['DAVIS v. GEORGE WASHINGTON UNIVERSITY']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY K. DAVIS, :
:
Plaintiff, : Civil Action No.: 12-cv-1431 (RC)
:
v. : Re Document No.: 14,15,16
:
THE GEORGE WASHINGTON :
UNIVERSITY :
:
and :
:
ARAMARK FACILITY SERVICES, LLC, :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AS TO ALL COUNTS EXCEPT
FOR THE HOSTILE WORK ENVIRONMENT CLAIM UNDER THE ADA.
I. INTRODUCTION
Plaintiff, Anthony Davis, was employed as a service worker/housekeeper by Defendant,
George Washington University from March 8, 2008 to December 13, 2010. Plaintiff was
diagnosed with depression, bipolar disorder, and substance abuse. He was terminated by the
University on December 13, 2010. Plaintiff now files suit against George Washington University
on three counts: (1) failure to provide medical leave, and retaliation, in violation of the Family
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., (2) failure to provide medical leave in
violation of the D.C. Family Medical Leave Act (“DCFMLA”), D.C. Code § 32-503 (2001), and
(3) discriminatory discharge, disparate treatment, hostile work environment on the basis of
Plaintiff’s disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et
seq. Plaintiff also files suit against Aramark Facilities Services, LLC (“Aramark”) for Tortious
Interference with Employment/Contractual Relations. The Defendants have moved for summary
judgment on all counts. As explained more fully below, the Court concludes that the Defendants’
motions for summary judgment should be granted.
II. FACTUAL BACKGROUND
A. GW and its Relationship with Aramark
George Washington University (hereinafter “GW” or “the University”) is a private
academic institution established in 1821, with its main campus in the District of Columbia. The
University has an agreement with Aramark where Aramark provides housekeeping and facilities
maintenance services to the University. Decl. Suzanne Williams-Valentine¶ 6, Def.’s Mot.
Summ. J. Ex. 3, July 15, 2013, ECF No. 15. Aramark handles the day-to-day supervision of
GW’s housekeeping service workers. Id. GW manages the service workers’ payroll and the
administration of their employment benefits. Id.B. Mr. Davis’s Position with GW
From March 8, 2008 until his termination on December 13, 2010, Mr. Davis was
employed by GW as a service worker/housekeeper on the night shift in the Housekeeping
Services Department. Decl. Williams-Valentine ¶ 5. He was a member of the Services
Employees International Union, Local 32BJ (“Union”). Decl. Williams-Valentine ¶ 5.
Housekeeping Services is part of the Facilities Management Unit within the University’s
Facilities Services division. Id. In 2010, Mr. Davis reported directly to John Eshun (“Mr.
Eshun”), then-Director of Facilities Management, who worked for Aramark. Id. at ¶ 7. Mr.
Eshun, in turn, reported to on-site supervisor James Schrote, the Executive Director of Facilities
Services and a GW employee. Id.2
C. The Attendance Rules Applicable to Mr. Davis’s Position
In his role as a housekeeper, Mr. Davis performed a number of traditional custodial
duties, including mopping rooms, stripping and refinishing floors, washing windows and doors,
operating buffers and vacuum cleaners, cleaning bathrooms, and polishing furniture. Service
Worker Job Description, Def.’s Mot. Summ. J. Ex. 4. The University maintains that Mr. Davis
worked as a part of a team of housekeepers, and so when an employee is unable to report to
work, other employees’ schedules have to be adjusted. Decl. Williams-Valentine at ¶ 8. This can
cause essential work to be delayed or not performed, or may require overtime to be paid. Id.Mr. Davis is governed by the rules set forth in the Department’s Work Rules (“Work
Rules”), the Employee Handbook, and the Collective Bargaining Agreement (“CBA”). Id. at ¶ 9.
The University maintains that Mr. Davis received these documents during his employment, and
that he knew their requirements. Id. Mr. Davis asserts that he believed that the rules in GW’s
Employee Handbook and the Work Rules did not apply to him because he was a union employee
—instead he believed that only the rules in the CBA applied to him, and nothing else. Pl.’s Decl.
¶ 33, Pl.’s Opp’n Attach. 2, Aug. 15, 2013, ECF No. 18 . Under the Work Rules, “[a]n
employee is expected to be at work on time and on a regular basis.” Work Rules, Policy 1, Def.’s
Mot. Summ. J. Ex. 5. “Excessive tardiness or absenteeism will not be tolerated,” and a violation
can subject the employee to disciplinary action. With respect to absences for sickness, the Work
Rules state that employees are expected to “call in 2 hours prior to the beginning of their regular
working hours” and receive permission to be absent from their supervisor. Id. Policy 31.b.
The Employee Handbook provides that when an emergency illness prevents an employee
from reporting to work, he must notify his supervisor “as soon as possible,” and for “frequent
unplanned absences due to illness,” the supervisor may require medical documentation.
3
Employee Handbook §10.1.2, Def’s Mot. Summ. J. Ex. 1. An employee who fails to provide
such documentation may be considered Absent Without Approved Leave (“AWOL”), and three
AWOLs “can result in disciplinary action up to and including termination.” Id.
The CBA states that, to avoid AWOL status, an employee must “promptly provide[ ]
documentation or other medical evidence that establishes to the Employer’s satisfaction that the
employee was unable to report to work due to illness.” CBA §9.7, Def.’s Mot. Summ. J. Ex. 2.
An employee who has “[t]hree absences without approved leave (AWOL)” is deemed to have
engaged in conduct of a serious nature. Id. §20.2(12). Conduct of a “serious nature” may result in
discharge without advance warning. Id. §20.1.
D. Mr. Davis’s August 24, 2009 Termination
Mr. Davis was terminated from his position by GW on August 24, 2009. Decl. Williams-
Valentine¶ 11. The University maintains that Mr. Davis was terminated for multiple absences
from work without timely requesting leave, or without providing medical documentation to
explain his absences. 2008 Notices of Absences, Def.’s Mot. Summ. J. Ex.6; Termination Letter
(Aug. 24, 2009), Def.’s Mot. Summ. J. Ex. 7. Mr. Davis maintains that he was improperly
marked as AWOL on numerous occasions prior to his August 24, 2009 termination. See
generally Pl.’s Opp’n.
Following his termination, Mr. Davis and the University entered into a Last Chance
Agreement (“LCA”), which reinstated Mr. Davis and treated the time between his August
discharge and February 3, 2010 as an unpaid suspension. Decl. Valentine-Williams ¶ 11; LCA ¶
1, Def.’s Mot. Summ. J. Ex. 8. The LCA required Mr. Davis “to meet normal performance
expectations and to comply with the employment standards applicable to other employees in his
position.” Id. at ¶ 4. It also provided that “if Mr. Davis is absent from work without the
4
permission of his immediate supervisor on any occasion between February 3, 2010 and February
3, 2011, the University shall be entitled to discharge him immediately.” Id. at ¶ 3 (emphasis
added).
As a part of the LCA, the Union waived its right to grieve another discharge, other than
to question “whether or not the immediate supervisor gave Mr. Davis permission to be absent.”
Id. As part of the agreement, Mr. Davis executed a Release, in which he waived all claims
against GW and its agents related to the circumstances of the 2009 discharge pre-dating the
Release’s execution. Release, Def.’s Mot. Summ. J. Ex. 9.
E. Mr. Davis’s Illness, and his Excused Sick Leave and FMLA Leave
Mr. Davis suffers from a variety of disorders, including depression, bipolar disorder, and
substance abuse. Pl.’s Decl. ¶¶ 5-6, 14; Pl.’s Opp’n Exs. A-G. In November 2008, Mr. Davis
disclosed to the University that he had a “Mental/Emotional” disability, which he identified as
“depression.” Voluntary Self- Identification Form, Nov. 1, 2008, Def.’s Mot. Summ. J. Ex. 22;
Request for Accommodation form, Nov. 3, 2008, Def.’s Mot. Summ J. Ex. 23. Mr. Davis further
disclosed that he was being treated with medication and psychotherapy related to his condition.
Doctor’s Documentation, April 7, 2008, Pl.’s Opp’n Ex. A. On May 20, 2008, Mr. Davis was
hospitalized when he became dizzy and fainted, and was diagnosed with vertigo in connection
with his depression medication. Discharge Documentation, May 20, 2008, Pl.’s Opp’n Ex. B.
Plaintiff asserts that he provided these hospitalization records to his then-supervisor, Lance
Kendall. Pl.’s Decl. ¶ 7.
In June 2009, Mr. Davis requested and was granted four days of FMLA leave for in-
patient treatment relating to his substance abuse and psychological disorders. FMLA
Certification, June 22, 2009, Def.’s Mot. Summ. J. Ex. 25.
5
Following his February 2010 reinstatement, Mr. Davis was granted FMLA leave or was
excused from his absence on the following occasions:
 From July 11, 2010 to July 14, 2010, Mr. Davis was hospitalized in connection to
his cocaine abuse and bipolar disorder. Discharge Documentation, July 14, 2010,
Pl.’s Opp’nEx. G. Mr. Davis was not marked AWOL on these days.
 From August 8, 2010 to August 9, 2010, Mr. Davis was absent from work for an
unknown reason. Leave Request Form, Pl.’s Opp’n, Ex. I. Mr. Davis was granted
two days of sick leave for these absences.
 From August 11, 2010 to August 16, 2010, Mr. Davis was hospitalized for
alcohol and cocaine abuse. Discharge Summary, Aug. 16, 2010, Pl.’s Opp’n Ex. J.
Mr. Davis was not marked AWOL on these dates.
 On August 2, 2010, Mr. Davis requested and was granted FMLA leave from
September 2 – 9, 2010, for inpatient treatment. FMLA Leave Request, Pl.’s
Opp’n Ex. N; Patient Discharge, Pl.’s Opp’n Ex. P; File Closing Checklist, Pl’s
Opp’n Ex. O.
F. The Events Leading up To Mr. Davis’s Termination on December 13, 2010
Mr. Davis was terminated on December 13, 2010, after he was marked as AWOL on
eight occasions in 2010: July 7, July 22, November 2, November 10, November 14, December 1,
December 8, and December 9. AWOL Notices, Def.’s Mot. Summ. J. Exs. 15-20. Mr. Davis
contests each of these AWOLs, arguing that he either (1) properly requested and was authorized
for leave on those dates, or (2) was not authorized for leave but should have been granted FMLA
or ADA leave as part of his illness.
6
Plaintiff was documented as AWOL on July 7, 2010. AWOL Letter, Def.’s Mot. Summ.
J. Ex. 13. Mr. Davis did not arrive at work on that date. Defendant claims that Mr. Davis did not
contact his supervisor, Mr. Eshun, to notify the supervisor of his absence, nor did he answer or
return any of his supervisor’s phone calls. Test. of John Eshun at 83-86, Tr. of Hr’g before
Administrative Judge Steven Wellner, Def’s Mot. Summ. J. Ex. 14, July 15, 2013, ECF No. 15.
Plaintiff later told Mr. Eshun that he had to “see a physician for personal reasons” but failed to
provide a doctor’s note when requested to do so. Id. at 86. Plaintiff asserts that he had a seven
minute conversation with Mr. Eshun on July 6, 2010, informing Mr. Eshun that he could not
work the following day due to his illness. Pl.’s Decl. at ¶ 21. Mr. Davis’s phone records confirm
that he conversed with a number, which he identifies as Mr. Eshun’s number, for seven minutes
on July 6, 2010. Pl’s Opp’n Ex. T at 16. Mr. Davis neither disputes nor confirms Mr. Eshun’s
request for a doctor’s note, nor Defendant’s claim that no doctor’s note was ever provided.
Plaintiff was next marked AWOL on July 22, 2010. AWOL Letter, Def.’s Mot. Summ. J.
Ex. 15. On that date, Defendant asserts that Mr. Davis called his supervisor, notifying him that
he would be a couple of hours late due to a “tenant/landlord meeting.” Test.John Eshun, at 93.
Mr. Eshun approved this delayed arrival, and was expecting Mr. Davis to show up for his shift at
approximately 12:30 AM. Id. Mr. Davis did not report at that time, and did not respond to Mr.
Eshun’s “12, 14” calls. Id. Mr. Eshun asserts that Mr. Davis’s offered explanation after the fact
was that “his phone was locked up, he couldn’t find his keys.” Id. at 99. Plaintiff does not dispute
that he was authorized to arrive to his shift two hours late due to a landlord/tenant meeting. Davis
Decl. ¶ 22. Plaintiff adds, however, that after speaking with Mr. Eshun, he “became dizzy and
fainted and was hospitalized.” Id. Further, Mr. Davis asserts that he did not have his phone with
him at the hospital and thus informed Mr. Eshun the following day about his hospitalization. Id.
7
Mr. Davis claims that he provided Mr. Eshun with copies of his medical records from this date.
Id. The Court notes that these medical records are not in evidence.
Plaintiff was next marked as AWOL on November 2, 2010. AWOL Letter, Def.’s Mot.
Summ. J. Ex. 16. Defendant claims that Plaintiff was absent on this day and did not call or
notify his supervisor. Def’s Mem. Supp. Mot. Summ. J. at 8. Plaintiff claims that on November
2, 2010, he spoke with Mr. Eshun at 2:12 p.m. and 8:27 p.m. to inform him that he could not
attend work due to his illness. Davis Decl. ¶ 24. The Court notes that Mr. Davis did receive and
make calls at this time, but that the calls were made to two different numbers. Pl.’s Opp’n Ex. T
at 18.
Plaintiff was next marked as AWOL on November 10, 2010. AWOL Letter, Def.’s Mot.
Summ. J. Ex. 17. Defendant claims that Mr. Davis called around 10:00 p.m., a half-hour before
his shift began, to request the night off. Test. John Eshun, at 101. Mr. Eshun says that he denied
Plaintiff’s request for the night off, and Plaintiff responded that he would be at work that night.
Id. at 102. Mr. Davis did not arrive at work that night. In his declaration, Plaintiff claims that he
called Mr. Eshun at 8:04 p.m. that night to inform him that he would be unable to work due to
his condition. Davis Decl. ¶ 25. Mr. Davis’s phone records confirm that a call was placed to a
number at 8:04 p.m., although this number is again different from every other number identified
by Mr. Davis as Mr. Eshun’s number. Pl.’s Opp’n Ex. T at 18.
Plaintiff’s testimony at an Administrative hearing in front of Judge Wellner contradicts
Plaintiff’s declaration. At the hearing, Plaintiff testified that he did not work on November 10,
2010 because he had a black-out, Test. of Anthony Davis, Def’s Reply Ex. 1 at 164–65, and that
he called his supervisor at 3:00 in the morning to let him know what had happened. Id. at 165.
8
Plaintiff was next marked as AWOL on November 14, 2010. AWOL Letter, Def.’s Mot.
Summ. J. Ex. 18. Defendant asserts that Mr. Davis did not request time off for November 14,
2010 and did not call or notify his supervisor of his absence. Test. John Eshun at 107. When Mr.
Davis failed to appear for his shift, Mr. Eshun says that he called Mr. Davis, but was unable to
reach him. Id. Mr. Eshun claims that Defendant’s proffered explanation for his absence was that
there was something wrong with his phone. Id. at 108.
Plaintiff disputes this explanation, asserting instead that he had a doctor’s appointment
during his shift, which began at 10:30 p.m. Davis Decl. ¶ 26. Mr. Davis claims that in early
November, he informed Mr. Eshun of a doctor’s appointment on November 14, 2010, and that
Mr. Eshun verbally approved his leave. Davis Decl. ¶ 26. Mr. Davis has included a physician’s
record of an appointment, which is dated for November 15, 2010 at 3:33 p.m. Pl’s Opp’n Ex. Q.
Again, Plaintiff’s explanation in his declaration is not consistent with his testimony in the
administrative hearing. There, Plaintiff testified that his condition had made him forgetful, and as
a result he had locked his keys and cell phone in a locker, and was thus unable to get to work.
Test. of Anthony Davis, Def’s ReplyEx. 1 at 164.
Plaintiff was next marked AWOL on December 1, 2010. AWOL Letter, Def.’s Mot.
Summ. J. Ex. 20. Mr. Davis was scheduled to report for his shift at 10:30 p.m. Defendant asserts
that when Mr. Davis failed to report at the scheduled time, Mr. Eshun called Mr. Davis several
times and left several messages. Def’s Mot. Summ. J. Ex. 20. Defendant then asserts that Mr.
Davis called Mr. Eshun at 3:12 a.m. to tell Mr. Eshun that he had overslept.
Plaintiff does not dispute that he overslept on that date, but instead asserts that he did so
as a result of the medication he was taking. See Letter from Anthony Davis to Suzanne
Valentine, Def.’s Mot. Summ. J. Ex. 21; Davis Decl. ¶ 27. According to his letter to Ms.
9
Valentine, Mr. Davis had been experiencing insomnia as a result of a change in medication
relating to his depression. Thus, Mr. Davis decided to take sleeping pills that he had been
prescribed from a separate and previous treatment for insomnia. Id. The Court notes that the drug
Mr. Davis references in his letter, Seroquel, is in fact not used to treat insomnia; rather it is used
to treat bipolar disorder. See http://www.seroquelxr.com/. This medication knocked Mr. Davis
out, who woke up groggy at 3:00 a.m., at which time he called Mr. Eshun. Mr. Davis then began
to experience side effects from the drug, and went to the emergency room where he was treated
for priapism. Id.; George Washington Hospital Discharge Instruction, Def’s Mot. Summ. J. Ex.
21 at 5. The parties agree that these hospital records were presented to Ms. Valentine on
December 7, 2010, along with a letter Mr. Davis wrote explaining his absence.
Mr. Davis was finally marked AWOL on December 8, 2010 and December 9, 2010.
AWOL Letter, Def.’s Mot. Summ. J. Ex. 19. Plaintiff asserts that he notified Mr. Eshun that the
extreme cold weather enhances his illness and the side-effects related to his medication. Davis
Decl.¶ 28. He further states that he had asked Mr. Eshun on multiple occasions to provide him a
heavy winter coat, which is generally issued as part of an employee’s uniform, and without
which Mr. Davis would not be able to work. Id. As Mr. Davis explained in his deposition, “[t]he
extreme cold had done something to me that morning . . . extreme cold . . . messes with the
medication. Had I been able to put my hood on my head, I might have felt better. Had I even had
a coat, I might have been able to feel better.” Dep. Anthony Davis at 50, Def’s Mot. Summ. J.
Ex. 10.
Mr. Davis further explains that he “had been waiting a whole year for a coat and some
overalls.” Test. Anthony Davis at152, Def.’s Mot. Summ., J. Ex. 14. He states that he informed
both Mr. Eshun and Ms. Valentine that he would not be at work for two days because he had not
10
received his winter coat. Davis Decl. ¶ 28. In his declaration, Mr. Davis maintains that he did not
come into work on December 8, 2010 and December 9, 2010 because he did not have a winter
coat, and that his illness prevented him from working without one.
This declaration is inconsistent with Mr. Davis’s testimony at the administrative hearing,
where he testified that he did not come to work on December 8, 2010 because: “I was tired of
[Mr. Eshun] misleading me about this uniform (the winter coat)….[a]nd I wanted him to know
that I was serious about getting a new uniform.” Test. Anthony Davis, 162-63, Def.’s Mot.
Summ., J. Ex. 14. Yet Mr. Eshun testified at the same hearing that a new, heavier coat was given
to Mr. Davis. Test. John Eshun at 177, Def.’s Mot. Summ. J. Ex. 14. Mr. Eshun testified that
“[i]t was a new coat. It was given for [Mr. Davis] to keep.” Id. This coat was in Mr. Davis’s
possession until it was redeemed upon his termination on December 13, 2010. Id. Mr. Davis too
concedes that he had received this heavier winter coat, Test. Anthony Davis at 154, but was still
unsatisfied because he wanted a coat with his name on it. Test. Anthony Davis at 138. And Mr.
Davis feared that once he was given a non-uniform coat, Mr. Eshun would never order a
customized coat. Id at 154. As Mr. Davis stated, Mr. Eshun is “the type that once he gets you
something like that . . . he has no obligation to get me my coat.” Id.
Mr. Davis also concedes that he never obtained authorization from either Mr. Eshun or
Ms. Valentine to miss work on December 8th and 9th. When asked whether Ms. Valentine ever
responded to Mr. Davis’s request for two days leave, Mr. Davis responded “[n]o she didn’t,
although I left her my phone number on the message.” Dep. Anthony Davis at 56, Def.’s Reply.
Ex.2. Mr. Davis similarly concedes that he never received permission from Mr. Eshun for the
absence. Id. According to Mr. Davis, on December 7, 2010 he said to Mr. Eshun, “I am going to
Ms. Valentine to let her know that you have still not ordered my uniform and I am not feeling
11
well and that -- that I will be taking the next couple of days off.” Id. When asked what Mr. Eshun
said in response, Mr. Davis stated: “[w]ell, it was 7:00. I didn’t wait for his response. I just
walked out the door after that.” Id.
III. LEGAL STANDARD
A. Summary Judgment Standard
A court may grant summary judgment when “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). A “material” fact is one capable of affecting the substantive outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if
there is enough evidence for a reasonable jury to return a verdict for the non-movant. Scott v.
Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-
movant must point to specific facts in the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering a motion for summary judgment, a court must
“eschew making credibility determinations or weighing the evidence[,]” Czekalski v. Peters, 475
F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the
light most favorable to the non-movant. See Anderson, 477 U.S. at 255.
Nevertheless, conclusory assertions offered without any evidentiary support do not
establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). “If
12
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249-50. “Moreover, the non-moving party cannot rely upon
inadmissible evidence to survive summary judgment; rather, the non-moving party must rely on
evidence that would arguably be admissible at trial.” Manuel v. Potter, 685 F. Supp. 2d 46, 58
(D.D.C. 2010) (internal citations and quotation marks omitted).
IV. ANALYSIS
A. Americans With Disabilities Act Claims
1. Failure to Accommodate
Plaintiff argues that the University violated the Americans with Disabilities Act by
denying him reasonable accommodation, which would have allowed him to continue to perform
the essential functions of his job. To establish a failure to accommodate claim under the ADA, a
plaintiff must proffer evidence from which a reasonable fact-finder could find that (1) he had a
qualifying disability within the meaning of the statute, (2) his employer had notice of the
disability, (3) with reasonable accommodation, he could perform the essential functions of the
position, and (4) he requested an accommodation but the employer denied his request. Allen v.
Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003); see also 42 U.S.C. § 12112(a),(b)(5)(A). In the
D.C. Circuit, failure to accommodate claims are not subject to the McDonnell Douglas Corp v.
Green, 411 U.S. 792, 802 (1973), burden-shifting framework. See Barth v. Gelb, 2 F.3d 1180,
1185-86 (D.C. Cir. 1993) (explaining that the three part burden shifting framework set up in
McDonnell Douglas Corp. is not appropriate for reasonable accommodation claims, and that
such claims can be tested through the “application of traditional burdens of proof”). See also Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998).
13
The parties do not dispute that the Plaintiff here has an impairment within the meaning of
the ADA, that he has the requisite skills for the job, and that he has suffered an adverse
employment action (his termination).
Defendant first argues that Plaintiff’s “failure to accommodate” claim fails because
Plaintiff has not identified any “reasonable accommodation” that would have allowed him to
perform the essential functions of his job. As Defendant correctly notes, “an underlying
assumption of any reasonable accommodation claim is that the plaintiff-employee has requested
an accommodation which the defendant-employer has denied.” Flemmings v. Howard Univ., 198
F.3d 857, 861 (D.C. Cir. 1999) (emphasis added); accord Lee v. D.C., 920 F. Supp. 2d 127, 136
(D.D.C. 2013) (citing Woodruff v. LaHood, 777 F. Supp. 2d 33, 40 (D.D.C. 2011) for the
proposition that the burden lies with the employee to request any needed accommodation). The
employee does not necessarily need to make a formal request. Thompson v. Rice, 422 F. Supp.
2d 158, 176 (D.D.C. 2006) (“The request for accommodation does not have to be formal, and the
words ‘reasonable accommodation’ do not have to be used, but the employer must be alerted to
the condition and the need for accommodation.”). However, once an employer has established a
fixed set of procedures to request accommodations, the plaintiff-employee’s failure to file a
request through this procedure could preclude a claim for failure to accommodate. See Edwards
v. EPA, 456 F. Supp. 2d 72, 103 (D.D.C. 2006); see also Erbel v. Johnson, 2007 WL 1387331 at
*7, No. 3:04-CV-555; Cf. Lee v. District of Columbia, 920 F.Supp.2d 127,137 (D.D.C. 2013)
(recognizing Edwards but finding that the defendant had not established an accommodations
procedure in the instant case).
The Plaintiff here had notice of the employer’s accommodation procedures and knew
how to take advantage of those procedures. Request for Accommodation form, Def.’s Mot.
14
Summ. J. Ex. 23. In November 2008, Plaintiff formally notified George Washington University
of his disability using this procedure. Id. Although the form was labelled as an accommodation
request form, Mr. Davis left blank the section labelled “requested accommodation” and stated
that the anticipated duration of the accommodation was “unknown.” Id. Following the filing of
this form, George Washington University’s Department of Equal Employment Opportunity
communicated with Mr. Davis to help set up his health insurance and schedule an appointment
with his doctor. Correspondence between Anthony Davis and EEOC Division at GW, Def.’s Mot
Summ. J. Ex. 24. In March 2009, the EEO Department again reached out to Mr. Davis asking
how he was doing and whether the EEO Department could “assist [Mr. Davis] with anything.”
Id. Nevertheless, Mr. Davis never specified an accommodation. For these reasons, the Court
finds that Mr. Davis did not request an accommodation, and thus cannot establish the elements of
a failure to accommodate claim under the ADA.
Moreover, even if this Court accepts Plaintiff’s asserted requested accommodation, such
an accommodation would fail as a matter of law. Plaintiff argues that he “requested
accommodation . . when he informed his supervisor as soon as reasonably possible that [he] was
unable to report to work due to his illness.” Pl.’s Opp’n at 15. Plaintiff asserts that he would have
been capable of “performing the essential function1 of his position if he had been permitted the
1
The parties disagree over whether regular attendance is an essential function of Mr.
Davis’s housekeeping job. However, as this Circuit and other Circuits have repeatedly noted,
regular physical attendance is an essential function of jobs in which the employee must work as a
part of a team, Samper v. Providence St. Vincent Medical Ctr., 675 F.3d 1233, 1237 (9th Cir.
2012); see also, Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998), and jobs in
which the employee must work with on-site equipment to complete the job. Samper, 675 F.3d at
1237; see also E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc)
(dockworker); Jovanovic v. In–Sink–Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die
maker); Waggoner v. Olin Corp., 169 F.3d 481, 481 (7th Cir. 1999) (production
worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer
support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer
15
reasonable accommodation of being able to call in when he was ill and make up his shift later in
the week.” Pl.’s Opp’n at 14. Although the ADA defines “reasonable accommodation” to include
“part-time or modified work schedules,” Mr. Davis’s requested accommodation is too open-
ended and is thus unreasonable as a matter of law. 42 U.S.C. § 12111(9)(B); see also Langon v.
HHS, 959 F.2d 1053, 1060‒61 (D.C. Cir. 1992); McNair v. District of Columbia, 2014 WL
242913, at *4 (D.D.C. Jan. 23, 2014) (“It is true that an employer must consider telecommuting
as a potential form of reasonable accommodation.”).
As courts in this district have explained, whether a modified work schedule constitutes a
reasonable accommodation will depend on the nature of the position for which the employee is
requesting the accommodation. For instance, in Carr v. Reno, the plaintiff requested, inter alia,
a flexible arrival time to work, because she had an ear disability that caused her periodic
dizziness, nausea, and vomiting, and that made it difficult for her to make it into work at her
scheduled 8:00 a.m. arrival time. 23 F.3d at 527, 529, 531. Her employer denied that request
because of a daily 4:00 p.m. deadline that the employer had to make, that it would not be able to
if Ms. Carr could not arrive to work at 8:00 a.m. each day and work a full eight-hour shift. Id. at
530. The court held that “to require an employer to accept an open-ended ‘work when able’
consultant); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755 (5th Cir.
1996) (mechanic); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping
aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation
Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the
Rehabilitation Act).
Plaintiff’s housekeeping position, whose tasks include mopping rooms and hallways,
washing windows, polishing furniture, and vacuuming, requires Mr. Davis to work with on-site
equipment. Job Classification Description, Def.’s Mot. Summ. J. Ex. 4. It seems obvious, in
fact, that Mr. Davis could not complete the tasks required for his job on those days that he did
not come to work. This case thus differs significantly from cases such as Langon v. HHS, where
the plaintiff’s modified schedule could be accommodated because she could perform her job by
teleworking on days she was unable to come into work. 959 F.2d 1053, 1060‒61 (D.C. Cir.
1992). The Court thus easily finds that regular attendance is an essential function of Plaintiff’s
housekeeping position.
16
schedule for a time-sensitive job would stretch ‘reasonable accommodation’ to absurd
proportions and imperil the effectiveness of the employer’s public enterprise.” Id. at 531. The
daily deadline, in other words, was the critical element of her position that rendered the
employee’s proposed accommodation of a flexible work time unfeasible. See Breen v. Dep’t of
Transp., 282 F.3d 839, 843 (D.C. Cir. 2002).
By contrast, in Langon, the plaintiff, who suffered from multiple sclerosis, requested that
she be allowed to perform her job as a computer programmer from home. See Langon, 959 F.2d
at 1054‒55. The court found that summary judgment for the employer was inappropriate
because there was a genuine dispute of material fact as to whether the plaintiff could have
performed the essential functions of her job—computer programming—at home. See id. at 1061.
Similarly in Breen, the court found summary judgment for the employer inappropriate because
there was no “critical element” to the plaintiff’s position that made her proposed alternative work
schedule, which included an “hour of quiet time after business hours to do solid filing,”
incompatible with the essential functions of her position as a file clerk. 282 F.3d at 840, 843.
Lower courts have interpreted Langon, Carr, and Breen as establishing a dichotomy
wherein a specific and well-defined accommodation is deemed reasonable, and an erratic and
unpredictable accommodation, such as an open-ended “work whenever you want schedule” is
unreasonable as a matter of law. See, e.g., Solomon v. Vilsack, 845 F. Supp. 2d 61, 71 (D.D.C.
2012) (“D.C. Circuit precedent makes clear that an employee’s request to work whenever he or
she wants is unreasonable as a matter of law. On the other hand, specific and well-defined
accommodations are not unreasonable.”) (internal quotation marks and citations omitted));
Scarborough v. Natsios, 190 F. Supp. 2d 5, 26 n.21 (D.D.C. 2002) (explaining that a request “to
work only on the infrequent and unpredictable occasions” that the plaintiff felt able “was nothing
17
like the specific and well-defined accommodations at issue in Langon and Breen, and thus was
not reasonable”). Other courts have also agreed with this legal proposition. See Fisher v.
Vizioncore, Inc., 429 F. App’x 613, 616 (7th Cir. 2011) (noting that “an open-ended schedule
with the privilege to miss workdays frequently and without notice” is not reasonable as a matter
of law); E.E.O.C. v, 253 F.3d at 948 (explaining that “the ADA does not protect persons who
have erratic, unexplained absences, even when those absences are a result of a disability”)
(quoting Waggoner, 169 F.3d at 484).
Mr. Davis’s proposed accommodation closely resembles an open-ended “work whenever
you want” schedule, which is unreasonable as a matter of law. Mr. Davis could not predict when
his disability would require him to stay at home, and he could not predict the number of hours or
days he would be affected by a specific episode. See e.g., Pl.’s Opp’n 6-7 (noting that Mr. Davis
occasionally experienced side effects relating to his medication); Discharge Order from July 11,
2010, Pl.’s Opp’n Ex. G (unplanned four day absence for detoxification); Emergency Room
Discharge from Aug. 11, 2010, Pl.’s Opp’n. Ex. J (unplanned emergency hospitalization for
alcohol and cocaine abuse); BH Patient Discharge Instructions, Pl.’s Opp’n Ex. N (stating that
the doctors are “unable to predict” the frequency of Plaintiff’s flare-ups or the duration of his
incapacity); Letter from Anthony Davis to Ms. Valentine, Pl.’s Opp’n Ex. R (explaining to Ms.
Valentine that he had originally overslept due to his medication and then had to be rushed to the
emergency room for other side effects due to his medication). Moreover, unlike in Langon, Mr.
Davis had a daily deadline (he had to complete his cleaning tasks before the University opened),
and he was required to be on site in order to complete the task. Def.’s Mot. Summ. J. Ex. 4.
Mr. Davis nevertheless argues that his requested accommodation is reasonable because
his absence was not an undue burden for the employer to accommodate. Pl.’s Opp’n at 15.
18
Plaintiff states that he has worked when “other employees have been absent unexpectedly; on
these occasions, there was minimal additional burden on other employees . . . [and] whenever the
house-keeping department has been short-staffed in the past, the work was completed within all
the time constraints.” Id. Plaintiff offers no support for this declaration other than his own
anecdotal experience on the matter, Id.; see also Pl.’s Decl. ¶ 32. Instead, Mr. Davis relies on
Samper v. Providence St. Vincent Medical Ctr., 675 F.3d 1233, 1236 (9th Cir. 2012) to provide
support for his contention that unexpected absences do not have a major effect on GW’s
housekeeping operations. The Plaintiff notes that in Samper, the Court found that the “defendant-
employer had provided sufficient accommodation” by allowing a neonatal intensive care nurse to
make up her unexpected absences later in the week. Pl.’s Opp’n at 15.
While it is true that the defendant-employer in Samper allowed the plaintiff to make up
missed work later in the week, the court never holds that such an accommodation must be
provided under the ADA. Samper, 675 F.3d at 1240. In fact, the Samper court describes the
employer’s efforts to accommodate Ms. Samper as “Herculean,” adding, “the fact that [the
employer] had infinite patience with regard to [the employee’s] poor attendance does not
necessarily mean that every company must put up with employees who don’t come to work.” Id.(citing E.E.O.C., 253 F.3d at 948 ).
Moreover, the court in Samper considers and rejects an argument similar to the one Mr.
Davis makes here — that because the employer is able to accommodate some unplanned
absences, a few additional unplanned absences will hardly be an additional burden on the
employer. Samper, 675 F.3d at 1240. “[T]his approach ignores recognition of employer needs
and would gut reasonable attendance policies.” Id. In establishing their attendance policy,
employers balance “the realities of illness, family matters and other unplanned emergencies
19
faced by its employees” against the needs for the employees’ services. Id. Although it may seem
to Plaintiff that his absences had only a minimal effect on George Washington’s housekeeping
operation, his perceptions are myopic and do not account for, or rebut, George Washington’s
principal claim: that unplanned absences are a hardship to its operations.
Indeed, George Washington University maintains that “regular attendance is an essential
part of the service worker position. When an employee fails to report to work, other employees’
schedules have to be adjusted, essential work is delayed or not performed, and/or overtime may
have to paid.” Def.’s Mot. Summ. J. at 5; Valentine Decl. ¶ 8, Def.’s Mot. Ex. 3; Facilities
Service Working Rules, Def.’s Mot. Ex. 5. According to George Washington University’s
attendance policy, employees are not only expected to be at work “on time and on a regular
basis” but are also required to follow the “established working schedules, which includes starting
time, quitting time, and mealtime.” Facilities Service Working Rules, Def.’s Mot. Ex. 5.. George
Washington takes this attendance policy seriously and terminates employees for fewer AWOL
hours than what Mr. Davis accrued. Valentine Decl. ¶ 16. Even Plaintiff was baffled that he was
able to keep his job given the number of AWOL days he had accrued. Dep. Anthony Davis at
133, May 15, 2013, Def.’s Mot. Summ. J. Ex. 10. This is particularly true in light of the LCA,
which allowed the University to terminate the Plaintiff even after one instance of being absent
without his supervisor’s permission. LCA ¶ 3, Def.’s Mot. Summ. J. Ex. 8.
Because this Court finds that Plaintiff did not properly request an accommodation, and
that Plaintiff’s requested accommodation is nevertheless unreasonable as a matter of law, the
Court grants summary judgment to the Defendant on the failure to accommodate claim.
20
2. Discriminatory Discharge
Plaintiff next argues that Defendant terminated him because of his asserted disability, in
violation of the ADA. Defendant offers a “legitimate, nondiscriminatory reason” for terminating
Mr. Davis —that Mr. Davis was AWOL at least once between February 3, 2010 and February 3,
2011, which gave the University grounds to terminate Mr. Davis under the LCA.
Claims of discrimination under the ADA are analyzed using the familiar burden shifting
framework articulated in McDonnell Douglas Corp v. Green, 441 U.S. 792, 802 (1973). See AKA
v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (applying the McDonnell-
Douglas framework to an ADA discrimination claim); DeLuca v. Winer Indus., Inc., 53 F.3d
793, 797 (7th Cir.1995) (finding that the McDonnell Douglas framework applies to ADA cases).
To establish a prima facie case of discriminatory discharge, plaintiff ordinarily must
show that (1) he belongs to a protected class, (2) he suffered an adverse employment action, and
(3) the unfavorable action gives rise to an inference of discrimination. George v. Leavitt, 407
F.3d 405,412 (D.C. Cir. 2005). A plaintiff may satisfy the third prong of this test by
“demonstrating that [ ]he was treated differently from similarly situated employees who are not
part of the protected class.” Id.The plaintiff may prove his prima facie case through direct evidence, or where, as here,
the plaintiff cannot produce direct evidence of discrimination, through the three-part burden-
shifting framework laid out in McDonnell Douglass Corp., 411 U.S. at 792. Under this
framework, the plaintiff must initially prove his prima facie case by a preponderance of the
evidence. Id. at 802. Once the plaintiff succeeds in making this prima facie showing, the burden
of production shifts to the employer, who must articulate a legitimate, non-discriminatory reason
for its action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). In the final
21
step under McDonnell Douglas, the plaintiff must prove that the employer’s proffered
explanation is a pretext masking prohibited discrimination. Burdine, 450 U.S. at 256.
This Circuit has ruled, however, that “[i]n a . . . suit where an employee has suffered an
adverse employment action and an employer has asserted a legitimate, non-discriminatory reason
for the decision, the district court need not – and should not – decide whether the plaintiff
actually made out a prima facie case.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008). Instead, the district court should determine whether the employee “produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer intentionally discriminated against the
employee” on the basis of a protected trait or activity. Id. Because the University has asserted a
non-discriminatory reason for Plaintiff’s termination —that Plaintiff was AWOL on at least one
occasion between February 3, 2010 and February 3, 2011, and was fired in accordance with the
LCA —this Court will only assess whether Plaintiff’s evidence can demonstrate that the
Defendant’s proffered reason is merely pretext to conceal discrimination.
It is important to note that even if a court believes that the employer made a poor
personnel decision, the court may not second-guess that decision absent demonstrably
discriminatory motive. Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982). “Filing a Title
VII action . . . is meant to shield employees from the discriminatory actions of their employers,
not to excuse an employee’s poor job performance, impudence, or insubordination.” Gregg v.
Hay-Adams Hotel, 942 F.Supp. 1, 9 (D.D.C. 1996).
As the University has asserted a non-discriminatory reason for Plaintiff’s termination, the
burden shifts to the Plaintiff, who must produce sufficient evidence to demonstrate that the
University’s proffered reason is pretext for discrimination. Brady 520 F.3d at 494. Plaintiff
22
responds to the University’s proffered justification by making only one argument: That Plaintiff
complied with all leave policies. Pl.’s Opp’n at 16-17.
The Court does not believe it needs to analyze all of the AWOLs in dispute here. The
Court finds that Plaintiff cannot raise a dispute of material fact to the December 8 and 9, 2010
AWOLs, which is sufficient to defeat Plaintiff’s sole argument of pretext — that Plaintiff, in
every AWOL instance, complied with the University’s leave policies. Thus, the Court analyzes
only the facts in dispute from the December 8th and 9th AWOLs. Wolf v. Buss (America) Inc., 77
F.3d 914, 920 (7th Cir. 1996) (holding that when an employer proffers several non-
discriminatory reasons to justify its termination decision, Plaintiff must raise an issue of fact
regarding each of the reasons proffered); Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.
1995) (holding that when an employer offers multiple independent reasons for the termination,
each of which may stand alone as non-discriminatory justifications, Plaintiff must raise an
inference of pretext as to each proffered justification).
Mr. Davis was marked AWOL on December 8, 2010 and December 9, 2010. AWOL
Letter, Def’s Mot. Summ. J. Ex. 19. Plaintiff asserts that he notified Mr. Eshun that the extreme
cold weather enhances his illness and the side-effects related to his medication. Davis Decl. ¶ 28.
He further states that he had asked Mr. Eshun on multiple occasions to provide him a heavy
winter coat, which is generally issued as part of an employee’s uniform, and without which Mr.
Davis would not be able to work. Id. As Mr. Davis explained in his deposition, “[t]he extreme
cold had done something to me that morning . . . extreme cold . . . messes with the medication.
Had I been able to put my hood on my head, I might have felt better. Had I even had a coat, I
might have been able to feel better.” Dep. Anthony Davis at 50, Def’s Mot. Summ. J. Ex. 10. Mr.
Davis further explains that he “had been waiting a whole year for a coat and some overalls.”
23
Test. Anthony Davis at 152, Def.’s Mot. Summ., J. Ex. 14. He states that he informed both Mr.
Eshun and Ms. Valentine that he would not be at work for two days because he had not received
his winter coat. Davis Decl., ¶ 28. In his declaration, Mr. Davis maintains that he did not come
into work on December 8, 2010 and December 9, 2010 because he did not have a winter coat,
and that his illness prevented him from working without one.
This declaration is inconsistent with Mr. Davis’s testimony at the OAH administrative
hearing, where he testified that he did not come to work on December 8, 2010 because: “I was
tired of [Mr. Eshun] misleading me about this uniform (the winter coat) . . . . [a]nd I wanted him
to know that I was serious about getting a new uniform.” Test. Anthony Davis at152-53, Def.’s
Mot. Summ., J. Ex. 14. Yet Mr. Eshun testified at the same hearing that a new, heavier coat was
given to Mr. Davis. Test. John Eshun, at 177, Def.’s Mot. Summ., J. Ex. 14. Mr. Eshun testified
that “[i]t was a new coat. It was given for [Mr. Davis] to keep.” Id. This coat was in Mr. Davis’s
possession until it was redeemed upon his termination on December 13, 2010. Id. Mr. Davis too
concedes that he had received this heavier winter coat, Test. Anthony Davis, at 154, but was still
unsatisfied because he wanted a coat with his name on it. Test. Anthony Davis, at 138. And Mr.
Davis feared that once he was given a non-uniform coat, Mr. Eshun would never order a
customized coat. Id. at 154. As Mr. Davis stated, Mr. Eshun is “the type that once he gets you
something like that . . . he has no obligation to get me my coat.” Id.Mr. Davis also concedes that he never obtained authorization from either Mr. Eshun or
Ms. Valentine to miss work on December 8th and 9th. When asked whether Ms. Valentine ever
responded to Mr. Davis’s request for two days leave, Mr. Davis responded “[n]o she didn’t,
although I left her my phone number on the message.” Dep. Anthony Davis at 56, Def.’s Reply.
Ex.2. Mr. Davis similarly concedes that he never received permission from Mr. Eshun for the
24
absence. Id. According to Mr. Davis, on December 7, 2010 he said to Mr. Eshun, “I am going to
Ms. Valentine to let her know that you have still not ordered my uniform and I am not feeling
well and that -- that I will be taking the next couple of days off.” Id. When asked what Mr. Eshun
said in response, Mr. Davis stated: “[w]ell, it was 7:00. I didn’t wait for his response. I just
walked out the door after that.” Id.Plaintiff argues that he was improperly documented as AWOL on these dates because (1)
he properly requested and was granted leave by the Defendant; and (2) even if he was not
authorized for leave prior to his absence, he was absent due to his ADA-qualifying disability,
which ought to have been accommodated.
Whether Plaintiff’s absences violated the LCA will turn on whether Plaintiff properly
followed the University’s call-in procedures, or whether Plaintiff was improperly denied an
accommodation that would help him do his job. Allen v. Pac. Bell, 348 F.3d 1113, 1114 (9th Cir.
2003) (noting that the fourth prong under a failure to accommodate analysis is that the employer
denied the requested reasonable accommodation); see also 42 U.S.C. § 12112(a), (b)(5)(A)
(same). After all, although the LCA allows the Defendant to terminate Mr. Davis if he is absent
even once without authorization, it does not allow the Defendant to refuse Mr. Davis a properly
requested reasonable accommodation. Id.The Court first notes that although it is required to consider the facts in the light most
favorable to the non-movant when determining a motion for summary judgment, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), a plaintiff opposing summary judgment “cannot
create a question of fact by submitting an affidavit that contradicts [his] prior sworn testimony,”
unless he “can offer persuasive reasons for believing the supposed correction is more accurate
than the prior testimony.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007)
25
(citations omitted); see also Gurrara v. District of Columbia, 881 F. Supp. 2d. 143, 150 n.5
(D.D.C. 2012).
Such is the case here. At the administrative hearing, Mr. Davis testified that he did not
come into work on December 8, 2010 because he was tired of Mr. Eshun misleading him about
his winter coat, and wanted to make a point that he was serious about receiving a winter coat.
Test. Anthony Davis at152-53, Def.’s Mot. Summ., J. Ex. 14. During this hearing Mr. Davis did
not discuss his illness, or that the side effects of his medication were amplified due to the
extreme cold. In his declaration, however, Mr. Davis asserts that he was absent on those days not
because he wanted to make a point to Mr. Eshun, but rather because his illness prevented him
from working in the extreme cold without a heavy winter coat. Davis Decl. ¶ 28. The Court finds
Mr. Davis’s sworn testimony to be at odds with his declaration. Mr. Davis thus cannot establish a
dispute of material fact that the Defendant improperly documented him as AWOL on December
8th and 9th.
Even if the Court ignores Plaintiff’s inconsistencies, and takes as true that Plaintiff’s
ADA qualifying disability prevented him from working in the extreme cold without a heavy
winter coat, Plaintiff still cannot establish that he was improperly documented as AWOL on
December 8th and 9th. First, Plaintiff has conceded that he never received authorization for his
absences from either Ms. Valentine or Mr. Eshun. Dep. Anthony Davis, at 56 (stating that he
never heard from Ms. Valentine, although he left her a message requesting time off, and that he
did not wait to hear Mr. Eshun’s response after informing him of his impending absences). As a
result, Plaintiff cannot establish that he properly requested and was granted leave by the
Defendant on those dates.
26
Plaintiff could alternately establish that he was a “qualified individual” with a disability
(i.e. could perform the essential functions of his job with a reasonable accommodation), that he
requested that reasonable accommodation (here a heavy winter coat), but was denied the
accommodation. See 42 U.S.C. §§ 12112(b)(5)(A), 1211(8). This would establish that the
University was in direct violation of the ADA by denying Plaintiff a winter coat, and that
Plaintiff was thus improperly documented as AWOL on December 8th and 9th. See 42 U.S.C. §§
12112(b)(5)(A), 1211(8); see also Aka v. Washington Hosp. Center, 156 F.3d at 1300.
Unfortunately for Plaintiff, this argument cannot get off the ground. Even if Mr. Davis
properly requested the heavy winter coat as an accommodation, and the Court found that
accommodation to be reasonable, the University granted Mr. Davis’s accommodation. Allen v.
Pac. Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (noting that the fourth prong under a failure to
accommodate analysis is that the employer denied the requested reasonable accommodation); see
also 42 U.S.C. § 12112(a), (b)(5)(A) (same). Mr. Davis argues that a hood or a heavy winter
coat would have mitigated the effects of the extreme weather on his disability, and thus would
have enabled him to complete his job.2 Dep. Anthony Davis at 50, Def’s Mot. Summ. J. Ex. 10.
However, Mr. Davis does not directly dispute that Mr. Eshun did in fact provide him with a
winter coat. Test. Anthony Davis at 154. Accordingly, regardless of whether a winter coat is a
reasonable accommodation, it was all that Mr. Davis requested or needed in order to complete
his job, and it was a request Mr. Eshun granted. Because he did in fact receive a heavy winter
coat (albeit one without his name), Mr. Davis cannot establish that he was absent due to his
2
Although Mr. Davis does not say so explicitly, it seems that Mr. Davis believes that a
winter coat would have been sufficient to complete his job. Insofar as Mr. Davis is asking for
leave any time the weather affects his medication, and given that the District of Columbia
frequently experiences cold weather for winter months, the Court finds the request to fall within
the Plaintiff’s general request for a “work whenever you please” schedule, and would find the
accommodation unreasonable as a matter of law. See Supra Part IV.A.1.
27
disability, and thus cannot establish that he was improperly documented as AWOL on December
8th and 9th.
3. Hostile Work Environment
Plaintiff next argues that the University subjected Mr. Davis to a hostile work
environment “permeated with discriminatory intimidation and insult,” in violation of the ADA.
Although judges in this district have long assumed, without holding, that the ADA provides a
cause of action for hostile work environment claims, this Circuit has never explicitly recognized
such a cause of action. See Kuraner v. Mineta, 2001 WL 936369 (D.C. Cir. July 10,
2001) (assuming without deciding the existence of the cause of action and affirming judgment
for the defendant in Kuraner v. Slater, Civ. A. 98–0576 (D.D.C. Sept. 13, 2000)); see also
Pantazes v. Jackson, 366 F.Supp.2d 57, 71 (D.D.C. 2005) (denying summary judgment on
an ADA hostile work environment claim because a jury could reasonably find the acts alleged to
be “sufficiently severe, pervasive and abusive to alter the conditions of [plaintiff's] employment,
thereby creating an abusive working environment”); Henry v. Guest Services, Inc., 902 F. Supp.
245, 252 n. 9 (D.D.C. 1995) (“This Court accepts that the Title VII standard—harassment so
severe or pervasive as to alter the conditions of employment and create an abusive working
environment—is applicable to harassment allegations made under the ADA.”).
Moreover, several other circuits have permitted hostile work environment claims under
the ADA, by finding significant similarities between the purpose and language of Title VII and
the ADA. Fox v. Gen'l Motors Corp., 247 F.3d 169, 176 (4th Cir.2001) (finding the parallel
language of Title VII and the ADA to warrant the same interpretation, and concluding that jury
verdict on ADA hostile environment claim was supported by the evidence); Silk v. City of
Chicago, 194 F.3d 788, 804 (7th Cir.1999); Walton v. Mental Health Ass'n of Southeastern
28
Pa., 168 F.3d 661, 667 n. 2 (3d Cir.1999) (collecting cases that presume the existence of such a
cause of action and stating that the court found no cases holding that the claim did not
exist); Wallin v. Minn. Dep't of Corr., 153 F.3d 681, 688 (8th Cir.1998) (assuming without
deciding that cause of action exists); Keever v. City of Middletown, 145 F.3d 809, 813 (6th
Cir.1998) (discussing merits of evidence in support of claim); McConathy v. Dr. Pepper/Seven
Up Corp., 131 F.3d 558, 563 (5th Cir.1998) (assuming without deciding that cause of action
exists).
The parties here do discuss whether the ADA provides a cause of action for a hostile
work environment claim. This Court thus also assumes, without holding, that such a cause of
action exists, and utilizes the Title VII standards to analyze the claim.
As a threshold matter, Defendant argues that the Plaintiff’s hostile work environment
claim should fail because Mr. Davis has not properly exhausted the administrative remedies for a
hostile work environment claim. The Plaintiff agrees that he did not use the term “hostile work
environment” in his formal EEO complaint, but argues that regardless, he adequately exhausted
his administrative remedies.
In some ways, “the exhaustion of administrative remedies requirement is less stringent
for hostile work environment claims than for discrete claims of discrimination or
retaliation.” Adams v. D.C., 740 F. Supp. 2d 173, 188 n.11 (D.D.C. 2010); see also Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002) (concluding that a hostile work
environment claim “will not be time barred so long as all acts which constitute the claim are part
of the same unlawful employment practice and at least one act falls within the time period”);
Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 n. 10 (D.D.C. 2005) (recognizing that “[u]nlike
discrete claims of discrimination and retaliation, the exhaustion requirement on a hostile work
29
environment claim is less stringent ... [and the p]laintiff need only have filed an EEOC complaint
alleging some of the claims that comprise the hostile work environment claim”). Additionally, “a
plaintiff may adequately exhaust administrative remedies without specifically alleging a hostile
work environment claim in his administrative complaint.” Adams, F. Supp. 2d. at 188; Roberson
v. Snow, 404 F. Supp. 2d 79, 96 (D.D.C. 2005) (citing Jones v. Billington, 12 F. Supp. 2d 1, 7
(D.D.C. 1997)).
In order to determine whether a hostile work environment claim is properly exhausted,
the Court must determine whether the Plaintiff’s hostile work environment claims are “like or
reasonably related to the allegations of the charge and grow[s] out of such allegations.” Whorton
v. WMATA, 924 F. Supp. 2d 334, 348 (D.D.C. 2013); see also Roberson v. Snow, 404 F. Supp.
2d 79, 96 (D.D.C. 2005); Jones v. Billington, 12 F. Supp. 2d 1, 7 (D.D.C. 1997); accord Park v.
Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). “In determining what claims have been
exhausted . . . courts in this district have looked at informal intake questionnaires, and parties’
letters to the EEOC discussing the substance of the claims.” Wade v. Dist. of Colum., 780 F.
Supp. 2d 1, 14 (D.D.C. 2011) (internal citations omitted).
Courts in this district have consistently found that the plaintiff adequately exhausted their
hostile work environment claim when the asserted claim “is not based on conduct that is
different from that alleged in the EEOC charge.” Billington, 12 F. Supp. 2d at 7; see also Wade,
780 F. Supp. 2d at 12 (“a hostile work environment claim that is based on the same conduct
alleged in the EEOC charge has been exhausted.”); Langley v. Napolitano, 677 F. Supp. 2d 261,
268 (D.D.C. 2010) (finding exhaustion when “Plaintiff complained in her EEO complaint of the
very same conduct that she now asserts forms the basis of her hostile work environment claim in
this lawsuit”); Na’im v. Rice, 577 F. Supp. 2d 361, 372 (D.D.C. 2008) (finding adequate
30
exhaustion for plaintiff’s hostile work environment claim “[b]ecause the plaintiff need not
specifically allege a hostile work environment claim, and because she supports her hostile
environment claim with factual allegations also contained in her . . . formal EEOC complaint”).
Defendant argues that Plaintiff only challenged his termination and alleged denial of reasonable
accommodation in his EEOC complaint, without additionally alleging facts to show that the
workplace was “permeated” with disability-based discrimination. Def.’s Mot. Summ. J. at 24.
In Plaintiff’s EEOC intake questionnaire, Plaintiff alleged the following facts in addition
to his claim of discriminatory termination and failure to accommodate: (1) that his supervisor
refused to take Mr. Davis’s doctor’s documents, (2) that Mr. Davis was denied a cold weather
coat by his supervisor, although other employees had been issued those coats, (3) that Mr.
Davis’s supervisor marked Plaintiff as AWOL on eight occasions, even though he had followed
the University’s leave policy, and (4) that Mr. Davis was denied non-monetary benefits given to
other employees, such as vacation days, incentives, and movie tickets. EEOC Intake
Questionnaire, Pl’s Opp’n Ex. U, Aug. 15, 2013, ECF No. 18. These are the same facts that
Plaintiff now relies on to establish his hostile work environment claim. See Pl.’s Opp’n at 18-19;
Whorton, 924 F. Supp. 2d at 348 (explaining that hostile work environment “claims must arise
from ‘the administrative investigation that can [be] reasonably expected to follow the charge of
discrimination”). As Plaintiff’s hostile work environment claim relies on the same conduct
alleged in his EEOC intake questionnaire and formal complaint, allegations concerning such
conduct “could reasonably be expected upon investigation to lead to a hostile work environment
claim.” Park v. Howard University, 71 F.3d 904, 908 (D.C. Cir. 1995). Thus, the Court finds
that Plaintiff properly exhausted a hostile work environment claim.
31
This brings the Court to the merits of the hostile work environment claim. However, the
Court finds the merits of the hostile work environment claim to have been insufficiently briefed.
Accordingly, the Court will deny summary judgment without prejudice on Defendant’s motion
for summary judgment as to the hostile work environment claim, and request supplemental
briefing on the merits of this claim.
B. Federal Family and Medical Leave Act
The Federal Family and Medical Leave Act (FMLA) requires a covered employer to give
an “eligible employee” twelve weeks of leave during any twelve-month period “[b]ecause of a
serious health condition that makes the employee unable to perform” his job. 29 U.S.C. §
2612(a)(1)(D). A serious health condition is “an illness, injury, impairment, or physical or
mental condition that involves” either “inpatient care in a hospital, hospice, or residential
medical care facility” or “continuing treatment by a health care provider.” Id § 2611(11).
The parties assume for the sake of argument that Plaintiff has a “serious” health condition
that renders Plaintiff unable to work on the nights he was classified as AWOL. Instead
Defendant argues that summary judgment should be granted on Mr. Davis’s FMLA claims for
three reasons: (1) Mr. Davis was not an “eligible employee” under the FMLA because he did not
work 1,250 hours in the 12-month period preceding his termination; (2) Mr. Davis did not
adequately notify Defendants of his need for FMLA leave on the nights that he was AWOL; and
(3) Mr. Davis has failed to adduce sufficient evidence of FMLA retaliation to defeat summary
judgment. The Court will consider each argument in turn.
1. Plaintiff is not an “eligible employee” under the FMLA because he has not worked 1,250
hours preceding the commencement of his leave
32
Defendant first claims that Mr. Davis is not an “eligible employee” under the FMLA
because Mr. Davis did not work for 1,250 hours in the previous 12-month period, and thus is not
eligible for FMLA leave. Plaintiff responds arguing that (1) Defendant incorrectly calculated the
1,250 hours from the date of Plaintiff’s termination, rather than from the commencement of
leave; (2) Plaintiff’s hours should be calculated as intermittent leave, beginning from his first
request for FMLA leave on June 22, 2009; and (3) Defendant incorrectly excluded from their
calculation the time Plaintiff would have worked while “unlawfully terminated” from August 24,
2009 to February 4, 2010. Pl.’s Opp’n 19–22.
The FMLA states that “[a]n eligible employee is an employee of a covered employer who
. . . has been employed for at least 1,250 hours of service during the 12-month period
immediately preceding the commencement of the leave.” 29 C.F.R. § 825.110(a)(2) (emphasis
added); see also Butler v. Owens-Brockway Plastic Prods., Inc., 199 F.3d 314, 315 (6th Cir.
1999) (holding that the 1,250 hours of service must be computed from the date of
commencement of leave rather than the date of the adverse action that violated the Act).
“The determination of whether an employee meets the hours of service requirement and
has been employed by the employer for a total of at least 12 months must be made as of the date
the FMLA leave is to start.” 29 C.F.R. § 825.110(d). Thus, as Plaintiff correctly notes, the
applicable date from which this Court must calculate the hours of service requirement would be
from the date that Plaintiff first commenced leave, not the date from which Plaintiff was
terminated from employment.
Plaintiff argues that his FMLA leave commenced on June 22, 2009 — the day that
Plaintiff first requested intermittent leave from the Defendant for a qualifying condition. It is true
that the FMLA does allow for “intermittent leave,” which is defined as “leave taken in separate
33
blocks of time due to a single qualifying reason.” §§ 825.203,825.800 (emphasis added).
Department of Labor Wage and Hour Division, Opinion Letter Family & Med. Leave Act
(FMLA), FMLA-112, 2000 WL 33157366 (Sept. 11, 2000). However, once the Plaintiff has
qualified and been granted “intermittent leave,” such leave “cannot be taken ‘forever' on the
basis of one leave request. Instead, the statute grants an employee twelve weeks of leave per
twelve-month period, not indefinitely.” Opinion Letter Family & Med. Leave Act (FMLA),
FMLA-112 (citing to Barron v. Runyon, 11 F. Supp. 2d, 676, 683 (E.D. Va. 1998)). As the
FMLA board notes:
[T]he 1,250-hour eligibility test is applied only once, on the commencement of a
series of intermittent absences, if all involve the same FMLA-qualifying serious
health condition during the same 12-month FMLA leave year. The employee in
such a case remains entitled to FMLA leave for that FMLA reason throughout
that 12-month period, even if the 1,250-hour calculation is not met at some later
point in the 12-month period during the series of related intermittent absences.
Opinion Letter Family & Med. Leave Act (FMLA), FMLA-112 (emphasis added).
Under these principles, Plaintiff’s first request for intermittent leave in June 22, 2009
would qualify Plaintiff as an eligible employee only until June 22, 2010, and only for the
disability he specified in 2009 — substance abuse. Def’s Mot. Summ. J. Ex. 25. However,
Plaintiff’s 2010 AWOLs, which Plaintiff argues should have been considered requests for FMLA
leave, all occurred after June 22, 2010. See Def’s Mot. Summ. J. Exs. 13, 15–20. The earliest
AWOL was recorded on July 7–8, 2010. Def’s Mot. Summ. J. Ex. 13. In addition, these sick
days were, by Plaintiff’s own account, unrelated to his substance abuse, and were instead related
to his psychological condition, and the side effects from the medication he took for that illness.3
3
“In early July 2010, Mr. Davis again began experiencing severe side-effects and other
difficulties relating to his depression medication.” Pl.’s Opp’n to Defs.’ Mot. Summ. J.,7, Aug,
15, 2013, ECF No. 18; Pl’s Decl. ¶ 20 Ex. 2, Pl’s Opp’n. “On July 6, 2010…[Mr. Davis] had a
seven-minute conversation with . . . Mr. Eshun and informed Mr. Eshun that he could not work
on July 7, 2010 due to his illness and complications related to his [depression] medication.” Pl.’s
34
As a result, June 22, 2009 is a wholly inappropriate date from which this Court should begin
calculating Plaintiff’s hours of service worked.
The Court is now left with the task of determining the date from which Plaintiff’s hours
of services should be calculated. As neither party has identified an alternate date, the Court
identifies and analyzes three alternatives: (1) July 7, 2010 —the date Mr. Davis was first
recorded as AWOL; (2) July 11, 2010—the first time since the lapse of the June 22, 2009
intermittent leave that Mr. Davis was again hospitalized for substance abuse and for bipolar
disorder; or (3) August 2, 2010 —the date on which Mr. Davis again officially requested FMLA
leave after the lapse of his June 22, 2009 intermittent leave. As analyzed below however,
regardless of the date on which Plaintiff’s intermittent leave commenced, Plaintiff did not work
the minimum 1,250 hours to qualify as an employee eligible for FMLA leave.
Before the Court can accurately calculate the hours, however, it must first determine
whether the calculations must include the hours Plaintiff would have worked if not for his
“unlawful termination” between August 24, 2009 and February 4, 2010. Pl.’s Opp’n at 19–22.
Plaintiff argues that the “Defendants discriminated against Mr. Davis when they terminated him
in August 2009 almost immediately after he took FMLA leave in late July 2009 due to his
Opp’n 7; Pl’s Decl. ¶ 18. “On July 22, 2010 . . . Mr. Davis became dizzy, fainted, and was
hospitalized . . . in connection with his condition.” Pl’s Opp’n 7; Pl’s Decl. ¶¶ 22-23. “Mr. Davis
requested sick leave from Mr. Eshun on November 2, 2010 . . . due to his illness and symptoms.”
Pl.’s Opp’n 8; Pl.’s Decl. ¶ 25. “On November 10, 2010 . . . Mr. Davis told Mr. Eshun that he
was unable to work due to his condition and symptoms.” Pl.’s Opp’n 8; Pl’s Decl. ¶ 25. Mr.
Davis was hospitalized on November 10, 2010, due to a side-effect from his depression
medication. Pl.’s Opp’n Ex. T. “On November 14, Mr. Davis informed Mr. Eshun in person that
he had a doctor’s appointment scheduled for November 14, 2010 and gave him an appointment
card.” Pl.’s Opp’n 8; Pl’s Decl. ¶ 26. “On December 1, 2010, Mr. Davis missed work due to side
effects from his medication.” Pl.’s Opp’n8; Pl.’s Decl. ¶ 27. “On December 6, 2010, Mr. Davis
informed Mr. Eshun that cold weather enhanced his illness and the side effects of his medication.
Mr. Davis told Mr. Eshun that, as a result of the cold weather and the fact that he had not
received a winter coat, Mr. Davis would not be able to come into work for a couple of days.”
Pl.’s Opp’n 8–9; Pl.’s Decl. ¶ 28.
35
disability.” Pl.’s Opp’n at 22. Thus, Plaintiff argues that the hours that he would have worked if
not for this “unlawful termination” should be included when determining the “hours of service”
requirement.
While the FMLA itself does not define “hours of service,” it does specify that “[f]or
purposes of determining whether an employee meets the hours of service requirement specified
in subparagraph (A)(ii), the legal standards established under section 207 of [the Fair Labor
Standards Act] shall apply. 29 U.S.C. § 2611(C). Section 207 of the Fair Labor Standards Act
(FLSA) excludes from the calculation those hours when no work is performed due to “vacation,
holiday, illness, failure of the employer to provide sufficient work, or other similar cause.” Fair
Labor Standards Act, 29 U.S.C. § 207(e)(2). Thus, whether the Court should exclude the time
Mr. Davis would have worked during an “unlawful termination” will turn on whether “unlawful
termination” is “another similar cause” under section 207.
In support of his argument, Plaintiff cites to Ricco v. Potter, which held that “hours an
employee wanted to work but was unlawfully prevented by the employer from working” cannot
properly be excluded when calculating the service hours worked by an employee, because they
are not an “other similar cause” within the meaning of section 207. 377 F.3d 599, 605 (6th Cir.
2004); cf. Plumley v. S. Container, Inc., 303 F.3d 364, 371–72 (1st Cir. 2002) (finding that an
employee must have “actually worked” a minimum of 1250 hours during the 12 months
preceding reliance on FMLA). However, Ricco can be distinguished from the instant case. “In
Ricco v. Potter, an employee of the United States Postal Service who was discharged initiated an
arbitration to dispute her discharge. The arbitrator ordered that the employee's discharge be
converted to a thirty-day work suspension and that she be reinstated and made whole.” Savage v.
Chicago Transit Auth., 06 C 1407, 2007 WL 809600 (N.D. Ill. Mar. 7, 2007) (citations omitted)
36
(crediting hours that Plaintiff would have worked after arbitrator found there was no cause for
discharge of Plaintiff and that he should be reinstated and awarded full back pay); Magruda v.
Belle Vernon Area Sch. Dist., 2009 WL 440386 (W.D. Pa. Feb. 23, 2009) (Same).
Unlike in Ricco, there has been no judicial or arbitration proceeding in which
Defendant’s termination of Mr. Davis in August 2009 was found unlawful. Instead, Mr. Davis, in
collaboration with the Union, entered into a “Last Chance Agreement.” This agreement
reinstated Mr. Davis and treated the time between the August discharge and February 3, 2010 as
an unpaid suspension. Williams-Valentine Decl. ¶11, Def’s Mot. Summ. J., Ex. 3; LCA, ¶ 1,
Def’s Mot. Summ J. Ex.8. This agreement does not make any findings as to whether Plaintiff’s
termination was in fact unlawful, and the agreement is not itself the type of make-whole
agreement ordered in Ricco. Id. To the contrary, Plaintiff’s suspension was unpaid and he
received no recompense for the time he did not work.
Moreover, Plaintiff also executed a Release as a part of the “Last Chance Agreement,” in
which he waived all claims against the Defendant and its agents relating to the circumstances of
the 2009 discharge and pre-dating the Release’s execution. Release, Def’s Mot. Summ. J. Ex. 9.
The Court, thus, cannot conclude that Plaintiff’s August 2009 termination was unlawful. And
Plaintiff’s “inability to establish the wrongfulness” of his August 2009 termination is “fatal to his
FMLA claim.” Lorenzo v. Donahoe, 3:11-CV-358-PK, 2012 WL 7071667 (D. Or. Dec. 31,
2012) report and recommendation adopted, 03:11-CV-00358-PK, 2013 WL 531124 (D. Or. Feb.
12, 2013). Aside from Plaintiff’s own perceptions regarding the lawfulness of his termination,
“no grounds exist for crediting [Plaintiff] for the work-hours he missed during the pendency of
his [suspension].” Id; see generally Lorenzo, 2012 WL 7071667 (holding that a last-chance
agreement, which waived all grievances or appeals regarding those absences, precluded Plaintiff
37
from now establishing that his leave was wrongful as a matter of law). Accordingly, the Court
excludes from the calculation all hours during Plaintiff’s suspension from August 24, 2009 to
February 3, 2010.
The Court can now accurately calculate the service hours Plaintiff worked from the
commencement of his leave. The Defendant calculates the total hours worked by an employee by
adding together Regular Pay Hours, Missed Hours of Regular Pay, and Overtime Hours
Worked.4 Decl. Michael Scruggs ¶ 4, Def.’s Mot. Summ. J. Ex. 11. The Court first addresses the
July 7, 2010 and July 11, 2010 potential commencement dates. According to the Court’s
calculations, the Plaintiff worked approximately 848.5 hours between July 1, 2009 and July 10,
2010.5 And logically, if Plaintiff did not work 1,250 hours by July 10, 2010, then he must not
4
Plaintiff briefly argues that Defendant does not submit any admissible evidence to
support its claim that Mr. Davis did not meet the 1,250 hour requirement. Pl’s Opp’n at19 n. 2.
And of course, only evidence that is admissible at trial should be considered at the summary
judgment stage. Manuel v. Potter, 685 F. Supp. 2d 46, 58 (D.D.C. 2010). However, Plaintiff only
objects to Mr. Scruggs’s affidavit, arguing that the affidavit is hearsay. Plaintiff has no objection
to copies of the business records submitted by Mr. Scruggs, except that such business records are
not relevant to determining the service hour requirement. Because the Court need only reference
the properly admissible business records, and not Mr. Scruggs’s summary of those records, in
determining the number of hours Plaintiff worked for the applicable twelve-month period,
Plaintiff’s objection does not help him.
5
Plaintiff’s hours are calculated as follows. July 2009: 6.5 total hours; August 2009:
223.5 total hours; Mar 2010 – June 2010: 563.75 hours. Decl. Michael Scruggs, Def.’s Mot.
Summ. J. Ex. 11; Decl. Michael Scruggs, Def’s Reply in Support of Mot. Summ. J. Ex. 3, Aug.
29, 2013, ECF No. 19. July 2010 hours: At the end of July 2010, Plaintiff had a total of 118.75
hours. However, according to Plaintiff’s pay stub, as of July 10, 2010, Plaintiff had only worked
54.75 hours, with no missed hours or overtime in the month of July. Decl. Michael Scruggs,
Def’s Mot. Summ. J. Ex. 11. The Court thus adds these total hours: 6.5+223.5+563.75+54.75 to
get a total of 848.5 hours worked as of July 10, 2010.
The Court notes that these calculations do not account for any days in February, and in
fact, Mr. Davis’s July 10, 2010 paystub indicates that he had worked 682.5 hours up until that
point in 2010. The Court cannot be sure whether this discrepancy can be attributed to the hours
Plaintiff worked in February, as neither party directly points to evidence indicating whether
Plaintiff worked any days in February 2010, or if he did so, the number of hours worked. The
only evidence to indicate that Plaintiff did work in February after being reinstated is found in
Plaintiff’s time sheet, documenting the actual hours that Plaintiff worked during his time at
38
have worked 1,250 hours by July 7, 2010 (as the date is inclusive) or July 11, 2010 (as the date
merely adds one day to the calculation, and a day that Mr. Davis was hospitalized and thus did
not work). Plaintiff thus cannot meet the threshold service hour requirement in the twelve-month
period preceding Plaintiff’s commencement of leave, if the Court considers the commencement
of leave to have begun either July 7 or July 11, 2010.
Even if the Court assumes that Plaintiff’s intermittent leave began August 2, 2010 —the date
on which Plaintiff officially requested FMLA leave —Plaintiff still cannot meet the 1,250 hour
requirement. Between August 1, 2009 and August 1, 2010, Plaintiff worked approximately 906
hours, again significantly shy of the 1,250 service hour requirement.6 Accordingly, the Court
finds that Mr. Davis was not an employee eligible for FMLA leave, 7 and thus Mr. Davis’s claim
that the Defendant unlawfully denied him FMLA leave must fail.8
George Washington. Time Sheet, Pl’s Opp’n to Def’s Mot. Summ. J. Ex. S at 12, Aug. 15, 2013,
ECF No. 18. This time sheet indicates that Plaintiff worked for 7.5 hours on 6 days at the end of
February. Id. There is no indication of any missed days, or of any overtime to add to this
calculation (especially considering that Plaintiff did not even work a full eight hours on the days
he did work in February). Thus, even if the Court were to credit Plaintiff the additional 45 hours
from these six days of work, Plaintiff’s total hours would only reach 923.5 hours, still
significantly shy of the 1,250 hours required to qualify as an employee eligible for FMLA leave.
6
Plaintiff’s hours are calculated as follows. August 2009: 223.5 total hours; Mar 2010 –
June 2010: 563.75 hours. Decl. Michael Scruggs, Def.’s Mot. Summ. J. Ex. 11; Decl. Michael
Scruggs, Def’s Reply in Support of Mot. Summ. J. Ex. 3, Aug. 29, 2013, ECF No. 19. July 2010
hours: 118.75 hours. Decl. Michael Scruggs, Def’s Mot. Summ. J. Ex. 11. The Court thus adds
these total hours: 223.5+563.75+118.75 to get a total of 906 hours worked between August 1,
2009 and August 1, 2010. And even if the Court were to add the 75 total hours potentially
worked in February, Plaintiff would still have only worked 981 hours, well shy of the 1,250 hour
requirement.
7
Plaintiff notes in his statement of facts section that Defendants documented and
conveyed to Mr. Davis that he was eligible for FMLA leave in three instances: August 23, 2010,
August 2, 2010, and September 7, 2010. Pl.’s Opp’n. 8; Pl.’s Opp’n, Ex. O–P; Def’s Mot. Summ
J. Ex. 28. Plaintiff does not explicitly argue that this designation forecloses Defendant’s
arguments regarding Plaintiff’s eligibility for FMLA leave. Nevertheless, the Court finds that
these designations will not foreclose the Defendant’s arguments.
39
2. Retaliation
Plaintiff argues that he was retaliated against for exercising and attempting to exercise his
FMLA rights. Defendant moves for summary judgment on Plaintiff’s retaliation claim arguing:
(1) Plaintiff is unable to establish a causal link between the exercise of his rights and the adverse
employment action; and (2) Plaintiff is unable to show that Defendant’s proffered non-retaliatory
justification for the adverse employment action is mere pretext.
The FMLA’s prohibition against interference also “prohibits an employer from . . .
retaliating against an employee . . . for having exercised or attempted to exercise FMLA rights.”
Hopkins v. Grant Thornton Int’l, 851 F. Supp. 2d, 146, 152 (D.D.C. 2012) (citing to 29 C.F.R. §
825.220(c)). “The FMLA's retaliation provision is analogous to the sort of ‘retaliation’ claim that
is familiar under Title VII, in which an employee alleges that the employer discriminated against
the employee for opposing what the employee reasonably believed to be violations
of Title VII by the employer.” Deloatch v. Harris, 797 F. Supp. 2d 48, 67 n. 14 (D.D.C. 2011)
(citing to Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(“Title VII's antiretaliation provision forbids employer actions that ‘discriminate against’ an
employee (or job applicant) because he has ‘opposed’ a practice that Title VII forbids”)); see
also 60 Fed. Reg. 2180, 2218 (Jan. 6, 1995) (“[The FMLA] makes it unlawful for an employer to
discharge or in any other manner discriminate against any individual for opposing any practice
Moreover, Plaintiff’s August 23, 2010 designation only found Plaintiff eligible for
DCFMLA leave – which only has a 1,000 service hour requirement, as opposed to the 1,250
hour requirement for the Federal FMLA. Nor is it clear whether the FMLA leave granted on
August 2, 2010 or August 23, 2010 was pursuant to the Federal FMLA or DCFMLA. Because
Plaintiff does not fully brief this issue, and because the Court has already found that Plaintiff has
not qualified as an eligible employee for Federal FMLA leave as of August 2, 2010, the Court
does not find that Defendant’s designations of Plaintiff as FMLA eligible forecloses its current
argument that Plaintiff failed to meet the statutory requirement.
8
Because the Court finds that Plaintiff was not eligible for FMLA leave, it need not
address Defendant’s second argument — that Plaintiff did not properly request FMLA leave.
40
made unlawful by the Act. This opposition clause is derived from Title VII of the Civil Rights
Act of 1964 and is intended, according to the legislative history, to be construed in the same
manner.”).
Thus, “[i]n analyzing an FMLA retaliation claim, courts employ the familiar McDonnell-
Douglas v. Green, 411 U.S. 792, 93 (1973), burden-shifting framework used in Title VII and
ADA cases.” See, e.g., Winder v. Erste, 511 F.Supp.2d 160, 184 (D.D.C. 2007); Gaghan, 2005
WL 3211591, at *5 (citing Gleklen v. Democratic Cong. Campaign Comm., 199 F.3d 1365, 1367
(D.C.Cir. 2000)). Under the McDonnell Douglas framework, an employee may establish a prima
facie case creating a presumption of retaliation by showing “(1) that he exercised rights afforded
by the [FMLA], (2) that he suffered an adverse employment action, and (3) that there was a
causal connection between the exercise of his rights and the adverse employment action.”
Gaghan, 2005 WL 3211591, at *5.
The parties do not dispute that Plaintiff engaged in a statutorily protected activity (taking
FMLA leave) and that he suffered an adverse employment action (his termination). Thus, the
Court moves directly to prong three —whether Plaintiff is able to establish a causal connection
between his FMLA leave and his termination.
A causal connection can be established by showing that “the employer had knowledge of
the employee’s protected activity, and . . . the adverse personnel action took place shortly after
that activity.” Pardo-Kronemann v. Jackson, 541 F. Supp. 2d 210, 218 (D.D.C. 2008) (quoting
Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006)). Although courts have found that a three
to four month gap between the protected activity and the adverse employment action is too great
to establish an inference of causation, when premised on temporal proximity alone, see Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam) (citing with approval
41
circuit cases rejecting temporal proximity of three and four months as evidence of causation);
Gustave–Schmidt v. Chao, 360 F.Supp.2d 105, 118–19 (D.D.C.2004) (three months is the “outer
limit” of temporal requirement under Title VII), the Circuit has not recognized any “bright-line
three-month rule.” Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012); see also Jones v.
Bernanke, 557 F.3d 670, 680 (D.C. Cir. 2009) (holding that even an eleven month gap does not
completely foreclose an inference of retaliatory motive). And moreover, Plaintiff here does not
rely solely on temporal proximity to evidence retaliation. Plaintiff also claims that Defendant
engaged in a pattern of retaliation — every time Plaintiff requested FMLA leave, he was
terminated shortly thereafter. Pl.’s Opp’n at 26. For these reasons, the Court finds that Plaintiff
has met the causation element of a prima facie retaliation claim.
But regardless of whether Plaintiff could raise an inference of causation due to temporal
proximity, he must still show that the Defendant’s proffered justification is pretext for retaliation.
See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (holding that once
the Defendant has proffered a non-retaliatory justification, a court need only examine whether
the Plaintiff has “produced sufficient evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason” was in fact pretext for retaliation); Adeyemi v. District of
Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (explaining that the prima-facie case is largely
irrelevant once an employer has asserted a non-discriminatory reason for its adverse employment
action); Baloch v. Kempthorne, 550 F.3d 1191, 1200 (D.C. Cir. 2008) (applying Brady in the
retaliation context). Defendant proffers a legitimate, non-retaliatory justification for Plaintiff’s
termination—that Mr. Davis’s absences violated the “Last Chance Agreement” (LCA) executed
on February 4, 2010. LCA, Def’s Mot. Summ. J. Ex.8.
42
The LCA states, in relevant part, that “if Mr. Davis is absent from work without the
permission of his immediate supervisor on any occasion between February 3, 2010 and February
3, 2011, the University shall be entitled to discharge him immediately.” Id. at ¶ 3. The LCA
further states that “Mr. Davis will be expected to meet normal performance expectations and to
comply with the employment standards applicable to other employees in his position.” Id. at ¶ 4.
Thus, pursuant to the LCA, Plaintiff could be terminated if he had even one unexcused absence.
Plaintiff argues that Defendant’s justification is plainly pretext as “Mr. Davis complied
with GW policies regarding requested leave” and therefore “Mr. Davis never violated the terms
of the LCA.” Pl.’s Opp’n at 27. Plaintiff’s support for this contention, however, is no different
than what he alleged in his ADA discrimination claim, which this Court has already found to be
insufficient to establish a dispute of material fact. See supra Part IV.A.1. As before, Plaintiff
makes only one argument in support of a finding of pretext — that on each occasion he was
marked AWOL, he either called his supervisor prior to missing work due to his medical
condition, or provided medical records after the fact, which his supervisor often refused to
accept. See generally Davis Decl., Pl’s Opp’n Ex.2. Plaintiff does not make any other arguments,
or cite to any other facts, adducing a retaliatory mindset.
Plaintiff cannot establish that his unauthorized absence was due to an FMLA qualifying
illness, and thus was improperly documented as AWOL. Mr. Davis argues that although his
illness was exacerbated by the extreme weather, a hood or a heavy winter coat would have made
him feel better. Dep. Anthony Davis at 50, Def’s Mot. Summ. J. Ex. 10. However, Mr. Davis
does not dispute that he did actually receive a winter coat. Test. Anthony Davis at 154. As a
heavy winter coat was all that Mr. Davis requested or needed in order to overcome the effects of
his illness, and because he did in fact receive a heavy winter coat, Mr. Davis cannot establish that
43
he was absent due to his FMLA qualifying illness, and was thus improperly documented as
AWOL on December 8th and 9th.
In sum, Mr. Davis argues that the Defendant’s proffered non-retaliatory justification for
his termination is pretext for one reason only: that Mr. Davis always complied with the
Defendant’s leave policy and thus never violated the terms of the LCA. However, the LCA
allows the Defendant to terminate Mr. Davis if he is AWOL on even one occasion, and Mr.
Davis is unable to raise a dispute of material fact that he was improperly documented as AWOL
on December 8 and 9, 2010. As a result, Mr. Davis is unable to establish that the Defendant’s
proffered justification for termination is mere pretext for retaliation, and so his FMLA retaliation
claim fails as well.
C. DC Family Medical Leave Act
Plaintiff next argues that Defendant violated the D.C. Family Medical Leave Act
(“DCFLMA”), D.C. Code § 32–503, by intentionally denying Mr. Davis’s leave requests, and
terminating his employment because he requested leave. Pl’s Compl. ¶ 23. The DCFMLA, like
the Federal FMLA, allows an employee “who becomes unable to perform the functions of the
employee's position because of a serious health condition” to take “medical leave for as long as
the employee is unable to perform the functions, except that the medical leave shall not exceed
16 workweeks during any 24–month period.” D.C. Code § 32–503.
Defendant argues that Plaintiff’s claims under the DCFMLA are barred by the statute’s
one-year limitations period. The District of Columbia Code provides that “[n]o civil action may
be commenced more than 1 year after the occurrence or discovery of the alleged violation [of
the DCFMLA].” D.C. Code § 32-510(b)(2001). Plaintiff was terminated on December 13, 2010
and filed this lawsuit in D.C. Superior Court on July 30, 2012, approximately 19 months after his
44
termination. See Notice of Removal Ex. 1 at 1, Aug. 29, 2012, ECF No. 1. Under a plain reading
of the statute, Plaintiff’s DCFMLA claims are time-barred.
Plaintiff argues, however, that the DCFMLA statute of limitations should have been
tolled while he exhausted his administrative remedies by pursuing an EEOC complaint. Pl’s
Opp’n at 27. Plaintiff reasons that the District of Columbia Court of Appeals has tolled the
statute of limitations in an analogous D.C. statute, the D.C. Human Rights Act (“DCHRA”),
while the Plaintiff exhausted any administrative remedies. See Jaiyeola v. Dist. of Columbia, 40
A.3d 356, 369 (D.C. 2012). He additionally argues that the purposes of the DCHRA and the
DCFMLA are similar, as each “serve to protect employees from unfair employment practices
and the purposes of these statutes are furthered by the tolling of the statute of limitations while
an employee files a claim before the EEOC.” Pl’s Opp’n at 28. Thus, Plaintiff argues that the
Court should apply DCHRA tolling rules to the DCFMLA.
However, as Plaintiff’s argument itself recognizes, the tolling of the statute of limitations
only furthers the purpose of the statute if the employee is required to first file a claim under that
statute before the EEOC, or an analogous administrative body. That is to say, a court tolls the
statute of limitations precisely because Plaintiff is required by law to first exhaust any available
administrative remedies before filing a suit in federal court. See Woodford v. Ngo, 548 U.S. 81,
88-89 (2006) (explaining that “[t]he doctrine [of exhaustion of administrative remedies] provides
that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.”) (citations omitted).
Unlike the DCHRA, which requires the Plaintiff to first exhaust administrative remedies,
the DCFMLA has no exhaustion requirement. Simmons v. Dist. of Columbia, 977 F. Supp. 62,
64-65 (D.D.C. 1997) (“the court concludes that the [DC]FMLA does not require exhaustion of
45
administrative remedies prior to filing a civil action in court. Rather, the [DC]FMLA provides
two alternative routes for an aggrieved party to seek redress for the alleged wrongdoing.”).
Courts in this district have thus held that the DCFMLA’s statute of limitations is not tolled
during the time period that Plaintiff pursues his administrative remedies for his other claims.
Jackson v. Wilkes Artes, 565 F. Supp. 2d 148, 152 n.4 (D.D.C. 2008) ( “the fact that plaintiff was
exhausting her administrative remedies with respect to her other claims did not toll the statute of
limitations for her DCFMLA claim.”); Lightfoot v. District of Columbia, 2006 WL 54430, at *7
n. 6 (D.D.C. Jan.10, 2006) (the fact that the plaintiff was engaged in other internal and external
grievance processes is not a basis for not filing this [DCFMLA] action within one year after his
termination.”); See also, Redman v. N.Y. State Dep’t of Corr. Servs., 2011 WL 5119574, at *3
(S.D.N.Y. Oct. 12, 2011) (“The fact that plaintiff filed a grievance with the EEOC does not toll
the statute of limitations applicable to her [federal] FMLA claim because the EEOC has no
enforcement authority with respect to the FMLA and the statute contains no exhaustion
provision.”); Fulghen v. Potter, 2010 WL 4865818, at *3 (E.D. Mich. Nov. 16, 2010) (holding
that “the filing of a discrimination charge with the EEOC does not toll the [federal] FMLA
statute of limitations” and citing additional authority).
The Court thus holds that the DCFMLA’s one-year statute of limitations began to run
from the date of Plaintiff’s termination on December 13, 2010. Accordingly, because the
Plaintiff filed this complaint approximately 19 months after his termination, well outside of the
one-year statute of limitations period, the Court finds that Plaintiff’s DCFMLA claims are time-
barred.
46
D. Tortious Interference of Contract
Plaintiff finally argues that Aramark, though its agent John Eshun, tortiously interfered
with Plaintiff’s employment contract with the University by falsely accusing Mr. Davis of being
AWOL, refusing to accept Mr. Davis’s medical documents, and by manufacturing other false
information against Mr. Davis. Compl. ¶ 33. Aramark argues that Mr. Davis’s tortious
interference claim fails as a matter of law because (1) Aramark acted as an agent of GW, (2) Mr.
Davis’s Interference claim is preempted by Section 301 of the Labor Management Relations Act
(“LMRA”), and (3) Aramark was privileged to act as it did. Because the Court agrees that
Plaintiff’s claim is preempted by the LMRA, it need not address the other two arguments.
Section 301(a) of the LMRA provides that:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter, or
between any such labor organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.
29 U.S.C. § 185(a) (2014). Section 301 was included in the LMRA in order to “promote
collective bargaining agreements” that neither the union nor the employer could easily break, in
order to “stabilize industrial relations.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 454
(1957). Moreover, the Supreme Court recognized that the LMRA “does more than confer
jurisdiction in the federal courts over labor organizations. It expresses a federal policy that
federal courts should enforce these agreements on behalf of or against labor organizations and
that industrial peace can be best obtained only in that way.” Id. at 455. The Court has thus held
that section 301 “not only provides federal-court jurisdiction over controversies involving
collective-bargaining agreements, but also ‘authorizes federal courts to fashion a body of federal
law for the enforcement of these collective bargaining agreements.’” Lingle v. Norge Div. of
47
Magic Chef, Inc., 486 U.S. 399, 403 (1988) (quoting Textile Workers v. Lincoln Mills, 353 U.S.
448, 451 (1957)).
Although Plaintiff’s tortious interference claim is one that is based on state law, section
301 can still preempt the claim. “[I]f the resolution of a state-law claim depends upon the
meaning of a collective-bargaining agreement, the application of state law . . . is pre-empted and
federal labor-law principles . . . must be employed to resolve the dispute.” Lingle, 486 U.S. at
405-06 (emphasis added). Thus, the Court must determine whether the resolution of Plaintiff’s
tortious interference claim turns on the interpretation of the CBA.
“To establish a prima facie case of intentional interference with contractual relations, the
plaintiff must show: ‘(1) the existence of a contract; (2) knowledge of the contract; (3)
intentional procurement of a breach of the contract; and (4) damages resulting from the breach.’”
Sokos v. Hilton Hotels Corp., 283 F. Supp. 2d 42, 49 (D.D.C. 2003) (quoting Futrell v. Dep’t of
Labor Fed. Credit Union, 816 A.2d 793, 807 (D.C. 2003)) (emphasis added). The third element
of the claim plainly requires that the Court determine whether or not there has been a breach of
contract. Mr. Davis alleges that Aramark’s misrepresentations led George Washington to breach
the CBA. Determining whether this is so will require the court to interpret the CBA. Thus, Mr.
Davis’s claim is preempted.
A case from this district is illustrative. In Sokos v. Hilton Hotels Corp., a terminated
hotel employee brought suit against his employer and one of his supervisors. 283 F. Supp. 2d
42, 44 (D.D.C. 2003). One of the claims in the suit was a tortious interference with contractual
relations claim against his supervisor. See id. at 49. The plaintiff in Sokos alleged that the
supervisor “misrepresented that [the plaintiff] had stolen or taken Hotel property without
authorization” and that his “employment was terminated as a result of [the supervisor’s]
48
intentional misconduct.” Id. The Court held that the claim was preempted by § 301 because it
“would have to interpret the terms of the collective bargaining agreement” in order to determine
whether the supervisor induced a breach. Id. at 50. Accord Beidleman v. Stroh Brewery Co., 182
F.3d 225, 235 (3d Cir. 1999) (holding that the LMRA preempted plaintiff’s tortious interference
claim because it was “inextricably intertwined” with the interpretation of a collective-bargaining
agreement). In Sokos, the Court found that the CBA was “the only source from which the
plaintiff derived any express or implied contractual right” and that thus, the Court “would have
to interpret the terms of the collective bargaining agreement in order to determine whether
defendant [ ] ‘interfered with the performance of the contract.’” Sokos, F. Supp. 2d at 50.
Neither party contests that Mr. Davis’s employment was governed by the CBA, nor do
they provide evidence of other contractual agreements from which Plaintiff could derive a
contractual right. In fact, as Mr. Davis himself alleges, he believed that “only the rules in the
Collective Bargaining Agreement” applied to him. Davis Decl. ¶ 33. Thus, as in Sokos, the
Court will have to interpret the terms of the sole contractual agreement, the CBA, to determine
whether Defendant Aramark’s alleged misrepresention of Plaintiff’s conduct led to the breach of
contract. See Compl. ¶ 33; Pl.’s Resp. at 16, 27.
Mr. Davis also argues that “it is not always necessary . . . to prove that a contract was
breached to prevail on a claim of [tortious] interference,” because at-will employees can bring
tortious interference claims with respect to the loss of a prospective economic advantage. Pl.’s
Resp. at 31. This is both true and irrelevant; Mr. Davis has stipulated that he was not an at-will
employee, and the claim in this case is a tortious interference with contractual relations claim.
See Compl. ¶¶ 33-36. Mr. Davis attempts to merge these two doctrines, stating that “[i]f a
defendant causes a third party to terminate an employee, the defendant’s interference is tortious
49
even if the third party breached no contract.” Pl.’s Resp. at 32. Mr. Davis cites to no authority
for this novel claim. Mr. Davis does cite to Lingle, where the Supreme Court held that an
unlawful discharge claim could be resolved without interpreting the terms of a collective
bargaining agreement. 486 U.S. at 407. However, the elements of the state-law wrongful
discharge claim in that case were (1) whether the employee “was discharged or threatened with
discharge” and (2) whether the employer’s motivation was proper. Id. (citing Horton v. Miller
Chem. Co., 776 F.2d 1351, 1356 (7th Cir. 1985). Thus, although the cause of action in Lingle
did not require the court to determine whether there was a breach of contract, that is not the case
for a claim for tortious interference of contract, as argued here.
Because Plaintiff is not an at-will employee, and because resolution of the tortious
interference of contract claim will require interpretation of the CBA, Plaintiff’s claim is
preempted by Section 301 of the LMRA.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motions for Summary Judgment are granted on
all counts except for the hostile work environment claim under the ADA, which is denied
without prejudice. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: March 20, 2014 RUDOLPH CONTRERAS
United States District Judge
50