United States District Court, District of Columbia
ROSEMARY M. COLLYER, UNITED STATES DISTRICT JUDGE
Walker sues Children's National Medical Center for
alleged retaliation in anticipation of her testimony
concerning a former employee's charge that Children's
had discriminated against the employee in violation of the
Americans with Disabilities Act (ADA). Ms. Walker brings her
retaliation claim under Title VII of the Civil Rights Act of
1964, not the ADA. Neither party noted the disconnect and
have briefed summary judgment as if it presented a question
of retaliation under Title VII.
not, and Ms. Walker's Title VII claim must fail as a
matter of law. The underlying claim by the former employee
was brought under the ADA; alleged retaliation against Ms.
Walker for her testimony concerning that claim might have
violated the ADA but not Title VII, the statute on which the
Complaint and the briefs rest. For the reasons discussed
below, the Court finds that it would be futile to allow Ms.
Walker to file an amended complaint. For these reasons,
summary judgment will be granted to Children's National
break in service, Leslie Walker was re-hired by
Children's National Medical Center (Children's) in
September 2013 as a temporary staff assistant in the Division
of Fetal Medicine of the Children's Fetal Institute.
Compl. [Dkt. 1-1] ¶ 5. She was promoted to Operations
Coordinator in November 2013, which was a permanent
supervisory position in the Fetal Institute. Id.
¶ 6. In her new position, Ms. Walker supervised Tamika
Palmer and Sheralysta Faulkner. Mot., Ex. B, Deposition of
Leslie Walker (Walker Dep.) [Dkt. 13-3] at 39. Ms.
Walker's immediate supervisor was Dr. Andre DuPlessis and
her next level supervisor was Paula Wadley. Id. at
January 23, 2014, Mses. Palmer and Faulkner complained to Ms.
Walker about work conditions, in a conversation one of the
employees secretly audio-recorded. Both women were concerned
about the noise resulting from construction on the
neighboring section of the medical center. Mot., Ex. C,
Transcript of Recorded Conversation (Conversation Tr.) [Dkt.
13-4] at 2 (“When I came in this morning, that noise
was so loud the ground shook.”); id. at 3
(“[I]t's real loud, and like today, like literally,
the banging on the floor.”). Due to the noise, both
women reported headaches and other ear-related ailments.
Id. at 2 (“That weekend my ear hurt, it felt
like water was in my [ ] ear, like swimmer's ear, so I
came in Monday and it got worse. You know, I didn't think
too much of it, so I did a little bit of research and you
know, it said the ringing, the humming, and it's almost
like a whistling in my ear, it can come from noise
exposure.”); id. at 3 (“I'm having
the same issues. Well, I've been having headaches and all
kinds of stuff going on, and I went to the doctor on Monday,
and she checked my ears and saw they were real moist, and she
asked about my noise exposure as well.”); id.
(“I'm not able to hear as well, I'm getting
headaches and things like that.”).
Walker responded that Mses. Palmer and Faulkner could take
sick leave if they needed to be absent from work or she could
try to find another location in the building for them to
work. Id. at 4-5. Ms. Faulkner had already gone to
Occupational Health at Children's and been told that if
she were having problems hearing she should notify her
manager and maybe file for worker's compensation for a
work-related injury. Id. at 5-6. Both employees
indicated they had been experiencing ear problems for a
couple of months. Id. at 6.
Walker attempted to contact Dr. DuPlessis for advice but he
told her to call Ms. Wadley. Ms. Wadley was not immediately
available. See id. at 6-8. Ms. Walker then told
Mses. Palmer and Faulkner that they could go to urgent care,
but that she did not “know how [compensation stuff]
goes or how that works, but at least there will be
documentation, we'll have your documentation, because
they're going to beat you up with that if you
don't.” Id. at 9. Ms. Walker testified at
her deposition that she also said “[t]hey're going
to chew you up and spit you out, ” explaining that she
meant that “if it's going to be Workman's
Compensation that you're filing, then you need to get
your documents and you need to fill it out, you need to go to
your doctor and be seen, you need to sign in in Occupational
Health, follow the right procedures, because if not,
[Children's is] going to beat you up and spit you out or
chew you.” Walker Dep. at 99-100. Ms. Walker also
warned that Children's could “dismiss you from your
job if they find that anything is not [true].”
Conversation Tr. at 11.
further discussion, Ms. Walker called George Francois,
assistant to Paula Wadley, to get advice on how the employees
should proceed. See id. at 18-20; Walker Dep. at
105-106. After a brief conversation with Mr. Francois, Ms.
Walker told the employees that she needed to speak to Ms.
Wadley before she could advise them on what they should do.
See Conversation Tr. at 20-21. Nonetheless, she
continued to question Mses. Palmer and Faulkner about their
complaints and what relief they were seeking. Once Ms.
Faulkner asked “to go on workmen's comp because of
[her] hearing loss, ” id. at 24, Ms. Walker
told both women to go to the human resources department to
obtain the required paperwork. Id. at 25. Rather
than conclude the conversation with that advice, Ms. Walker
continued to engage with the employees and made the following
statements about their potential claims:
• “Just be very thorough and be sure that what you
get is on paper, and be sure that you do what you're
going to do.” Id. at 27.
• “You need to go [to occupational health] and you
need to sign in to occupational health. Occupational health
needs to see you and needs to tell you on record.”
Id. at 29.
• “And really to be honest, I would not advise
both of you to go together, but then again, it might be
beneficial to you if it's going to be a compensation
thing, you know. I'm just saying document it, cross your
T's and dot your I's, you know, because you're
messing around and won't have a job with Children's,
and I know, because Children's just up and they just,
they can deuce you with a click of a finger because of past
history, past taking off, past this, past that, you know. And
you know, even down to, you know, so much time being taken
off, you know, at this phase, this phase, this phase, then
they cross check, you've got to really watch stuff,
really watch stuff. Don't f[--]k around and lose your job
because of bulls[--]t.” Id. at 29-30.
• “Watch yourself with compensation, because
I'm letting you know, they let - I can't think of,
and I probably shouldn't say her name anyway - they let
her go and she thought her s[--]t was covered with [the
Family Medical Leave Act], and they let her go because her
documentation was not justified. . . . No, it was not
justified, and they took it to legal service and legal
services said negative, and she was supposed to return on
Monday. And when she returned that Monday, they told her to
come to [human resources]. When she went to [human
resources], they escorted her upstairs, let her get her
stuff, and she lost her job on a technicality.”
Id. at 32.
• “So, you know, you need to make sure that your
doctor's documentation says nothing about flu-like
symptoms or this or that, or this or that, you know, because
that could be a reason to go to the doctor and the ...