United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
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”).
pending before the Court is Defendant's  Motion for
Summary Judgment, as well as its  Motion to Strike
Portions of the Declaration of Dr. Stephanie Waggel, M.D.
(“Defendant's Motion to Strike”). Today the
Court issued a separate  Memorandum Opinion, which the
Court expressly incorporates herein, that disposed of
Plaintiff's  Motion for Partial Summary Judgment as
to Counts I & II (“Plaintiff's Motion”).
consideration of the briefing,  the relevant legal authorities,
and pertinent portions of the voluminous record in this
matter,  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.
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
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.
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.
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.
Motion for Summary Judgment
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.
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).
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.
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)).
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.
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)).
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.
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.
turning in earnest to Defendant's Motion for Summary
Judgment, the Court shall briefly introduce Defendant's
Motion to Strike.
Motion to Strike
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.
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.”)).
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.
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
Court now shall turn to the briefing of Plaintiff's
ADA and DCHRA Claims
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
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).
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.
Reasonable Accommodation Claim
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).
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
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.
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.
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.
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).
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.
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.
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.
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).
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).
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
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.
Other Alleged Disability Discrimination
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.
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.
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.
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).
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.
Clinical Competency Committee Meeting on April 8,
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.
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.
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. 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”). 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.
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. 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.
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
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. 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
CCC Minutes Issue #1: First Letter of Deficiency
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.
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.
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.
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.
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).
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.
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,