA, the Court finds that a reasonable jury could conclude that the plaintiff had an impairment during the time period relevant to this case. See Scarborough, 190 F. Supp. 2d at 20. The primary dispute therefore hinges on whether, during the relevant time period, the plaintiff's fecal urgency substantially limited one or more major life activities. See 42 U.S.C. § 12102(2).
Major life activities have been defined as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998) (quoting Rehabilitation Act Regulation 45 C.F.R. § 84.3(j)(2)(ii) (1997)) (noting that "the ADA must be construed to be consisted with regulations issued to implement the Rehabilitation Act"). This list, however, "is illustrative, not exhaustive," id. at 639, and the Supreme Court has noted that "the touchstone for determining an activity's inclusion under the statutory rubric is its significance," id. at 638. Additionally, major life activities include, but are not limited to, "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." ADA Amendments Act of 2008, Pub. L. No. 110-325, § 3, 122 Stat. 3553, 3555 (2009). Although the District of Columbia Circuit has not assessed whether the malady that afflicts the plaintiff constitutes a major life activity, the ADA Amendments Act of 2008 includes the functioning of the bowels as a major life activity. Furthermore, although the ADA Amendments Act of 2008 only recently included this bodily function as a major life activity, other courts have long allowed for the possibility. See Crawford v. N.Y. Life Ins., Co., No. 04-CV-1853, 2006 WL 2792779, at *4 (E.D.N.Y. Sept. 27, 2006) (finding that the plaintiff's symptoms affecting her bowels impaired the major life activity of eliminating bodily waste); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999) ("jury could have decided that controlling one's bowels is a major life activity"); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 871-73 (2nd Cir. 1998) (finding that the elimination of bodily waste may constitute a major life activity). That possibility is now not an open question.
Having determined that the plaintiff has shown that he had a physical impairment affecting a major life activity at the time relevant to this case, the Court must now address whether the impairment amounted to a substantial limitation on one or more of the plaintiff's major life activities. 42 U.S.C. § 12102(1)(A). Although the ADA does not define the term "substantially limits," to satisfy this requirement courts "'require that an individual be "[u]nable to perform a major life activity that the average person in the general population can perform" or [be] '[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a major life activity' as compared to the average person in the general population.'" Heasley, 180 F. Supp. 2d at 166 (quoting Siragy v. Georgetown Univ., No. CIV. A. 97-2557 (RMU) 1999 WL 767831, slip op. at *3 (D.D.C. Aug. 20, 1999) (quoting 29 C.F.R. § 1630.2(j)(1)(i)-(ii)). The factors to be considered in making this determination are: "(1) [t]he nature and severity of the impairment; (2) [t]he duration or expected duration of the impairment; and (3) [t]he permanent or long term impact, or the expected permanent or long term ...