The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Rita Chisholm, the plaintiff in this civil lawsuit, seeks to recover compensatory damages and also requests injunctive relief for alleged unlawful discrimination against her by her former employer, the District of Columbia Courts,*fn2 under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-31, 633-34 (2000), Second Amended Complaint ("Am. Compl.") ¶ 45, and under both the American's With Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117 (2006), and the Rehabilitation Act 29 U.S.C. §§ 791, 794(a) (2006), Am. Compl. ¶¶ 47-48. In addition, the plaintiff asserts a wrongful discharge claim against the defendant. Am. Compl. ¶¶ 50-51. Currently before the court is the defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant's Motion for Summary Judgment ("Def.'s Mot."). After carefully considering the parties' pleadings, the defendant's motion and the plaintiff's opposition, and all memoranda of law and exhibits submitted with these filings,*fn3 the Court concludes the defendant is entitled to summary judgment on all of the plaintiff's claims.
The following facts are either admitted or not in dispute.*fn4 The plaintiff worked for the District of Columbia Courts ("Courts") for nearly 19 years commencing in 1985. Def.'s Stmt. ¶¶ 1, 4. At the time of the termination of her employment on August 5, 2005, the plaintiff was approximately 56 years old. Pl.'s Opp'n at 4. Her last position with the Courts was working as a clerk in the Criminal Finance Department. Def.'s Mem. at 4. Some of the plaintiff's job responsibilities required her use of a computer and calculator. Pl.'s Opp'n, Exhibit ("Ex.") 2 (Deposition of Rita Elizabeth Chisholm) ("Chisholm Dep.") at 92. During the summer of 2004, the plaintiff was diagnosed with tendonitis in her right wrist and shortly thereafter she began receiving physical therapy to treat the problem. Pl.'s Opp'n, Ex. 3 (Medical Documents). Pursuant to a specific recommendation by her physical therapist on October 20, 2004, id., the defendant provided the plaintiff an accommodation for the problem with her wrist in the form of 5 minutes of rest for every 15 minutes of work. Def.'s Mem., Ex. D (Accommodation Letter).
Thereafter, on November 9, 2004, the plaintiff allegedly "tripped and tore the ligament in [her] right [ankle]" while at work. Id., Ex. A (Chisholm Dep.) at 68; Pl.'s Opp'n at 6.*fn5
Sometime in early November 2004, the plaintiff met with her supervisor, Cyril Erugo, the Chief of the Court's Finance and Banking Branch, to request advanced medical leave.*fn6 Def.'s Stmt. ¶ 3; Def.'s Mem., Ex. A (Chisholm Dep.) at 129; Pl.'s Opp'n at 6. The plaintiff alleges that Mr. Erugo initially indicated "that her request would be approved once it traveled through the appropriate channels." Pl.'s Opp'n at 6. However, the request for advance leave was ultimately denied once the plaintiff's record was reviewed, id., because according to Mr. Erugo, the plaintiff's record revealed "a pattern of taking leave without advanced request[,]" Pl.'s Opp'n, Ex. 10 (Deposition of Cyril Erugo) ("Erugo Dep.") at 127, which was considered an abuse of the Court's policy on personal leave, id., Ex. 13 (Letter Denying Reconsideration for Advanced Leave) ("Reconsideration Denial Letter").*fn7 The plaintiff then applied for and was granted worker's compensation payments and she has not returned to work since November 9, 2004. Def.'s Stmt. ¶ 7; Def.'s Mem., Ex. A (Chisholm Dep.) at 67-68.
During the several years before the termination of her employment, the plaintiff and a co-worker named Jennifer Galloway formed a social relationship. Def.'s Stmt. ¶ 8. At the encouragement by the plaintiff, Ms. Galloway also formed a social relationship with the plaintiff's daughter, who suffers from emotional disorders and is learning disabled. Id. ¶ 9. Sometime after the plaintiff began receiving worker's compensation payments and before the termination of her employment, the social relationship between the plaintiff and Ms. Galloway disintegrated due to the escalation of the relationship between Ms. Galloway and the plaintiff's daughter.*fn8
On January 11, 2004, while not reporting to work and receiving worker's compensation payments, the plaintiff sent to Mr. Erugo a grievance letter, which included an appeal for the reconsideration of her request for advanced leave. Pl.'s Opp'n, Ex. 4 (Grievance Letter); Pl.'s Opp'n at 7-8. The Grievance Letter provided an additional reason for the plaintiff's request for advanced leave: that she was "given a list of specific jobs that would require more usage of [her] hand" after the accommodation was provided by the defendant. Id., Ex. 4 (Grievance Letter). In addition, the Grievance Letter detailed the tumultuous relationship between Ms. Galloway, the plaintiff's daughter, and the plaintiff and provided other allegations regarding the plaintiff's personal relationship with co-workers.*fn9 Id. On approximately February 20, 2005, while still receiving worker's compensation, the plaintiff began workplace counseling through COPE, Inc., the defendant's designated employee assistance program. Pl.'s Opp'n at 9. On March 9, 2005, Mr. Erugo responded to the Grievance Letter maintaining his original recommendation to deny the plaintiff's request for advance leave. Pl.'s Opp'n, Ex. 13 (Reconsideration Denial Letter). The plaintiff responded to the second denial of advance leave on March 11, 2005, through a letter to Dana Friend, the Deputy Chief Financial Officer of the Courts, requesting a transfer to a new division. Pl.'s Opp'n, Ex. 5 (Letter Requesting Transfer).
On April 3, 2005, the plaintiff called Ms. Galloway's cellular telephone and threatened to physically harm Ms. Galloway. Def.'s Stmt. ¶¶ 10-21; Def.'s Mem., Ex. E (Affidavit in Support of An Arrest Warrant for Rita Chisholm) ("Arrest Warrant"). On April 4, 2005, Ms. Galloway filed a criminal complaint with the Metropolitan Police because of the threat by the plaintiff and a warrant was issued for the plaintiff's arrest. Def.'s Stmt. ¶ 12; Def.'s Mem., Ex. E (Criminal Complaint).*fn10 The plaintiff was arrested on the warrant by the Metropolitan Police Department on April 26, 2005 for "threats to do bodily harm." Def.'s Mem., Ex. F (Arrest/Prosecution Report). Following her arrest, the plaintiff was released and ordered to stay "at least 100 yards" away from Ms. Galloway. Def.'s Mem., Ex. G (Release Order Addendum) ("Restraining Order").
On June 30, 2005, Anthony Rainey, the Chief Financial Officer of the Budget and Finance Division of the Courts, sent a letter to Anne Wicks, the Executive Officer of the Courts, recommending the plaintiff's termination. Pl.'s Opp'n, Ex. 7 (Letter Recommending Termination). Mr. Rainey made the recommendation "based upon the documentation, memoranda, and witness corroboration [ ] received in connection with the threats that [the plaintiff] reportedly made to [Ms. Galloway.]" Id. On July 5, 2005, the plaintiff signed a First Time Offender Diversion Agreement in which she admitted "criminal responsibility" in the criminal case involving the threat against Ms. Galloway. Def.'s Mem., Ex. H (First Time Offender Diversion Agreement). Pursuant to the defendant's policy of "zero tolerance on violence and threats in the office," and the plaintiff's admission of criminal responsibility for the threat, the recommendation for termination was accepted. Pl.'s Mem., Ex. 9 (Deposition of Dana A. Friend) ("Friend Dep.") at 121-22, 158. The plaintiff was then sent a letter by Ms. Rainey on July 25, 2005, notifying the plaintiff that Ms. Wicks had approved her termination effective on August 5, 2005. Def.'s Mem., Ex. C (Notice of Termination).
In November 2005, Ms. Galloway, who at the time was under 45 years old, was arrested for the possession of narcotics, an event entirely unrelated to this case. Def.'s Stmt. ¶ 19; Def.'s Mem., Ex. I (Criminal Records). Upon learning of the arrest and confirming that the charges were not related to a violent crime, Mr. Friend suspended Ms. Galloway. Def.'s Mem., Ex. B (Friend Dep.) at 66-67. The criminal charges against Ms. Galloway were later dropped, Def.'s Mem, Ex. I (Criminal Records), and upon confirmation of the dismissal, Mr. Friend reinstated Ms. Galloway to her position in the finance department, id., Ex. B (Friend Dep.) at 66.
In September of 2006, the plaintiff received a letter from the Employment Opportunity Commission indicating that "they had closed her case and informing her of her right to file [a claim] in federal district court."*fn11 Am. Compl. ¶ 43. The plaintiff filed her complaint in this court on December 21, 2006, naming as defendants the Superior Court of the District of Columbia and Ann B. Wicks in her capacity as the Executive Officer of the District of Columbia Courts. The Court granted Ms. Wick's motion to dismiss and ordered the plaintiff to file an amended complaint naming only the District of Columbia as the defendant. June 4, 2007 Memorandum Opinion. The plaintiff complied with that instruction, and on February 12, 2008, she filed her Second Amended Complaint alleging (1) that she was treated in a discriminatory manner "when younger employees in her division . . . engaged in activity similar to that which the Courts claimed was the reason for terminating [her]," Am. Compl. ¶¶ 44-45; (2) that "[r]ather than attempting to accommodate [her]," the Courts terminated her "because of her long absence from work due to the disabling injuries to her wrist and ankle," Am. Compl. ¶¶ 46-48; and (3) that the Courts wrongfully terminated her employment by violating its policy of making "[e]very effort . . . to resolve [employee] grievances promptly and equitably . . . [,]" Am. Compl. ¶¶ 49-51.
The defendant filed its motion for summary judgment on September 9, 2008. In support of its motion, the defendant argues that the plaintiff has failed to establish a prima facie case of age discrimination under the ADEA, Def.'s Mem. at 5-9, and that even if a prima facie case of age discrimination has been established, it has proffered a legitimate, non-discriminatory reason for terminating the plaintiff's employment, id. at 9-10. In addition, the defendant contends that the plaintiff cannot prove her claims asserted under either the ADA or the Rehabilitation Act because she has failed to show that she is disabled, that the defendant failed to accommodate her alleged disabilities, and that her alleged disabilities were the reason for her termination. Id. at 11-17. The defendant also argues that the plaintiff has not asserted "an actionable claim for wrongful discharge." Id. at 18-21.
The plaintiff counters that she "can establish a prima facie case of age discrimination[,]" that she is "a qualified individual with a disability . . . or is perceived as disabled by [the defendant,]" and that there are genuine issues of material fact as to whether the defendant "made a reasonable accommodation under the [ADA and Rehabilitation Act.]" Pl.'s Resp. ¶¶ 1-3. In addition, the plaintiff argues that she was terminated "in violation of [the defendant's] stated employment policy, . . . which constitutes wrongful termination under the common law exception to the at-will doctrine." Id. ¶ 4.
In addition to reiterating its arguments advanced in its initial memorandum of law, the defendant argues in reply that the plaintiff's wrongful termination claim should be dismissed by the Court because of her failure to "exhaust her administrative remedies" under the District of Columbia's Comprehensive Merit Personnel Act ("CMPA"), D.C. Code §§ 1-601.01 - 1-607.08 (2001), "before [judicially] challenging an adverse employment action[.]" Def.'s Reply at 7-9.
Under Federal Rule of Civil Procedure 56(c), courts will grant summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The Court must also draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted), and "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal citations omitted). Instead, "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and internal quotation marks and citation omitted). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In other words, by pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. at 322. On the other hand, the nonmoving party may defeat summary judgment through factual representation made in a sworn affidavit, Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999), or by providing "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Finally, it should be noted that because of the difficulty of establishing discriminatory intent, "an added measure of rigor . . . or caution . . . is appropriate in deciding motions for summary judgment in employment discrimination cases." Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997) (internal quotation marks and citations omitted), rev'd on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc).
A. The Plaintiff's ADEA Claim
The defendant argues that the plaintiff has failed to establish a prima facie case of age discrimination under the ADEA, Def.'s Mem. at 5-9, and that even if the plaintiff has established a prima facie age discrimination case, it has provided a legitimate, non-discriminatory reason for terminating the plaintiff's employment, id. at 9-10. The ADEA provides in pertinent part that it is unlawful for an employer "to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C § 623(a)(1). However, it is not "unlawful for an employer . . . to discharge or otherwise discipline an individual for good cause." Id. § 623(f)(3). In analyzing a discrimination claim under the ADEA, courts apply the framework developed in Title VII, 42 U.S.C. §§ 2000a-2000h, litigation. Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999). The Title VII framework, first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, requires the plaintiff to "establish a prima facie case of discrimination" in the absence of direct evidence of discrimination. Reeves v. Sanderson Plumbing Prods., Inc, 530 U.S. 133, 142 (2000). In order to establish a prima facie case in the context of an ADEA employment termination claim, the plaintiff must show that she (1) belongs to the statutorily protected age group, (2) she was qualified for the position, (3) she was terminated, and (4) she was disadvantaged in favor of a younger person. Hall, 175 F.3d at 1077; Jones v. Bernanke, 493 F. Supp. 2d 18, 27 (D.D.C. 2007), aff'd, 557 F.3d 670 (D.C. Cir. 2009).
Upon the plaintiff establishing a prima facie case of discrimination based on age, the burden then shifts to the defendant, "who must articulate some legitimate, non-discriminatory reason for the adverse action." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007) (internal citation and quotation marks omitted). The employer must clearly set forth, "through the introduction of admissible evidence, reasons for its actions which . . . would support a finding that unlawful discrimination was not the cause of the employment action." Hall, 175 F.3d at 1078 (internal citation and quotation marks omitted). If the defendant sets forth such evidence, then the burden shifts back to the plaintiff to show "that the defendant's proffered reason is but a pretext for discrimination." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 26-27 (D.C. Cir. 1997) (citing McDonnell Douglas, 411 U.S. at 804).
For the reasons set forth below, the plaintiff's ADEA claim cannot survive the defendant's ...