Whitbeck v. Vital Signs, Inc.

• Decision Date: 02 August 1996
• Docket Number: Civ. No. 95-1011 (SSH/PJA).
• Parties: Beverly A. WHITBECK, Plaintiff, v. VITAL SIGNS, INC., Defendant.
• Court: U.S. District Court — District of Columbia

934 F. Supp. 9

Beverly A. WHITBECK, Plaintiff, v. VITAL SIGNS, INC., Defendant.

Civ. No. 95-1011 (SSH/PJA).

United States District Court, District of Columbia.

August 2, 1996.

COPYRIGHT MATERIAL OMITTED

Vicki G. Golden, Washington, DC, for Plaintiff.

Harold R. Weinrich, Washington, DC, Vincent A. Cino, Morristown, NJ, for Defendant.

MEMORANDUM OPINION

ATTRIDGE, United States Magistrate Judge.

In this diversity action, the plaintiff Beverly A. Whitbeck, seeks money damages from her former employer, Vital Signs, Inc., claiming violations of the District of Columbia Human Rights Act, D.C.Code § 1-2556. Pending before the Court is Vital Signs' motion for summary judgment. The parties, pursuant to 28 U.S.C. § 636(c), have consented to proceed before a United States Magistrate Judge. Upon consideration of the motion, the opposition, reply and the entire record, the Court concludes that the motion should be granted.

I. Background

This litigation involves the allegation of defendant's failure to reasonably accommodate the plaintiff's disability. The following material facts are undisputed.

Ms. Beverly A. Whitbeck ("Whitbeck") was hired by Vital Signs on September 7, 1992 after a merger between her former employer and Vital Signs. She was hired as a Sales Representative at an annual compensation of $84,000. The plaintiff was diagnosed soon thereafter with spinal cord astrocytoma (a tumor in her spinal cord). Accordingly, she was unable to work due to required neurosurgery, a long hospitalization and recovery from February to July 1993. During this time her employer continued to pay Ms. Whitbeck her full salary. From July 1993 to April 1994, Ms. Whitbeck was only able to work at a reduced work load, but continued to receive her salary.

On April 15, 1994, Ms. Whitbeck had a routine visit with her neurologist George Kattah. Dr. Kattah advised her "that the tumor was regrowing and that she probably would not improve any further." Def.'s 108(h) St. at 21 (admitted). At that visit, Dr. Kattah suggested that she look into the use of an Amigo cart, (an automated cart), to assist her on her sales calls.¹ The next day, on April 16, 1994, Dr. Kattah filed out a disability certification form for Royal Maccabees Insurance Company ("Maccabees") indicating that Ms. Whitbeck was "totally disabled." Def.'s and Pl.'s 108(h) St. at 23.

Ms. Whitbeck had applied for disability (at first residual disability and then in April 1994 for total disability) from Maccabees in the fall of 1993 and payments started in January 1994. Pl.'s Opp'n at 13. She continues to collect $2100.00 a month from Maccabees. Def.'s 108(h) St. at 24 (admitted). Moreover, it was required by Maccabees, and through their instruction, she applied for Social Security benefits.

In August of 1994, three months before she was terminated and three months after she started receiving payments from Maccabees, Ms. Whitbeck applied for Social Security benefits. Pl.'s Dep. at ¶ 22. On January 13, 1995, she was granted disability compensation retroactive from May 13, 1994 at the rate of $902 a month. May 13, 1994 the plaintiff started receiving unpaid Family and Medical leave from Vital Signs which she used from May 13, 1994 to August 5, 1994.

On August 2, 1994, the Vital Signs Human Resources Manager sent Ms. Whitbeck a letter asking her to advise Vital Signs if she would "be able to return to work ... or would not be able to return to work" when her family and medical leave expired on August 7, 1994. The letter states, "If you are able to return to work with a reasonable accommodation, we will require that you permit us to contact your physician for further information and clarification on the nature and extent and duration of such accommodation." Def.'s Mot. at Exh. D (emphasis added). The plaintiff failed to respond to this letter. Pl.'s Dep. at 97. She did not advise Vital Signs if she would or would not return and furthermore she never requested accommodation nor did she provide her physician's name.

Instead on August 25, 1994, Ms. Whitbeck wrote a letter, not to personnel, but to the Vital Signs CEO Terry Wall proposing an alternative "unusual" position for herself on a "part-time basis as a trial."² She suggested that she could "offer to the sales force customized inservice fliers" from the convenience of her own home. See Def.'s Mot. at Exh. D. Her proposal was not accepted.

Three months after all her leave (unpaid or otherwise) was exhausted, on November 18, 1994, Vital Signs informed her she would be terminated effective November 21, 1994 and her voxmail mail would be discontinued, referring to the plaintiff's own letter which states she is not able to fulfill the requirements of the Sales Representative position.

During the course of her illness up to her termination, Vital Signs had provided Ms. Whitbeck her full pay for 5 months when she was performing none of her duties (February to July 1993),³ 10 months of reduced work load also at full pay (July 1993 to May 1994), 3 months of unpaid Family and Medical leave, and then 3 months of unpaid leave, for a total of 21 months during which time Ms. Whitbeck was unable to perform full-time the essential functions of her duties. See Whitbeck Aff. at Pl.'s Exh. 1. Additionally, during her reduced work load period of 5 months, Vital Signs paid for a driver for six weeks to assist Ms. Whitbeck and up to 2-3 days a week, her supervisor Ms. Sherri Henricks often assisted her on her sales calls.

The plaintiff filed this litigation five months after her termination alleging disability discrimination and arguing that Vital Signs failed to accommodate her by not allowing her to use an Amigo cart to perform her duties.

The disputed facts of this case, to which the Court makes no determination, are that on April 28, 1994, there was a conversation between the plaintiff and Sherri Henricks, her supervisor while at lunch in Georgetown. At this time Ms. Whitbeck advised Sherri Henricks of the tumor's regrowth and then raised the issue of using a motorized cart. She contends Ms. Henricks said the cart would not look right, that she should seek long-term disability and that she would begin advertising for her position right away. Ms. Henricks denies saying the cart would not look right but does concede that she asked the plaintiff if she could advertise for the position, to which the plaintiff answered affirmatively. After this conversation, which was seven months before her termination, the plaintiff admits she never raised the issue of an Amigo or motorized cart again with the Office of Human Resources or other management. Moreover, she admits she never articulated to her employer, other than Ms. Henricks, that had she been able to use an Amigo cart, she could have returned to her original position in a full capacity. Def.'s 108(h) St. at 32 (admitted) and Pl.'s Dep. at 224.

II. Summary Judgment Standard

Summary judgment "should be granted only where there are no genuine issues of material fact, and all inferences must be viewed in a light most favorable to the non-moving party." Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The mere existence, however, of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. For the dispute must involve no genuine issue of material fact. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). "Material" facts are facts in dispute that "might affect the outcome of the suit under the governing law." Id.

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). When evidence from the entire record could not lead a rational factfinder to find for the non-moving party, no genuine issue for trial exists and summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. Analysis

The plaintiff contends the defendant failed to reasonably accommodate her disability in violation of the D.C. Human Rights Act which provides that it shall be an unlawful employment practice:

(1) to 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;

based upon the "disability" of any individual. D.C.Code § 1-2512(a)(1) (1981 and 1996 Supp.). The term "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of an individual having a record of such an impairment or being regarded as having such an impairment." D.C.Code § 1-2502.⁴

In interpreting alleged violations of D.C. Human Rights Act, the District of Columbia Court of Appeals has "adopted the Supreme Court's approach in McDonnell Douglas Corp. v. Green 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ..., the seminal case establishing the burden of proof in employment discrimination cases under Title VII." Miller v. American Coalition of Citizens with Disabilities, 485 A.2d 186, 189 (D.C.1984). Similarly, cases filed pursuant to the Americans with Disabilities Act ("ADA") or the Rehabilitation Act (predecessor to the ADA) follow the guidelines of the Supreme Court in McDonnell Douglas and Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979) for a prima facie case of disability discrimination. See Langon v. United States Dep't of Health and Human Services, 749 F.Supp. 1, 4 (D.D.C...