UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ QUINTELL ETHERIDGE, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1923 (GK) ) FEDCHOICE FEDERAL CREDIT ) UNION, ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff, Quintell Etheridge, brings this action against

Defendant FedChoice Federal Credit Union (“FedChoice”), her former

employer, for employment discrimination and unlawful termination

based upon a claimed disability. Plaintiff alleges violations of

Title I of the Americans with Disabilities Act (“ADA”),

et seq., and the Family and Medical Leave Act (“FMLA”), as

amended,

et seq., breach of contract, and wrongful

termination in violation of public policy. This matter is presently

before the Court on Defendant’s Motion for Summary Judgment on all

Plaintiff’s claims. Upon consideration of the Motion, Opposition,

Reply, and the entire record herein, and for the reasons set forth

below, the Motion for Summary Judgment is granted in its entirety. I. Background1

From 2001 until her termination on March 28, 2008, Plaintiff

Quintell Etheridge was a Financial Services Representative at

FedChoice, performing duties as a bank teller at a branch located

in the Bureau of Alcohol, Tobacco, Firearms, and Explosives

("ATF"). Plaintiff’s Opposition to Defendant’s Motion for Summary

Judgment, 1, 6 ("Plaintiff’s Opp’n")(Oct. 7, 2010) [Dkt. No. 19-1].

As a Financial Services Representative, Plaintiff’s major duties

included processing "all transactions for members, including

deposits, withdrawals, loan payments, cash advances and transfers,"

"[p]repar[ing] individual daily settlement of teller cash and other

transactions bringing cash drawer and settlement sheets into

balance," "[c]heck[ing] and assembl[ing] all supplies in the

branch,” and “[s]tock[ing]/replac[ing] forms, brochures, etc. as

needed." Plaintiff Ex. 2 - Federal Credit Union Position

Description (Oct. 7, 2010) [Dkt. No. 19-2]. In addition, as a

condition of her employment, Plaintiff was required to lift a

“minimum [of] 25 lbs (i.e. coinage & trays)" and to travel

occasionally.

It is undisputed that, although provided with a chair,

Plaintiff was regularly on her feet and required to walk throughout

the course of her workday. Compl. ¶ 7. Since the summer of 2007,

1 The facts set forth herein are drawn from the parties’ statements of material facts submitted pursuant to Local Rule 7(h), the briefs, and the evidence in the record.

-2- this included an approximate 1/2 mile daily walk from the nearest

parking garage where Plaintiff, who commuted from her residence in

Maryland, parked her car to the ATF building where she worked.

Plaintiff’s Opp’n 1-2.

According to Plaintiff and undisputed by Defendant, in August

2007, Plaintiff began experiencing severe pain in her right foot2

with swelling and bruising developing in that area sometime in

September 2007. Plaintiff’s Statement of Material Facts in Dispute

and Counter-Statement of the Facts in Dispute ¶ 19 (“Plaintiff’s

Stmt. of Facts”) (Oct. 7, 2010) [Dkt. No. 19]. On November 21,

2007, Plaintiff consulted a podiatrist, Dr. Dorothy Powell, because

her pain had become more pronounced. Nov. 21, 2007 Medical

Evaluation of Quintell Etheridge; Defendant’s Statement of

Undisputed Material Facts in Relation to Its Motion for Summary

Judgment ¶ 2 (“Def.’s Stmt. of Facts”) (Sept. 3, 2010) [Dkt. No.

16]. At this appointment, Dr. Powell diagnosed Plaintiff with

“plantar fasciitis” or “heel spurs.” Nov. 21, 2007 Medical

Evaluation of Quintell Etheridge.

On November 21, 2007, Plaintiff sought and received FMLA leave

from Defendant because of this diagnosis. Plaintiff’s Stmt. of

2 Although Plaintiff’s pleadings describe her medical impairment as affecting her left foot, reports from Plaintiff’s treating physician make clear that the ailment in fact impacted Plaintiff’s right foot. See Plaintiff Ex. 4 – Nov. 21, 2007 Medical Evaluation of Quintell Etheridge, 1 (“Nov. 21, 2007 Medical Evaluation of Quintell Etheridge”)(Oct. 7, 2010) [Dkt. No. 19-2].

-3- Facts ¶¶ 23-24. Plaintiff does not dispute that, at the time of

requesting her leave, Defendant provided her with written notice of

her FMLA rights, including that she was eligible for FMLA leave of

up to sixteen weeks under District of Columbia law,3 and notified

her that her leave would be counted against this entitlement.

Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt. of Facts ¶ 4.

Initially, Plaintiff’s FMLA leave was scheduled to last from

November 21, 2007 until December 3, 2007. Defendant’s Motion for

Summary Judgment, 1 (“Def.’s Mot.”) (Sept. 3, 2010) [Dkt. No. 16].

However, Plaintiff alleges that her symptoms worsened so much

during this period that she was unable to walk “other than to take

care for her personal daily care and to go to her medical

appointments.” Plaintiff’s Stmt. of Facts ¶ 27. Plaintiff

subsequently submitted a work excuse note from Dr. Powell to extend

her FMLA leave from December 3, 2007 to January 14, 2008, which was

granted by Defendant. Plaintiff Ex. 4 – Nov. 30, 2007 Work Excuse

Note (Oct. 7, 2010) [Dkt. No. 19-2]; Def.’s Stmt. of Facts ¶ 5. On

January 11, 2008, Plaintiff submitted another work excuse note to

Defendant from Dr. Powell, requesting an extension of her FMLA

leave to February 1, 2011, which Defendant again granted. Plaintiff

Ex. 4 – Jan. 11, 2008 Work Excuse Note (Oct. 7, 2010) [Dkt. No. 19-

2]; Def.’s Stmt. of Facts ¶ 5.

3 Although the federal FMLA statute provides for twelve weeks of FMLA leave, the D.C. FMLA provides for sixteen weeks of leave.

.

-4- Plaintiff claims, and Defendant does not dispute, that by late

January or sometime in February 2008, Plaintiff’s symptoms improved

slightly, although she still “could not walk long distances or stay

on her feet for any significant length of time.” Plaintiff’s Stmt.

of Facts ¶ 28.

At some point during January/February 2008, Plaintiff

contacted her supervisor at FedChoice, Charlene Backstrom, to

request a transfer to FedChoice’s headquarters in Lanham, Maryland.

. Plaintiff believed that tellers at the Lanham

headquarters performed more limited duties than at the ATF branch,

and engaged in fewer weight-bearing activities. Compl. ¶ 9. This

belief, combined with the fact that the Lanham headquarters had a

large parking lot with handicap parking spaces adjacent to the

front door, led Plaintiff to believe that a transfer to Lanham

would allow her to fully perform her work duties. Plaintiff’s Stmt.

of Facts ¶ 29. Although Plaintiff does not provide specific

evidence regarding the statements made during this conversation

with her supervisor, it is undisputed that Plaintiff requested a

transfer to the Lanham headquarters, that Plaintiff’s supervisor

passed her request to Susan Barnes, the head of FedChoice’s human

resources department, and that the request for a transfer was

denied.

.

Plaintiff submitted further work excuse notes to Defendant to

extend her FMLA leave from February 1, 2008 to March 3, 2008 and

-5- then to March 11, 2008, all of which Defendant granted. Plaintiff

Ex. 4 – Feb. 1, 2008 and Feb. 27, 2008 Work Excuse Notes (Oct. 7,

2010) [Dkt. No. 19-2]; Def.’s Stmt. of Facts ¶ 5.4

With Plaintiff’s sixteen weeks of FMLA leave set to expire on

March 12, 2008, Plaintiff received a letter dated March 10, 2008

from Tammeca Riley, an employee in FedChoice’s human resources

department. Plaintiff Ex. 5 - Mar. 10, 2008 Fed Choice Letter to

Quintell Etheridge (“Mar. 10, 2008 Fed Choice Letter to Quintell

Etheridge”) (Oct. 7, 2010) [Dkt. No. 19-3]; Plaintiff’s Stmt. of

Facts ¶ 39. The letter requested additional information regarding

Plaintiff’s medical condition, including the date on which

Plaintiff would return to work and any work restrictions she would

have. Mar. 10, 2008 Fed Choice Letter to Quintell Etheridge. During

a telephone conversation with Plaintiff on approximately March 12,

2008, Ms. Riley again requested information as to when Plaintiff

could return to work. Plaintiff’s Stmt. of Facts ¶ 40. Plaintiff

indicated that her condition was improving, but that she had a

surgical consultation on March 18, 2008 and would immediately

provide Ms. Riley with the result.

At this surgical consult,

Plaintiff ultimately chose to forgo surgery, informing Ms. Riley of

her decision the next day.

.

4 Although Defendant’s motion also indicates that Plaintiff submitted a work excuse note to extend her leave to April 1, 2008, there is no evidence of such a request in the record. Def.’s Mot. 1. As the resolution of this issue is unnecessary for deciding this motion, the Court will disregard this discrepancy.

-6- At an unspecified point during March 2008, FedChoice

officials, including Ms. Riley, Ms. Barnes, and FedChoice counsel,

met to discuss Plaintiff’s leave status.

; Plaintiff Ex. 6

- Deposition of Susan Barnes (“Barnes Depo.”), Tr. 60:13-61:6 (Oct.

7, 2010) [Dkt. Not. 19-3]. Plaintiff claims and Defendant does not

dispute that, in the weeks leading up to the March 12 expiration of

her FMLA leave, FedChoice officials did not notify Plaintiff that

her leave period was nearing a close and that she risked

termination.

. However, Plaintiff also does not suggest,

nor does the record show, that she provided any specific

information to Defendant regarding when she would be returning to

work.5

On March 27, 2008, Dr. Powell provided a further work excuse

note to Defendant, stating that Plaintiff would not be able to

perform “normal work activities” until April 11, 2008 and

requesting an extension of her leave until that time. Plaintiff Ex.

4 - Mar. 27, 2008 Work Excuse Note (“Mar. 27, 2008 Work Excuse

Note”) (Oct. 7, 2010) [Dkt. No. 19-2]. The note provided no

indication as to when Plaintiff would be returning to work.

On April 1, 2008, Plaintiff learned for the first time,

through a telephone conversation with Ms. Riley, that her

employment had been terminated as of March 28, 2008, and that Ms.

5 At most, the record indicates that Plaintiff told Ms. Riley that her “return to work depended on how she healed.” Plaintiff’s Opp’n 4.

-7- Riley had sent her a letter to that effect on March 30, 2008, which

Plaintiff subsequently received on April 3, 2008. Plaintiff’s Stmt.

of Facts ¶ 48. This letter stated, in part:

I [Ms. Riley] am in receipt of your physician’s note dated March 27, 2008. That note states that you will need additional time off and does not indicate when your physician believes that you will be able to return to work. You have been out of work since 11/21/07 and your FMLA leave expired on 3/12/08.

We can no longer hold your job; therefore your employment is terminated effective 3/28/08.

Def. Ex. 5 – Mar. 31, 2008 FedChoice Letter to Quintell Etheridge

(Sept. 3, 2010) [Dkt. No. 16-1].

Although the parties dispute the precise date, Plaintiff

concedes that she began looking for new work “soon after she was

terminated because she needed to work and needed health insurance.”

Plaintiff’s Stmt. of Facts ¶ 50. She did not secure new employment

until March 2009.

.

On approximately September 17, 2008, Plaintiff filed a

complaint against Defendant with the Equal Employment Opportunity

Commission (“EEOC”), alleging violations of the ADA. Compl. ¶ 12.

On approximately July 13, 2009, Plaintiff received a Right to Sue

Letter from the EEOC.

Plaintiff filed the instant Complaint in this Court on October

9, 2009. Defendant moved for summary judgment on all of Plaintiff’s

claims on September 3, 2010. Plaintiff filed her opposition on

October 7, 2010. Defendant filed its Reply on October 18, 2010.

-8- Defendant’s Reply Memorandum of Points and Authorities In Support

of Its Motion for Summary Judgment (“Def.s’ Reply”) [Dkt. No. 21].

II. Standard of Review

Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See FED .

R. CIV. P. 56(c), as amended; Arrington v. United States,

(D.C. Cir. 2006). In other words, the moving party must

satisfy two requirements: first, that there is no “genuine” factual

dispute and, second, if there is, that it is “material” to the

case. “A dispute over a material fact is ‘genuine’ if ‘the evidence

is such that a reasonable jury could return a verdict for the

non-moving party.’” Arrington,

(quoting Anderson v.

Liberty Lobby, Inc.,

,

(1986)). A

fact is “material” if it might affect the outcome of the case under

the substantive governing law. Liberty Lobby,

.

In Scott v. Harris,

,

(2007),

the Supreme Court said,

[a]s we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

, 106 S. Ct.

-9- 1348,

. . . (1986) (footnote omitted). “‘[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’”

(quoting Liberty Lobby,

) (emphasis in original).

However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not . . . to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial.” Liberty Lobby,

. In both Liberty Lobby and

Reeves v. Sanderson Plumbing Products, Inc.,

,

(2000), the Supreme Court cautioned that “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts, are jury functions, not those

of a judge” deciding a motion for summary judgment. Liberty Lobby,

.

In assessing a motion for summary judgment and reviewing the

evidence the parties claim they will present, “[t]he non-moving

party’s evidence ‘is to be believed, and all justifiable inferences

are to be drawn in [that party’s] favor.’” Hunt v. Cromartie,

,

(1999) (quoting Liberty Lobby,

). The non-movant must, however, “do more than present

conclusory allegations . . . [rather] concrete particulars must be

presented . . . .” Kalekiristos v. CTS Hotel Mgmt. Corp., 958 F.

-10- Supp. 641, 645 (D.D.C. 1997) (internal quotations and citation

omitted). “To survive a motion for summary judgment, the party

bearing the burden of proof at trial . . . must provide evidence

showing that there is a triable issue as to an element essential to

that party’s claim.” Arrington,

. See Celotex Corp.

v. Catrett,

,

(1986).“[I]f the

evidence presented on a dispositive issue is subject to conflicting

interpretations, or reasonable persons might differ as to its

significance, summary judgment is improper.” United States v.

Philip Morris USA,

(D.D.C. 2004) (quoting

Greenberg v. FDA,

(D.C. Cir. 1986)).

III. Analysis

In her Complaint, Plaintiff raises four claims for relief.

First, Plaintiff alleges that Defendant violated Title I of the ADA

by failing to accommodate her claimed disability. Second, Plaintiff

alleges that Defendant’s termination of her employment violated the

FMLA. Third, Plaintiff claims that her wrongful termination

amounted to a violation of public policy, under D.C. common law and

the District of Columbia Human Rights Act. Finally, Plaintiff

alleges that her termination constituted a breach of an employment

contract.

Defendant has moved for summary judgment on all four claims.

In her Opposition, Plaintiff voluntarily dismissed her breach of

contract claim. Plaintiff’s Opp’n 14 n.1. With regard to her claim

-11- for wrongful termination, Plaintiff has failed to present “any

significant probative evidence tending to support the complaint” on

this issue. Liberty Lobby,

(internal quotations and

citation omitted). Consequently, Defendant’s summary judgment

motion on this claim is granted. Celotex,

(“One

of the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupported claims or

defenses . . . .”).

As to her two remaining claims, Plaintiff opposes summary

judgment on the grounds that there are material facts that are

genuinely in dispute. Plaintiff’s Opp’n 9. In the alternative,

Plaintiff claims that Defendant’s Motion fails, because she has

adduced sufficient, uncontested facts to support her ADA and FMLA

claims.

A. There Are No Genuine Issues of Material Fact in Dispute

Despite Plaintiff’s claims to the contrary, Defendant has

demonstrated that there are no genuine disputes regarding those

facts which are relevant to considering Plaintiff’s ADA and FMLA

claims. Defendant has met its burden on this issue for several

reasons.

First, in her Statement of Material Facts in Dispute,

Plaintiff agrees with ten out of twelve of Defendant’s Statement of

Undisputed Material Facts. Specifically, Plaintiff admits that: (1)

she sought treatment for ankle, foot, and heel pain on November 21,

-12- 2007 and began her medical leave on that date; (2) at the time of

requesting her leave, she received written notice from Defendant

that she was eligible for FMLA leave, was provided with written

notification of her FMLA rights, and was informed that her leave

would be counted against her FMLA entitlement; (3) her leave was

repeatedly extended from December 2007 through March 2008, and she

did not return to work after November 21, 2007; (4) she completed

two FMLA certification forms during her leave and received a letter

reminding her that FMLA leave and short-term disability benefits

run concurrently;6 (5) she was on leave for a total of sixteen

weeks between November 21, 2007 and March 12, 2008; and (6) her

employment was terminated by FedChoice, effective March 28, 2008,

on the grounds that since her FMLA leave had expired on March 12,

2008, and there was no indication when she would be able to return

to work, FedChoice could no longer hold her job open for her.

Plaintiff’s Stmt. of Facts ¶¶ 1-9,11; Def.’s Stmt. of Facts ¶¶ 1-9,

11.

Second, although Plaintiff denies two of the facts included in

Defendant’s Statement of Undisputed Material Facts, she fails to

demonstrate that a genuine dispute exists as to them. Specifically,

6 Plaintiff herself has provided evidence demonstrating that she received multiple letters from FedChoice reminding her that her FMLA and short-term disability leave were running concurrently. See Plaintiff Ex. 5 - Dec. 5, 2007 and Jan. 24, 2008 FedChoice Letters to Quintell Etheridge (“Dec. 5, 2007 and Jan. 24, 2008 FedChoice Letters to Quintell Etheridge”)(Oct. 7, 2010) [Dkt. No. 19-3].

-13- Plaintiff challenges the following two Statements submitted by

Defendant: (1) that on March 27, 2008, FedChoice was provided with

a work excuse note from Plaintiff’s physician, Dr. Powell, stating

that Plaintiff was “unable to perform normal work activities and

needed to be excused from work until April 11, 2008;” and (2) that

Plaintiff “was fit to return to work as a teller by April 14, 2008,

and she immediately sought employment as a teller with other credit

unions.”7 Def.’s Stmt. of Facts ¶¶ 10,12; Plaintiff’s Stmt. of

Facts ¶¶ 10,12.

With regard to the March 27, 2008 work excuse note, Plaintiff

has failed to explain why she is denying Defendant’s Statement of

this fact. Plaintiff’s Stmt. of Facts ¶ 10. A review of the note,

which was submitted as Plaintiff’s Ex. 4 and Defendant’s Ex. 3,

demonstrates that Defendant’s description is materially accurate in

all respects, and provides a nearly verbatim accounting of the

note’s contents.8 Consequently, the Court finds that there is no

7 Plaintiff only denies Defendant’s claim that she was fit to return to work on April 14, 2008, and does not challenge the fact that she immediately sought employment as a teller at other credit unions after being fired by FedChoice. Plaintiff’s Stmt. of Facts ¶ 12. Plaintiff does, however, argue that she had no choice but to seek employment after her termination as this presented the only means available for her to secure much-needed health insurance. Plaintiff’s Opp’n 12. 8 The work excuse note, in full, is as follows:

To Whom It May Concern:

Quintell Etheridge is being treated at our office and is (continued...)

-14- genuine issue of fact with respect to the March 27, 2008 work

excuse note.

With respect to the question of Plaintiff’s fitness to return

to work on April 14, 2008, Plaintiff does not deny that she has

given deposition testimony stating she “would have been able to

work by April 2008 and, indeed sought work after she was [] fired

by defendant . . . .” Plaintiff’s Opp’n 12. Instead, Plaintiff

attempts to challenge her own testimony by claiming that there is

conflicting record evidence that her doctor would have allowed her

to return to work in April.

However, she provides no evidence

of such conflicting record evidence. Thus, Plaintiff has failed to

demonstrate that a genuine issue exists as to this issue.9

Finally, in a further attempt to demonstrate the existence of

8 (...continued) unable to perform normal work activities at this time.

Please excuse Mrs. Etheridge from work during the recovery period beginning on 03/27/08 until 04/11/08.

If there are any questions, please contact this office.

Mar. 27, 2008 Work Excuse Note. 9 Although there is no genuine dispute that Plaintiff’s medical impairment lasted until, at most, some time in April 2008, the parties do present a genuine issue of fact as to whether Plaintiff’s impairment began in August/September 2007 (when she first began to experience pain) or November 2007 (when she first requested her FMLA leave). See Def.’s Reply 4-5 & n.1. However, as demonstrated, infra, whether Plaintiff’s impairment lasted 8 months (using the August/September start date) or 5 months (using the November start date) is not “material,” since the resolution of this dispute does not impact the outcome of Plaintiff’s ADA and FMLA claims. Liberty Lobby,

.

-15- genuine issues of material fact, Plaintiff presents additional

facts in her Counter-Statement of The Facts in Dispute. These

additional facts are, however, either irrelevant, additions or

repetitions of Defendant’s undisputed material facts, or relevant

to the case but unchallenged by the Defendant. See Plaintiff’s

Stmt. of Facts ¶¶ 13-54.

Consequently, this Court concludes that there are no genuine

issues of material fact preventing resolution of Plaintiff’s ADA

and FMLA claims. The Court must now consider whether Defendant is

entitled, as a matter of law, to summary judgment on these claims.

B. Plaintiff’s ADA Claim

Plaintiff argues that Defendant violated the ADA because it

refused to provide her with a reasonable accommodation for her

"long-term medical impairment." Plaintiff’s Opp’n 9. In response,

Defendant argues that Plaintiff’s impairment did not constitute a

“disability” under the ADA, as it was "temporary" in nature and

therefore was not protected by the statute. Def.’s Mot. 3.

Under Title 1 of the ADA, "[n]o covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,

-16- conditions, and privileges of employment."

(a).10

Discrimination includes "not making reasonable accommodations to

the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee,

unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of the business of

such covered entity."

(b)(5)(A).

To make out a prima facie case of discrimination for failure

to reasonably accommodate, plaintiff must demonstrate by a

preponderance of the evidence:(1) that she was an individual who

had a disability within the meaning of the statute; (2) that the

employer had notice of her disability; (3) that with reasonable

accommodation she could perform the essential functions of her job;

and (4) that the employer refused to make such accommodations.

Lytes v. D.C. Water and Sewer Auth.,

(D.D.C.

2007), aff’d,

(D.C. Cir. 2009).

1. Plaintiff’s Medical Impairment Does Not Constitute a Disability Under the ADA

The parties’ dispute centers around the first prong of the

four-part test,11 namely the threshold issue of whether Plaintiff’s

10 All references to the ADA are made to the version of the statute in effect before January 1, 2009. As discussed in footnote 12, infra, this is the version of the statute applicable to this case. 11 Because the Court finds that Plaintiff does not have a disability, as defined by the ADA, the Court need not consider (continued...)

-17- medical impairment qualifies as a disability under the ADA. Case

law establishes that the ADA "does not cover every individual with

an impairment who suffers an adverse employment action," and that,

in order to qualify for relief, the individual must be “disabled”

as defined by the statute. Flemmings v. Howard Univ.,

(D.C. Cir. 1999) (citation omitted).

The ADA defines a person with a "disability" as: (1) an

individual having a physical or mental impairment that

substantially limits one or more major life activities; (2) an

individual having a record of such an impairment; or (3) an

individual regarded as having such an impairment.

(2)(A-C).12

In bringing her claim, Plaintiff relies on the first prong of

this statutory definition of “disability.” Although the ADA does

11 (...continued) whether Plaintiff has satisfied the remaining three elements necessary to establish a prima facie case of discrimination. 12 Effective January 1, 2009, the ADA was amended to alter the definition of “disability.” See ADA Amendments Act of 2008,

Stat. 3553 (2008). Specifically, the amendments eliminated the limitations imposed by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,

,

(2002), and Sutton v. United Air Lines,

,

(1999). Defendant contends that the pre-amendment definition of “disability” should apply because the ADA Amendments Act is not to be applied retroactively. Def.’s Mot. 3 n. 1. See Lytes,

(“Congress clearly indicated the statute would apply only from January 1, 2009 forward.”). Because Plaintiff does not oppose Defendant’s argument, the Court will look to the definition of “disability” in effect at the time of the alleged discrimination.

-18- not provide guidance on the meaning of the terms “substantially

limits” and “major life activities,” the Supreme Court has ruled

that they should be interpreted “strictly to create a demanding

standard for qualifying as disabled.” Toyota,

. In

Toyota, the Supreme Court, relying heavily on the EEOC Regulations13

implementing the ADA,

, also provided a framework

for evaluating whether an impairment satisfies these requirements.

.

a. Does Plaintiff’s Impairment Substantially Limit One or More Major Life Activities?

Under the EEOC Regulations, a “disability” qualifies as

“substantially limiting” if the disabled individual is “‘[u]nable

to perform a major life activity that the average person in the

general population can perform’” or is “‘[s]ignificantly restricted

as to the condition, manner or duration under which [she] can

perform a particular major life activity as compared to the

condition, manner, or duration under which the average person in

the general population can perform that same major life activity.’”

at 195-96 (quoting

(j)).

13 In Toyota, the Supreme Court noted that the “persuasive authority of the EEOC Regulations is less clear [than the regulations interpreting the Rehabilitation Act]” as “no agency has been given the authority to issue regulations interpreting the term ‘disability’ in the ADA.”

. However, because the parties had expressly accepted the Regulation’s validity, the Court construed the ADA in light of those Regulations.

As in Toyota, the parties in this case have not challenged the validity of the EEOC Regulations.

-19- In deciding whether an individual is “substantially limited,”

the court must consider:(1) “‘[t]he duration or expected duration

of the impairment;’” (2)“‘[t]he permanent or long term impact, or

the expected permanent or long term impact of or resulting from the

impairment;’” and (3) “‘[t]he nature and severity of the

impairment.’”

at 196 (quoting

(j))

(alterations in original).

“Major life activities” are defined as those “that are of

central importance to daily life.”

. Such activities

include standing and walking, amongst others. See id.; Haynes v.

Williams,

(D.D.C. 2003);

(I).

Plaintiff has clearly established, and Defendant does not

challenge, that her plantar fasciitis was a medical impairment “of

central importance to daily life,” namely, her ability to stand and

walk. However, for several reasons, Plaintiff has failed to present

any evidence demonstrating that this medical impairment

substantially limited her in performing these major life

activities.

i. Was Plaintiff’s Impairment Temporary or Long-Term?

Plaintiff has not shown that her medical impairment was

permanent or long-term in nature. Her impairment began in

August/September 2007 and lasted until “at least April 2008.”

Plaintiff’s Opp’n 11. Given that “[t]he relevant time for assessing

-20- a claim of disability is when [the] accommodation [was] requested,”

Lytes,

(citation omitted), Plaintiff

presents no evidence that her impairment was expected to be

anything but temporary when she requested a transfer to the Lanham

headquarters in January/February 2008 or that her impairment in

fact continued for a substantial period beyond that point.14

Moreover, her unequivocal sworn testimony was that she would have

been able to return to work some time in April 2008 if she had

obtained new employment. Def. Ex. 1 - Deposition of Quintell

Etheridge (“Etheridge Depo.”), Tr. 187:6-188:17 (Sept. 3, 2010)

[Dkt. No. 16-1]. See Pollard v. High’s of Baltimore, Inc.,

(4th Cir. 2002) (holding that plaintiff’s immediate re-

14 For several reasons, the undisputed evidence demonstrates that Plaintiff’s impairment was neither expected to be long-term or permanent, nor did it turn out to be long-term or permanent. First, medical evaluations from Dr. Powell conducted during Plaintiff’s FMLA leave prescribe a course of treatment for Plaintiff’s impairment that limited her walking and standing activities for only a temporary period. See Plaintiff Ex. 4 - Nov. 30, 2007, Dec. 21, 2007, and Jan. 11, 2008 Medical Evaluations of Quintell Etheridge (Oct. 7, 2010) [Dkt. No. 19-2](“She is to be off weight bearing for 72 hours and has been advised to limit weight bearing for not less than 21 days.”). Second, in her Complaint, Plaintiff alleged that “[b]y early February . . . her physician advised [her] that she could return to work provided she was placed ‘on light duty’ with a minimum amount of walking and standing.” Compl. ¶ 9. This fact sheds further doubt on the claim that Plaintiff’s major life activities were substantially limited when she requested transfer to the Lanham headquarters. Finally, Plaintiff provides no specific evidence that her impairment limited any major life activities after April 2008. At most, she raises an unsubstantiated claim that since April 2008 she experienced “chronic recurring pain as a permanent effect of her plantar fasciitis.” Plaintiff’s Opp’n 12 (internal quotations and citation omitted).

-21- employment elsewhere, after termination by defendant, “belie[d] the

assertion that she was ‘disabled’ within the ADA’s definition or

that her impairment was anything other than temporary during the

time of her employment [with] [Defendant]”).

While Plaintiff does not provide any authority establishing

that an impairment such as hers, lasting at most for 8 months,

qualifies as a disability under the ADA, there is ample case law

establishing that Plaintiff’s medical impairment unequivocally

qualifies only as “temporary” or “short-term.”15 See Duncan v.

Harvey,

(D.D.C. 2007)(“Courts are

seemingly unanimous in the view that impairments whose effects last

less than one year are insufficient to demonstrate a substantial

limitation on a major life activity”)(see cases cited therein);

Lester v. Natsios,

(D.D.C. 2003) (holding

that plaintiff who suffered from hypertension from late 1994 until

15 Plaintiff attempts to overcome the temporary nature of her medical impairment by describing the healing process as “complicated by [her] chronic, permanent medical condition, diabetes.” Plaintiff’s Opp’n 12. However, the fact that Plaintiff’s claimed disability is complicated by a long-term, permanent medical problem, such as diabetes, does not necessarily render that claimed disability permanent and long-term in nature. Similarly, Plaintiff’s claim that her impairment “took a great deal of time to heal and, given her diabetes, could have surely become a debilitating condition if not allowed to heal properly,”

does not, as a legal matter, support a finding that she has established by a preponderance of the evidence that her impairment was long- term or permanent under the ADA. Plaintiff provides no authority indicating otherwise.

-22- sometime in 1995 did not qualify as an individual with a

“disability” under the Rehabilitation Act, a statute analogous to

the ADA).16

ii. Was Plaintiff Severely Impacted by Her Impairment?

Plaintiff has failed to show that, despite the temporary

nature of her injury, she was severely impacted by her impairment.

Adams v. Citizens Advice Bureau,

(2d Cir. 1999)

(per curiam). To establish that one is severely limited in a major

life activity, plaintiff must do more than merely submit evidence

of a medical impairment. Toyota,

. Because

determination of the existence of a disability under the ADA must

be made on a “case-by-case basis,” those claiming the Act’s

protection must provide evidence demonstrating “that the extent of

the limitation in terms of their own experience . . . is

substantial.” Albertson’s, Inc. v. Kirkingburg,

,

(1999).

In this case, Plaintiff’s proffered evidence regarding the

limitations she experienced because of her disability relate almost

exclusively to the period beginning on the first day of her FMLA

leave, November 21, 2007, and lasting until some time in

16 See Samuels v. Kan. City Mo. Sch. Dist.,

(8th Cir. 2006) (holding that “temporary impairments with little or no long-term impact are not disabilities” under the ADA); Pollard,

(holding that nine-month period of recovery from surgery was insufficient to constitute a permanent or long-term impairment under the ADA).

-23- January/February 2008.17 Amongst these factual allegations, the bulk

of Plaintiff’s evidence consists of medical evaluations from her

doctor, demonstrating that she suffered from a medical impairment

and providing information about her course of treatment, but giving

no detail about how her medical impairment specifically limited her

major life activities of walking and standing. The only specific

fact offered by Plaintiff to demonstrate that she was substantially

impacted by her impairment related to restrictions on her ability

to attend church and perform her assigned church duties.

Plaintiff’s Opp’n 3; Etheridge Depo. Tr. 159:13-21.18

17 Plaintiff has provided the Court with only one medical report for the period after January/February 2008. See Plaintiff Ex. 7 - Mar. 18, 2008 Progress Report for Quintell Etheridge from Dr. Muhammad Khalid (Oct. 7, 2010) [Dkt. No. 19-4]. All other evidence pertaining to Plaintiff’s impairment during this period is limited to work excuse notes provided to FedChoice by Dr. Powell and do not provide any detailed information regarding Plaintiff’s condition. 18 Plaintiff, in her Counter-Statement of the Facts in Dispute, states that “[D]uring this initial period (Nov. 21, 2007 to Dec. 2007), (Plaintiff’s) symptoms actually got worse and Ms. Etheridge was unable to walk other than to care for her personal daily care and to go to her medical appointments. Her initial attempts to be driven to Sunday church services by her husband proved impossible. By December 21, 2007, Ms. Etheridge’s doctor advised her to avoid all weight bearing activity for 72 hours and to limit weight bearing activities. . . .” Plaintiff’s Stmt. of Facts ¶ 27 (citations omitted).

Plaintiff’s deposition testimony includes the following:

Q. Okay. And what, if anything, had you done between . . . December 21, 2007, and January 11, 2008, in terms of your normal activities? Were they the same as you (continued...)

-24- Other than these evaluations and her deposition testimony,

Plaintiff provides only general statements regarding the degree to

which her medical impairment limited her walking and standing. See

Plaintiff’s Opp’n 3.

Because Plaintiff has failed to provide specific evidence to

substantiate her claim or “otherwise [to] describe the degree to

which she is limited with any reasonable specificity,” Thompson v.

Rice,

(D.D.C. 2006), the Court concludes

that her temporary impairment did not substantially limit her in

performing two major life activities, standing and walking, as

defined by the ADA. The Court, therefore, grants Defendant’s motion

for summary judgment on Plaintiff’s ADA claim.

18 (...continued) previously described?

A. No.

Q. What changed?

A.I did try going back to church. I couldn’t do my duties at church because I was a nurse and ushered . . . .” Etheridge Depo., Tr. 159:13-21.

The deposition testimony, which was submitted by Defendant, does not contain the rest of Plaintiff’s response.

Thus, it is clear that Plaintiff’s facts, assuming they are accurate, establish at most that she was impacted by her impairment for a period of three to four months.

-25- C. FMLA Claim

Plaintiff alleges that she was unlawfully terminated in

violation of the FMLA, because Defendant “interfered” with her

rights under the statute by misleading her with regard to the

expiration of her leave, “refus[ing] her initial request for an

accommodation to be transferred to the Lanham branch. . . .

[,][and] intentionally blind-sid[ing] [her] before she could again

request an extension of FMLA leave as an accommodation.”

Plaintiff’s Opp’n 14. In response, Defendant argues that Plaintiff

was terminated, in compliance with the FMLA, because she had

exhausted her FMLA leave and had represented to Defendant, after

her leave had expired, that she was unable to return to work.

Def.’s Reply 5. Defendant also argues that Plaintiff’s claim that

the FMLA entitled her to a reasonable accommodation for her

disability is misplaced, as the FMLA does not require an employer

to provide a reasonable accommodation to an employee. Id. at 6.

1. Defendant Did Not Interfere with Plaintiff’s FMLA Rights

The FMLA entitles an eligible employee to twelve weeks of

leave during any twelve-month period “because of a serious health

condition that makes the employee unable to perform the functions

of the position of such employee.”

(a)(1)(D). The

FMLA, however, is a “balancing act, an attempt to provide employees

with some leave, a reasonable leave, without completely ignoring

the legitimate demands of the workplace.” Miller v. Personal-Touch

-26- of Va., Inc.,

(E.D. Va. 2004) (internal

quotations and citation omitted), aff’d,

(4th

Cir. 2005)(per curiam). Consequently, once FMLA leave has expired

and the employee has not returned to work, the employer is under no

responsibility to restore the employee to her prior position.

Jackson v. Wilkes Artis,

(D.D.C. 2008).

Under the FMLA, an employer may be held liable for

“interfering” with an employee’s rights under the Act.

(a)(1). Such interference may occur if the employer fails to

provide written notice to the employee that her leave is designated

as FMLA leave. Ragsdale v. Wolverine World Wide, Inc.,

,

(2002). According to the FMLA Regulations,

an employer provides proper notice where, amongst other

requirements, it gives written documentation to the employee

designating her leave as paid or unpaid and indicating whether it

qualifies as FMLA leave.

(b). Where proper

notice is not given, an interference claim is actionable if the

employee can demonstrate that she has suffered prejudice, which

occurs only when the employee has lost compensation or benefits by

reason of the violation, sustained other monetary losses as a

direct result of the violation, or suffered some loss in employment

status remediable through equitable relief. Roseboro v. Billington,

(D.D.C. 2009).

-27- In light of this authority, Plaintiff has failed to

demonstrate how Defendant “interfered” with her rights under the

FMLA. It is undisputed that Plaintiff was entitled to and did in

fact receive sixteen weeks of FMLA leave, as required by D.C. law.

Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt. of Facts ¶ 4.

Plaintiff also does not challenge the fact that Defendant provided

her with proper written notice on the first day of her leave,

indicating that she was being granted FMLA leave and advising her

of her FMLA rights. Def.’s Stmt. of Facts ¶ 4; Plaintiff’s Stmt.

of Facts ¶ 4. Plaintiff does not deny that during her leave she

completed two FMLA certification forms, and received numerous

pieces of correspondence from Defendant reminding her that her FMLA

leave and her short-term disability ran concurrently and that she

was required to submit a physician’s certificate indicating when

she could return to work. Def. Ex. 6 - Dec. 11, 2007 and Jan. 31,

2008 Physician Certification for Family and Medical Leave (Sept. 3,

2010) [Dkt. No. 16-1]; Dec. 5, 2007 and Jan. 24, 2008 FedChoice

Letters to Quintell Etheridge. Finally, Plaintiff does not dispute

that she was unable to return to work on March 12, 2008, when her

sixteen weeks of FMLA leave expired.

These facts firmly establish that Defendant did not interfere

with Plaintiff’s rights under the FMLA. Although Plaintiff alleges

that Defendant was under an obligation to notify her of the

-28- impending expiration of her FMLA leave, she provides no authority

supporting that claim.19

2. Plaintiff Was Not Entitled to a Reasonable Accommodation Under the FMLA

With regard to Plaintiff’s accommodation claim, as Defendant

correctly notes, Plaintiff has attempted to read the ADA’s

reasonable accommodation provision into the FMLA. The FMLA contains

no such accommodation requirement and, in fact, an employer’s

obligations under the FMLA are wholly distinct from its obligations

to provide a reasonable accommodation under the ADA. See Rinehimer

v. Cemcolift, Inc.,

(3d Cir. 2002) (affirming

district court jury instruction that FMLA “does not require an

employer to provide a reasonable accommodation to an employee”);

Tardie v. Rehab. Hosp. of R.I.,

(1st Cir.

1999)(noting that, unlike ADA, FMLA Regulations do not contain

“reasonable accommodation language”). Having provided no legal

grounds for this argument, Plaintiff’s accommodation argument must

fail.

19 Even if Plaintiff was correct that Defendant was under an obligation to notify her that her leave was set to expire, her claim that Defendant thereby interfered with her FMLA rights would still fail as she was unable to return to work after her FMLA leave expired on March 12, 2008. See Mar. 27, 2008 Work Excuse Note. As the Supreme Court has held, an employee who cannot return to work at the end of her FMLA leave period cannot demonstrate “any real impairment of [her] rights and resulting prejudice” under the statute. Ragsdale,

. Consequently, any alleged failure by Defendant to provide Plaintiff with adequate notice cannot form the basis of an actionable interference claim under the FMLA. Miller,

.

-29- Consequently, because Plaintiff has not presented a valid

cause of action under the FMLA, the Court grants Defendant’s

summary judgment motion with regarding to Plaintiff’s FMLA claim.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for

Summary Judgment under Rule 56 is granted in its entirety. An

Order will accompany this Memorandum Opinion.

/s/ June 2, 2011 Gladys Kessler United States District Judge

-30-