JOHN D. BATES, District Judge.
Lakeisha Ellis, a former Georgetown University Hospital employee, brings this action for discrimination and retaliation pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C.Code § 2-1401.01 et seq. She contends that Georgetown discriminated against her because she suffered from asthma, and that it retaliated against her when she requested an accommodation for that condition. Before the Court is Georgetown's motion for summary judgment on both claims. Upon careful consideration of the parties' memoranda, the applicable law, and the entire record herein, and for the reasons set forth below, the Court will grant in part and deny in part Georgetown's motion.
Ellis suffers from asthma, which was diagnosed approximately ten years ago. See Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") [Docket Entry 45], Ex. 2 (Dep. of Lakeisha Ellis ("Ellis Dep.")), 138:1-2.
In May 2006, Ellis was hired to work as a Patient Financial Associate at Georgetown University Hospital. See id. at 25:8-11. This position required her "to register patients in several departments of the Hospital," including the Emergency Department, see Def.'s Mem., Ex. 10 (Decl. of Cynthia Hecker), ¶ 2, and obligated her to obtain a patient's personal and insurance information and enter it into Georgetown's computer system, see Ellis Dep. at 32:15-33:4. On July 25, 2006, Ellis suffered an asthma attack while working in Georgetown's Emergency Department. See id. at 75:12-18. The symptoms dissipated after she used her inhaler. See id. at 232:12-19.
The next day, Ellis visited her primary care physician for an unrelated matter— she was suffering from gastroenteritis and pancreatitis. See id. at 84:2-16; see also Def.'s Mem., Ex. 18 (Dep. of Ellen Finkelman ("Finkelman Dep.")), 15:10-22. Due to Ellis's stomach ailments, Dr. Finkelman told her to "stay off work for five days." Finkelman Dep. at 16:2. At Ellis's request, Dr. Finkelman also wrote a note recommending that Ellis "not work in the emergency department as this is too high an exposure to many sick patients and puts her at risk for her own health." Id. at 16:10-13.
Later that evening, Ellis called one of her supervisors at Georgetown, Fannice Beckett, and told her that she would be out of work for a few days due to illness. See Ellis Dep. at 105:1-6. Ellis also advised Beckett of Dr. Finkelman's recommendation that Ellis no longer work in the Emergency Department due to her asthma. See id. According to Ellis, Beckett responded that Ellis and the hospital must "part ways if [Ellis] was not able to work in the emergency room." See id. at 105:10-12. Nevertheless, Beckett did not terminate Ellis over the phone, and instead instructed her to bring the note from her doctor when she returned to work. See id. at 105:15-19. When Ellis returned to the hospital on July 31, she met with Beckett and another one of her supervisors, Cindy Hecker, who informed Ellis that once she was deemed fit to return to duty by Employee Health Services, Georgetown would decide whether they could fulfill Ellis's request for an accommodation. See id. at 111:3-7.
Employee Health Services cleared Ellis to return to work on August 1, but noted that she could no longer work in the Emergency Department. See Def.'s Mem., Ex. 22 (Employee Health Service Statement of Work Status). The parties disagree about what happened next. According to Ellis, Beckett gave her the option of either waiting in the hospital or returning home while the hospital decided whether it could accommodate her. See Ellis Dep. at 117:10-13. According to Beckett, however, she only told Ellis to wait in the hospital while Georgetown resolved Ellis's request for accommodation. See Def.'s Mem., Ex. 11 (Dep. of Fannice Beckett), 69:20-70:4. Whatever the case, the parties agree that Beckett instructed Ellis to be available to meet once George-town
Based on what she remembers Beckett telling her, Ellis decided to take the metro home. See Ellis Dep. at 124:17-21. When a supervisor contacted her by phone and told her to return to work, Ellis stated that she had just exited the metro, and that she would need to drive back to the hospital since she lacked the funds to return via the metro. See id. at 125:10-18, 217:14-19. It took almost three hours for Ellis to drive back to Georgetown, given that it was "very, very congested." Id. at 125:19-126:8.
The following day, Beckett terminated Ellis "for misconduct." Def.'s Mem., Ex. 1 (Aug. 2, 2006 Termination Letter). Specifically, Beckett wrote that Ellis had failed to follow Beckett's instructions to remain at the hospital while waiting for an accommodation decision. See id.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see also Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. Thus, the non-moving party cannot rely on mere speculation or compilation of inferences to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C.Cir.2005). Nor can the non-moving party rely on hearsay statements or conclusory statements with no evidentiary basis to establish a genuine issue of material fact. See Assoc. of Flight Attendants v. Dep't of Transp., 564 F.3d 462, 465 (D.C.Cir.2009). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Moreover, a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 (summary judgment appropriate if the non-movant fails to offer "evidence
To bring a claim for disability discrimination under the ADA, the Rehabilitation Act, or the DCHRA, a plaintiff must demonstrate that she is disabled within the meaning of the statute. See Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008) (ADA); Adams v. Rice, 531 F.3d 936, 943 (D.C.Cir.2008) (Rehabilitation Act); Chang v. Inst. v. Public-Private P'ships, Inc., 846 A.2d 318, 324 (D.C.2004) (DCHRA). A person is disabled under the ADA if she (1) has "a physical or mental impairment that substantially limits one or more major life activities of such individual"; (2) has "a record of such an impairment"; or (3) is "regarded as having such an impairment." 42 U.S.C. § 12102(1). The ADA's definition also applies to suits brought under the Rehabilitation Act. See Thompson v. Rice, 422 F.Supp.2d 158, 166 n.6 (D.D.C.2006) ("The liability standards of the Rehabilitation Act and the ADA are the same in employment discrimination cases, and thus cases interpreting either statute are applicable in defining the term disability and otherwise determining liability.").
Ellis contends that she is disabled because she has a physical impairment—asthma—that substantially limits the major life activity of breathing. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [Docket Entry 47], at 19. But "merely having an impairment does not make [an individual] disabled for the purposes of the ADA." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Rather, the word "substantially" suggests "considerable" or "to a large degree," and thus "clearly precludes impairments that
Here, Ellis concedes that her asthma is well controlled by medication. See Ellis Dep. at 59:11-13 ("Q: Those medications that you were taking controlled your asthma, right? A: Yes."); see also id. at 257:2-9 (asthma symptoms never last longer than five to ten minutes when she uses her medication). Her expert, Dr. Steven Lerner, agrees: "I also felt that she was well controlled on her current regimen." Def.'s Mem., Ex. 3 (Dep. of Steven Lerner), 35:13-14. So too does Georgetown's expert, Dr. Daniel Ein: "After thoroughly reviewing all of the above information, it is my opinion that Ms. Ellis did have chronic asthma at that time but that it was well controlled." Def.'s Mem., Ex. 25 (Expert Report of Dr. Daniel Ein), 2; see also Def.'s Mem., Ex. 26 (Amended Expert Report of Dr. Daniel Ein), 2 (same).
Ellis never has been to the emergency room for her asthma nor has been hospitalized for an asthma attack. See Def.'s Mot., Ex. 4 (Expert Report of Dr. Steven Lerner) ("Lerner Report"), 1. And she admitted that she engaged in cardiovascular exercise at least once a week, see Ellis Dep. at 61:4-6 ("Q: So in 2006 you were able to exercise weekly at least? A: Yes."); Def.'s Mot., Ex. 6 (Georgetown University Hospital Pre-Placement Health Clearance), 1 (noting that Ellis exercises at least once a week), which undermines the contention that her breathing is substantially impaired, see Boone v. Reno, 121 F.Supp.2d 109, 111 (D.D.C.2000); Heilweil v. Mount Sinai Hosp., 32 F.3d 718 (2d Cir.1994); Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.1992).
Moreover, "[i]f the impact of an impairment can be eliminated by changing the address at which an individual works," the impairment does not substantially limit a major life activity. Haynes v. Williams, 392 F.3d 478, 483 (D.C.Cir.2004). Here, Ellis concedes that the conditions that trigger her asthma can be mitigated, if not eliminated, by working at any location in the hospital other than the Emergency Department. See Ellis Dep. at 139:5-8 ("Q: Other than working in the emergency department, are there any other jobs you can't perform? A: No."). Therefore, even if working in the Emergency Department triggered uncontrollable asthma, that Ellis could mitigate this effect by working in a different location means that she is not disabled under the law. See Haynes, 392 F.3d at 483. For this reason, Dr. Lerner's observation that the "intense anxiety" Ellis feels about returning to the Emergency Department could make her asthma "much more difficult to control," Lerner Report at 3, does nothing to aid her assertion that she is disabled. Ellis simply offers no evidence that she suffers
Ellis next offers that she has "record of impairment" because she "has a history of asthma that dates back more than 10 years" and has a "unique family history that plays heavily in Plaintiff's anxiety and psychosocial triggers of her asthma attacks." Pl.'s Opp'n at 21; see also 29 C.F.R. § 1630.2(k) ("record of impairment" where individual "has a history of . . . a mental or physical impairment that substantially limits one or more major life activities"). But "evidence of a prior illness, without more, is insufficient to show a record of disability." Adams, 531 F.3d at 946. Instead, Ellis "must show that her alleged impairment substantially limited one or more major life activities." Id. (internal quotation marks omitted); accord Equal Employment Opportunity Comm'n v. R.J. Gallagher Co., 181 F.3d 645, 655 (5th Cir.1999) ("[I]t is not enough for [a]. . . plaintiff to simply show that he has a record of a cancer diagnosis; in order to establish the existence of a `disability' . . . there must be a record of an impairment that substantially limits one or more of the. . . plaintiff's major life activities."). Yet the evidence Ellis offers in support of her contention that she has a record of impairment establishes only that she has a history of asthma. There is nothing in her medical or family history that indicates that her asthma substantially impairs her breathing. And the Court has already found there is no other evidence in the record to demonstrate that this is the case. Accordingly, Ellis has not demonstrated that she qualifies as disabled pursuant to a record of impairment.
Ellis lastly contends that Georgetown regarded her as having a disability. To prevail on this theory, Ellis must show that her employer either "mistakenly believes that [she] has a physical impairment that substantially limits one or more major life activities" or "mistakenly believes that an actual, non-limiting impairment substantially limits one or more major activities." Sutton, 527 U.S. at 489,
Ellis suggests that Georgetown must have regarded her as disabled because it "did not discuss alternative positions within the hospital; it simply terminated her when she requested an accommodation." Pl.'s Opp'n at 21-22; see also Pl.'s Mot. to Supplement Opp'n ("Pl.'s Supplement") [Docket Entry 51], Ex. 1 (Supplement), 1-2.
Instead, courts require specific evidence that an employer believed an employee's disability substantially limited a major life activity. See id.; see also Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 156 (1st Cir.2009) (employee offered affidavits from coworkers indicating they thought plaintiff could not perform her job safely as a result of a disability); Nichols v. Billington, 402 F.Supp.2d 48, 79 (D.D.C.2005) (employee demonstrated that employer regarded her as disabled by pointing to the fact that employer made substantial changes to the plaintiff's work area to alleviate her discomfort). Here, such evidence is absent. And the only evidence in the record suggests that Georgetown did not regard her as disabled—Ellis conceded at her deposition that she could not recall anyone treating her as if she were disabled:
Ellis Dep. at 268:19-21.
There is no evidence in the record, then, by which a reasonable jury could conclude that Ellis's asthma was a disability under any of the ADA's three definitions of that term. The Court therefore will grant Georgetown's motion for summary judgment on the discrimination claims.
Although Ellis is not disabled under the law, she may still assert a retaliation claim against Georgetown. See Zeigler v. Potter, 641 F.Supp.2d 25, 29 (D.D.C. 2009) (citations omitted) (in claim under ADA or Rehabilitation Act, "a plaintiff's good-faith request for accommodations is protected activity and . . . the denial of such accommodations can be retaliatory even if it is ultimately determined plaintiff is not disabled"); see also Grant, 786 A.2d at 586 (same under DCHRA). The Court considers Ellis's retaliation claim under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, a plaintiff must first establish a prima facie case of retaliation by establishing "(1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two." Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007).
Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-retaliatory explanation for its actions. See Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir.2005). In doing so, the defendant "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it [retaliated] against the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citation omitted).
But where a defendant offers a legitimate, non-retaliatory reason for its actions, "the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). Rather, the sole inquiry becomes "whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted non-[retaliatory] reason was not the actual reason and that the employer intentionally [retaliated] against the plaintiff on a prohibited basis." Adeyemi, 525 F.3d 1222, 1226 (D.C.Cir.2008). In evaluating whether the plaintiff may overcome summary judgment, "the court reviews each of the three relevant categories of evidence—prima facie, pretext, and any other—to determine whether they `either separately or in combination' provide sufficient evidence for a reasonable jury to infer retaliation." Jones v. Bernanke, 557 F.3d 670, 679 (D.C.Cir.2009) (quoting Waterhouse v. Dist. of Columbia, 298 F.3d 989, 996 (D.C.Cir.2002)).
Ellis alleges that Georgetown terminated her in retaliation for requesting an accommodation—namely, to no longer work in the Emergency Department. Georgetown, however, offers a legitimate, non-retaliatory reason for her termination: "plaintiff's failure to follow her employer's instruction." Def.'s Mem. at 33; see also Aug. 2, 2006 Termination Letter (indicating that Georgetown terminated Ellis for failing to follow her supervisor's instructions and concealing information from her supervisors). Thus, pursuant to Brady, the Court looks to the totality of the evidence in the record to determine whether Georgetown's asserted justification for Ellis's termination merely disguises retaliation. Here, Ellis has provided sufficient evidence to create a material dispute on the issue of retaliation.
For one, when Ellis first apprised Beckett that she could no longer work in the Emergency Department, Beckett responded that Georgetown and Ellis would have to "part ways":
Ellis Dep. at 105:7-14. In other words, according to Ellis, Beckett's first response to Ellis's request for an accommodation was to declare that Ellis must leave her employment.
Given that only a week elapsed between Ellis's request for accommodation and her termination, and coupled with Beckett's "part ways" statement, a reasonable jury could conclude that Georgetown terminated Ellis for requesting an accommodation. See Jones, 557 F.3d at 680 ("[A]n adverse action following closely on the heels of protected activity may in appropriate cases support an inference of retaliation.").
For the foregoing reasons, the Court will grant in part and deny in part George-town's
