                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


SELENA Y. HANCOCK,

                      Plaintiff,

                      v.                          Civil Action No. 10-cv-487 (RLW)

WASHINGTON HOSPITAL CENTER,

                      Defendant.


                                   MEMORANDUM OPINION

       Plaintiff   Selena   Hancock   (“Hancock”)    suffers   from   Polyradiculopathy    and

Polyneuropathy, conditions impacting the nerve roots of her lower spine. She was formerly

employed by Defendant Washington Hospital Center (“WHC” or the “Hospital”) as a Medical

Assistant, and she now brings this action alleging that WHC unlawfully failed to accommodate

her disability and wrongfully terminated her employment in violation of the Americans with

Disabilities Act (ADA). Specifically, Hancock pursues the following remaining claims against

WHC: (1) Failure to Accommodate under the ADA (Count I); (2) Disability Discrimination in

Violation of the ADA (Count II); (3) Intentional Infliction of Emotional Distress (Count IV). 1

This matter is presently before the Court on WHC’s Motion for Summary Judgment. (Dkt. No.

20).   For the reasons set forth below, the Court concludes that WHC’s Motion must be

GRANTED in PART and DENIED in PART.




1
       Originally, Hancock also advanced a claim for retaliatory discharge against WHC
through Count III of her Complaint, but Hancock voluntarily dismissed that claim with prejudice
on October 3, 2011. (Dkt. No. 16).
                                              1
                                        BACKGROUND

       The facts surrounding Hancock’s claims are not terribly complicated, but they are

disputed in some important respects. Selena Hancock was employed by Washington Hospital

Center as a Medical Assistant from May 1999 until her termination, which either occurred on

December 21, 2007, or June 10, 2008, depending on whose version of events is credited.

(Compare Dkt. No. 20-3 (“Def.’s Stmt.”) at ¶ 22, with Dkt. No. 22-1 (“Pl.’s Stmt.”) at ¶ 29). 2

       As a Medical Assistant, Hancock’s duties included registering patients, triaging patients,

billing, patient referrals, assisting nurses, cleaning exam rooms, stocking and ordering supplies,

answering telephones, and more. (Def.’s Stmt. at ¶ 2). As particularly relevant here, both parties

agree that Hancock’s triage responsibilities—which entailed preparing patients to be seen by a

physician, escorting patients to the exam room, and taking and recording patients’ information in

their charts—were considered an essential aspect of her position. (Id. at ¶ 3).




2
         Notably, the Court previously warned WHC that the factual issues surrounding the timing
of Hancock’s termination appeared to be in serious dispute. (Dkt. No. 21 (“Pre-Motion Tr.”) at
25-26) (“[W]hy isn’t there going to be a dispute of fact that’s going to preclude summary
judgment, given the testimony from plaintiff that she was fired during this December 21st
meeting?”). The Court specifically advised WHC’s counsel:
          I would ask you to look long and hard and think long and hard before you file a
      motion on those grounds, because I’ve seen lots of instances where there’s testimony
      from one party – from the plaintiff – and it may be countered by the testimony of 20
      bishops on the other side, but buttom line is, under Rule 56, I don’t know how it would
      be appropriate for me to completely discount the plaintiff’s testimony.
          Now, if you’ve thought about this long and hard and you find some authority for
      that, that better be front and center in your brief. But otherwise, it seems to me that
      you’re swimming upstream on that one, and that would be something that the jury has
      to decide . . . . So that one causes me some concern. I put you on notice; you can
      proceed how you feel appropriate.
(Id. at 25:23-26:12). Despite the Court’s warning—and notwithstanding the existence of a clear
dispute of material fact on this point—WHC chose to forge ahead.
                                                 2
       In June 2006, Hancock began experiencing sharp pains in her stomach and was advised

by her physician to go directly to the emergency room. (Pl.’s Stmt. at ¶ 1). 3 Following a

sonogram, doctors discovered that Hancock had five fibroid cysts and four cysts in her rectum.

(Id. at ¶ 2). Hancock underwent surgery to have those cysts removed, and she began to suffer

from complications during her recovery. (Id. at ¶¶ 3-19). After several appointments over the

course of a few weeks, Hancock’s doctors determined that additional surgery was necessary and

ultimately performed a total hysterectomy. (Id. at ¶¶ 20-21). During that procedure, Hancock’s

spine was apparently punctured, and she suffered nerve damage that left her disabled. (Id.).

Hancock was diagnosed with Polyradiculopathy and Polyneuropathy, conditions that limit her

ability to walk and lift. (Id. at ¶¶ 23-24). She also suffers from a permanent limp that precludes

her from walking long distances and necessitates the use of a cane when walking. (Id.).

       Following surgery, Hancock was discharged from her hospital stay in mid-August 2006,

and she returned to work in late October 2006 with work restrictions that prohibited her from

performing heavy lifting or manual labor for one month. (Def.’s Stmt. at ¶ 8). It appears WHC

accommodated these restrictions, and Hancock does not argue otherwise. The record does not

contain any information about Hancock’s ability to work from November 2006 through the

3
        The Court previously advised the parties that strict compliance with the Federal Rules
and this Court’s Local Rules, including Local Civil Rule 7(h), was required. (See Dkt. No. 19).
Among other requirements, the Court’s Order expressly advised that, if the non-moving party
filed a “separate statement of genuine issues,” pursuant to LCvR 7(h), the movant was expected
to file “a separate document containing a concise and supported response to each of the
respondent’s facts, also in a numbered format that corresponds to the numbers in the
respondent’s statement.” (Id.). The Court expressly cautioned that it “may deem each of the
respondent’s facts to be admitted unless controverted by the movant in its reply.” (Id. at ¶ 8).
Here, although Hancock filed a “Statement of Genuine Issues of Material Fact”—identifying 29
additional, separately-numbered facts that she contends preclude the entry of summary judgment
in the Hospital’s favor, (see Dkt. No. 22-1)—WHC failed to submit the requisite response called
for by the Court’s Order, nor did it otherwise controvert any of Hancock’s additional facts.
Thus, as forewarned, the Court will treat Hancock’s additional facts as conceded for purposes of
resolving the instant motion.
                                                3
following October, but it seems that she was able to perform the essential functions of her job

without issue. On October 15, 2007, however, Hancock was placed on “light duty” work

restrictions for several weeks until November 7, 2007—specifically, “no lifting, bending,” “no

triage,” and “no lifting over twenty pounds.” (Id. at ¶ 13; Pl.’s Stmt. at ¶ 25). While WHC

seems to have generally accommodated these restrictions, Hancock claims that she was forced to

triage patients during this time period. (Pl.’s Stmt. at ¶ 25). Beginning on November 5, 2007,

Hancock’s only restriction was that she could not lift more than twenty pounds, and that

restriction was effective until December 5, 2007. (Id. at ¶ 26). Thereafter, on November 21,

2007, Hancock was again restricted from performing triage duties for approximately four weeks,

until December 24, 2007. (Id. at ¶ 27). Despite this, Hancock claims that she was again forced

to continue triaging patients during this period. (Id.).

       On December 20, 2007, Hancock apparently provided WHC with an updated

occupational health form that placed her on “modified duty” and restricted her from performing

triage duties for approximately two weeks, until January 2, 2008. (Id. at ¶ 28). After receiving

that form, Hancock’s supervisor, Shava Russell, indicated that WHC “could not accommodate

[those] recommended restrictions” and signed her name on the report. (Id.). The next day, Ms.

Russell sent Hancock an email stating, “Selena, Please clean out your locker, turn in your

headset, badge, and locker key before leaving today.” (Id. at ¶ 29). Shortly thereafter, Ms.

Russell held a meeting with Hancock and Renee Nesmith, another WHC employee, 4 during

which Hancock contends that she was terminated. (Id.). According to Hancock’s testimony, Ms.

Russell said that the Hospital would pay her long-term disability, and Hancock also testified that

4
       Neither party identifies Ms. Nesmith’s title or role at WHC. Based on WHC’s
evidentiary submissions, it appears that Ms. Nesmith was another supervisor in the Medical
Ambulatory Care Center unit where Hancock worked. (Dkt. No. 20-2 at Ex. 24 pp. 6-7). The
Court thus presumes that Ms. Nesmith held some type of supervisory position over Hancock.
                                                  4
she was told, “You’re going to need all the money you can get, so you need to work out through

the rest of the day because you will no longer work here after today in this office.” (Dkt. No. 22-

4 at Ex. 2, Hancock Dep. at 86:9-88:16). Approximately one week later, on December 28, 2007,

WHC received an additional “Occupational Helth [sic] Medical Referral” form, which described

Hancock’s restrictions as: “no pushing, no pulling, no lifting over 20 pounds, no triage . . . until

further notice.” (Dkt. No. 20-2 at Ex. 19).

         WHC maintains that Hancock was not terminated in December 2007.               Instead, the

Hospital contends that Hancock was placed on a leave of absence on or about December 21,

2007, after WHC determined that it could not accommodate her triage restrictions. WHC also

asserts that Ms. Russell consulted with her supervisor, Bradley Kappalman, prior to making that

determination. (Def.’s Stmt. at ¶ 16). Based on the record, however, it was not until December

26, 2007—several days after determining that WHC declined to accommodate Hancock’s

“triage” restrictions—that Ms. Russell contacted Mr. Kappalman, stating, “I did not

accommodate Selena’s restricted duty AGAIN.”           (Dkt. No. 20-2 at Ex. 20) (emphasis in

original). The following day, December 27, Mr. Kappalman responded, “Question. Why can we

not accommodate her light duty? Don’t we always need staff on the telephone?” (Id.). Ms.

Russell responded, “If I only utilize her on the phones (long-term), then it sets me up to have to

make likewise accommodations for other staff members in the future. What do you suggest?”

(Id.).   Thus, the evidence strongly suggests that Ms. Russell did not discuss Hancock’s

restrictions with Mr. Kappalman until several days after Ms. Russell had already determined that

WHC would not accommodate Hancock’s “triage” restrictions and after she had already




                                                 5
communicated that decision to Hancock. 5 Furthermore, in her December 26th email message,

Mr. Russell basically admitted that she had already planned to have Hancock move on to a new

position if she was not cleared to return to “full duty” by December 24, 2007, which was the

expiration date of Hancock’s prior medical restrictions. (Id.) (“I had explained to her [Hancock]

previously that she needed to be cleared to return to work full duty by 12/24/07 or she would

have to make other arrangements.”).

       Thereafter, WHC contends that Hancock submitted a claim for short-term disability

benefits, as Hancock received a letter from Aetna on or around February 13, 2008, indicating that

her claim was closed as of January 24, 2008, “based on lack of medical information.” (Def.’s

Stmt. at ¶ 18). Other than this letter, however, WHC did not present any other documentary

evidence surrounding any potential disability benefits, such as a copy of the applicable disability

insurance policy or the application form that Hancock ostensibly completed. On February 26,

2008, WHC sent Hancock a letter advising that her “leave of absence” was expiring on March 8,

2008, and that she “must either return to work by that date or submit additional information.”

(Id. at ¶ 19). The letter also advised that, if Hancock failed to do so, WHC would consider

Hancock “to have abandoned [her] employment at the hospital.” (Id.). Hancock did not respond

to that letter. (Id. at ¶¶ 20-21). On June 10, 2008, WHC sent Hancock another letter explaining

that her failure to return to work was being treated as “a voluntary termination with eligibility for

rehire.” (Id. at ¶ 22). The Hospital deemed June 10, 2008, to be the effective date of her

termination. (Id.). Hancock does not dispute receiving these letters in early- to mid-2008, but




5
        In addition, Mr. Kappalman testified that he did not recall having any such discussion
with Ms. Russell prior to their email communications beginning December 26, 2007. (Dkt. No.
22-6 at Ex. 10, Kappalman Dep. at 19:2-6).
                                                 6
she explains that she did not believe she had any obligation to respond because, in her mind, she

had already been terminated by WHC in December 2007.



                                           ANALYSIS

   A. Standard of Review

       Summary judgment is appropriate when the moving party demonstrates 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. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore

v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of material fact, the

nonmoving party must demonstrate—through affidavits or other competent evidence, FED. R.

CIV. P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a

verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

Anderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the

nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434,

436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than “a scintilla of

evidence” in support of its position. Anderson, 477 U.S. at 252. But “[i]f material facts are at

issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not

available.” Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).



   B. Failure to Accommodate (Count I)

       The ADA makes it unlawful for an employer to “discriminate against a qualified

individual on the basis of disability.” 42 U.S.C. § 12112(a). As relevant here, “‘discriminate’ is

defined to include ‘not making reasonable accommodations to the known physical or mental



                                                7
limitations of an otherwise qualified individual with a disability . . . , unless [the employer] can

demonstrate that the accommodation would impose an undue hardship on the operation of the

business.’” Woodruff v. Peters, 482 F.3d 521, 527 (D.C. Cir. 2007) (quoting 42 U.S.C. §

12112(b)(5)(A)). The term “qualified individual” under the ADA means “an individual with a

disability who, with or without reasonable accommodation, can perform the essential functions

of the employment position that such individual holds or desires.” Id. § 12111(8). To establish a

prima facie case of discrimination for failure to accommodate under the ADA, a plaintiff must

show: “(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 the position; and (4) that the employer refused to make such

accommodations.”      Gordon v. District of Columbia, 480 F. Supp. 2d 112, 116 (citing

Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002)); Woodruff, 482 F.3d at 527

(finding prima facie case satisfied where plaintiff alleged that he was “a qualified individual with

a disability” and that his employer “failed to grant him the reasonable accommodations his

disability necessitated”) (internal quotations omitted).

       WHC argues that Hancock’s reasonable accommodation claim fails because she cannot

establish the third element above—that she was able to perform the essential functions of her

Medical Assistant position. Specifically, WHC claims that, because Hancock was unable to

perform triage duties “until further notice,” she was asking WHC to permanently eliminate an

essential function of her job on December 21, 2007. (See Dkt. No. 20-1 (“Def.’s Mem.”) at 10-

12; Dkt. No. 23 (“Def.’s Reply”) at 6). According to WHC, this precludes Hancock from

establishing that she was a “qualified individual” under the ADA.           Hancock disputes this

assertion and responds that she was not permanently restricted from triaging patients as of



                                                  8
December 21, 2007. (Dkt. No. 22 (“Pl.’s Opp’n”) at 13-15). Based on the record evidence, not

only is Hancock correct that this fact is disputed, but WHC’s arguments border on the blatantly

false.

         On December 21, 2007—when WHC refused to accommodate Hancock’s restrictions—

the occupational health form that Ms. Russell reviewed simply indicated that Hancock was

unable to perform triage work for approximately two weeks, through January 2, 2008. (Pl.’s

Stmt. at ¶ 28).   It was not until December 28, 2007—an entire week after WHC had already

denied Hancock’s request—that WHC received the occupational health form that indicated

Hancock’s triage restriction was in place “until further notice,” and even then, the form was

received not by Ms. Russell, but by Marilyn Cox, the Clinical Manager of WHC’s Occupational

Health Department. (Dkt. No. 20-2 at Ex. 19). WHC expressly concedes as much in its reply

briefing. (Def.’s Reply at 8). Moreover, the evidence strongly suggests that Ms. Russell had

already made up her mind not to grant Hancock any further accommodations before she even

received Hancock’s form on December 21st. (Dkt. No. 20-2 at Ex. 20). In her December 26th

email message to Mr. Kappalman, Mr. Russell relayed that she “had explained to [Hancock]

previously that she needed to be cleared to return to work full duty by 12/24/07 or she would

have to make other arrangements.” (Id.). So it seems that Ms. Russell did not care whether

Hancock’s restrictions were temporary or permanent—apparently any further request for an

accommodation, no matter the nature or duration, would have been denied.         At a minimum,

there is a clear factual dispute as to whether, at the time Mr. Russell determined that WHC could

not accommodate Hancock on December 21, 2007, Hancock was seeking a temporary

accommodation excusing her from triage work, and not a permanent accommodation.




                                               9
       While it is true that the ADA “does not require an employer to ‘reallocate job duties in

order to change the essential functions of a job,’” Terrazas v. Medlantic Healthcare Group, Inc.,

45 F. Supp. 2d 46, 53 (D.D.C. 1999), Hancock was not, as of December 21, 2007, seeking the

type of permanent restriction that WHC misleadingly argues. Cf. Jones v. District of Columbia,

505 F. Supp. 2d 78, 90-91 (D.D.C. 2007) (rejecting employee’s request for permanent light-duty

status as unreasonable accommodation); Duncan v. Harvey, 479 F. Supp. 2d 125, 132 (D.D.C.

2007) (finding employee’s request to permanently remove job duty from position was

unreasonable under the ADA). Furthermore, as explained in the EEOC enforcement guidance,

“[a]n employer never has to reallocate essential functions as a reasonable accommodation, but

can do so if it wishes.” EEOC Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (Oct. 17, 2002), available at

http://www.eeoc.gov/policy/docs/accommodation.html (emphasis added). 6        Here, WHC itself

admits that temporarily reassigning Hancock’s triage duties to other employees for a limited

period of time—essentially the accommodation Hancock sought—may have been reasonable.

(Def.’s Mem. at 10 (“[T]riage is a function that can be handled by other professionals such as

physicians on a temporary basis . . . .”)) (emphasis added). Moreover, the record shows that

WHC had, in fact, temporarily excused Hancock from performing triage work in the recent

past—both in October 2007 and again in late November 2007. (Pl.’s Stmt. ¶¶ 25-26). As a

result, material disputes of fact exist as to whether WHC improperly failed to accommodate

Hancock’s disability.

6
        While the Court observes that EEOC guidance “does not carry the force of law and is not
entitled to any special deference,” Desmond v. Mukasey, 530 F.3d 944, 957 (D.C. Cir. 2008), our
Circuit has explained that EEOC Guidelines “do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Aka v. Wash. Hosp.
Ctr., 156 F.3d 1284, 1301 (D.C. Cir. 1998) (en banc) (quoting Meritor Sav. Bank v. Vinson, 477
U.S. 57, 65 (1986)).
                                               10
       Finally, to the extent that WHC argues that it was unable to accommodate Hancock’s

triage restriction because it would impose an undue hardship on the Hospital, the competing

evidence in the record raises a dispute on this point. Specifically, when Ms. Russell notified Mr.

Kappalman that she refused to accommodation Hancock’s restrictions, he asked, “Why can we

not accommodate her light duty? Don’t we always need staff on the telephone?” (Dkt. No. 20-2

at Ex. 20). Ms. Russell responded, “If I only utilize her on the phones (long-term), then it sets

me up to have to make likewise accommodations for other staff members in the future.” (Id.).

Confronted with this evidence, a reasonable jury could conclude that WHC was not concerned

about the undue hardship that Hancock’s specific restrictions might impose, but rather about the

precedent that granting Hancock’s restrictions might set for future employees. 7 Further, as set

forth above, these same email messages suggest that Ms. Russell had already made up her mind

that she would no longer accommodate Hancock, regardless of the nature and extent of

Hancock’s requested restrictions. Given these material disputes of fact, the Court concludes that

summary judgment is inappropriate as to Hancock’s reasonable accommodation claim.




7
        In her opposition briefing, Hancock urges the Court to find that WHC has waived its
ability to argue “undue hardship” because it did not assert such an affirmative defense in its
answer. The Court declines Hancock’s invitation at this time. While the D.C. Circuit has held
that a party must generally raise its affirmative defenses before it can rely upon them in a
dispositive motion or at trial, see Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339,
345 (D.C. Cir. 1997), parties can also sometimes assert affirmative defenses as late as the
summary judgment stage and beyond. See Daingerfield Island Protective Soc’y v. Babbitt, 40
F.3d 442, 445 (D.C. Cir. 1994); see also Long v. Howard Univ., 512 F. Supp. 2d 1, 12-13 & n.7
(D.D.C. 2007); Raney v. District of Columbia, 892 F. Supp. 283, 285 (D.D.C. 1995). To the
extent that WHC intends to claim undue hardship in defending against Hancock’s claims at trial,
however, the parties should meet and confer in good faith in an effort to satisfactorily resolve
this issue without the Court’s further intervention. If the parties cannot resolve the matter
informally, both sides should be prepared to discuss their respective positions, with appropriate
authority, at the upcoming January hearing.
                                               11
   C. Disability Discrimination (Count II)

       Along with her failure to accommodate claim, Hancock also asserts that the Hospital

discriminated against her on account of her disability when she was terminated from WHC. This

type of disability discrimination claim under the ADA is subject to the familiar three-part

burden-shift test announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

First, the plaintiff must establish a prima facie case of discrimination under the ADA by showing

that she: “(1) had a disability; (2) was qualified for the position with or without a reasonable

accommodation; and (3) suffered an adverse employment action because of the disability.”

Swanks v. Wash. Metro. Area Transit Auth., 179 F.3d 929, 933-34 (D.C. Cir. 1999). If the

plaintiff does so, the burden shifts back to the employer to articulate a “legitimate non-

discriminatory reason for its action,” leaving the plaintiff an opportunity to prove that the

employer’s proffered justification was not the true reason, but a pretext for discrimination. Id.

(citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)).

       In determining whether Hancock’s termination-based disability claim should survive

summary judgment, the Court must first address a significant, threshold factual dispute between

the parties—precisely when Hancock’s employment was actually terminated. On the one hand,

Hancock contends that she was terminated on December 21, 2007, immediately after she

presented her supervisors with updated medical restrictions, including her triage limitations.

(Pl.’s Opp’n at 21-26). WHC, on the other hand, maintains that Hancock was simply placed on a

leave of absence on December 21, 2007, insisting that it was not until June 10, 2008—after

Hancock failed to submit updated medical documentation regarding that supposed leave of

absence—that her employment was ultimately terminated. (Def.’s Mem. at 12-16). In seeking

summary judgment, WHC urges the Court to reject Hancock’s version of events as speculative



                                               12
and “fully at odds with the facts.” (Def.’s Reply at 2). It is true that speculation and conjecture

are insufficient to avoid summary judgment, see, e.g., Harding v. Gray, 9 F.3d 150, 154 (D.C.

Cir. 1993), but these are not appropriate labels for the evidence Hancock identifies here. Rather,

Hancock relies on a December 21st email message from Ms. Russell directing Hancock to “clean

out [her] locker, [and] turn in [her] headset, badge, and locker key before leaving . . . .” (Pl.’s

Stmt. at ¶ 29). Hancock also testified that, after Ms. Russell and Ms. Nesmith instructed her to

file for long-term disability, she was expressly told that she would “no longer work here after

today [December 21st] in this office.” (Id.). From these facts, a jury could reasonably conclude

that Hancock was terminated on December 21, 2007.

       WHC also responds that, when these facts are viewed in context and alongside Hancock’s

apparent application for disability benefits, no reasonable jury could possibly conclude that

Hancock was terminated in December 2007. (Def.’s Reply at 13-14). But WHC’s evidence on

this point is superficial, at best. First, while WHC implies that only current WHC employees are

eligible to receive disability benefits under its plan, there is no evidence of this in the record, and

the Court will not make this leap on WHC’s behalf. Even if the Court were to find that Hancock

applied for and/or received disability benefits, as WHC argues, this does not mean that she was

necessarily a WHC employee at the time. See, e.g., DeLisle v. Sun Life Assurance Co. of

Canada, 558 F.3d 440 (6th Cir. 2009); Bard v. Boston Shipping Ass’n, 471 F.3d 229 (1st Cir.

2006). Second, WHC asserts that Hancock “appl[ied] for medical leave on December 28, 2007,”

(Def.’s Mem. at 7), but this assertion did not appear in WHC’s statement of undisputed facts and

was not supported by any evidence. At a minimum, the Court would expect to have received a

copy of the leave of absence form that Hancock supposedly completed and signed, but WHC




                                                  13
provided no such documentation. In short, WHC’s flimsy evidentiary proffer falls far short of

the requisite showing of undisputed facts necessary for summary judgment.

       From there, upon crediting Hancock’s assertion that she was terminated on December 21,

2007—as the Court must at this stage, see, e.g., Steele, 535 F.3d at 692—the Court finds that

Hancock has also raised a triable issue of fact as to whether WHC’s decision was discriminatory.

Under Hancock’s theory, just one day after providing her supervisors with updated work

restrictions, WHC refused to accommodate those restrictions and discharged her employment

with the Hospital. Moreover, Hancock testified that, in communicating that decision during a

meeting on December 21st, her supervisors stated:

       You’re going to need all the money you can get, so you need to work out through
       the rest of the day because you will no longer work here after today in this office .
       . . . If you leave now, we’re going to say that you abandoned your job. So you
       need to go fill out those papers because you are disabled, you have a limp . . . .

(Dkt. No. 22-4 at Ex. 2, Hancock Dep. at 88:7-14). Faced with this evidence, a jury could

reasonably conclude that Hancock was discriminatorily terminated in December 2007 due to her

disability. WHC presents no argument to the contrary. Instead, the Hospital devotes the bulk of

its briefing on this issue to explaining how its termination of Hancock’s employment in June

2008 was based on legitimate, non-discriminatory reasons—namely, her failure to properly

respond to WHC’s requests for additional medical information regarding her ability to return to

work. (See Def.’s Mem. at 12-16; Def.’s Reply at 11-14). But those contentions are altogether

immaterial to WHC’s actions in December 2007. To the extent that a jury ultimately credits

WHC’s timeline over Hancock’s, WHC’s arguments might well carry the day. At the summary

judgment stage, however, WHC has failed to establish that it is entitled to judgment as a matter




                                                14
of law under Hancock’s version of events. 8 Because disputed issues of material fact surround

Hancock’s disability discrimination claim, the Court denies WHC’s motion as to Count II.



    D. Intentional Infliction of Emotional Distress (Count IV)

       To prevail on a claim of intentional infliction of emotional distress under District of

Columbia law, “a plaintiff must show (1) extreme and outrageous conduct on the part of the

defendant which (2) either intentionally or recklessly (3) causes the plaintiff severe emotional

distress.” Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 255 (D.C. Cir. 2008) (quoting Larijani v.

Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)). With respect to the first element, the conduct

must be “so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Kotsch v. District of Columbia, 924 A.2d 1040, 1045-46 (D.C. 2007).                  By

contrast, “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities”

do not surpass the high threshold of sufficiently “outrageous” conduct. Browning v. Clinton, 292

F.3d 235, 248 (D.C. Cir. 2002) (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998)).

Moreover, “employer-employee conflicts” generally do not rise to the level of outrageous

conduct necessary to sustain a viable IIED claim. Kassem, 513 F.3d at 255 (citing Duncan v.

Children’s Nat’l Med. Ctr., 702 A.2d 207, 211-12 (D.C. 1997)); Kerrigan v. Britches of



8
       In addition, the Court notes that WHC devoted several pages of its brief (and a number of
lengthy exhibits) to arguing that Hancock’s employment “was marked with disciplinary
measures.” (Def.’s Mem. at 4-5; Def.’s Stmt. at ¶ 4). The inclusion of these assertions is
somewhat baffling to the Court, given that WHC does not contend that Hancock’s employment
was terminated for disciplinary reasons or some other type of poor performance. Rather, WHC
maintains that Hancock was terminated because she failed to return from a leave of absence and
was deemed to have abandoned her job. As best the Court can surmise, these assertions were
only included as an attempt to smear and/or discredit Hancock. Regardless of WHC’s motives,
however, the Court does not afford these extraneous allegations any significance.
                                                15
Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997) (“In the employment context, we

traditionally have been demanding in the proof required to support an intentional infliction of

emotional distress claim.”).

       In this case, Hancock’s IIED claim is premised entirely on WHC’s termination of her

employment and its alleged failure to accommodate her triage-based restrictions in December

2007, as outlined above. She argues that those actions, coupled with Ms. Russell’s and/or Ms.

Nesmith’s alleged remarks that (1) “[she] will no longer work [t]here after today” and (2) asking

whether she would rather “sue the hospital” or “keep [her] job,” are sufficient to maintain her

IIED claim. (Pl.’s Opp’n at 26-28). The Court disagrees. To begin with, Hancock herself

rightly recognizes that these kinds of “employer-employee disputes” generally cannot suffice as

“outrageous” conduct—in fact, she expressly concedes that “the mere discharge of an employee

is not considered extreme and outrageous conduct.” (Id. at 27). In addition, the D.C. Court of

Appeals has rejected IIED claims asserting purportedly “outrageous” conduct in excess of what

Hancock alleges here. See, e.g., Kerrigan, 705 A.2d at 628 (finding allegations that plaintiff’s

supervisor “targeted him for a sexual harassment investigation, manufactured evidence against

him in order to establish a false claim of sexual harassment, leaked information from the

investigation to other employees, and unjustifiably demoted him,” were insufficient to establish

outrageousness); Paul v. Howard Univ., 754 A.2d 297, 307 (D.C. 2000) (finding allegations that

plaintiff’s employer “wrongfully denied her tenure, reassigned her students and grants, requested

that she vacate her office . . . , and otherwise discriminated against her” to be inadequate).

       Despite all this, Hancock insists that her IIED claim is viable because “she became

disabled as the result of the surgeries she underwent at the hands of Defendant’s employees.”

(Pl.’s Opp’n at 28). In so arguing, Hancock cites to Drejza v. Vaccaro and assert that the



                                                 16
“outrageous” nature of WHC’s arises from its “knowledge that [she was] peculiarly susceptible

to emotional distress.” Drejza, 650 A.2d 1308, 1313 (D.C. 1994). According to Hancock,

because WHC was the cause of her disability—vis-à-vis the surgeries performed at the

Hospital—WHC’s subsequent refusal to accommodate that disability and discharge of her

employment elevated what might otherwise be non-actionable conduct to a sufficiently

outrageous level to sustain her claim. The Court finds this novel argument unpersuasive. To be

sure, this case is a far cry from the facts in Drejza, wherein the D.C. Court of Appeals found that

a police officer’s allegedly derisive behavior toward a violent rape victim—within one hour after

the crime was committed—created a jury question as to whether the officer’s conduct was

sufficiently “outrageous.” Id. at 1315-17. By contrast, at the time Hancock claims that WHC

failed to accommodate and wrongfully terminated her, she had already been living with her

disability for more than an entire year and there is no evidence in the record to suggest that she

was particularly vulnerable or emotionally sensitive in December 2007. In short, no reasonable

jury could conclude that WHC’s employment-based actions were sufficiently extreme or

outrageous to sustain Hancock’s IIED claim. Accordingly, the Court will grant WHC summary

judgment on this claim.



   E. WHC’s Conduct in Filing This Motion

       On September 29, 2011, the Court held a Pre-Motion Conference in this case. During

that hearing, both parties were asked whether they intended to file dispositive motions and, if so,

to summarize the grounds for their anticipated motion(s) and the undisputed facts they believed

entitled them to judgment as a matter of law. WHC indicated that it would seek summary

judgment and would argue, in part, that Hancock’s ADA claims should be dismissed because



                                                17
Hancock was not terminated due to a disability; rather, WHC claimed that Hancock’s

employment was terminated in June 2008, after she failed to respond to WHC’s requests for

more information and was deemed to have abandoned her position. (Pre-Motion Tr. at 20:2-18).

In response, Hancock stated that there was evidence that her employment was actually

terminated on December 21, 2007, and not in June 2008. (Id. at 22:17-23:25). Based on

Hancock’s representations, the Court warned WHC that there appeared to be a dispute of fact

surrounding Hancock’s termination date, and that this factual dispute appeared to be material.

(Id. at 25:4-26:12). As a result, the Court asked WHC to carefully consider whether there was a

credible basis to seek summary judgment and to “look long and hard and think long and hard

before [it] file[d] a motion on those grounds.” (Id.).

       WHC proceeded to file its motion on Hancock’s ADA claims anyway. But as set forth

above, the date of Hancock’s termination is clearly in dispute, and that dispute is material to

Hancock’s ADA claims. In addition, it is also clearly disputed whether Mr. Russell had been

told that Hancock’s triage restriction was indefinite at the time she made the decision not to

accommodate Hancock, as WHC argues.              WHC also asserted that it was undisputed that

Hancock provided Exhibit 19 to its motion—which ostensibly imposed Hancock’s triage

restriction “until further notice”—to WHC on December 20, 2007. (Def.’s Stmt. at ¶ 14). But

WHC did not submit testimony from any witness to support this assertion, and it is actually

contradicted by WHC’s own witness, Ms. Cox, who testified that Exhibit 19 was given to her on

December 28, 2007.        This latter “fact” was, at best, disputed, but the more appropriate

characterization is that the assertion was outright false.

       In light of these plain disputes of facts—which are patently material to the resolution of

Hancock’s claims—WHC’s motion as to these two claims was frivolous and clearly without



                                                  18
merit. Further, WHC also violated the Court’s Order by attempting to rely on numerous factual

assertions in its brief that were not listed its LCvR 7(h) statement of undisputed facts, (see Dkt.

No. 19 at ¶ 3), including, but not limited to:

   •   “Associates are referred to work-life services when their restrictions can no longer be
       accommodated,” (Def.’s Mem. at 7);

   •   “Ms. Hancock came in to apply for medical leave on December 28, 2007, was
       advised that additional information was needed from her position to determine
       whether Ms. Hancock’s restrictions were permanent, and that Ms. Hancock advised
       them that her physician was either on vacation or holiday,” (Def.’s Mem. at 7);

   •   “Neither Ms. Hancock nor her physician further advised Ms. Cox on this crucial
       matter,” (Def.’s Mem. at 7); and

   •   “Plaintiff continued to receive both payments and correspondence from WHC until
       June 2008,” (Def.’s Mem. at 14).

       Therefore, as WHC was warned, the Court finds that sanctions may be appropriate, given

that its motion for summary judgment as to Hancock’s ADA claims appears to have been filed

“in bad faith, vexatiously, wantonly, or for oppressive reasons.” See Chambers v. NASCO, Inc.,

501 U.S. 32, 45-46, 48 (1991); Shepard v. ABC, 62 F.3d 1469, 1474-75 (D.C. Cir. 1995); United

States v. Wallace, 964 F.2d 1214, 1218 (D.C. Cir. 1992) (“The Chambers Court explicitly

recognized courts’ inherent power to assess attorney’s fees when a party has acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.”). Moreover, given that WHC’s submissions

were filed in violation of the Court’s Order, sanctions appear appropriate on these grounds as

well. FED. R. CIV. P. 16(f), 37(b)(2)(A)(ii) through (vii).

       WHC shall therefore SHOW CAUSE: (1) why the Court should not impose sanctions

against WHC and in favor of Hancock, in the amount of two-thirds (2/3) of the attorneys’ fees




                                                 19
Hancock incurred in preparing and filing an opposition to WHC’s frivolous motion, 9 and (2)

why each attorney who signed WHC’s summary judgment submissions should not be

reprimanded.     By no later than December 14, 2012, Hancock shall prepare and file a report

detailing the attorneys’ fees incurred in preparing her opposition to WHC’s motion for summary

judgment. Thereafter, the parties shall meet and confer in an attempt to mutually resolve this

issue. If the parties are unable to resolve the issue, then WHC shall file its response to this Order

to Show Cause by no later than Wednesday January 2, 2013, and Hancock shall file any response

to WHC’s submission by no later than January 9, 2013. The parties shall thereafter appear for a

hearing on Tuesday January 22, 2013, at 10:00 A.M. on the Court’s Order to Show Cause and to

set dates for a Pretrial Conference and for trial.



                                          CONCLUSION

       For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED in

PART and DENIED in PART. An Order accompanies this Memorandum Opinion.

                                                                         Digitally signed by Judge Robert L.
                                                                         Wilkins
Date: December 7, 2012                                                   DN: cn=Judge Robert L. Wilkins,
                                                                         o=U.S. District Court, ou=Chambers
                                                                         of Honorable Robert L. Wilkins,
                                                                         email=RW@dc.uscourt.gov, c=US
                                                                         Date: 2012.12.07 15:01:21 -05'00'



                                                          ROBERT L. WILKINS
                                                          United States District Judge




9
        Insofar as the Court granted WHC’s motion as to Hancock’s IIED claim, the Court finds
that a sanction for the full amount of fees would be inappropriate.
                                                     20
