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Elzeneiny v. District of Columbia

United States District Court, D. Columbia.

August 19, 2015

AMINA ELZENEINY, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant

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[Copyrighted Material Omitted]

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          For AMINA ELZENEINY, Plaintiff: Kathy C. Potter, LEAD ATTORNEY, BENTON, POTTER & MURDOCK, P.C., Washington, DC.

         For DISTRICT OF COLUMBIA, Defendant: David A. Jackson, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC.

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         MEMORANDUM OPINION

         JAMES E. BOASBERG, United States District Judge.

         Starting 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.

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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.

         In the 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.

         Citing 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.

         The 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.

         I. Background

         A. Factual Background

         Piecing 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 nonmoving party.

         Plaintiff 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

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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 17:5-18:4.

         Six 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. at 90:1-19.

         Roughly 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.

         In 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.

         Afterwards, 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 " management's

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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.

         Over 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, 2004).

         The 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]." Id.

         Apparently, 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.[1] 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

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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.

         In 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.

         Eventually, 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.

         In 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.

         Yet by 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 be

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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.

         Plaintiff 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.

         Nevertheless, 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.

         The 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 McDonald,

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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 year.

         Then, 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.

         Despite 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.

         B. Procedural Background

         This 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.

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          As the 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.

         II. Legal Standard

         Summary 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. 56(c)(1).

         When a 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.

         III. Analysis

         The 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

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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 constructive discharge.

         As 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.

         A. Admissibility ...


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