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 Plaintiff's  Motion for
Partial Summary Judgment as to Counts I & II
(“Plaintiff's Motion”). The Court shall issue
a separate Memorandum Opinion addressing 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”).
consideration of the briefing,  the relevant legal authorities,
and pertinent portions of the voluminous record in this
matter,  the Court DENIES
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 on 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. Plaintiff now moves
for summary judgment as to the first two counts, namely the
ADA claim and its D.C. analogue, the DCHRA claim. Pl.'s
Mem. at 7. She attributes her decision not to seek summary
judgment as to the FMLA and DCFMLA claims to disputes of
material fact. Id. A separate opinion, which also
will issue today, shall resolve Defendant's motion
seeking summary judgment as to all four counts. Although the
Court largely evaluates these motions separately, the Court-
like the parties-draws upon materials submitted in connection
with Defendant's Motion for Summary Judgment where such
submissions facilitate the Court's consideration of
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.
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. 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).
alleges that Defendant 1) failed to accommodate her
disability, and 2) took a series of adverse actions in
response to her disability. See Pl.'s Mem. at 6.
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
argues that she was a qualified individual disabled by renal
cancer, whether active or in remission; that Defendant had
notice of that disability; and that she requested but was
denied accommodation. See Pl.'s Mem. at 9-20.
Each of the first two prongs of Plaintiff's argument is
subject to some dispute; whether those disputes involve
genuine issues of material fact is less readily apparent.
Strictly for purposes of this analysis, the Court shall
assume, arguendo, that Plaintiff satisfies the first
two prongs. It is clear that Plaintiff is unable to discharge
her burden as to the third prong in at least two respects:
whether Plaintiff ever made a request for reasonable
accommodation, and whether any such request was denied.
argues that she made a request for accommodation at two
times, both before and after her July 2015 surgery.
Id. at 4, 13-14. Plaintiff argues at various points
that she made her reasonable accommodation requests through
Defendant's Office of Equal Employment Opportunity
(“OEEO”) and through members of the Psychiatry