United States District Court, D. Columbia.
[Copyrighted Material Omitted]
AMINA ELZENEINY, Plaintiff: Kathy C. Potter, LEAD ATTORNEY,
BENTON, POTTER & MURDOCK, P.C., Washington, DC.
DISTRICT OF COLUMBIA, Defendant: David A. Jackson, LEAD
ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF
COLUMBIA, Public Interest Division, Washington, DC.
E. BOASBERG, United States District Judge.
in January 2003, Plaintiff Amina Elzeneiny worked as a Budget
Analyst for the District of Columbia's Office of Budget
and Planning in its Office of the Chief Financial Officer.
Shortly after she began, she informed the Office that she
suffered from fibromyalgia, a condition that causes muscle
and joint pain, as well as chronic fatigue. In the years that
followed, she requested a variety of accommodations from her
employer, such as the ability to work on a flexible schedule.
The District agreed to nearly all of her requests.
Plaintiff nonetheless complains that months (and, in one
instance, even years) often passed before it did so. She also
alleges that she was harassed and retaliated against by,
inter alia, being accused of wrongdoing despite a
lack of evidence and being given negative and unsubstantiated
feedback in her performance evaluations.
last few years of her tenure with OBP, Plaintiff's
condition worsened, and she sought to take extended medical
leave on two occasions. She maintains that she was wrongly
denied such leave the second time around, and that she was
retaliated against for taking this time off. Indeed, she
claims that she was wrongfully terminated because she took
leave, and, when she was reinstated to her position after she
appealed, she was transferred to a different office where she
had fewer responsibilities. She ultimately tendered her
resignation approximately six months later in 2011 and now
claims that she was constructively discharged.
this history, Plaintiff brought this suit against the
District of Columbia under the Americans with Disabilities
Act, the D.C. Human Rights Act, and the Family and Medical
Leave Act. Following years of extended proceedings in this
case, the District now moves for summary judgment. In doing
so, it first argues that the three counts added in her First
and Second Amended Complaints -- i.e., for
interference with her rights under the FMLA (Count III),
retaliation under the ADA (Count IV), and retaliation under
the FMLA (Count V) -- should be dismissed because she did not
make herself available for a deposition after including those
causes of action. Although further extending pretrial
proceedings is hardly a salubrious outcome, the Court
believes that rescheduling her deposition is more justifiable
than dismissing Counts III-V now.
District also contends that much of the conduct Plaintiff
complains of in the remaining two counts cannot be pursued in
this Court. With respect to her DCHRA claim (Count II), for
instance, the city notes that she elected to pursue
administrative remedies, instead of filing suit, for conduct
that took place prior to March 10, 2008. As to her other ADA
claim (Count I), it asserts that she did not timely file an
EEOC charge for much of the activity, which is a prerequisite
to bringing such a claim. Considering what remains of these
two counts, the District believes it is entitled to judgment
as a matter of law because it acted in good faith, granted
nearly every accommodation that she requested, did not
subject her to a hostile work environment, and did not create
an environment so severe as to justify her resignation. Given
its commendable conduct in addressing Elzeneiny's litany
of complaints, the Court largely agrees; as a result, it will
grant Defendant's Motion for Summary Judgment on Counts
I-II as to almost every allegation.
together the facts in this case is no easy task; the
parties' submissions are often sparse on details,
including the timing of particular events. The Court has
nonetheless done its best to provide a coherent narrative. In
doing so, it has credited Plaintiff's evidence and drawn
all justifiable inferences in her favor, as she is the
joined OBP as a Budget Analyst on January 6, 2003. See Opp.,
Exh. 2 (Declaration of Amina Elzeneiny), ¶ 2. Shortly
after, she informed Gary Ayers, the Branch Chief for
Administration, that she suffered from fibromyalgia, which
causes muscle and joint pain, as well as
chronic fatigue. See id., ¶ 3; Mot., Exh. 2 (Deposition
of Amina Elzeneiny) at 15:7-20; Mot., Exh. 3 (Interrogatory
Responses of Gary Ayers), Ans. No. 3. At the same time, she
requested that she be allowed some flexibility in reporting
to work in the morning because she sometimes had "
problem[s] with coming in, in the morning, at eight
o'clock every day, for example." Elzeneiny Depo. at
months later, Plaintiff provided Ayers with two letters from
her rheumatologist, Richard A. Wilson, Jr., both of which
were dated August 7, 2003. See Mot., Exh. 5 (Letter from
Richard A. Wilson, Jr., M.D., August 7, 2003) (Wilson Letter
1); Exh. 6 (Letter from Richard A. Wilson, Jr., M.D., August
7, 2003) (Wilson Letter 2). The letters indicated that Dr.
Wilson's office had been treating Elzeneiny for some time
and that she had been diagnosed with fibromyalgia. See Wilson
Letter 1; Wilson Letter 2. They further stated that, "
based on her medical condition, [she] should be allowed some
flexibility in her work schedule" and " should . .
. be given access to a 'handicapped access
card.'" Wilson Letter 1. The latter request was made
because the building entrance she normally used had "
some big stairs" and was farther away. Elzeneiny Depo.
three months later, on October 30, 2003, Ayers sent an e-mail
to the security office indicating that Elzeneiny should be
granted handicapped access to the building. See Mot., Exh. 11
(E-mail from Ayers to PSD Access Control (Oct. 30, 2003, 3:38
PM)). About three weeks after that, he wrote to Plaintiff
indicating that " pending further medical/legal review
and decision," she would be given " a special
exception to the standard OBP flextime policy." Mot.,
Exh. 7 (E-mail from Ayers to Elzeneiny (Nov. 21, 2003, 12:33
PM)). Specifically, she would " be allowed to attach
[her] doctor's letter to a signed flextime form as the
only required proof of [her] compliance with [the
office's] flextime policy." Id. He also
informed her that she would " be allowed to sign-in on a
liberal, non-predetermined flextime basis, as long as [she]
maintain[ed] a standard 40-hour work week," that she
would " be allowed to perform some work at home,"
and that she would also be given a notebook computer for
" work-at-home purposes." Id.
December of that year, Plaintiff was asked to move to a
cubicle closer to the Branch Chief's office. See Mot.,
Exh. 9 (E-mail from Ayers to OBP -- All Staff (Dec. 4, 2003,
4:47 PM)). The parties dispute whether she was the only staff
member asked to relocate, compare Elzeneiny Depo. at 48:15-17
with Ayers Interrogs., Ans. No. 9; in any event, she felt
that she could not do so because it would require her to
reorganize her desk during a very busy time, and she was
fatigued and in pain as a result of her condition. See
Elzeneiny Depo. at 51:8-52:4. She thus promptly contacted her
internist, Dr. Mahmoud Mustafa, to discuss the move. See id.
at 46:4-17. She claims that while she was on the phone, Ayers
" stood behind [her] right at the cubicle . . . for 45
minutes." Id. at 46:18-21. He did so despite
the fact that she told him she was on a personal call. See
id. at 46:1-18.
Dr. Mustafa sent Dallas Allen, the Director of Budget
Formulation, a letter indicating that he was "
concerned" that Elzeneiny's medical issues had not
been " fully taken into consideration regarding the
proposed re-location of her work station" and "
requesting that [the office's] decision to relocate Ms.
Elzenieny [ sic ] be re-evaluated after an in depth
review of her disability." Mot., Exh. 10 (Letter from
Mustafa to Allen, Dec. 10, 2003). Although the agency's
EEO Officer, Teresa Wilson, concluded that "
request for [Plaintiff] to relocate was 'reasonable,'
and did not present an undue burden on [her]," "
OBP ultimately granted her request" to remain at her
work station. See Ayers Interrogs., Ans. No. 9.; see also
Elzeneiny Depo. at 49:17-20.
the next several months, in the Spring of 2004, C. Ayo
Bryant, the Special Assistant to the Director, indicated in
two separate memoranda that Elzeneiny had been approved for a
variety of accommodations. The first memo, dated February 26,
2004, stated that Elzeneiny was approved for: 1) " an
ergonomic chair with specifications designed to meet the
particular needs of [her] disability" ; 2) a "
flexible arrival time" and permission to " work as
many or as few hours each workday . . . so long as [she]
complete[d] eighty hours in a two-week tour of duty" ;
3) " a desktop printer . . . located in [her]
workspace" ; 4) " Handicap Access to the Wilson
Building Worksite" ; 5) " approval to travel by
Taxi rather than Metro rail for work-related local
travel" ; and 6) permission to remain at her workstation
" until and unless an adjustment is indicated as the
result of a significant business operation change."
Mot., Exh. 12 (Memorandum from Bryant to Elzeneiny, Feb. 26,
second memo, dated May 7, 2004, reiterated these
accommodations and stated that she was also approved to use
" a laptop on an as needed basis upon [her]
request," even though OBP had generally " limited
the regular use of laptop computers to . . . Branch chiefs
and above." Mot., Exh. 13 (Memorandum from Bryant to
Elzeneiny, May 7, 2004). This later memo also stated that any
of " [t]he accommodations . . . that ha[d] not already
been provided [would] become effective on Monday May 10,
2004," and that the office would " schedule a
follow-up meeting at the end of ninety days . . . to review
the effectiveness of the accommodations with [her]."
however, the problems continued, and Plaintiff filed a Charge
of Discrimination with the Equal Employment Opportunity
Commission and the D.C. Office of Human Rights on December
19, 2005. See Opp., Exh. 1 (December 19, 2005,
Charge of Discrimination); Elzeneiny Decl., ¶ 7. In it,
she alleged discrimination on account of the fact that "
[b]etween August 2003 thru December 2004," she had
" requested the use of flextime, telecommuting, filing
cabinets, to stay in [her] cubicle, a labtop [ sic
], handicap access, a desk top printer among other
requests," and that although she " received several
of the requested accommodations," she did so only "
after a long and protracted battle with [Defendant]."
December 19, 2005, Charge of Discrimination. She also alleged
that she had been " subjected . . . to harassment,"
as evidenced by the fact that she was asked to move to a new
cubicle, office personnel attempted to contact her doctor
without her permission, Ayers stood over her while she talked
on the phone with her doctor, staff made comments to her
supervisor that they felt sorry for him having to supervise
her, negative comments were included in her " passback
folders[,] which are openly seen by the whole office,"
and she was " accus[ed] . . . of wrong doing with no
evidence that there was any wrongdoing." Id. at
2. She last claimed that the Office had retaliated against
her by not giving her extra projects, not including "
commendations . . . in [her] evaluations," admonishing
her in her FY2004 evaluation for
asking for an extension on a project, incorporating
unsubstantiated allegations in her June 2005 mid-year
evaluation, and failing to promote her despite the fact that
others who joined the office later had been. See id.
December 2006, as these complaints churned through the
administrative process, Plaintiff tore a tendon in her right
arm, unrelated to her fibromyalgia. See Elzeneiny Depo. at
78:9-11; 79:3-4. Her doctor thus requested that she be given
speech-recognition software. See id. at 78:9-14. Following
her surgery in February, he also asked that she " be
allowed to work from home." Id. at 78:14-18;
Mot., Exh. 16 (Letter from Mahmoud H. Mustafa to Angell
Jacobs, Mar. 13, 2007). Both requests were approved, and the
Office paid approximately $3,000 to provide her with
voice-activated software. See Elzeneiny Depo. at 78:18-79:2;
Ayers Interrogs., Ans. No. 7. Sometime in 2007, the Office
also permitted her to use the Virtual Private Network (VPN)
so that she could access her work files more easily from
home. It had, however, taken " two or three years"
to get this. See Elzeneiny Depo. at 98:5-100:14; Elzeneiny
Decl., ¶ 5.
in October 2007, OHR issued a " No Probable Cause"
Determination. Elzeneiny appealed, but the agency affirmed
its assessment in March 2008. According to Plaintiff, "
Shortly after" this final ruling, " Defendant
removed all of [her] accommodations until March 2009."
Elzeneiny Decl., ¶ ¶ 8-9. Defendant's evidence
indicates that OBP did notify Plaintiff on April 3, 2008,
that it was " reinstating the terms of the February 24,
2004 reasonable accommodation memorandum," and thus
" was terminating [its] temporary authorization to
sign-in on a liberal, non-predetermined flextime basis, which
was granted to accommodate [her] recovery from surgery."
Mot., Exh. 17 (Declaration of Sumita Chaudhuri), Exh. 2
(Memorandum from Sumita Chaudhuri to Elzeneiny, Aug. 18,
2008). In accordance with the terms of the 2004 agreement,
she would have flexibility to work days of non-standard
length so long as she completed 80 hours every two weeks
between the hours of 7:30 a.m. and 8:00 p.m., Monday through
Friday. See id. She would, however, have to " adhere to
OBP's normal time and attendance procedures, including
prior approval from [her] supervisor for use of leave."
Id. The Office indicated that it would review the
accommodations in six months. See id.
February 2009, the Office issued another memorandum, this
time in response to a letter that Dr. Mustafa wrote on
January 6, requesting that Elzeneiny be allowed to work from
home. See Chaudhuri Decl., Exh. 3 (Memorandum from Chaudhuri
to Elzeneiny, Feb. 23, 2009). The memo stated that she was
authorized to work from home under three conditions: 1) that
she notify her supervisor of her intent to do so not later
than 7:30 a.m. on the day she planned to work from home; 2)
that she keep " annotated time sheet[s] of the hours . .
. worked" ; and 3) that the hours " comport to OBP
working hours" -- i.e., Monday through Friday,
7:30 a.m. to 8:00 p.m.
March of that year, Elzeneiny's health had "
deteriorated," so she " went on approved FMLA leave
per [her] doctor's orders." Elzeneiny Decl., ¶
9. This FMLA leave was set to expire on July 10, though she
did not return at that time. See Mot., Exh. 18 (Declaration
of James Spaulding), Exh. 1 (E-mail from Spaulding to Teresa
Wilson (Aug. 18, 2009, 10:22 AM)). Instead, on August 4,
2009, before she returned to work, Dr. Mustafa wrote a letter
to the agency noting, " In the past several months, I
have recommended on more than one occasion that Ms. Elzeneiny
provided the accommodation of the flexibility of working from
home when necessary with flexible hours pursuant to the
Americans with Disabilities Act," and that it was his
" understanding that these accommodations were taken
away from her in April 2008." Spaulding Decl., Exh. 2
(Letter from Mustafa to OBP, Aug. 4, 2009). He continued,
" Over the past several months, due to the stress in
having to work during normal working hours without the
flexibility of working from home and other accommodations, I
noticed a worsening of Ms. Elzeneiny's fibromyalgia
symptoms both in severity and duration," and that,
" [a]s a result, it was recommended that she take FMLA
leave, which she did." Id. Though " her
symptoms ha[d] improved while on leave and she [wa]s able to
perform the essential functions of her job," he did not
recommend that she return to work under the same conditions
on which she left. Id. Indeed, it was his "
strong recommendation that Ms. Elzeneiny only return to work
at [that] time if she [wa]s afforded the accommodation of
working from home with flexible hours, first on a fulltime
basis until [he] evaluate[d] her in 3 to 4 weeks."
Id. On a more permanent basis, he " strongly
recommend[ed] that she be afforded the accommodations of
working from home on an as needed basis with a flexible work
schedule as she had prior to April 2008." Id.
He concluded that Plaintiff was " ready to return to
work on August 10, 2009." Id.
ultimately returned on August 25. See Elzeneiny Decl., ¶
9. James Spaulding, the Associate Deputy CFO, expressed
concerns about providing her with any additional
accommodations because OBP had to re-work and re-publish the
budgets that year and had " fewer staff . . . to handle
this workload." E-mail from Spaulding to Wilson (Aug.
18, 2009, 10:22 AM)). In his view, " offer[ing]
additional accommodations -- such as a return to the
accommodation she had for her post-surgery period -- would
greatly diminish [the office's] ability to deliver for
the Mayor and Council." Id.
on September 1, 2009, he sent Plaintiff a memorandum granting
the request for flexible hours, although with limitations.
See Spaulding Decl., Exh. 3 (Memorandum from Spaulding to
Elzeneiny, Sept. 1, 2009). Specifically, over the following
four weeks, she would be permitted to work from home for 32
hours in any 80-hour pay period, but those hours had to be
performed during OBP's working hours -- i.e.,
Monday to Friday, from 7:30 a.m. to 8:00 p.m.. See id. She
would also need to notify her supervisor of her intent to
work from home " not later than 8:30 am" on the
date she planned to do so. Id. The memo concluded by
delineating her duties and responsibilities that could be
performed from home and those that could not be. See id.
Spaulding has since explained that the accommodation was
" consistent with most of the requests made by her
doctors," but that " [b]ecause of the need for a
Budget Analyst to speak to agency finance staff, managers,
and budget book production staff, . . . [the office] did not
authorize work for credit at 5:00 a.m. or 10:00 p.m. as
suggested in Dr. Mustafa's statement." Spaulding
Decl., ¶ 7.
accommodation approved in this September 1st memo ultimately
" continued beyond the three to four week period
granted." Mot., Exh. 19 (Declaration of Gordon
McDonald), ¶ 4; see McDonald Decl., Exh. 1 (Memo from
McDonald to Elzeneiny, Jan. 29, 2010). Dr. Mustafa
nevertheless sent a letter on December 7, 2009, "
express[ing] concern over OBP's lack of response to his
recommendation that Ms. Elzeneiny be allowed to work from
home at her discretion without prior notice or approval from
a supervisor." McDonald Decl., ¶ 4. Gordon
the Deputy Chief Financial Officer, thus wrote a memorandum
to Plaintiff reiterating that she could work up to 32 hours
from home per pay period, and that she could " work days
of non-standard length" so long as the hours were
completed between 7:30 a.m. and 8:00 p.m. Monday through
Friday. See January 29, 2010 Memo. He explained that "
[f]or business reasons," however, the Office could not
provide additional accommodations. Id. Specifically,
" OBP's work environment [wa]s constantly changing
and evolving," and although they had " set . . .
schedules and calendars, . . . emergencies constantly ar[o]se
with little to no notice, which mean[t] that an analyst
working from home might not easily be able to meet the
demands of the office." Id. As far as the Court
can tell, this accommodation remained in place over the next
on March 10, 2011, Elzeneiny submitted a second leave
request, but on March 17, it was denied. See Mot., Exh. 20
(Declaration of LaSharn Moreland), ¶ 3. A few days
later, Plaintiff's employment was terminated. See id.,
¶ 4. According to the District, it was because her
supervisor, Eric Cannady, believed she was unable to perform
the job competently. See Def.'s Statement of Facts,
¶ 41; see also Mot., Exh. 1 (Declaration of Eric
Cannady), ¶ ¶ 2, 4-5.
this purported justification, however, the agency reinstated
Elzeneiny after she appealed her termination and " it
was determined that an administrative error occurred and her
FMLA eligibility should have been considered under both
Federal and District FMLA." Moreland Decl., ¶ 5.
Not long after Elzeneiny returned to work, she was reassigned
to a budget-analyst position in another department, based on
" her skills and inability to work in a fast paced
environment." Id., ¶ 6. According to the District,
she was thus " returned to the same position, but to a
worksite that was less demanding" ; there was no "
loss in seniority, grade or pay." Id. Plaintiff
avers, however, that in the new position she " was
essentially given no work to do," and " [w]hat
little work [she] was given involved data entry or
copying." Elzeneiny Decl., ¶ 11( l ). From
her point of view, " [t]he position to which [she] was
reassigned had no chance of career advancement . . . because
[she] was no longer performing the budget analyst duties
[she] had been performing." Id., ¶ 11(m). She thus
resigned six months later, in November 2011. See Moreland
Decl., ¶ 7.
case has wended its long and tortuous way through many
procedural stages, and the relevant ones are recounted in
considerable detail in the Analysis section infra.
It is enough to say here that Plaintiff first filed this suit
against the District, its Chief Financial Officer (Natwar
Gandhi), and OCFO on May 13, 2009, long before her ultimate
resignation, and the case was initially assigned to Judge
Colleen Kollar-Kotelly. See ECF No. 1. Her Complaint asserted
claims under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., the
Americans with Disabilities Act, 42 U.S.C. § 12101
et seq., and the D.C. Human Rights Act, D.C. Code
§ 2-1401.01 et seq. Defendants subsequently
moved for partial dismissal, and on March 29, 2010, Judge
Kollar-Kotelly issued an Opinion dismissing Gandhi and OCFO
from the suit; she also dismissed Plaintiff's Title VII
claim, as well as her DCHRA claim to the extent it sought
unliquidated damages. See Elzeneiny v. District of
Columbia, 699 F.Supp.2d 31 (D.D.C. 2010). The case was
then transferred to this Court in the spring of 2011. See
Docket Entry, March 29, 2011.
litigation progressed, Plaintiff twice successfully moved to
amend her Complaint. Her First Amended Complaint, filed on
October 31, 2011, added a cause of action under the Family
and Medical Leave Act. Her Second Amended Complaint, filed on
November 22, 2013, added two counts -- the first augmented
her retaliation claim under the ADA, and the second expanded
her retaliation claim under the FMLA. As it currently stands,
the operative Second Amended Complaint comprises the
following counts: ADA Violation (Count I), DCHRA Violation
(Count II), FMLA Violation (Count III), Retaliation under ADA
(Count IV), and Retaliation under FMLA (Count V). Now,
following the close of a second period of discovery, the
District moves for summary judgment.
judgment may be granted if " the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Liberty Lobby, 477 U.S.
at 247-48; Holcomb v. Powell, 433 F.3d 889, 895, 369
U.S. App.D.C. 122 (D.C. Cir. 2006). A fact is "
material" if it is capable of affecting the substantive
outcome of the litigation. See Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is "
genuine" if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. See Scott
v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167
L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. " A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion" by " citing to particular parts of
materials in the record" or " showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
motion for summary judgment is under consideration, "
[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [her] favor."
Liberty Lobby, 477 U.S. at 255; see also Mastro
v. PEPCO, 447 F.3d 843, 850, 371 U.S. App.D.C. 68 (D.C.
Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288, 332 U.S. App.D.C. 256 (D.C. Cir. 1998) ( en
banc ). On a motion for summary judgment, the Court must
" eschew making credibility determinations or weighing
the evidence." Czekalski v. Peters, 475 F.3d
360, 363, 374 U.S. App.D.C. 351 (D.C. Cir. 2007). The
nonmoving party's opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is
a genuine issue for trial. See Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required
to provide evidence that would permit a reasonable jury to
find in its favor. Laningham v. Navy, 813 F.2d 1236,
1242, 259 U.S. App.D.C. 115 (D.C. Cir. 1987). If the
nonmovant's evidence is " merely colorable" or
" not significantly probative," summary judgment
may be granted. Liberty Lobby, 477 U.S. at 249-50.
District's Motion for Summary Judgment presents several
issues for decision. First, the city contends that Counts
III-V of Plaintiff's Second Amended Complaint should be
dismissed because she failed to " cooperate with
discovery and . . . prosecute [these] new claims." Mot.
at 13. It then insists that it is entitled to judgment as a
matter of law on her DCHRA claim (Count II) to the extent it
is based on conduct prior to March 10, 2008, because she
elected to pursue administrative remedies for those acts
instead. As for Plaintiff's general ADA claim (Count I),
it urges that she is barred from challenging much of the
allegedly unlawful conduct because she did not timely file an
EEOC charge related to such acts. As to what remains of these
two counts, the District next argues that it acted in good
faith and provided her with nearly every accommodation she
requested. It also maintains that the conduct Elzeneiny
complains of simply does not rise to the level of a hostile
work environment and was not so unbearable as to establish a
threshold matter, the Court first addresses Plaintiff's
contention that it should disregard the declarations
submitted in support of Defendant's Motion because they
are legally deficient. Deciding otherwise, the Court next
considers whether Counts III-V should be dismissed as a
discovery sanction. It thereafter moves to Counts I-II,
looking first at their permissible scope and finally at the
merits of what is left standing.