UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
QUINTELL ETHERIDGE, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1923 (GK)
)
FEDCHOICE FEDERAL CREDIT )
UNION, )
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff, Quintell Etheridge, brings this action against
Defendant FedChoice Federal Credit Union (“FedChoice”), her former
employer, for employment discrimination and unlawful termination
based upon a claimed disability. Plaintiff alleges violations of
Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and the Family and Medical Leave Act (“FMLA”), as
amended, 29 U.S.C. § 2601 et seq., breach of contract, and wrongful
termination in violation of public policy. This matter is presently
before the Court on Defendant’s Motion for Summary Judgment on all
Plaintiff’s claims. Upon consideration of the Motion, Opposition,
Reply, and the entire record herein, and for the reasons set forth
below, the Motion for Summary Judgment is granted in its entirety.
I. Background1
From 2001 until her termination on March 28, 2008, Plaintiff
Quintell Etheridge was a Financial Services Representative at
FedChoice, performing duties as a bank teller at a branch located
in the Bureau of Alcohol, Tobacco, Firearms, and Explosives
("ATF"). Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment, 1, 6 ("Plaintiff’s Opp’n")(Oct. 7, 2010) [Dkt. No. 19-1].
As a Financial Services Representative, Plaintiff’s major duties
included processing "all transactions for members, including
deposits, withdrawals, loan payments, cash advances and transfers,"
"[p]repar[ing] individual daily settlement of teller cash and other
transactions bringing cash drawer and settlement sheets into
balance," "[c]heck[ing] and assembl[ing] all supplies in the
branch,” and “[s]tock[ing]/replac[ing] forms, brochures, etc. as
needed." Plaintiff Ex. 2 - Federal Credit Union Position
Description (Oct. 7, 2010) [Dkt. No. 19-2]. In addition, as a
condition of her employment, Plaintiff was required to lift a
“minimum [of] 25 lbs (i.e. coinage & trays)" and to travel
occasionally. Id.
It is undisputed that, although provided with a chair,
Plaintiff was regularly on her feet and required to walk throughout
the course of her workday. Compl. ¶ 7. Since the summer of 2007,
1
The facts set forth herein are drawn from the parties’
statements of material facts submitted pursuant to Local Rule 7(h),
the briefs, and the evidence in the record.
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this included an approximate 1/2 mile daily walk from the nearest
parking garage where Plaintiff, who commuted from her residence in
Maryland, parked her car to the ATF building where she worked.
Plaintiff’s Opp’n 1-2.
According to Plaintiff and undisputed by Defendant, in August
2007, Plaintiff began experiencing severe pain in her right foot2
with swelling and bruising developing in that area sometime in
September 2007. Plaintiff’s Statement of Material Facts in Dispute
and Counter-Statement of the Facts in Dispute ¶ 19 (“Plaintiff’s
Stmt. of Facts”) (Oct. 7, 2010) [Dkt. No. 19]. On November 21,
2007, Plaintiff consulted a podiatrist, Dr. Dorothy Powell, because
her pain had become more pronounced. Nov. 21, 2007 Medical
Evaluation of Quintell Etheridge; Defendant’s Statement of
Undisputed Material Facts in Relation to Its Motion for Summary
Judgment ¶ 2 (“Def.’s Stmt. of Facts”) (Sept. 3, 2010) [Dkt. No.
16]. At this appointment, Dr. Powell diagnosed Plaintiff with
“plantar fasciitis” or “heel spurs.” Nov. 21, 2007 Medical
Evaluation of Quintell Etheridge.
On November 21, 2007, Plaintiff sought and received FMLA leave
from Defendant because of this diagnosis. Plaintiff’s Stmt. of
2
Although Plaintiff’s pleadings describe her medical
impairment as affecting her left foot, reports from Plaintiff’s
treating physician make clear that the ailment in fact impacted
Plaintiff’s right foot. See Plaintiff Ex. 4 – Nov. 21, 2007 Medical
Evaluation of Quintell Etheridge, 1 (“Nov. 21, 2007 Medical
Evaluation of Quintell Etheridge”)(Oct. 7, 2010) [Dkt. No. 19-2].
-3-
Facts ¶¶ 23-24. Plaintiff does not dispute that, at the time of
requesting her leave, Defendant provided her with written notice of
her FMLA rights, including that she was eligible for FMLA leave of
up to sixteen weeks under District of Columbia law,3 and notified
her that her leave would be counted against this entitlement.
Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt. of Facts ¶ 4.
Initially, Plaintiff’s FMLA leave was scheduled to last from
November 21, 2007 until December 3, 2007. Defendant’s Motion for
Summary Judgment, 1 (“Def.’s Mot.”) (Sept. 3, 2010) [Dkt. No. 16].
However, Plaintiff alleges that her symptoms worsened so much
during this period that she was unable to walk “other than to take
care for her personal daily care and to go to her medical
appointments.” Plaintiff’s Stmt. of Facts ¶ 27. Plaintiff
subsequently submitted a work excuse note from Dr. Powell to extend
her FMLA leave from December 3, 2007 to January 14, 2008, which was
granted by Defendant. Plaintiff Ex. 4 – Nov. 30, 2007 Work Excuse
Note (Oct. 7, 2010) [Dkt. No. 19-2]; Def.’s Stmt. of Facts ¶ 5. On
January 11, 2008, Plaintiff submitted another work excuse note to
Defendant from Dr. Powell, requesting an extension of her FMLA
leave to February 1, 2011, which Defendant again granted. Plaintiff
Ex. 4 – Jan. 11, 2008 Work Excuse Note (Oct. 7, 2010) [Dkt. No. 19-
2]; Def.’s Stmt. of Facts ¶ 5.
3
Although the federal FMLA statute provides for twelve weeks
of FMLA leave, the D.C. FMLA provides for sixteen weeks of leave.
D.C. Code § 32-503.
-4-
Plaintiff claims, and Defendant does not dispute, that by late
January or sometime in February 2008, Plaintiff’s symptoms improved
slightly, although she still “could not walk long distances or stay
on her feet for any significant length of time.” Plaintiff’s Stmt.
of Facts ¶ 28.
At some point during January/February 2008, Plaintiff
contacted her supervisor at FedChoice, Charlene Backstrom, to
request a transfer to FedChoice’s headquarters in Lanham, Maryland.
Id. ¶ 29. Plaintiff believed that tellers at the Lanham
headquarters performed more limited duties than at the ATF branch,
and engaged in fewer weight-bearing activities. Compl. ¶ 9. This
belief, combined with the fact that the Lanham headquarters had a
large parking lot with handicap parking spaces adjacent to the
front door, led Plaintiff to believe that a transfer to Lanham
would allow her to fully perform her work duties. Plaintiff’s Stmt.
of Facts ¶ 29. Although Plaintiff does not provide specific
evidence regarding the statements made during this conversation
with her supervisor, it is undisputed that Plaintiff requested a
transfer to the Lanham headquarters, that Plaintiff’s supervisor
passed her request to Susan Barnes, the head of FedChoice’s human
resources department, and that the request for a transfer was
denied. Id. ¶¶ 31-33.
Plaintiff submitted further work excuse notes to Defendant to
extend her FMLA leave from February 1, 2008 to March 3, 2008 and
-5-
then to March 11, 2008, all of which Defendant granted. Plaintiff
Ex. 4 – Feb. 1, 2008 and Feb. 27, 2008 Work Excuse Notes (Oct. 7,
2010) [Dkt. No. 19-2]; Def.’s Stmt. of Facts ¶ 5.4
With Plaintiff’s sixteen weeks of FMLA leave set to expire on
March 12, 2008, Plaintiff received a letter dated March 10, 2008
from Tammeca Riley, an employee in FedChoice’s human resources
department. Plaintiff Ex. 5 - Mar. 10, 2008 Fed Choice Letter to
Quintell Etheridge (“Mar. 10, 2008 Fed Choice Letter to Quintell
Etheridge”) (Oct. 7, 2010) [Dkt. No. 19-3]; Plaintiff’s Stmt. of
Facts ¶ 39. The letter requested additional information regarding
Plaintiff’s medical condition, including the date on which
Plaintiff would return to work and any work restrictions she would
have. Mar. 10, 2008 Fed Choice Letter to Quintell Etheridge. During
a telephone conversation with Plaintiff on approximately March 12,
2008, Ms. Riley again requested information as to when Plaintiff
could return to work. Plaintiff’s Stmt. of Facts ¶ 40. Plaintiff
indicated that her condition was improving, but that she had a
surgical consultation on March 18, 2008 and would immediately
provide Ms. Riley with the result. Id. At this surgical consult,
Plaintiff ultimately chose to forgo surgery, informing Ms. Riley of
her decision the next day. Id. ¶ 44.
4
Although Defendant’s motion also indicates that Plaintiff
submitted a work excuse note to extend her leave to April 1, 2008,
there is no evidence of such a request in the record. Def.’s Mot.
1. As the resolution of this issue is unnecessary for deciding this
motion, the Court will disregard this discrepancy.
-6-
At an unspecified point during March 2008, FedChoice
officials, including Ms. Riley, Ms. Barnes, and FedChoice counsel,
met to discuss Plaintiff’s leave status. Id. ¶ 43; Plaintiff Ex. 6
- Deposition of Susan Barnes (“Barnes Depo.”), Tr. 60:13-61:6 (Oct.
7, 2010) [Dkt. Not. 19-3]. Plaintiff claims and Defendant does not
dispute that, in the weeks leading up to the March 12 expiration of
her FMLA leave, FedChoice officials did not notify Plaintiff that
her leave period was nearing a close and that she risked
termination. Id. ¶ 40. However, Plaintiff also does not suggest,
nor does the record show, that she provided any specific
information to Defendant regarding when she would be returning to
work.5
On March 27, 2008, Dr. Powell provided a further work excuse
note to Defendant, stating that Plaintiff would not be able to
perform “normal work activities” until April 11, 2008 and
requesting an extension of her leave until that time. Plaintiff Ex.
4 - Mar. 27, 2008 Work Excuse Note (“Mar. 27, 2008 Work Excuse
Note”) (Oct. 7, 2010) [Dkt. No. 19-2]. The note provided no
indication as to when Plaintiff would be returning to work.
On April 1, 2008, Plaintiff learned for the first time,
through a telephone conversation with Ms. Riley, that her
employment had been terminated as of March 28, 2008, and that Ms.
5
At most, the record indicates that Plaintiff told Ms. Riley
that her “return to work depended on how she healed.” Plaintiff’s
Opp’n 4.
-7-
Riley had sent her a letter to that effect on March 30, 2008, which
Plaintiff subsequently received on April 3, 2008. Plaintiff’s Stmt.
of Facts ¶ 48. This letter stated, in part:
I [Ms. Riley] am in receipt of your
physician’s note dated March 27, 2008. That
note states that you will need additional time
off and does not indicate when your physician
believes that you will be able to return to
work. You have been out of work since 11/21/07
and your FMLA leave expired on 3/12/08.
We can no longer hold your job; therefore your
employment is terminated effective 3/28/08.
Def. Ex. 5 – Mar. 31, 2008 FedChoice Letter to Quintell Etheridge
(Sept. 3, 2010) [Dkt. No. 16-1].
Although the parties dispute the precise date, Plaintiff
concedes that she began looking for new work “soon after she was
terminated because she needed to work and needed health insurance.”
Plaintiff’s Stmt. of Facts ¶ 50. She did not secure new employment
until March 2009. Id. ¶ 54.
On approximately September 17, 2008, Plaintiff filed a
complaint against Defendant with the Equal Employment Opportunity
Commission (“EEOC”), alleging violations of the ADA. Compl. ¶ 12.
On approximately July 13, 2009, Plaintiff received a Right to Sue
Letter from the EEOC. Id.
Plaintiff filed the instant Complaint in this Court on October
9, 2009. Defendant moved for summary judgment on all of Plaintiff’s
claims on September 3, 2010. Plaintiff filed her opposition on
October 7, 2010. Defendant filed its Reply on October 18, 2010.
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Defendant’s Reply Memorandum of Points and Authorities In Support
of Its Motion for Summary Judgment (“Def.s’ Reply”) [Dkt. No. 21].
II. Standard of Review
Summary judgment may be granted “only if” the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See FED .
R. CIV. P. 56(c), as amended; Arrington v. United States, 473 F.3d
329, 333 (D.C. Cir. 2006). In other words, the moving party must
satisfy two requirements: first, that there is no “genuine” factual
dispute and, second, if there is, that it is “material” to the
case. “A dispute over a material fact is ‘genuine’ if ‘the evidence
is such that a reasonable jury could return a verdict for the
non-moving party.’” Arrington, 473 F.3d at 333 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986)). A
fact is “material” if it might affect the outcome of the case under
the substantive governing law. Liberty Lobby, 477 U.S. at 248.
In Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769 (2007),
the Supreme Court said,
[a]s we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c),
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts. . . . Where the record
taken as a whole could not lead a rational
trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.
-9-
1348, 89 L.Ed.2d 538 . . . (1986) (footnote
omitted). “‘[T]he mere existence of some
alleged factual dispute between the parties
will not defeat an otherwise properly
supported motion for summary judgment; the
requirement is that there be no genuine issue
of material fact.’”
(quoting Liberty Lobby, 477 U.S. at 247-48) (emphasis in original).
However, the Supreme Court has also consistently emphasized
that “at the summary judgment stage, the judge’s function is
not . . . to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 249. In both Liberty Lobby and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120
S. Ct. 2097 (2000), the Supreme Court cautioned that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts, are jury functions, not those
of a judge” deciding a motion for summary judgment. Liberty Lobby,
477 U.S. at 255.
In assessing a motion for summary judgment and reviewing the
evidence the parties claim they will present, “[t]he non-moving
party’s evidence ‘is to be believed, and all justifiable inferences
are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526
U.S. 541, 552, 119 S. Ct. 1545 (1999) (quoting Liberty Lobby, 477
U.S. at 255). The non-movant must, however, “do more than present
conclusory allegations . . . [rather] concrete particulars must be
presented . . . .” Kalekiristos v. CTS Hotel Mgmt. Corp., 958 F.
-10-
Supp. 641, 645 (D.D.C. 1997) (internal quotations and citation
omitted). “To survive a motion for summary judgment, the party
bearing the burden of proof at trial . . . must provide evidence
showing that there is a triable issue as to an element essential to
that party’s claim.” Arrington, 473 F.3d at 335. See Celotex Corp.
v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548 (1986).“[I]f the
evidence presented on a dispositive issue is subject to conflicting
interpretations, or reasonable persons might differ as to its
significance, summary judgment is improper.” United States v.
Philip Morris USA, 316 F. Supp. 2d 13, 16 (D.D.C. 2004) (quoting
Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C. Cir. 1986)).
III. Analysis
In her Complaint, Plaintiff raises four claims for relief.
First, Plaintiff alleges that Defendant violated Title I of the ADA
by failing to accommodate her claimed disability. Second, Plaintiff
alleges that Defendant’s termination of her employment violated the
FMLA. Third, Plaintiff claims that her wrongful termination
amounted to a violation of public policy, under D.C. common law and
the District of Columbia Human Rights Act. Finally, Plaintiff
alleges that her termination constituted a breach of an employment
contract.
Defendant has moved for summary judgment on all four claims.
In her Opposition, Plaintiff voluntarily dismissed her breach of
contract claim. Plaintiff’s Opp’n 14 n.1. With regard to her claim
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for wrongful termination, Plaintiff has failed to present “any
significant probative evidence tending to support the complaint” on
this issue. Liberty Lobby, 477 U.S. at 256 (internal quotations and
citation omitted). Consequently, Defendant’s summary judgment
motion on this claim is granted. Celotex, 477 U.S. at 323-24 (“One
of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or
defenses . . . .”).
As to her two remaining claims, Plaintiff opposes summary
judgment on the grounds that there are material facts that are
genuinely in dispute. Plaintiff’s Opp’n 9. In the alternative,
Plaintiff claims that Defendant’s Motion fails, because she has
adduced sufficient, uncontested facts to support her ADA and FMLA
claims. Id.
A. There Are No Genuine Issues of Material Fact in Dispute
Despite Plaintiff’s claims to the contrary, Defendant has
demonstrated that there are no genuine disputes regarding those
facts which are relevant to considering Plaintiff’s ADA and FMLA
claims. Defendant has met its burden on this issue for several
reasons.
First, in her Statement of Material Facts in Dispute,
Plaintiff agrees with ten out of twelve of Defendant’s Statement of
Undisputed Material Facts. Specifically, Plaintiff admits that: (1)
she sought treatment for ankle, foot, and heel pain on November 21,
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2007 and began her medical leave on that date; (2) at the time of
requesting her leave, she received written notice from Defendant
that she was eligible for FMLA leave, was provided with written
notification of her FMLA rights, and was informed that her leave
would be counted against her FMLA entitlement; (3) her leave was
repeatedly extended from December 2007 through March 2008, and she
did not return to work after November 21, 2007; (4) she completed
two FMLA certification forms during her leave and received a letter
reminding her that FMLA leave and short-term disability benefits
run concurrently;6 (5) she was on leave for a total of sixteen
weeks between November 21, 2007 and March 12, 2008; and (6) her
employment was terminated by FedChoice, effective March 28, 2008,
on the grounds that since her FMLA leave had expired on March 12,
2008, and there was no indication when she would be able to return
to work, FedChoice could no longer hold her job open for her.
Plaintiff’s Stmt. of Facts ¶¶ 1-9,11; Def.’s Stmt. of Facts ¶¶ 1-9,
11.
Second, although Plaintiff denies two of the facts included in
Defendant’s Statement of Undisputed Material Facts, she fails to
demonstrate that a genuine dispute exists as to them. Specifically,
6
Plaintiff herself has provided evidence demonstrating that
she received multiple letters from FedChoice reminding her that her
FMLA and short-term disability leave were running concurrently. See
Plaintiff Ex. 5 - Dec. 5, 2007 and Jan. 24, 2008 FedChoice Letters
to Quintell Etheridge (“Dec. 5, 2007 and Jan. 24, 2008 FedChoice
Letters to Quintell Etheridge”)(Oct. 7, 2010) [Dkt. No. 19-3].
-13-
Plaintiff challenges the following two Statements submitted by
Defendant: (1) that on March 27, 2008, FedChoice was provided with
a work excuse note from Plaintiff’s physician, Dr. Powell, stating
that Plaintiff was “unable to perform normal work activities and
needed to be excused from work until April 11, 2008;” and (2) that
Plaintiff “was fit to return to work as a teller by April 14, 2008,
and she immediately sought employment as a teller with other credit
unions.”7 Def.’s Stmt. of Facts ¶¶ 10,12; Plaintiff’s Stmt. of
Facts ¶¶ 10,12.
With regard to the March 27, 2008 work excuse note, Plaintiff
has failed to explain why she is denying Defendant’s Statement of
this fact. Plaintiff’s Stmt. of Facts ¶ 10. A review of the note,
which was submitted as Plaintiff’s Ex. 4 and Defendant’s Ex. 3,
demonstrates that Defendant’s description is materially accurate in
all respects, and provides a nearly verbatim accounting of the
note’s contents.8 Consequently, the Court finds that there is no
7
Plaintiff only denies Defendant’s claim that she was fit to
return to work on April 14, 2008, and does not challenge the fact
that she immediately sought employment as a teller at other credit
unions after being fired by FedChoice. Plaintiff’s Stmt. of Facts
¶ 12. Plaintiff does, however, argue that she had no choice but to
seek employment after her termination as this presented the only
means available for her to secure much-needed health insurance.
Plaintiff’s Opp’n 12.
8
The work excuse note, in full, is as follows:
To Whom It May Concern:
Quintell Etheridge is being treated at our office and is
(continued...)
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genuine issue of fact with respect to the March 27, 2008 work
excuse note.
With respect to the question of Plaintiff’s fitness to return
to work on April 14, 2008, Plaintiff does not deny that she has
given deposition testimony stating she “would have been able to
work by April 2008 and, indeed sought work after she was [] fired
by defendant . . . .” Plaintiff’s Opp’n 12. Instead, Plaintiff
attempts to challenge her own testimony by claiming that there is
conflicting record evidence that her doctor would have allowed her
to return to work in April. Id. However, she provides no evidence
of such conflicting record evidence. Thus, Plaintiff has failed to
demonstrate that a genuine issue exists as to this issue.9
Finally, in a further attempt to demonstrate the existence of
8
(...continued)
unable to perform normal work activities at this time.
Please excuse Mrs. Etheridge from work during the
recovery period beginning on 03/27/08 until 04/11/08.
If there are any questions, please contact this office.
Mar. 27, 2008 Work Excuse Note.
9
Although there is no genuine dispute that Plaintiff’s
medical impairment lasted until, at most, some time in April 2008,
the parties do present a genuine issue of fact as to whether
Plaintiff’s impairment began in August/September 2007 (when she
first began to experience pain) or November 2007 (when she first
requested her FMLA leave). See Def.’s Reply 4-5 & n.1. However, as
demonstrated, infra, whether Plaintiff’s impairment lasted 8 months
(using the August/September start date) or 5 months (using the
November start date) is not “material,” since the resolution of
this dispute does not impact the outcome of Plaintiff’s ADA and
FMLA claims. Liberty Lobby, 477 U.S. at 248.
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genuine issues of material fact, Plaintiff presents additional
facts in her Counter-Statement of The Facts in Dispute. These
additional facts are, however, either irrelevant, additions or
repetitions of Defendant’s undisputed material facts, or relevant
to the case but unchallenged by the Defendant. See Plaintiff’s
Stmt. of Facts ¶¶ 13-54.
Consequently, this Court concludes that there are no genuine
issues of material fact preventing resolution of Plaintiff’s ADA
and FMLA claims. The Court must now consider whether Defendant is
entitled, as a matter of law, to summary judgment on these claims.
B. Plaintiff’s ADA Claim
Plaintiff argues that Defendant violated the ADA because it
refused to provide her with a reasonable accommodation for her
"long-term medical impairment." Plaintiff’s Opp’n 9. In response,
Defendant argues that Plaintiff’s impairment did not constitute a
“disability” under the ADA, as it was "temporary" in nature and
therefore was not protected by the statute. Def.’s Mot. 3.
Under Title 1 of the ADA, "[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
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conditions, and privileges of employment." 42 U.S.C. § 12112(a).10
Discrimination includes "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." 42 U.S.C. § 12112(b)(5)(A).
To make out a prima facie case of discrimination for failure
to reasonably accommodate, plaintiff must demonstrate by a
preponderance of the evidence:(1) that she was an individual who
had a disability within the meaning of the statute; (2) that the
employer had notice of her disability; (3) that with reasonable
accommodation she could perform the essential functions of her job;
and (4) that the employer refused to make such accommodations.
Lytes v. D.C. Water and Sewer Auth., 527 F. Supp. 2d 52, 60 (D.D.C.
2007), aff’d, 572 F.3d 936 (D.C. Cir. 2009).
1. Plaintiff’s Medical Impairment Does Not Constitute
a Disability Under the ADA
The parties’ dispute centers around the first prong of the
four-part test,11 namely the threshold issue of whether Plaintiff’s
10
All references to the ADA are made to the version of the
statute in effect before January 1, 2009. As discussed in footnote
12, infra, this is the version of the statute applicable to this
case.
11
Because the Court finds that Plaintiff does not have a
disability, as defined by the ADA, the Court need not consider
(continued...)
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medical impairment qualifies as a disability under the ADA. Case
law establishes that the ADA "does not cover every individual with
an impairment who suffers an adverse employment action," and that,
in order to qualify for relief, the individual must be “disabled”
as defined by the statute. Flemmings v. Howard Univ., 198 F.3d 857,
860 (D.C. Cir. 1999) (citation omitted).
The ADA defines a person with a "disability" as: (1) an
individual having a physical or mental impairment that
substantially limits one or more major life activities; (2) an
individual having a record of such an impairment; or (3) an
individual regarded as having such an impairment. 42 U.S.C. §
12102(2)(A-C).12
In bringing her claim, Plaintiff relies on the first prong of
this statutory definition of “disability.” Although the ADA does
11
(...continued)
whether Plaintiff has satisfied the remaining three elements
necessary to establish a prima facie case of discrimination.
12
Effective January 1, 2009, the ADA was amended to alter the
definition of “disability.” See ADA Amendments Act of 2008, Pub. L.
No. 110-325, 122 Stat. 3553 (2008). Specifically, the amendments
eliminated the limitations imposed by the Supreme Court in Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122
S. Ct. 681 (2002), and Sutton v. United Air Lines, 527 U.S. 471,
119 S. Ct. 2139 (1999). Defendant contends that the pre-amendment
definition of “disability” should apply because the ADA Amendments
Act is not to be applied retroactively. Def.’s Mot. 3 n. 1. See
Lytes, 572 F.3d at 940 (“Congress clearly indicated the statute
would apply only from January 1, 2009 forward.”). Because Plaintiff
does not oppose Defendant’s argument, the Court will look to the
definition of “disability” in effect at the time of the alleged
discrimination.
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not provide guidance on the meaning of the terms “substantially
limits” and “major life activities,” the Supreme Court has ruled
that they should be interpreted “strictly to create a demanding
standard for qualifying as disabled.” Toyota, 534 U.S. at 197. In
Toyota, the Supreme Court, relying heavily on the EEOC Regulations13
implementing the ADA, 29 C.F.R. § 1630.2, also provided a framework
for evaluating whether an impairment satisfies these requirements.
Id. at 193-98.
a. Does Plaintiff’s Impairment Substantially
Limit One or More Major Life Activities?
Under the EEOC Regulations, a “disability” qualifies as
“substantially limiting” if the disabled individual is “‘[u]nable
to perform a major life activity that the average person in the
general population can perform’” or is “‘[s]ignificantly restricted
as to the condition, manner or duration under which [she] can
perform a particular major life activity as compared to the
condition, manner, or duration under which the average person in
the general population can perform that same major life activity.’”
Id. at 195-96 (quoting 29 C.F.R. § 1630.2(j)).
13
In Toyota, the Supreme Court noted that the “persuasive
authority of the EEOC Regulations is less clear [than the
regulations interpreting the Rehabilitation Act]” as “no agency has
been given the authority to issue regulations interpreting the term
‘disability’ in the ADA.” 534 U.S. at 194. However, because the
parties had expressly accepted the Regulation’s validity, the Court
construed the ADA in light of those Regulations. Id. As in Toyota,
the parties in this case have not challenged the validity of the
EEOC Regulations.
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In deciding whether an individual is “substantially limited,”
the court must consider:(1) “‘[t]he duration or expected duration
of the impairment;’” (2)“‘[t]he permanent or long term impact, or
the expected permanent or long term impact of or resulting from the
impairment;’” and (3) “‘[t]he nature and severity of the
impairment.’” Id. at 196 (quoting 29 C.F.R. § 1630.2(j))
(alterations in original).
“Major life activities” are defined as those “that are of
central importance to daily life.” Id. at 197. Such activities
include standing and walking, amongst others. See id.; Haynes v.
Williams, 279 F. Supp. 2d 1, 9-10 (D.D.C. 2003); 29 C.F.R. §
1630.2(I).
Plaintiff has clearly established, and Defendant does not
challenge, that her plantar fasciitis was a medical impairment “of
central importance to daily life,” namely, her ability to stand and
walk. However, for several reasons, Plaintiff has failed to present
any evidence demonstrating that this medical impairment
substantially limited her in performing these major life
activities.
i. Was Plaintiff’s Impairment Temporary or
Long-Term?
Plaintiff has not shown that her medical impairment was
permanent or long-term in nature. Her impairment began in
August/September 2007 and lasted until “at least April 2008.”
Plaintiff’s Opp’n 11. Given that “[t]he relevant time for assessing
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a claim of disability is when [the] accommodation [was] requested,”
Lytes, 527 F. Supp. 2d at 61 (citation omitted), Plaintiff
presents no evidence that her impairment was expected to be
anything but temporary when she requested a transfer to the Lanham
headquarters in January/February 2008 or that her impairment in
fact continued for a substantial period beyond that point.14
Moreover, her unequivocal sworn testimony was that she would have
been able to return to work some time in April 2008 if she had
obtained new employment. Def. Ex. 1 - Deposition of Quintell
Etheridge (“Etheridge Depo.”), Tr. 187:6-188:17 (Sept. 3, 2010)
[Dkt. No. 16-1]. See Pollard v. High’s of Baltimore, Inc., 281 F.3d
462, 471 (4th Cir. 2002) (holding that plaintiff’s immediate re-
14
For several reasons, the undisputed evidence demonstrates
that Plaintiff’s impairment was neither expected to be long-term or
permanent, nor did it turn out to be long-term or permanent. First,
medical evaluations from Dr. Powell conducted during Plaintiff’s
FMLA leave prescribe a course of treatment for Plaintiff’s
impairment that limited her walking and standing activities for
only a temporary period. See Plaintiff Ex. 4 - Nov. 30, 2007, Dec.
21, 2007, and Jan. 11, 2008 Medical Evaluations of Quintell
Etheridge (Oct. 7, 2010) [Dkt. No. 19-2](“She is to be off weight
bearing for 72 hours and has been advised to limit weight bearing
for not less than 21 days.”). Second, in her Complaint, Plaintiff
alleged that “[b]y early February . . . her physician advised [her]
that she could return to work provided she was placed ‘on light
duty’ with a minimum amount of walking and standing.” Compl. ¶ 9.
This fact sheds further doubt on the claim that Plaintiff’s major
life activities were substantially limited when she requested
transfer to the Lanham headquarters. Finally, Plaintiff provides no
specific evidence that her impairment limited any major life
activities after April 2008. At most, she raises an unsubstantiated
claim that since April 2008 she experienced “chronic recurring pain
as a permanent effect of her plantar fasciitis.” Plaintiff’s Opp’n
12 (internal quotations and citation omitted).
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employment elsewhere, after termination by defendant, “belie[d] the
assertion that she was ‘disabled’ within the ADA’s definition or
that her impairment was anything other than temporary during the
time of her employment [with] [Defendant]”).
While Plaintiff does not provide any authority establishing
that an impairment such as hers, lasting at most for 8 months,
qualifies as a disability under the ADA, there is ample case law
establishing that Plaintiff’s medical impairment unequivocally
qualifies only as “temporary” or “short-term.”15 See Duncan v.
Harvey, 479 F. Supp. 2d 125, 131 (D.D.C. 2007)(“Courts are
seemingly unanimous in the view that impairments whose effects last
less than one year are insufficient to demonstrate a substantial
limitation on a major life activity”)(see cases cited therein);
Lester v. Natsios, 290 F. Supp. 2d 11, 24-25 (D.D.C. 2003) (holding
that plaintiff who suffered from hypertension from late 1994 until
15
Plaintiff attempts to overcome the temporary nature of her
medical impairment by describing the healing process as
“complicated by [her] chronic, permanent medical condition,
diabetes.” Plaintiff’s Opp’n 12. However, the fact that Plaintiff’s
claimed disability is complicated by a long-term, permanent medical
problem, such as diabetes, does not necessarily render that claimed
disability permanent and long-term in nature. Similarly,
Plaintiff’s claim that her impairment “took a great deal of time to
heal and, given her diabetes, could have surely become a
debilitating condition if not allowed to heal properly,” id., does
not, as a legal matter, support a finding that she has established
by a preponderance of the evidence that her impairment was long-
term or permanent under the ADA. Plaintiff provides no authority
indicating otherwise.
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sometime in 1995 did not qualify as an individual with a
“disability” under the Rehabilitation Act, a statute analogous to
the ADA).16
ii. Was Plaintiff Severely Impacted by Her
Impairment?
Plaintiff has failed to show that, despite the temporary
nature of her injury, she was severely impacted by her impairment.
Adams v. Citizens Advice Bureau, 187 F.3d 315, 316 (2d Cir. 1999)
(per curiam). To establish that one is severely limited in a major
life activity, plaintiff must do more than merely submit evidence
of a medical impairment. Toyota, 534 U.S. at 198. Because
determination of the existence of a disability under the ADA must
be made on a “case-by-case basis,” those claiming the Act’s
protection must provide evidence demonstrating “that the extent of
the limitation in terms of their own experience . . . is
substantial.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567,
119 S. Ct. 2162 (1999).
In this case, Plaintiff’s proffered evidence regarding the
limitations she experienced because of her disability relate almost
exclusively to the period beginning on the first day of her FMLA
leave, November 21, 2007, and lasting until some time in
16
See Samuels v. Kan. City Mo. Sch. Dist., 437 F.3d 797, 802
(8th Cir. 2006) (holding that “temporary impairments with little or
no long-term impact are not disabilities” under the ADA); Pollard,
281 F.3d at 467-69 (holding that nine-month period of recovery from
surgery was insufficient to constitute a permanent or long-term
impairment under the ADA).
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January/February 2008.17 Amongst these factual allegations, the bulk
of Plaintiff’s evidence consists of medical evaluations from her
doctor, demonstrating that she suffered from a medical impairment
and providing information about her course of treatment, but giving
no detail about how her medical impairment specifically limited her
major life activities of walking and standing. The only specific
fact offered by Plaintiff to demonstrate that she was substantially
impacted by her impairment related to restrictions on her ability
to attend church and perform her assigned church duties.
Plaintiff’s Opp’n 3; Etheridge Depo. Tr. 159:13-21.18
17
Plaintiff has provided the Court with only one medical
report for the period after January/February 2008. See Plaintiff
Ex. 7 - Mar. 18, 2008 Progress Report for Quintell Etheridge from
Dr. Muhammad Khalid (Oct. 7, 2010) [Dkt. No. 19-4]. All other
evidence pertaining to Plaintiff’s impairment during this period is
limited to work excuse notes provided to FedChoice by Dr. Powell
and do not provide any detailed information regarding Plaintiff’s
condition.
18
Plaintiff, in her Counter-Statement of the Facts in
Dispute, states that “[D]uring this initial period (Nov. 21, 2007
to Dec. 2007), (Plaintiff’s) symptoms actually got worse and Ms.
Etheridge was unable to walk other than to care for her personal
daily care and to go to her medical appointments. Her initial
attempts to be driven to Sunday church services by her husband
proved impossible. By December 21, 2007, Ms. Etheridge’s doctor
advised her to avoid all weight bearing activity for 72 hours and
to limit weight bearing activities. . . .” Plaintiff’s Stmt. of
Facts ¶ 27 (citations omitted).
Plaintiff’s deposition testimony includes the following:
Q. Okay. And what, if anything, had you
done between . . . December 21, 2007, and
January 11, 2008, in terms of your normal
activities? Were they the same as you
(continued...)
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Other than these evaluations and her deposition testimony,
Plaintiff provides only general statements regarding the degree to
which her medical impairment limited her walking and standing. See
Plaintiff’s Opp’n 3.
Because Plaintiff has failed to provide specific evidence to
substantiate her claim or “otherwise [to] describe the degree to
which she is limited with any reasonable specificity,” Thompson v.
Rice, 422 F. Supp. 2d 158, 174 (D.D.C. 2006), the Court concludes
that her temporary impairment did not substantially limit her in
performing two major life activities, standing and walking, as
defined by the ADA. The Court, therefore, grants Defendant’s motion
for summary judgment on Plaintiff’s ADA claim.
18
(...continued)
previously described?
A. No.
Q. What changed?
A.I did try going back to church. I
couldn’t do my duties at church because I
was a nurse and ushered . . . .”
Etheridge Depo., Tr. 159:13-21.
The deposition testimony, which was submitted by Defendant, does
not contain the rest of Plaintiff’s response.
Thus, it is clear that Plaintiff’s facts, assuming they are
accurate, establish at most that she was impacted by her impairment
for a period of three to four months.
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C. FMLA Claim
Plaintiff alleges that she was unlawfully terminated in
violation of the FMLA, because Defendant “interfered” with her
rights under the statute by misleading her with regard to the
expiration of her leave, “refus[ing] her initial request for an
accommodation to be transferred to the Lanham branch. . . .
[,][and] intentionally blind-sid[ing] [her] before she could again
request an extension of FMLA leave as an accommodation.”
Plaintiff’s Opp’n 14. In response, Defendant argues that Plaintiff
was terminated, in compliance with the FMLA, because she had
exhausted her FMLA leave and had represented to Defendant, after
her leave had expired, that she was unable to return to work.
Def.’s Reply 5. Defendant also argues that Plaintiff’s claim that
the FMLA entitled her to a reasonable accommodation for her
disability is misplaced, as the FMLA does not require an employer
to provide a reasonable accommodation to an employee. Id. at 6.
1. Defendant Did Not Interfere with Plaintiff’s FMLA
Rights
The FMLA entitles an eligible employee to twelve weeks of
leave during any twelve-month period “because of a serious health
condition that makes the employee unable to perform the functions
of the position of such employee.” 29 U.S.C. § 2612 (a)(1)(D). The
FMLA, however, is a “balancing act, an attempt to provide employees
with some leave, a reasonable leave, without completely ignoring
the legitimate demands of the workplace.” Miller v. Personal-Touch
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of Va., Inc., 342 F. Supp. 2d 499, 515 (E.D. Va. 2004) (internal
quotations and citation omitted), aff’d, 153 Fed. Appx. 209 (4th
Cir. 2005)(per curiam). Consequently, once FMLA leave has expired
and the employee has not returned to work, the employer is under no
responsibility to restore the employee to her prior position.
Jackson v. Wilkes Artis, 565 F. Supp. 2d 148, 152 (D.D.C. 2008).
Under the FMLA, an employer may be held liable for
“interfering” with an employee’s rights under the Act. 29 U.S.C. §
2615(a)(1). Such interference may occur if the employer fails to
provide written notice to the employee that her leave is designated
as FMLA leave. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,
88-90, 122 S. Ct. 1155 (2002). According to the FMLA Regulations,
an employer provides proper notice where, amongst other
requirements, it gives written documentation to the employee
designating her leave as paid or unpaid and indicating whether it
qualifies as FMLA leave. 29 C.F.R. § 825.300 (b). Where proper
notice is not given, an interference claim is actionable if the
employee can demonstrate that she has suffered prejudice, which
occurs only when the employee has lost compensation or benefits by
reason of the violation, sustained other monetary losses as a
direct result of the violation, or suffered some loss in employment
status remediable through equitable relief. Roseboro v. Billington,
606 F. Supp. 2d 104, 108 (D.D.C. 2009).
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In light of this authority, Plaintiff has failed to
demonstrate how Defendant “interfered” with her rights under the
FMLA. It is undisputed that Plaintiff was entitled to and did in
fact receive sixteen weeks of FMLA leave, as required by D.C. law.
Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt. of Facts ¶ 4.
Plaintiff also does not challenge the fact that Defendant provided
her with proper written notice on the first day of her leave,
indicating that she was being granted FMLA leave and advising her
of her FMLA rights. Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt.
of Facts ¶ 4. Plaintiff does not deny that during her leave she
completed two FMLA certification forms, and received numerous
pieces of correspondence from Defendant reminding her that her FMLA
leave and her short-term disability ran concurrently and that she
was required to submit a physician’s certificate indicating when
she could return to work. Def. Ex. 6 - Dec. 11, 2007 and Jan. 31,
2008 Physician Certification for Family and Medical Leave (Sept. 3,
2010) [Dkt. No. 16-1]; Dec. 5, 2007 and Jan. 24, 2008 FedChoice
Letters to Quintell Etheridge. Finally, Plaintiff does not dispute
that she was unable to return to work on March 12, 2008, when her
sixteen weeks of FMLA leave expired.
These facts firmly establish that Defendant did not interfere
with Plaintiff’s rights under the FMLA. Although Plaintiff alleges
that Defendant was under an obligation to notify her of the
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impending expiration of her FMLA leave, she provides no authority
supporting that claim.19
2. Plaintiff Was Not Entitled to a Reasonable
Accommodation Under the FMLA
With regard to Plaintiff’s accommodation claim, as Defendant
correctly notes, Plaintiff has attempted to read the ADA’s
reasonable accommodation provision into the FMLA. The FMLA contains
no such accommodation requirement and, in fact, an employer’s
obligations under the FMLA are wholly distinct from its obligations
to provide a reasonable accommodation under the ADA. See Rinehimer
v. Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir. 2002) (affirming
district court jury instruction that FMLA “does not require an
employer to provide a reasonable accommodation to an employee”);
Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 544 (1st Cir.
1999)(noting that, unlike ADA, FMLA Regulations do not contain
“reasonable accommodation language”). Having provided no legal
grounds for this argument, Plaintiff’s accommodation argument must
fail.
19
Even if Plaintiff was correct that Defendant was under an
obligation to notify her that her leave was set to expire, her
claim that Defendant thereby interfered with her FMLA rights would
still fail as she was unable to return to work after her FMLA leave
expired on March 12, 2008. See Mar. 27, 2008 Work Excuse Note. As
the Supreme Court has held, an employee who cannot return to work
at the end of her FMLA leave period cannot demonstrate “any real
impairment of [her] rights and resulting prejudice” under the
statute. Ragsdale, 535 U.S. at 90. Consequently, any alleged
failure by Defendant to provide Plaintiff with adequate notice
cannot form the basis of an actionable interference claim under the
FMLA. Miller, 342 F. Supp. 2d at 515.
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Consequently, because Plaintiff has not presented a valid
cause of action under the FMLA, the Court grants Defendant’s
summary judgment motion with regarding to Plaintiff’s FMLA claim.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment under Rule 56 is granted in its entirety. An
Order will accompany this Memorandum Opinion.
/s/
June 2, 2011 Gladys Kessler
United States District Judge
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