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Waggel v. The George Washington University

United States District Court, District of Columbia

November 9, 2018

STEPHANIE WAGGEL, Plaintiff,
v.
THE GEORGE WASHINGTON UNIVERSITY, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff Stephanie Waggel is a former resident in the Psychiatry Residency Training Program of Defendant, The George Washington University. She alleges that through a series of actions culminating in her termination from the program, Defendant violated her rights under the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. (the “ADA”), and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (the “FMLA”), as well as their local analogues, the District of Columbia Human Rights Act, D.C. Code § 32-501 et seq. (the “DCHRA”), and the District of Columbia Family and Medical Leave Act, D.C. Code § 2-1401.01 et seq. (the “DCFMLA”).

         Presently pending before the Court is Defendant's [34] Motion for Summary Judgment, as well as its [41] Motion to Strike Portions of the Declaration of Dr. Stephanie Waggel, M.D. (“Defendant's Motion to Strike”). Today the Court issued a separate [47] Memorandum Opinion, which the Court expressly incorporates herein, that disposed of Plaintiff's [32] Motion for Partial Summary Judgment as to Counts I & II (“Plaintiff's Motion”).

         Upon consideration of the briefing, [1] the relevant legal authorities, and pertinent portions of the voluminous record in this matter, [2] the Court GRANTS Defendant's Motion for Summary Judgment. Because only limited portions of Plaintiff's declaration potentially impact the disposition of Defendant's Motion for Summary Judgment, the Court addresses Defendant's Motion to Strike only narrowly. Accordingly, in an exercise of its discretion, the Court GRANTS-in-PART, DENIES-in-PART, and DENIES-in-PART as MOOT Defendant's Motion to Strike. The Court grants the Motion to Strike as to specific language in paragraphs 38, 127, and 128; denies the Motion to Strike as to specific language in paragraphs 98, 107, and 136; and denies the Motion to Strike as moot with respect to the remainder of Plaintiff's declaration.

         After setting forth pertinent background and the legal standard, the Court shall begin its analysis with Plaintiff's ADA and DCHRA claims. As with Plaintiff's Motion, the Court shall again find that Plaintiff failed to request reasonable accommodation of her alleged disability. Plaintiff likewise fails to show that Defendant's Clinical Competency Committee discriminated on the basis of disability when it recommended her termination after reviewing twelve issues with her performance. Plaintiff's FMLA and DCFMLA claims fare no better. Defendant granted FMLA leave each time that Plaintiff requested it. Plaintiff is unable to show that Defendant retaliated against her because of that leave, or that Defendant interfered with Plaintiff's rights under the FMLA.

         I. BACKGROUND

         A brief summary of the factual background will suffice before the Court delves into the details relevant to Plaintiff's respective claims. This case concerns Plaintiff's first and second years as a psychiatry resident, culminating in Defendant's termination of her residency effective August 10, 2016. See, e.g., Pl.'s Stmt. of Material Facts for Which There Are No Genuine Disputes in Support of Her Mot. for Partial Summ. J., ECF No. 32-2 (“Pl.'s Stmt.”), ¶ 1; Def.'s Resp. to Pl.'s Stmt. of Material Facts in Supp. of Pl.'s Mot. for Partial Summ. J., ECF No. 36-1 (“Def.'s Resp. to Pl.'s Stmt.”), ¶ 1. Shortly after beginning her second year in the program, Plaintiff underwent surgery in July 2015 for the removal of a cyst in her kidney. See Pl.'s Stmt. ¶¶ 6, 7, 9, 13; Def.'s Resp. to Pl.'s Stmt. ¶¶ 6, 7, 9, 13. She took various kinds of leave from the program during her two years, including sick leave during the surgery and FMLA leave at other times. See, e.g., Def.'s Stmt. of Material Facts as to Which There Is No Genuine Dispute, ECF No. 34 (“Def.'s Stmt.”), ¶¶ 230, 274, 531; Pl.'s Corrected Stmt. of Genuine Issues and of Counterveiling Facts, ECF No. 37 (“Pl.'s Resp. to Def.'s Stmt.”), ¶¶ 230, 274, 531. In the meantime, Defendant allegedly identified a number of problems with Plaintiff's performance in the program, which were documented in, among other places, four Letters of Deficiency and a Notice of Unprofessional Conduct. See, e.g., Def.'s Stmt. ¶¶ 744, 798-800; Pl.'s Resp. to Def.'s Stmt. ¶¶ 744, 798-800. Purportedly as a result of these deficiencies, aspects of Plaintiff's clinical duties were suspended multiple times, her promotion to her third year in the program was delayed, and she was ultimately dismissed from the program. See, e.g., Def.'s Stmt. ¶¶ 656, 726, 975, 977; Pl.'s Resp. to Def.'s Stmt. ¶¶ 656, 726, 975, 977.

         Plaintiff filed suit on July 7, 2016. Compl., ECF No. 2. Her four-count Complaint alleges violations of the ADA and the FMLA, as well as comparable D.C. statutes. Id. Defendant now moves for summary judgment as to all four counts. Def.'s Mot. for Summ. J., ECF No. 34, at 1. Plaintiff's Opposition to Defendant's Motion for Summary Judgment attaches a declaration by Plaintiff that Defendant also moves to strike in part. See Pl.'s Opp'n, ECF No. 35-2 (Decl. of Dr. Stephanie Waggel, M.D. (“Waggel Decl.”)); Def.'s Mot. to Strike Portions of Decl. of Dr. Stephanie Waggel, M.D., ECF No. 41. A separate opinion, which also issued today, denied Plaintiff's motion seeking summary judgment as to only the first two counts, namely the ADA claim and its D.C. analogue, the DCHRA claim. See Mem. Op., ECF No. 47.

         Although the Court largely evaluates Plaintiff's Motion and Defendant's Motions separately, the Court-like the parties-draws upon materials submitted in connection with Plaintiff's Motion where such submissions facilitate the Court's consideration of Defendant's Motions.

         II. LEGAL STANDARD

         A. Motion for Summary Judgment

         Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record-including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence-in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

         When faced with a motion for summary judgment, the district court may not assess credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with “all justifiable inferences . . . drawn in his favor.” Anderson, 477 U.S. at 255. “If material facts are at issue, or though undisputed, are susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)) (internal quotation marks omitted). In the end, the district court's task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50.

         B. Motion to Strike

          Whether sua sponte or by motion, a court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f) & (f)(1), (f)(2). A party seeking such action may move “either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Id. 12(f)(2). Courts routinely observe that this remedy is disfavored, presumably because it is often wrongly invoked and may have a significant impact on a party's presentation of its case. See, e.g., Canady v. Erbe Elektromedizin GmbH, 384 F.Supp.2d 176, 180-81 (D.D.C. 2005); Judicial Watch, Inc. v. U.S. Dep't of Commerce, 224 F.R.D. 261, 263 (D.D.C. 2004); 5C Charles Alan Wright et al., Federal Practice and Procedure: Civil § 1380 (3d ed.) (observing movants' frequently “dilatory or harrassing” [sic] motives to obtain this “drastic remedy”). Movants must discharge a “heavy burden” to prevail. Canady, 384 F.Supp.2d at 180 (citing, e.g., Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam)).

         Striking material may be warranted in the summary judgment context when a party's declaration or other pleading fails to comply with Federal Rule of Civil Procedure 56. “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters asserted.” Fed.R.Civ.P. 56(c)(4). In response to a declaration or other component of summary judgment briefing, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Id. 56(c)(2). Among inadmissible evidence is hearsay that is not subject to any exceptions. See Brooks v. Kerry, 37 F.Supp.3d 187, 201 (D.D.C. 2014) (citing, e.g., Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000)). Moreover, simply alleging personal knowledge may not be enough to survive summary judgment if the allegations are “vague or conclusory.” Johnson v. Perez, 823 F.3d 701, 710-11 (D.C. Cir. 2016).

         Disposition of motions to strike is committed to the “sound discretion of the trial judge.” Judicial Watch, Inc., 224 F.R.D. at 263. When a court decides that some material in a declaration should be stricken, “all properly stated facts” must remain. Id. (citing, e.g., Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996)); see also Canady, 384 F.Supp.2d at 180 (quoting Perez v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001)) (urging use of a “scalpel, not a butcher knife” (internal quotation marks omitted)).

         III. DISCUSSION

         At the threshold, the Court observes that it is not appropriate to decide this matter under some form of academic or professional deference. See Def.'s Summ. J. Mem. at 27. Plaintiff is suing for employment discrimination and violation of medical leave rights. Defendant wrongly invokes extraneous contexts where a kind of deference or rational basis standard may apply. See Id. (citing, e.g., Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978) (alleged constitutional violations); Hajjar-Nejad v. George Washington Univ., 37 F.Supp.3d 90, 116 (D.D.C. 2014) (Kollar-Kotelly, J.) (alleged breach of contract); Alden v. Georgetown Univ., 734 A.2d 1103, 1109 (D.C. 1999) (same)). Defendant's meager attempt to argue that such a standard applies in this setting as well is belied by one of this Court's decisions, cited by Defendant, that expressly applies different standards to the breach of contract and discrimination claims. See Hajjar-Nejad, 37 F.Supp.3d at 115-16, 124-27.

         For her part, Plaintiff urges the Court that residents should be treated as employees rather than students for purposes of ADA protections. See Pl.'s Summ. J. Opp'n at 38-39 (making administrative law arguments). The Court need not engage in Plaintiff's proposed administrative law analysis, however, for the Court finds that the standards applicable to Plaintiff's claims do not turn on her classification as an employee or student. See, e.g., Chenari v. George Washington Univ., 847 F.3d 740, 746-47 (D.C. Cir. 2017) (citing Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-08 (D.C. Cir. 2010)) (articulating standard for medical student's reasonable accommodation claim based on hospital employee precedent). Below the Court shall identify the proper standards applicable to each of Plaintiff's claims.

         Before turning in earnest to Defendant's Motion for Summary Judgment, the Court shall briefly introduce Defendant's Motion to Strike.

         A. Motion to Strike

          In support of its Motion to Strike portions of Plaintiff's declaration, Defendant invokes Federal Rule of Civil Procedure 56, rather than Rule 12(f). Def.'s Mem. in Supp. of Mot. to Strike at ECF p. 1. Rule 56 contemplates that a motion to strike would be unnecessary for a party to express its objections to summary judgment materials. See Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 amendments. In any event, the Court shall consider whether Defendant discharges its burden to show that portions of Plaintiff's declaration should be stricken based on Defendant's objections. See Canady, 384 F.Supp.2d at 180.

         Defendant addresses each paragraph of Plaintiff's declaration. Def.'s Mem. in Supp. of Mot. to Strike, Ex. A, ECF No. 41-2 (Def.'s Designation of Inadmissible Material Set Forth in Pl.'s Decl. (“Def.'s Desig.”)). For those paragraphs that Defendant opposes, Defendant articulates one or more of three general arguments. First, Defendant argues that Plaintiff lacks personal knowledge of certain events, and therefore the corresponding portions of the declaration should be disregarded as “self-serving” and “unsubstantiated.” Def.'s Mem. in Supp. of Mot. to Strike at ECF p. 3. Other portions of the declaration purportedly contain impermissible hearsay upon which the Court cannot rely under Rule 56. Id. at ECF p. 4. And finally, Defendant urges that unjustified inconsistencies between Plaintiff's discovery responses and her present declaration show that the latter is a “sham affidavit, ” by which Plaintiff attempts to preclude summary judgment by raising frivolous factual disputes. See Id. at ECF pp. 2, 4 (citing, e.g., St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 573 F.Supp.2d 152, 160 (D.D.C. 2008) (Kollar-Kotelly, J.), aff'd sub nom. Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217 (D.C. Cir. 2011)). Plaintiff responds that she does have personal knowledge, that “[b]y and large, ” her declaration contains either non-hearsay or permissible hearsay, and that only direct contradictions-which allegedly do not occur here-can warrant striking a declaration. Pl.'s Opp'n to Mot. to Strike at 2-8 (citing, e.g., Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969)); see also Pl.'s Opp'n to Mot. to Strike, Ex. 1, ECF No. 44-1 (Pl.'s Specific Resps. to Def.'s Meritless Objs. to Portions of Decl. of Dr. Stephanie Waggel, M.D. (“Pl.'s Resp. to Def.'s Desig.”)).

         Some of Defendant's objections are traceable to the fact that Plaintiff generally omits record citations from her declaration. Even where the Court would expect corroborating evidence to exist, such as when Plaintiff refers to emails, she does not furnish that support. She refers to the record only in countering specific paragraphs in various of Defendant's declarations. But the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has made clear that the lack of corroborating evidence in the record is not sufficient reason to grant summary judgment against a party. See Johnson v. Perez, 823 F.3d at 710-11; Scott v. Dist. Hosp. Partners L.P., 715 Fed.Appx. 6, 7 (D.C. Cir. Mar. 6, 2018) (Mem.). As discussed above, it is only where a party's uncorroborated allegations are “vague or conclusory” that summary judgment for the counterparty may be warranted on that basis. Johnson v. Perez, 823 F.3d at 710-11.

         In light of precedent disfavoring such motions, and the significant burden for Defendant to prevail, the Court shall evaluate Defendant's Motion to Strike only where the Court considers it necessary. The Court shall address the parties' arguments as to specific paragraphs in Plaintiff's declaration as the Court has need to resort thereto. The Court finds that it is unnecessary to reach the Motion to Strike in other portions of this Memorandum Opinion.

         The Court now shall turn to the briefing of Plaintiff's claims.

         B. ADA and DCHRA Claims

          Under the ADA, covered entities are prohibited from “discriminat[ing] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). That discrimination is further defined to include seven different types of activity, including the failure to reasonably accommodate a disability. Id. § 12112(b). Defendant has not disputed that it is an employer within the scope of the covered entity definition. See Pl.'s Mem. of P&A in Supp. of Pl.'s Mot. for Partial Summ. J. as to Counts I & II, ECF No. 32-1, at 8 (citing 42 U.S.C. § 12111(5)); see also 42 U.S.C. § 12111(2). The DCHRA's prohibitions extend, in pertinent part, to certain employment acts performed “wholly or partially for a discriminatory reason based upon the actual or perceived . . . disability . . . of any individual.” D.C. Code § 2-1402.11(a). Specifically, it is forbidden

[t]o fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee,

when the employer has a discriminatory rationale. D.C. Code § 2-1402.11(a)(1).

         Courts in this jurisdiction have applied the legal analysis developed for ADA claims to DCHRA claims as well. See, e.g., Giles v. Transit Emps. Credit Union, 794 F.3d 1, 5 (D.C. Cir. 2015); Grant v. May Dep't Stores Co., 786 A.2d 580, 583-84 (D.C. 2001) (deeming ADA precedent to be “persuasive” where “comparable sections of DCHRA” are concerned). Because the parties' arguments do not distinguish between the two statutes, the Court shall consolidate its analysis under the ADA. See Minter v. District of Columbia, 809 F.3d 66, 68 n.2 (D.C. Cir. 2015).

         In her Complaint, Plaintiff argues that Defendant failed to accommodate her disability, and that Defendant also discriminated against her in other ways on the basis of her disability. Compl., ECF No. 2 (Counts I & II). Because the standards for these two types of disability discrimination claims differ, the Court shall deal separately with them below.

         1. Reasonable Accommodation Claim

         Plaintiff's claim that Defendant did not accommodate her disability falls under 42 U.S.C. § 12112(b)(5)(A), which imposes liability on a covered entity for “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” In light of this language, the Court shall refer more generally to Plaintiff's claim as alleging a failure to make reasonable accommodation. The reasonable accommodation claim is but one type of alleged discrimination under the ADA that is enumerated in 42 U.S.C. § 12112(b). See Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004).

         In this Circuit, courts evaluating reasonable accommodation claims do not apply the McDonnell Douglas burden-shifting framework applicable to certain other discrimination claims. Davis v. George Washington Univ., 26 F.Supp.3d 103, 114 (D.D.C. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Barth v. Gelb, 2 F.3d 1180, 1185-86 (D.C. Cir. 1993)); see also Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999). Rather, Plaintiff must establish by a preponderance of the evidence “that (1) she was a qualified individual with a disability, (2) the [Defendant] had notice of her disability and (3) the [Defendant] denied her request for a reasonable accommodation.” Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014) (citing Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307-08 (D.C. Cir. 2010); Barth, 2 F.3d at 1186). “An underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has requested an accommodation which the defendant-employer has denied.” Flemmings, 198 F.3d at 861. A request for accommodation may trigger an “interactive process” to determine what accommodation would be reasonable. Minter, 809 F.3d at 69.

         The Court dealt at length with Plaintiff's reasonable accommodation claim in the Court's decision today to deny Plaintiff's Motion. See Mem. Op., ECF No. 47, at 6-17. After assuming, arguendo, that Plaintiff satisfied the first two Ward prongs, the Court proceeded to find that “Plaintiff has not discharged her burden to prove, by a preponderance, that she sought accommodation for a disability and was denied that accommodation.” Id. at 16 (citing Flemmings, 198 F.3d at 861). The Court expressly incorporates that decision into the present Memorandum Opinion. Once again, the Court shall find that Plaintiff is unable to discharge her burden to prove these aspects of the third Ward prong.

         In its opening brief, Defendant does not expressly articulate the standard for a reasonable accommodation claim. But Defendant directly addresses the chief deficiency that the Court observed today in Plaintiff's prima facie case. “Plaintiff never went to [Defendant's Office of Equal Employment Opportunity (“OEEO”)] to pursue the procedure the University offered to all of its residents and other employees to present a claim of disability and a request for any reasonable accommodation they might need.” Def.'s Summ. J. Mem. at 3.

         Plaintiff responds by incorporating her previous attempt to make out a prima facie case of disability discrimination in her own Motion. See Pl.'s Summ. J. Opp'n at 13. As the Court made clear today, Plaintiff need only make out a prima facie case as to one specific type of disability discrimination, namely the failure to reasonably accommodate a disability. See Mem. Op., ECF No. 47, at 6-7 (citing, e.g., Ward, 762 F.3d at 31); see also Id. at 17-19 (discussing Adeyemi standard for other forms of disability discrimination). Just as Plaintiff did not prove, in briefing her Motion, that Defendant ever denied a request for reasonable accommodation of a disability, so too she fails here to remedy that deficiency in her prima facie case.

         Plaintiff's efforts to establish that she made a reasonable accommodation request are two-pronged. Most importantly, Plaintiff claims that she visited the OEEO and made an inquiry:

On September 17, 2015, Dr. Waggel visited the GWU EEO office located in Rice Hall, Suite 101. At that time, in response to Dr. Waggel's question about policies to protect residents in need of medical leave, Dr. Waggel was told to apply for such leave under the Family Medical Leave Act. (FMLA).

Pl.'s Additional Material Facts, ECF No. 37, ¶ 1017 (citing Waggel Decl. ¶ 98).

         At the threshold, the Court considers Defendant's Motion to Strike paragraph 98 of Plaintiff's declaration, which is the only support that she cites for her alleged OEEO visit. The language in the declaration elaborates on her material fact paragraph as follows:

I went to Rice Hall, Suite 101 to make sure I was following every rule, as I did not want to give administration something to write another LOD about. They stated when it comes to social media, I must be clear to my readers that the views I express are mine and mine alone. Rice Hall, Suite 101, was also the EEO office. I asked them if they knew of any policies to protect residents who needed time off for medical leave. They stated that I should apply for Family Medical Leave Act (FMLA) leave. I also asked them if they knew any rules similar the [sic] media policy in that, they might not be that obvious, and explained to him that I was under scrutiny and needed to make sure that I was doing nothing that violated a policy that I was unaware of. They said I should be fine as long as I post a disclaimer on my Facebook page, which I did.

         Waggel Decl. ¶ 98. Defendant argues that Plaintiff contradicts prior interrogatory responses that do not refer to an OEEO visit, and that her assertion also contains hearsay. Def.'s Desig. ¶ 98 (citing Def.'s Desig., Ex. 1 (Claimant's [sic] Am. Resp. to Pl.'s [sic] Interrogs. No. 5, 8-10, & 15, ECF No. 41-2 (“Pl.'s Am. Interrogs.”), at Interrogs. 8, 9)). Plaintiff points to an assertion in her interrogatories that she “went to an office she was directed to as the Equal Opportunity Office to submit a request for accommodation.” Pl.'s Resp. to Def.'s Desig. ¶ 98 (citing Pl.'s Am. Interrogs., Interrog. No. 9, at 21). The Court finds that Defendant has not met the standard for proving Plaintiff's subsequent declaration to be a sham, despite the additional factual detail therein. See St. Paul Mercury Ins. Co., 573 F.Supp.2d at 160-61 (quoting Hinch v. Lucy Webb Hayes Nat'l Training Sch. for Deaconesses & Missionaries Conducting Sibley Memorial Hosp., 814 A.2d 926, 930 (D.C. 2003)) (“For the [‘sham affidavit'] doctrine to apply, the affidavit must clearly contradict prior sworn testimony, rather than clarify confusing or ambiguous testimony, and the contradiction must lack credible explanation, such as new evidence.” (internal quotation marks omitted)). The Court also shall not exclude the argument as hearsay. The most persuasive reason is not among Plaintiff's bases for challenging the hearsay argument. See Pl.'s Resp. to Def.'s Desig. ¶ 98. Rather, the statement about what Plaintiff was allegedly told at the OEEO is arguably an admission by a party opponent. See Fed. R. Evid. 801(d)(2)(D) (“The statement is offered against an opposing party and . . . was made by the party's agent or employee on a matter within the scope of that relationship and while it existed . . . .”). Accordingly, in an exercise of the Court's discretion, the Court shall not strike language from paragraph 98 of Plaintiff's declaration.

         But Plaintiff's alleged visit to the OEEO fails on its merits. Defendant denies having any documentation of such a visit, whether on September 17, 2015, or at any other time, and likewise denies that Plaintiff ever requested an accommodation of a disability. Def.'s Resp. to Pl.'s Assertion of Additional Material Facts Allegedly Requiring Jury Trial, ECF No. 42-1, ¶ 1017 (citing Def.'s Mot. for Summ. J., Ex. P, ECF No. 34-20 (Decl. of Vickie V. Fair, ¶¶ 12-13)). Moreover, Plaintiff does not even allege that she notified the OEEO of a potential disability and requested accommodation of it. In the Court's decision today disposing of Plaintiff's Motion, the Court discussed at length Defendant's efforts to make Plaintiff aware of the process for notifying and requesting reasonable accommodation of a disability. See Mem. Op., ECF No. 47, at 9-10. The Court concluded that there was insufficient evidence that Plaintiff ever made such a request, such as by submitting the form that she identified. Id. at 12. The above-quoted paragraph from her declaration, recording an alleged inquiry about medical leave, is not sufficient evidence of a discussion of a disability or reasonable accommodation thereof, much less an actual request for such an accommodation. Accordingly, Plaintiff cannot establish her prima facie case of the denial of reasonable accommodation by referring to the alleged OEEO visit.

         Apart from the alleged visit to the OEEO, Plaintiff also claims that she “asked for a modified work schedule, including a couple of hours off each week to attend medical appointments for her cancer and related-anxiety and a modified work schedule when she returned from surgery.” Pl.'s Summ. J. Opp'n at 15. Such a claim suggests a rather formal request for accommodation. But that claim is devoid of citation. The record is, by contrast, replete with evidence of Plaintiff's informal requests for time off for medical appointments and with Defendant's informal efforts to grant them. See, e.g., Def.'s Stmt. ¶¶ 375-77 (psychotherapy appointments); Pl.'s Resp. to Def.'s Stmt. ¶¶ 375-77. If Plaintiff was sometimes late for doctor's appointments or otherwise had difficulty scheduling them-and if there is any basis for arguing that such issue arose in connection with her enrollment in Defendant's program-she has no legal grounds to complain. See Pl.'s Summ. J. Opp'n at 18-19 (raising various qualms). After all, despite being informed of the OEEO, Plaintiff has not identified any evidence that she ever asked the OEEO for accommodation of a disability. See, e.g., Def.'s Mot. for Summ. J., Ex. B, ECF No. 34-6 (Decl. of Jeffrey Berger, M.D., Ex. #7) (email from Plaintiff to Dr. Catapano in Nov. 2015 noting that she was “given the option of contacting the [OEEO], ” apart from channels specific to FMLA leave). Her argument that she “was specifically penalized for attending doctor's appointments” likewise goes nowhere absent any evidence that she in fact experienced any penalty, much less one tied to the medical appointments. Pl.'s Summ. J. Opp'n at 18-19 (citing merely administrator's comment that mounting absences may affect ability to pass rotation).

         In its Reply, Defendant reiterates that Plaintiff has never established that she requested accommodation of a disability from Defendant's OEEO. See Def.'s Summ. J. Reply at 1-3 (citing Chenari, 847 F.3d 740).

         The Court of Appeals has contemplated that “there may well be cases where the plaintiff's need for an accommodation is so apparent that the defendant must offer one regardless of whether the plaintiff requested it.” Chenari, 847 F.3d at 748. Like the Court of Appeals in Chenari, however, this Court need not decide whether this is one of those cases. See Id. Defendant granted her requests for FMLA leave, and Defendant strove to comply with her informal requests for other types of scheduling adjustments and time off for appointments. See, e.g., Def.'s Stmt. ¶¶ 231-40 (coordination of schedule surrounding surgery); Pl.'s Summ. J. Opp'n at 23, 25 (conceding that FMLA leave requests were granted). Plaintiff is once again unable to show that Defendant ever denied any request for reasonable accommodation of a disability that Plaintiff made, whether formally through the Office of Equal Employment Opportunity, or informally, assuming, arguendo, that an informal request could suffice. See Mem. Op., ECF No. 47, at 12-17.

         Plaintiff invokes the comments of two administrators in an apparent attempt to create a dispute of material fact. She claims, in pertinent part, that Dr. James Griffith, chair of Defendant's Department of Psychiatry and Behavioral Science, disavowed “any responsibilities to accommodate Dr. Waggel's illness or related-anxiety.” Pl.'s Summ. J. Opp'n at 17 (citing Pl.'s Stmt. ¶¶ 93-94) (emphasis omitted). The Court previously rejected any notion that Dr. Griffith's “agnostic” attitude regarding whether Plaintiff had cancer is direct evidence of disability discrimination. See Mem. Op., ECF No. 47, at 18-19. Furthermore, she suggests that Dr. Lisa Catapano, Director of the Psychiatry Residency Training Program, was wrong when she “made clear that doctors often get sick and ought to deal with their illness without expectation of accommodation.” Pl.'s Summ. J. Opp'n at 17-18 (citing Pl.'s Summ. J. Opp'n, Ex. OOO, ECF No. 35-8 (Dep. of Dr. Stephanie Waggel (“Waggel Dep.”) at 54:13-16, 237:1-12)) (emphasis omitted). Plaintiff's deposition testimony does not support this characterization of Dr. Catapano's comments. In any event, Dr. Griffith's comments, and Dr. Catapano's alleged comments, are immaterial to Plaintiff's reasonable accommodation claim. As discussed above, she did not request accommodation of an alleged disability. Accordingly, Defendants' administrators were correct to imply that they lacked any obligation to provide an accommodation. Defendant granted Plaintiff's requests for FMLA leave. Its various attempts to grant Plaintiff's further, informal requests for schedule adjustments went beyond the call of duty.

         2. Other Alleged Disability Discrimination

         The wisdom of issuing separate memoranda to decide Plaintiff's and Defendant's summary judgment motions lies in part with the parties' differing approaches to claims of other alleged disability discrimination.

         In its Memorandum Opinion disposing of Plaintiff's Motion, the Court addressed Plaintiff's claim that she experienced other forms of disability discrimination as well as a failure to accommodate her disability. Although Plaintiff attributed six alleged adverse actions to disability discrimination, the Court illustrated by reference to one-vacation time-that Plaintiff was unable to discharge her burden. See Mem. Op., ECF No. 47, at 19-22. Defendant's motion focuses instead on the rationale for Plaintiff's dismissal, relying on a discussion of the events precipitating that decision.

         “Putting aside the issue of reasonable accommodation, the two basic elements of a disability discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's disability.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). Plaintiff may establish her claim by either direct or circumstantial evidence of discrimination. Brady v. Livingood, 456 F.Supp.2d 1, 6 (D.D.C. 2006) (assessing racial discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”)), aff'd sub nom. Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). “While courts have not precisely defined what constitutes ‘direct evidence,' it is clear that ‘at a minimum, direct evidence does not include stray remarks in the workplace, particularly those made by nondecision-makers or statements made by decisionmakers unrelated to the decisional process itself.'” Brady v. Livingood, 456 F.Supp.2d at 6 (quoting Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996)). Indeed, “[d]irect evidence of discrimination is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference.” Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 86 (D.D.C. 2006) (quoting Davis v. Ashcroft, 355 F.Supp.2d 330, 340 n.2 (D.D.C. 2005)) (internal quotation marks omitted). Plaintiff does not expressly argue that there is direct evidence of discrimination; the Court nevertheless shall consider pertinent comments by Defendant's administrators in the course of its analysis below.

         Finding no direct evidence, the Court historically would evaluate whether Plaintiff makes out a prima facie case under McDonnell Douglas that each of the Defendant's adverse actions was attributable to an alleged disability, in violation of a specific statutory or regulatory requirement. See McDonnell Douglas Corp., 411 U.S. at 802 (Title VII context). But Adeyemi has made clear that, at least in this Circuit, “the prima-facie-case aspect of McDonnell Douglas is irrelevant [in the ADA context] when an employer has asserted a legitimate, non-discriminatory reason for its decision-as an employer almost always will do by the summary judgment stage of an employment discrimination suit.” Adeyemi, 525 F.3d at 1226; see also Brady v. Office of Sergeant at Arms, 520 F.3d at 494 (Title VII context).

         Plaintiff alleges that Defendant discriminated in more than just the dismissal itself. Because the Court evaluates Defendant's justification first, under Adeyemi, the Court shall walk through the detailed chronology that Defendant presents to justify its ultimate decision to terminate Plaintiff from the residency program. That approach shall enable the Court to address, along the way, Plaintiff's contentions about individual incidents, including any argument that Defendant's purported rationales for various actions are pretextual. See Adeyemi, 525 F.3d at 1226.

         i. Clinical Competency Committee Meeting on April 8, 2016

         Defendant argues that Plaintiff's dismissal was based on the “longstanding, thoroughly documented, objectively framed failures of performance on Dr. Waggel's part, her refusal to acknowledge the deficiencies, and her refusal to attempt to remediate them.” Def.'s Summ. J. Mem. at 29. Allegedly Defendant's Clinical Competency Committee (“CCC” or the “Committee”) carefully considered this record during its April 8, 2016, meeting that resulted in a recommendation that Plaintiff be terminated from the program. Id. at 29-30.

         Given the extensive record of events transpiring between Plaintiff and Defendant, the Court sought a definitive list of indicia that it ought to consider in evaluating whether Defendant's decision to terminate Plaintiff was legitimate and non-discriminatory. The Court found that list in the minutes of the CCC's meeting. Def.'s Mot. for Summ. J., Ex. A, ECF No. 34-5 (Decl. of Lisa A. Catapano, M.D., Ex. #178) (“CCC Minutes”); Def.'s Stmt. ¶ 912. Plaintiff does not dispute Defendant's assertion of material facts that introduces these meeting minutes. Pl.'s Resp. to Def.'s Stmt. ¶ 912.

         The minutes of the April 8, 2016, meeting reflect the Committee's discussion of procedural developments in February and March 2016. CCC Minutes at 1-2. Of note, Dr. Catapano, as program director, was designated as an ex-officio member of the Committee in order to correct a procedural flaw in the CCC's previous “consensus decision” that Plaintiff should not be promoted to her third year in the program. Id. Dr. Richard Simons, Defendant's Senior Associate Dean for M.D. Programs, had recognized the procedural issue upon Plaintiff's appeal of the decision to deny promotion. See Id. at 2; Def.'s Stmt. ¶¶ 854-57, 865-67; Pl.'s Resp. to Def.'s Stmt. ¶¶ 854-57, 865-67.[3] According to Dr. Simons, Defendant's Academic Improvement Policy dictated that the non-promotion decision be based on a recommendation from the Committee to Dr. Catapano. CCC Minutes at 2; see also Def.'s Stmt. ¶¶ 865-67; Pl.'s Resp. to Def.'s Stmt. ¶¶ 865-67; Def.'s Mot. for Summ. J., Ex. A, ECF No. 34-3 (Decl. of Lisa A. Catapano, M.D., Ex. #12) (“Academic Improvement Policy”). Despite an October 23, 2015, meeting of the CCC at which Plaintiff's performance was discussed, Dr. Simons found that there was no formal recommendation to deny promotion prior to Dr. Catapano's issuance of a Letter of Deficiency to Plaintiff on November 11, 2015, conveying this decision. Def.'s Mot. for Summ. J., Ex. R, ECF No. 34-22 (Decl. of Richard J. Simons, M.D., Ex. 3, at GWU 002495) (“Simons Letter”).[4] Dr. Simons' review did not concern the merits of the decision to deny promotion; rather, his task was limited to reviewing the Psychiatry Residency Training Program's decisionmaking process. Def.'s Stmt. ¶ 857; Pl.'s Resp. to Def.'s Stmt. ¶ 857. Moreover, he left open the possibility that the program could deny promotion again if the Committee met formally and recommended as much to Dr. Catapano. See Def.'s Stmt. ¶ 870; Pl.'s Resp. to Def.'s Stmt. ¶ 870; Simons Letter at GWU 002496.[5]

         As of the April 8, 2016, meeting, the seven members of the Committee consisted of its chairman, Dr. Allen R. Dyer, Dr. Catapano as an ex-officio member, four other doctors, and the residency coordinator, Victoria Anderson. CCC Minutes at 1.[6] In keeping with Dr. Simons' decision, that Committee formally reviewed Plaintiff's performance and then, with Dr. Catapano abstaining, voted unanimously not only to “re-affirm[ ]” “previous letters of deficiency and [the] associated recommendation for non-promotion” but also to recommend Plaintiff's termination from the residency program. Id. at 4. The following analysis details the Committee's decisionmaking process at the April 8, 2016, meeting.

         Turning to the substantive portion of the meeting, Dr. Catapano began by “review[ing] the chronology relating to Dr. Waggel's performance through December 2015.” Id. The minutes then recognize the above-described procedural developments in Plaintiff's file before proceeding to “additional performance and misconduct issues that have arisen since January 2016” regarding Plaintiff. Id. at 2-3. Such consideration resulted in the Committee's unanimous decision to recommend to Dr. Catapano-who abstained from the vote-that Plaintiff be dismissed from the program and suspended from clinical duties in the meantime. Id. at 3. It is this decision that should be evaluated for legitimate, non-discriminatory rationale.

         Below the Court considers the twelve performance issues listed in the CCC Minutes leading up to the vote to recommend Plaintiff's dismissal. In the interest of judicial economy, the Court shall, upon determining that such rationales are legitimate and non-discriminatory, consider any argument by Plaintiff that Defendant's rationales are pretextual.[7] Interestingly, Plaintiff's brief expressly points to “pretextual” rationales for several actions only in the course of her FMLA argument. See Pl.'s Summ. J. Opp'n at 27. That said, the Court also notes Plaintiff's claim, in a footnote, that a CCC performance review dated February 9, 2016, demonstrated “discriminatory” intent. Id. at 6 n.4. Notwithstanding Plaintiff's mischaracterizations of the record, the issues raised in the cited performance review are part and parcel of the CCC's discussion at its April 8, 2016, meeting. See Def.'s Mot. for Summ. J., Ex. M, ECF No. 34-17 (Decl. of Allen Dyer, M.D., Ex. #11, at GWU 001115-17). The Court shall consider whether Defendant's purportedly legitimate and non-discriminatory rationales for its handling of each of the twelve performance issues discussed at the April 8, 2016, meeting are based on facts that Plaintiff does not dispute. Only if Defendant can surmount that hurdle shall the Court consider Plaintiff's various arguments for withholding summary judgment for Defendant on her ADA/DCHRA claims, notwithstanding the absence of any argument that the CCC acted with pretext when it recommended her dismissal on April 8, 2016.

         ii. CCC Minutes Issue #1: First Letter of Deficiency

         The first of the twelve performance issues identified in the CCC Minutes of April 8, 2016, concerns Plaintiff's first Letter of Deficiency (“LOD”): “Dr. Waggel received a Letter of Deficiency (LOD) from the Department of Psychiatry on July 15, 2015, for not showing up for an ER shift June 10, 2015.” CCC Minutes at 1.

         Citing deficiencies in Professionalism and Systems-Based Care, Defendant's first LOD indicates that Plaintiff did not show up at 7:00 AM on June 10, 2015, for an Emergency Medicine shift, did not give notice that she would be absent, was not responsive to efforts to reach her over the course of several hours, and upon contact at last “stated [she] [was] not feeling well and decided not to come to work as a result.” Def.'s Mot. for Summ. J., Ex. L, ECF No. 34-16 (“LOD 1”). Plaintiff disputes or offers “clarification” regarding a number of Defendant's assertions of material fact related to this incident. See Pl.'s Resp. to Def.'s Stmt. ¶¶ 213-19, 243, 252, 277-81, 283. But she does not dispute the material points, namely that she showed up at approximately 9:00 AM rather than 7:00 AM, and that she received the letter from Dr. Catapano about this incident. Id. ¶¶ 213, 279. Although Plaintiff argues that she “was told that off service residents like her are not required to attend grand rounds, ” which evidently took place from 7:00-9:00 AM, her only source is her declaration. Id. ¶ 213 (citing Waggel Decl. ¶ 38). That declaration supplies no further details, such as who allegedly gave her this information, when she was told, and whether she was told that she would need to give notice if she decided not to attend grand rounds. Moreover, Plaintiff never claims that she gave notice that she would be absent from grand rounds that morning. She simply refers instead to irrelevant attempts to secure coverage for the tail-end of her shift that afternoon. See Pl.'s Resp. to Def.'s Stmt. ¶ 215 (citing Waggel Decl. ¶ 39).

         Defendant's letter offers a legitimate explanation of why her performance on the morning of June 10, 2015, was considered deficient. That explanation has nothing to do with any sickness Plaintiff may have had that morning, nor with any alleged disability that Plaintiff may have had then or afterwards.

         In rebuttal, Plaintiff nevertheless attempts to conflate the events on the morning of June 10, 2015, with her alleged disability. When Dr. Catapano informed Plaintiff in July 2015 that the LOD was forthcoming, Plaintiff indicated that she had “a doctor's excuse for that day.” Def.'s Stmt. ¶¶ 249, 251-52 (internal quotation marks omitted). But Plaintiff indicates that her supposed doctor's note concerns “receiving a cancer diagnosis.” Pl.'s Resp. to Def.'s Stmt. ¶¶ 249, 251-52. That diagnosis-the Court need not decide whether it was a diagnosis of cancer-did not occur on that morning. Plaintiff had an appointment in the afternoon with Dr. Thomas Jarrett, the doctor who gave his opinion on the cyst that led to her surgery. Def.'s Stmt. ¶¶ 220-22; Pl.'s Resp. to Def.'s Stmt. ¶¶ 220-22; id. ¶ 215 (discussing afternoon appointment with Dr. Jarrett). The Court notes with disapproval Plaintiff's obfuscation.

         There is no genuine dispute of material fact regarding Defendant's issuance of a LOD regarding Plaintiff's actions on the morning of June 10, 2015, nor does the Court find any discriminatory basis for that letter. Lastly, the Court notes that this first LOD sets out a plan for remediation and closes with the following language that put Plaintiff on notice-if she had not been already-of potential future consequences: “Should you continue to exhibit deficiencies, the Program reserves the right to seek further action, including termination from training as set forth in the GW Academic Improvement Policy (attached).” LOD 1 (emphasis added).

         In the alternative to evaluating LOD 1 in light of Plaintiff's declaration, the Court considers whether Defendant discharges its burden to show that the pertinent portion of Plaintiff's declaration should be stricken. That portion is Plaintiff's assertion that “[e]mergency medicine has grand rounds on Wednesdays in the morning until 9:00 a.m. I was told that offservice residents did not have to attend.” Waggel Decl. ¶ 38. This assertion is buried in a paragraph of the declaration that concerns various incidents on June 10, 2015. Although Defendant does not pair its objections to paragraph 38 with specific portions thereof, the Court assumes that its hearsay and “[s]elf-serving and without corroboration” objections apply to the portion of her statement which concerns the Court. Def.'s Desig. ¶ 38.

         Plaintiff responds in pertinent part that it is “[n]ot hearsay to the extent it describes what she did that day and why.” Pl.'s Resp. to Def.'s Desig. ¶ 38. This argument is problematic. If the reason for Plaintiff's assertion of what she was told is “to prove the truth of the matter asserted, ” then the statement is hearsay. Fed.R.Evid. 801(c)(2). She has not articulated a hearsay exception. Whereas if Plaintiff truly does not offer the statement to prove what she was told, but only to explain her actions, then Plaintiff has not supplied sufficient explanation of why she did not appear at 7:00 AM on June 10, 2015. ...


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