UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STEPHANIE WAGGEL, Plaintiff, v. Civil Action No. 16-1412 (CKK) THE GEORGE WASHINGTON UNIVERSITY, Defendant.

MEMORANDUM OPINION (November 9, 2018)

Plaintiff Stephanie Waggel is a former resident in the Psychiatry Residency Training

Program of Defendant, The George Washington University. She alleges that through a series of

actions culminating in her termination from the program, Defendant violated her rights under the

Americans with Disabilities Act, as amended,

et seq. (the “ADA”), and the

Family and Medical Leave Act,

et seq. (the “FMLA”), as well as their local

analogues, the District of Columbia Human Rights Act,

et seq. (the

“DCHRA”), and the District of Columbia Family and Medical Leave Act,

et seq. (the “DCFMLA”).

Presently pending before the Court is Plaintiff’s [32] Motion for Partial Summary

Judgment as to Counts I & II (“Plaintiff’s Motion”). The Court shall issue a separate Memorandum

Opinion addressing Defendant’s [34] Motion for Summary Judgment, as well as its [41] Motion

to Strike Portions of the Declaration of Dr. Stephanie Waggel, M.D. (“Defendant’s Motion to

Strike”).

1 Upon consideration of the briefing, 1 the relevant legal authorities, and pertinent portions

of the voluminous record in this matter, 2 the Court DENIES Plaintiff’s Motion.

I. BACKGROUND A brief summary of the factual background will suffice before the Court delves into the

details relevant to Plaintiff’s respective claims. This case concerns Plaintiff’s first and second

years as a psychiatry resident, culminating in Defendant’s termination of her residency effective

August 10, 2016. See, e.g., Pl.’s Stmt. of Material Facts for Which There Are No Genuine Disputes

in Support of Her Mot. for Partial Summ. J., ECF No. 32-2 (“Pl.’s Stmt.”), ¶ 1; Def.’s Resp. to

Pl.’s Stmt. of Material Facts in Supp. of Pl.’s Mot. for Partial Summ. J., ECF No. 36-1 (“Def.’s

Resp. to Pl.’s Stmt.”), ¶ 1. Shortly after beginning her second year in the program, Plaintiff

underwent surgery in July 2015 for the removal of a cyst on her kidney. See Pl.’s Stmt. ¶¶ 6, 7, 9,

13; Def.’s Resp. to Pl.’s Stmt. ¶¶ 6, 7, 9, 13. She took various kinds of leave from the program

during her two years, including sick leave during the surgery and FMLA leave at other times. See,

e.g., Def.’s Stmt. of Material Facts as to Which There Is No Genuine Dispute, ECF No. 34 (“Def.’s

1 The Court’s consideration of Plaintiff’s Motion has focused on the following documents:

• Mem. of P&A in Supp. of Pl.’s Mot. for Partial Summ. J. as to Counts I & II, ECF No. 32- 1 (“Pl.’s Mem.”); • Def. George Washington University’s [Corrected] Mem. of P&A in Supp. of Its Opp’n to Pl.’s Mot. for Partial Summ. J., ECF No. 38 (“Def.’s Opp’n”); and • Pl.’s Reply Mem. in Supp. of Pl.’s Mot. for Partial Summ. J. as to Counts I & II, ECF No. 40 (“Pl.’s Reply”).

Where the parties have submitted corrected or simply late versions of materials, the Court has focused on those versions. See, e.g., Min. Order of Sept. 28, 2018 (granting motions pertaining to certain corrected and late materials). The Court has generally resorted to Bates labeling where submissions otherwise lack clear page numbering. 2 For one indication of the size of the record, note that Defendant’s Motion for Summary Judgment contains an assertion of allegedly undisputed, material facts consisting of 977 paragraphs, with associated citations to record evidence. 2 Stmt.”), ¶¶ 230, 274, 531; Pl.’s Corrected Stmt. of Genuine Issues and of Counterveiling Facts,

ECF No. 37 (“Pl.’s Resp. to Def.’s Stmt.”), ¶¶ 230, 274, 531. In the meantime, Defendant allegedly

identified a number of problems with Plaintiff’s performance in the program, which were

documented in, among other places, four Letters of Deficiency and a Notice of Unprofessional

Conduct. See, e.g., Def.’s Stmt. ¶¶ 744, 798-800; Pl.’s Resp. to Def.’s Stmt. ¶¶ 744, 798-800.

Purportedly as a result of these deficiencies, aspects of Plaintiff’s clinical duties were suspended

multiple times, her promotion to her third year in the program was delayed, and she was ultimately

dismissed from the program. See, e.g., Def.’s Stmt. ¶¶ 656, 726, 975, 977; Pl.’s Resp. to Def.’s

Stmt. ¶¶ 656, 726, 975, 977.

Plaintiff filed suit on July 7, 2016. Compl., ECF No. 2. Her four-count Complaint alleges

violations of the ADA and the FMLA, as well as comparable D.C. statutes.

Plaintiff now

moves for summary judgment as to the first two counts, namely the ADA claim and its D.C.

analogue, the DCHRA claim. Pl.’s Mem. at 7. She attributes her decision not to seek summary

judgment as to the FMLA and DCFMLA claims to disputes of material fact.

A separate

opinion, which also will issue today, shall resolve Defendant’s motion seeking summary judgment

as to all four counts. Although the Court largely evaluates these motions separately, the Court—

like the parties—draws upon materials submitted in connection with Defendant’s Motion for

Summary Judgment where such submissions facilitate the Court’s consideration of Plaintiff’s

Motion.

II. LEGAL STANDARD Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary

judgment; the dispute must pertain to a “material” fact.

Accordingly, “[o]nly disputes over

3 facts that might affect the outcome of the suit under the governing law will properly preclude the

entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,

(1986). Nor

may summary judgment be avoided based on just any disagreement as to the relevant facts; the

dispute must be “genuine,” meaning that there must be sufficient admissible evidence for a

reasonable trier of fact to find for the non-movant.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis

in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass’n

of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp.,

(D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not assess

credibility or weigh evidence; instead, the evidence must be analyzed in the light most favorable

to the non-movant, with “all justifiable inferences . . . drawn in his favor.” Anderson,

. “If material facts are at issue, or though undisputed, are susceptible to divergent inferences,

summary judgment is not available.” Moore v. Hartman,

(D.C. Cir. 2009) (quoting

Kuo-Yun Tao v. Freeh,

(D.C. Cir. 1994)) (internal quotation marks omitted). In

the end, the district court’s task is to determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

4 prevail as a matter of law.” Anderson,

. In this regard, the non-movant must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

(1986). “If the evidence

is merely colorable, or is not significantly probative, summary judgment may be granted.”

Anderson,

.

III. DISCUSSION Under the ADA, covered entities are prohibited from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.”

(a). That discrimination is further

defined to include seven different types of activity, including the failure to reasonably

accommodate a disability.

§ 12112(b). Defendant has not disputed that it is an employer within

the scope of the covered entity definition. See Pl.’s Mem. at 8 (citing

(5)); see

also

(2). The DCHRA’s prohibitions extend, in pertinent part, to certain

employment acts performed “wholly or partially for a discriminatory reason based upon the actual

or perceived . . . disability . . . of any individual.”

(a). Specifically, it is

forbidden

[t]o fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee[,]

when the employer has a discriminatory rationale.

(a)(1).

Courts in this jurisdiction have applied the legal analysis developed for ADA claims to

DCHRA claims as well. See, e.g., Giles v. Transit Emps. Credit Union,

(D.C. Cir.

5 2015); Grant v. May Dep’t Stores Co.,

(D.C. 2001) (deeming ADA

precedent to be “persuasive” where “comparable sections of DCHRA” are concerned). Because

the parties’ arguments do not distinguish between the two statutes, the Court shall consolidate its

analysis under the ADA. See Minter v. District of Columbia,

, 68 n.2 (D.C. Cir. 2015).

Plaintiff alleges that Defendant 1) failed to accommodate her disability, and 2) took a series

of adverse actions in response to her disability. See Pl.’s Mem. at 6. Because the standards for

these two types of disability discrimination claims differ, the Court shall deal separately with them

below.

A. Reasonable Accommodation Claim Plaintiff’s claim that Defendant did not accommodate her disability falls under

(b)(5)(A), which imposes liability on a covered entity for “not making reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless such covered entity can demonstrate that

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

covered entity.” In light of this language, the Court shall refer more generally to Plaintiff’s claim

as alleging a failure to make reasonable accommodation. The reasonable accommodation claim is

but one type of alleged discrimination under the ADA that is enumerated in

(b).

See Haynes v. Williams,

(D.C. Cir. 2004).

In this Circuit, courts evaluating reasonable accommodation claims do not apply the

McDonnell Douglas burden-shifting framework applicable to certain other discrimination claims.

Davis v. George Washington Univ.,

(D.D.C. 2014) (citing McDonnell

Douglas Corp. v. Green,

(1973); Barth v. Gelb,

(D.C.

Cir. 1993)); see also Flemmings v. Howard Univ.,

(D.C. Cir. 1999). Rather,

Plaintiff must establish by a preponderance of the evidence “that (1) she was a qualified individual

6 with a disability, (2) the [Defendant] had notice of her disability and (3) the [Defendant] denied

her request for a reasonable accommodation.” Ward v. McDonald,

(D.C. Cir.

2014) (citing Stewart v. St. Elizabeths Hosp.,

(D.C. Cir. 2010); Barth,

). “An underlying assumption of any reasonable accommodation claim is that the

plaintiff-employee has requested an accommodation which the defendant-employer has denied.”

Flemmings,

. A request for accommodation may trigger an “interactive process”

to determine what accommodation would be reasonable. Minter,

.

Plaintiff argues that she was a qualified individual disabled by renal cancer, whether active

or in remission; that Defendant had notice of that disability; and that she requested but was denied

accommodation. See Pl.’s Mem. at 9-20. Each of the first two prongs of Plaintiff’s argument is

subject to some dispute; whether those disputes involve genuine issues of material fact is less

readily apparent. Strictly for purposes of this analysis, the Court shall assume, arguendo, that

Plaintiff satisfies the first two prongs. It is clear that Plaintiff is unable to discharge her burden as

to the third prong in at least two respects: whether Plaintiff ever made a request for reasonable

accommodation, and whether any such request was denied.

Plaintiff argues that she made a request for accommodation at two times, both before and

after her July 2015 surgery. Id. at 4, 13-14. Plaintiff argues at various points that she made her

reasonable accommodation requests through Defendant’s Office of Equal Employment

Opportunity (“OEEO”) and through members of the Psychiatry Residency Training Program’s

administration. The Court shall consider each of these alleged avenues in turn.

1. Request Through Defendant’s Office of Equal Employment Opportunity The evidence is not “significantly probative” that Plaintiff ever requested a reasonable

accommodation through Defendant’s OEEO. Anderson,

. In her opening brief,

Plaintiff effectively acknowledges that she failed to do so: “Plaintiff communicated her

7 accommodation requests to several offices, including one she thought was the Equal Opportunity

Office.” Pl.’s Stmt. ¶ 27 (emphasis added). The portion of her deposition cited in support says

nothing about a request for accommodation or the OEEO. See

(citing Pl.’s Mot. for Partial

Summ. J. as to Counts I & II, Ex. E, ECF No. 32-4 (Dep. of Dr. Stephanie Waggel at 6:2-5

(“Waggel Dep.”))). Defendant likewise disputes the notion that she ever made contact with its

OEEO to request an accommodation. Def.’s Resp. to Pl.’s Stmt. ¶ 27. 3

At some time prior to the incidents at issue in this case, Defendant evidently foresaw that

some of its employees would seek reasonable accommodations under the ADA. Defendant

established a formal mechanism—its OEEO—at least in part for the purpose of fielding such

requests. See, e.g., id. ¶ 22 (claiming that Defendant’s “policies and procedures” require

submission of “any request for formal accommodation” to OEEO). Plaintiff is correct, in general,

that a request for reasonable accommodation need not use “magic words.” Pl.’s Mem. at 12-13

(quoting Floyd v. Lee,

(D.D.C. 2015)) (internal quotation marks omitted).

The permissible informality of a request, however, does not necessarily excuse a failure to use the

correct procedure. “[O]nce 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.” Davis,

(citing, e.g., Edwards

v. EPA,

(D.D.C. 2006)).

In Chenari v. George Washington University, the D.C. Circuit found that the defendant

university had done enough to make the plaintiff aware of the process for applying for reasonable

3 Defendant alleges that Plaintiff only made contact with the OEEO on April 28, 2016, when she claimed disability discrimination. See Def.’s Stmt. ¶¶ 931, 937-47. Plaintiff does not dispute making that contact, but disputes the assertion that she did not visit the OEEO at any other time, namely in September 2015. See Pl.’s Resp. to Def.’s Stmt. ¶¶ 931, 937-47.

8 accommodation of a disability under the Rehabilitation Act at the time that he was a medical

student. 4 See

(D.C. Cir. 2017). The university had an office responsible for

processing reasonable accommodation requests, had made students aware of this office through its

associate dean and through a manual for first-year students, and had maintained a website

informing students of the process for lodging reasonable accommodation requests.

Moreover,

despite the absence of any proper request, the university had offered plaintiff an accommodation,

which he did not pursue.

. The D.C. Circuit had no trouble concluding that further efforts

were not required: “[T]he University not only twice offered [the plaintiff] counseling, but also,

through its Disability Office and that office’s website, offered all students a procedure for

obtaining any reasonable accommodation they might need.”

.

Like Chenari, this is a case in which Defendant went to some lengths to make sure that

Plaintiff was aware of the established means for seeking accommodation under the ADA.

Plaintiff’s own exhibit, submitted in opposition to Defendant’s Motion for Summary Judgment,

reflects that, at least as early as May 18, 2015, Plaintiff was expressly advised that she could apply

for reasonable accommodation of a disability through the university’s OEEO. On that date, the

Leave of Absence Program Administrator emailed Plaintiff to say that while she was not eligible

yet for FMLA leave, she had another option: “If you believe you are a qualified individual with a

disability and would like to request a reasonable accommodation (such as medical leave) under

4 Courts in this jurisdiction have looked to Rehabilitation Act precedent when analogous provisions of Title II of the ADA were at issue. See Chenari,

(citing, e.g., Am. Council of the Blind v. Paulson,

, 1260 n.2 (D.C. Cir. 2008) (“cases interpreting either are applicable and interchangeable”)). Although the comparison is less straightforward, courts evidently also do so for ADA Title I claims of failure to provide reasonable accommodation. See

at 747 (citing McElwee v. County of Orange,

, 640 & n.2 (2d Cir. 2012); Am. Council of the Blind,

& n.2)) (tracing connection between Rehabilitation Act and Title I through Title II precedent). 9 the Americans with Disabilities Act (ADA), please contact the Office of Equal Employment

Opportunity.” Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J., Ex. AAA, ECF No. 35-8, at

GWU 003178; see also Def.’s Resp. to Pl.’s Stmt. ¶ 22. That email furnished the contact

information for the OEEO and “recommended that [she] apply.” Pl.’s Mem. in Opp’n to Def.’s

Mot. for Summ. J., Ex. AAA, ECF No. 35-8, at GWU 003178. Other evidence in the record

suggests that this was not the only time Plaintiff was expressly advised of the means to apply for

accommodation of a disability. See, e.g., Def.’s Mot. for Summ. J., Ex. BB, ECF No. 34-32

(containing November 19, 2015, email from Defendant’s director of Graduate Medical Education

entitled “Request for ADA Accommodation” and directing Plaintiff to OEEO “[f]or information

about an accommodation”). Plaintiff does not dispute receiving the November 19, 2015, email

regarding ADA accommodations. See Def.’s Stmt. ¶ 626; Pl.’s Resp. to Def.’s Stmt. ¶ 626.

The record also contains a copy of Defendant’s University Policy on Equal Opportunity,

stating it was last amended in 2011, as well as 2014 and 2015 editions of Defendant’s Resident

Manual—all three of which direct applicants for accommodation of a disability to contact the

OEEO. Def.’s Mot. for Summ. J., Ex. A, ECF No. 34-3 (Decl. of Lisa A. Catapano, M.D., Exs.

#5-#7). In her response to Defendant’s statement of material facts in support of its motion, Plaintiff

does not dispute the language in the University Policy on Equal Opportunity. Def.’s Stmt. ¶¶ 60,

62; Pl.’s Resp. to Def.’s Stmt. ¶¶ 60, 62. Plaintiff also does not dispute that her Resident

Agreements signed in 2014 and 2015 incorporated the respective copies of the Resident Manual,

nor that the Manuals contained the aforementioned language. See Def.’s Stmt. ¶¶ 49, 57; Pl.’s

Resp. to Def.’s Stmt. ¶¶ 49, 57. She instead argues that the Resident Manuals’ language on

accommodation of a disability does not reflect Defendant’s “adopted policy and practice.” Pl.’s

Resp. to Def.’s Stmt. ¶ 57.

10 In her reply to Defendant’s opposition, Plaintiff suddenly alleges with specificity that she

visited the OEEO on September 17, 2015. Pl.’s Reply at 3-4 (citing, e.g., Pl.’s Additional Material

Facts, ECF No. 37, ¶ 1017). She argues that that office “directed her to take FMLA leave as an

accommodation rather than [a] modified schedule under [the ADA].”

at 4 (citing, e.g., Pl.’s

Additional Material Facts, ECF No. 37, ¶¶ 1017-18); see also id. at 9. Plaintiff cites facts that she

submitted in response to Defendant’s Motion for Summary Judgment. In its own response to

Plaintiff’s facts, Defendant again hotly contests the notion that Plaintiff ever visited the OEEO to

request an accommodation and asserts that, even if she did, the portion of Plaintiff’s declaration

that she cites in support does not establish that “any such visit was for the purpose of inquiring

about whether Plaintiff was qualified for a disability or requesting a reasonable accommodation.”

Def.’s Resp. to Pl.’s Assertion of Additional Material Facts Allegedly Requiring Jury Trial, ECF

No. 42-1, ¶ 1017.

Assuming that the Court would rely on Plaintiff’s declaration, 5 the information that she

supplies there does not support her argument. The declaration avers only that Plaintiff asked the

OEEO whether “they knew of any policies to protect residents who needed time off for medical

leave. They stated that I should apply for Family Medical Leave Act (FMLA) leave.” Pl.’s Mem.

in Opp’n to Def.’s Mot. for Summ. J., ECF No. 35-2 (Decl. of Dr. Stephanie Waggel, M.D., ¶ 98)

(“Waggel Decl.”). While no magic words are necessary, Plaintiff’s alleged conversation with

OEEO staff falls well short of a request for reasonable accommodation of a disability; otherwise,

any inquiry about medical leave, presumably under the FMLA, could automatically be deemed a

5 Because the Court ultimately does not need to rely on that declaration, the Court need not deal here with Defendant’s Motion to Strike portions thereof.

11 request for accommodation under the ADA. Plaintiff cites no authority in support of such an

expansive proposition. 6

Rather, Plaintiff simply points to language in Defendant’s OEEO form for requesting a

medical accommodation that purportedly “corroborates [the aforementioned alleged] advice

because it refers to FMLA leave as an accommodation.” Pl.’s Additional Material Facts, ECF No.

37, ¶ 1018. But Plaintiff misconstrues the accommodation form. The accommodation form in

fact asks whether the requestor is “eligible for and/or using leave under the” FMLA. Pl.’s Mem.

in Opp’n to Def.’s Mot. for Summ. J., Ex. CCC, ECF No. 35-8. That form says nothing to the

effect that FMLA leave is an accommodation, nor that the answer to the FMLA question amounts

to a request for FMLA leave as an accommodation under the ADA. Most importantly, Plaintiff

does not ever claim that she submitted this one-page form. Cf. Davis,

(finding that employee did not satisfy prima facie case where he submitted ADA accommodation

request form but did not specify accommodation sought).

Plaintiff has not discharged her burden to show that she asked the OEEO for reasonable

accommodation of a disability.

2. Request Through Defendant’s Employees Outside of Its Office of Equal Employment Opportunity Plaintiff also alleges that she lodged accommodation requests with various of Defendant’s

employees outside of the OEEO and its established procedure. It is not clear that the Court need

6 The Court has found some authority for the notion that “a request for FMLA leave may qualify, under certain circumstances, as a request for reasonable accommodation under the ADA.” Capps v. Mondelez Global, LLC,

(3d Cir. 2017) (citing

(c)(2)). But the Third Circuit has adopted a different test for requesting a reasonable accommodation under the ADA—a test that arguably has a lower threshold for a valid request. See

(indicating that requestor need only have “requested an accommodation or assistance” (emphasis added)). Moreover, in Capps, the employer approved of the FMLA leave, obviating a decision as to whether the FMLA request in fact qualified as a request for ADA accommodation. See

Likewise in this case, the Court is not aware of any request by Plaintiff for FMLA leave that Defendant denied. 12 even consider such informal requests. Circuit precedent does not offer a definitive standard for

finding that an informal request amounts to an ADA request for reasonable accommodation. Nor

is the Court persuaded that this case falls within the rather abstract guideline of a “case[ ] where

the plaintiff’s need for an accommodation is so apparent that the defendant must offer one

regardless of whether the plaintiff has requested it.” Chenari,

(citing Pierce v.

District of Columbia,

(D.D.C. 2015) (requiring accommodation of

“obviously disabled inmate” even if no request were made)). Plaintiff does not claim that she

lacked the capacity to make a request for accommodation of a disability. Nor is it otherwise

“obvious” to the Court that Plaintiff should be excused from asking through Defendant’s

established channel, the OEEO. But, in an abundance of caution, the Court shall consider in any

case whether Plaintiff requested reasonable accommodation of her alleged disability through

informal channels outside of the OEEO, and if she did, whether such request was denied.

Perhaps the best-defined statement of her purported reasonable accommodation request

before surgery is as follows: “Consistent with a note Dr. Jarrett provided in advance of scheduling

surgery, Plaintiff sought an accommodation by asking for two (2) weeks off for the surgery, two

(2) weeks light duty, and set days in advance where she could schedule follow-up appointments

with her doctors.” Pl.’s Stmt. ¶ 21 (citing Waggel Dep. 59:6-12, 68:21-69:5; Pl.’s Mot. for Partial

Summ. J. as to Counts I & II, Ex. D, ECF No. 32-4 (Claimant’s [sic] Am. Resp. to Pl.’s [sic]

Interrogs. No. 5, 8-10, & 15, at Interrog. 9); Pl.’s Mot. for Partial Summ. J. as to Counts I & II,

Ex. X, ECF No. 32-4, at MFA 0001-0003).

Defendant argues that even if Plaintiff did make these requests, they do not qualify as

requests under the ADA. See Def.’s Resp. to Pl.’s Stmt. ¶ 21 (denying contact with OEEO). Dr.

Lisa Catapano, Program Director for the Psychiatry Residency Training Program, and presumably

13 any others to whom Plaintiff directed her requests that worked outside of OEEO, “had no authority

to grant formal accommodation under ADA pursuant to a claim of disability or need for leave.”

Id. ¶ 22; see also Pl.’s Stmt. ¶ 3; Def.’s Resp. to Pl.’s Stmt. ¶ 3 (Dr. Catapano’s role). As discussed

above, Defendant had established a process for reasonable accommodation requests pursuant to

the ADA and made that process known to Plaintiff. Def.’s Resp. to Pl.’s Stmt. ¶ 22. Defendant’s

argument directly raises the issue of whether Plaintiff’s informal requests, if any, through channels

other than those Defendant established pursuant to the ADA, nevertheless qualify as valid channels

for directing reasonable accommodation requests under the ADA. But the Court need not decide

that issue.

Rather, Plaintiff is unable to discharge her burden to show that one of those informal

requests was even made, and, as to the others, that Defendant denied them. First, the parties do

not dispute that Plaintiff, or her doctor, made some kind of request for leave for the surgery itself.

See Pl.’s Additional Material Facts, ECF No. 37, ¶ 994 (referring to note from Plaintiff’s doctor

and Plaintiff’s corresponding request); Def.’s Resp. to Pl.’s Assertion of Additional Material Facts

Allegedly Requiring Jury Trial, ECF No. 42-1, ¶ 994 (acknowledging doctor’s note). Moreover,

there is no dispute that Plaintiff received her two-weeks’ leave. See Waggel Dep. at 56:10

(“Nobody ever said I wasn’t allowed [time off for surgery].”); Pl.’s Reply at 7 (“Defendant

ultimately provided Plaintiff two weeks off for her surgery.”). This satisfied the first prong of her

informal request for accommodation. Any difficulties that she had in scheduling that leave are

disputed and immaterial. Compare Pl.’s Stmt. ¶ 23 (referring to logistical challenges), with Def.’s

Resp. to Pl.’s Stmt. ¶ 23 (indicating that one of Plaintiff’s supervisors “worked extensively to

coordinate Plaintiff’s ongoing training with her surgery leave”).

14 Turning to Plaintiff’s second alleged request, for light duty after surgery, Defendant

indicates that Plaintiff was indeed, upon her return, “scheduled for the night shift because it was

expected to provide lighter than normal duty.” Def.’s Resp. to Pl.’s Stmt. ¶ 46(a) (citing Def.’s

Mot. for Summ. J., Ex. C, ECF No. 34-7 (Decl. of Jason Emejuru, M.D., ¶¶ 36-37, 51)). Plaintiff

argues that she did not end up being on lighter duty, for “the Program instead assigned Dr. Waggel

to grueling day through night shifts without backup that violated [national standards] to make up

for lost time.” Pl.’s Reply at 7 (citing Pl.’s Additional Material Facts, ECF No. 37, ¶ 1008; Waggel

Decl. ¶¶ 14, 63-66, 82-88). Plaintiff misleadingly draws some of her support from an incident

outside the two-week light-duty window. See Waggel Decl. ¶¶ 82-88. As for the events within

the two-week window, Defendant disputes that Plaintiff was given an exceptional work load, but

for “one shift with an unexpectedly high patient load.” Def.’s Resp. to Pl.’s Assertion of

Additional Material Facts Allegedly Requiring Jury Trial, ECF No. 42-1, ¶ 1008. Even crediting

Plaintiff’s declaration, arguendo, she has failed to prove by a preponderance of the evidence that

Defendant denied an informal request for light duty.

With regard to the third of her purported requests, Defendant contends that “[t]here is no

record that Plaintiff discussed with Dr. [Jason] Emejuru ‘set days in advance’ for doctors’

appointments.” Def.’s Resp. to Pl.’s Stmt. ¶ 21. Dr. Emejuru was the chief resident with whom

Plaintiff coordinated her program schedule in light of her surgery. Def.’s Stmt. ¶¶ 27, 231-40;

Pl.’s Resp. to Def.’s Stmt. ¶¶ 27, 231-40. Plaintiff responds that her “primary care doctor

submitted FMLA paperwork for that purpose” of having designated days for doctor’s

appointments. Pl.’s Reply at 7 (citing Pl.’s Additional Material Facts, ECF No. 37, ¶ 1048; Pl.’s

Mem. in Opp’n to Def.’s Mot. for Summ. J., Ex. AAA, ECF No. 35-8). But this comment is

ambiguous: Did the doctor state in the FMLA paperwork that Plaintiff should be given “set days

15 in advance” for doctors’ appointments? Or did Plaintiff submit the doctor’s paperwork along with

her own such request? The portions of the record that Plaintiff offers in support do not appear to

answer those questions. It is not clear that Plaintiff either requested set days in advance or that her

doctor submitted FMLA paperwork for that purpose. Accordingly, there is insufficient evidence

to submit to a jury that Defendant denied any “set days” request that Plaintiff made outside of the

OEEO channel.

The Court concludes that Plaintiff has not discharged her burden to prove, by a

preponderance, that she sought accommodation for a disability and was denied that

accommodation. See Flemmings,

. There is insufficient evidence for a finder of

fact to conclude that Plaintiff made any requests for accommodation of a disability using

Defendant’s established OEEO channel. Even if Plaintiff did make informal requests before

surgery via non-OEEO channels, there is insufficient evidence that Defendant denied such

requests. Absent a request that the OEEO facilitate reasonable accommodation, Plaintiff cannot

complain that Defendant’s efforts to resolve her informal requests were imperfect.

The problems with Plaintiff’s purported pre-surgery requests for informal accommodation

typify those affecting her further alleged requests after surgery. See, e.g., Pl.’s Mem. at 4, 16-17

(referring to, inter alia, Plaintiff’s request for accommodation of therapy appointments and to

various complaints upon her return to work). For example, there is no dispute that Plaintiff sought

assistance with schedule arrangements to permit her to attend psychotherapy appointments. See,

e.g., Pl.’s Stmt. ¶ 31 (referring to “work place accommodation” sought, without claiming that she

made any OEEO request); Def.’s Resp. to Pl.’s Stmt. ¶ 31 (acknowledging that “Plaintiff spoke

with Dr. Catapano about arranging her clinical rotation schedule . . . during September 2015 to

assure she could attend regular therapy appointments”). But there is no proof that Plaintiff’s

16 request was denied. On the contrary, the record reflects that Dr. Catapano obliged. See Def.’s

Resp. to Pl.’s Stmt. ¶ 31 (“Dr. Catapano worked hard to make sure [the above-described

arrangements] would happen and in that sense attempted to ‘accommodate’ Plaintiff.”); Def.’s

Opp’n, Ex. HH, ECF No. 36-7 (Dep. of Lisa Catapano at 109:15-110:5). Upon review of the

briefing, the Court finds that Plaintiff has not discharged her burden to show, by a preponderance,

that Defendant denied this or any other informal, post-surgery requests for accommodation.

Again, Plaintiff has not proven that she ever asked the OEEO for reasonable

accommodation of a disability. A factfinder’s assessment of the nature and scope of pre-surgery

requests via non-OEEO channels may affect its assessment of any accommodations informally

sought afterwards.

B. Other Alleged Disability Discrimination As discussed above, Plaintiff alleges not only that Defendant failed to accommodate

Plaintiff’s disability but that Defendant took a variety of adverse employment actions on the basis

of that disability. Pl.’s Mem. at 6. She identifies six specific instances in which she allegedly

experienced discrimination: “a decision not to promote Plaintiff, a decision to terminate Plaintiff,

a decision to sabotage Plaintiff’s efforts to transfer to another program, as well as other lesser

adverse employment actions related to job assignments, vacation and training.” Id. at 6, 23-28.

Plaintiff cites a laundry list of statutory provisions and implementing regulations that could apply

to these activities. Id. at 21-23 (citing

(b)(1), (3)-(7);

(a)(1)(ii), (iv)-(vii), (ix)). Nowhere does she make clear which specific statutory or

regulatory requirement is violated by each adverse action.

“Putting aside the issue of reasonable accommodation, the two basic elements of a

disability discrimination claim are that (i) the plaintiff suffered an adverse employment action

(ii) because of the plaintiff’s disability.” Adeyemi v. District of Columbia,

, 1226

17 (D.C. Cir. 2008). Plaintiff may establish her claim by either direct or circumstantial evidence of

discrimination. Brady v. Livingood,

(D.D.C. 2006) (assessing racial

discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”)), aff’d sub nom.

Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008). “While courts have not

precisely defined what constitutes ‘direct evidence,’ it is clear that ‘at a minimum, direct evidence

does not include stray remarks in the workplace, particularly those made by nondecision-makers

or statements made by decisionmakers unrelated to the decisional process itself.’” Brady v.

Livingood,

(quoting Ayala-Gerena v. Bristol Myers-Squibb Co.,

(1st Cir. 1996)). Indeed, “[d]irect evidence of discrimination is evidence that, if believed by

the fact finder, proves the particular fact in question without any need for inference.” Lemmons v.

Georgetown Univ. Hosp.,

(D.D.C. 2006) (quoting Davis v. Ashcroft,

, 340 n.2 (D.D.C. 2005)) (internal quotation marks omitted).

Plaintiff does not expressly argue that there is direct evidence of discrimination, though

Plaintiff cites three times Dr. James Griffith’s comment that he was “agnostic” as to whether

Plaintiff’s illness was diagnosed as cancer. Pl.’s Mem. at 1, 3, 16 (citing Pl.’s Stmt. ¶ 94). This is

a stray comment. The record shows that Dr. Griffith was not responsible for many of the decisions

during Plaintiff’s tenure in the program, but even if he is considered a decisionmaker, this comment

during a deposition was unrelated to Defendant’s decision-making process. See Pl.’s Mot. for

Partial Summ. J. as to Counts I & II, Ex. N, ECF No. 32-4 (Dep. of James Griffith at 34:12-35:6).

Notwithstanding those deficiencies, Dr. Griffith’s comment would require some inference that, by

not taking a position as to whether Plaintiff had cancer, he intended to discriminate against her.

Summary judgment for Plaintiff is inappropriate where the discriminatory import of a comment

requires an inference. Cf. Ayissi-Etoh v. Fannie Mae,

(D.C. Cir. 2013) (per

18 curiam) (reserving for factfinder an assessment of the credibility of direct evidence of

discrimination).

Finding no direct evidence, the Court historically would evaluate whether Plaintiff makes

out a prima facie case under McDonnell Douglas that each of the Defendant’s adverse actions was

attributable to an alleged disability, in violation of a specific statutory or regulatory requirement.

See McDonnell Douglas Corp.,

(Title VII context). But Adeyemi has made clear

that, at least in this Circuit, “the prima-facie-case aspect of McDonnell Douglas is irrelevant [in

the ADA context] when an employer has asserted a legitimate, non-discriminatory reason for its

decision—as an employer almost always will do by the summary judgment stage of an

employment discrimination suit.” Adeyemi,

; see also Brady v. Office of Sergeant

at Arms,

(Title VII context). Rather, the Court shall proceed to Defendant’s

rationale for each of the alleged adverse actions. If the rationale is legitimate and non-

discriminatory, then the Court shall consider Plaintiff’s rebuttal argument that Defendant’s

purported rationale is pretextual. See Adeyemi,

.

The Court finds that, in general, Plaintiff’s six areas are rife with disputes, due in part to

briefing reminiscent of ships passing in the night. At least some of those disputes are not genuine,

reflecting instead Plaintiff’s habit of mischaracterizing the record. Resolving any remaining

genuine, material disputes would require a finder of fact first to sort out Plaintiff’s and Defendant’s

divergent narratives of what transpired between them.

The Court shall illustrate the factual discrepancies by reference to one of Plaintiff’s six

areas, vacation time. Issues with vacation time can be sufficiently isolated from the history of the

parties’ interactions to 1) succinctly describe Plaintiff’s argument—without concluding whether

she establishes a prima facie case of discrimination; 2) evaluate Defendant’s purported rationale;

19 and 3) if that rationale is legitimate and non-discriminatory, address Plaintiff’s rebuttal, if any.

The Court need not proceed further to conclude that Plaintiff is not entitled to summary judgment

as to her disability discrimination claims.

Plaintiff’s claim regarding vacation time consists in entirety of the following:

GWU treated her differently in making decisions about her vacation. On October 22, 2015, Plaintiff was informed that, because she took three days off (which were approved at the start of her rotation) and was scheduled to take a licensing exam the following week (as suggested by Plaintiff’s Chief Resident), Plaintiff would have to repeat the entire month’s rotation.

Pl.’s Mem. at 28 (citing Pl.’s Stmt. ¶ 48). Defendant does not specifically address vacation time

in its brief. But in its response to Plaintiff’s statement of facts, Defendant flatly denies an almost

verbatim version of the second sentence, referring for support to its response to another of

Plaintiff’s paragraphs. Def.’s Resp. to Pl.’s Stmt. ¶ 48 (citing id. ¶ 36). At the cross-reference,

Defendant explains that an error had been made regarding Plaintiff’s request for administrative

leave for a licensing exam in October 2015. Plaintiff’s attending physician at an off-site hospital

had signed off on her request for four days of such leave, which was two more than Defendant’s

program permitted for such exams, and the program had incorrectly processed Plaintiff’s

application before Dr. Catapano caught the issue. Id. ¶ 36. Defendant’s associate program director

gave Plaintiff a couple of options to mitigate any effects of having less administrative leave time

for the exam than Plaintiff had been planning. Id. One of those options was to use two days of

vacation time in addition to two days of administrative leave. Id. But the associate director made

clear to Plaintiff that taking this additional time may have consequences because her “attendance

at PHP [her current clinical rotation] this month puts you in jeopardy of failing the rotation, based

solely on the number of days worked/not worked.” Id. (alteration in original) (internal quotation

marks omitted).

20 There appears to be some misalignment between Defendant’s explanation for the October

2015 incidents and Plaintiff’s argument that she experienced discrimination. First of all, Plaintiff

refers to three days off, and Defendant’s explanation involves two and four. Plaintiff’s explanation

also appears to refer to days already taken off, while Defendant’s refers to upcoming days off, as

well as the associate program director’s comment about past days off. It also is unclear whether

Plaintiff misinterpreted the associate director’s comment that she would be at risk of needing to

repeat the rotation; this is different than Plaintiff’s intimation that she certainly would be required

to repeat.

Notwithstanding these ambiguities, Defendant offers a cogent, non-discriminatory

explanation for a scenario involving Plaintiff’s vacation time during October 2015. If Plaintiff

were able to show that Defendant is referring to the wrong scenario, that Defendant is misstating

the facts of this scenario, or that Defendant’s explanation is otherwise illegitimate, and that

Plaintiff has in fact described a situation involving an adverse employment action based on her

alleged disability, then the Court would find that Plaintiff discharged her burden on rebuttal.

Plaintiff might demonstrate that Defendant acted under pretext by showing that Defendant

diverged from its own policy, or that other residents were treated more favorably.

But Plaintiff does nothing of the sort. Rather, she contends only that the associate program

director’s email makes clear that “absences, not performance, were the real cause of alleged

deficiencies.” Pl.’s Reply at 11. Absences were no doubt implicated in the October 22, 2015,

incident, but Plaintiff has not shown that Defendant’s behavior involved anything other than an

administrative snafu. In other words, Plaintiff fails to demonstrate that Defendant’s rationale for

its handling of the vacation time incident conceals unlawful discrimination.

21 Even if Plaintiff had made more of a showing, her argument about vacation time is

ultimately a non-issue. It appears that Plaintiff did not end up taking vacation time or

administrative leave during the late October 2015 period at issue. Defendant has submitted

evidence that Plaintiff applied for FMLA leave for a period encompassing both the study time that

she sought as well as the exam itself. Def.’s Resp. to Pl.’s Stmt. ¶ 36 (citing Def.’s Opp’n, Ex.

KK, ECF No. 36-10). 7 Plaintiff never argues that she did not take the exam. Nor does she allege

that she failed the rotation. Accordingly, Defendant did not take any adverse action related to

vacation time in which it could have discriminated against Plaintiff. See, e.g., Diggs v. Potter,

, 42 n.13 (D.D.C. 2010) (finding “no adverse action” in light of defendant’s remedial

activities); cf. Hutchinson v. Holder,

(D.D.C. 2009) (quoting Russell v.

Principi,

(D.C. Cir. 2001)) (recognizing in Title VII case that “not everything

that makes an employee unhappy is an actionable adverse action” (internal quotation marks

omitted)). It is unnecessary to reach Defendant’s insistence on judicial deference to academic

institutions. See Def.’s Opp’n at 20-25.

The Court also need not proceed to Defendant’s other adverse actions allegedly attributable

to discrimination. The Court has read the briefing regarding such actions. The issues with

Plaintiff’s vacation time claim are emblematic of those plaguing her other alleged instances of

discrimination, due to a lack of clarity and some factual disputes. Accordingly, Plaintiff has not

shown that she is entitled to summary judgment on her disability discrimination claim.

7 Defendant’s exhibit regarding FMLA leave shows that Plaintiff requested the leave, but it does not include an indication whether the leave request was certified upon receipt of documentation from Plaintiff. See Def.’s Opp’n, Ex. KK, ECF No. 36-10, at GWU 003185. Defendant elsewhere claims that Plaintiff did in fact receive FMLA leave from October 26-30, 2015. Def.’s Resp. to Pl.’s Stmt. ¶ 35(a) (citing Def.’s Mot. for Summ. J., Ex. O, ECF No. 34-19 (Decl. of Kimberly Vanlewen, ¶ 20)). Plaintiff does not dispute that this leave request was approved. See Def.’s Stmt. ¶ 531; Pl.’s Resp. to Def.’s Stmt. ¶ 531. 22 ***

In the course of preparing this Memorandum Opinion, the Court considered each of

Plaintiff’s arguments. The Court has attempted to respond to each of the pertinent allegations by

Plaintiff. Any allegation that it has not expressly addressed is without merit.

When viewing the record in the context of Defendant’s Motion for Summary Judgment,

the Court discerns a much clearer and more specific picture of the facts of this case. That picture

is based on Plaintiff’s admissions of many of Defendant’s material facts, and her non-genuine or

immaterial disputes as to other such facts. In a Memorandum Opinion that also will issue today,

the Court shall grant Defendant’s Motion for Summary Judgment, notwithstanding disputes

discussed in this Opinion, because Defendant focuses on the undisputed material facts that justify

its actions pursuant to the relevant standards.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s [32] Motion for Partial Summary

Judgment as to Counts I & II.

A separate Order accompanying this Memorandum Opinion concerns Plaintiff’s Motion,

as well as Defendant’s [34] Motion for Summary Judgment and [41] Motion to Strike Portions of

the Declaration of Dr. Stephanie Waggel, M.D.

Dated: November 9, 2018

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

23