MEMORANDUM OPINION AND ORDER
Plaintiff Keenan Johnson, a former employee of the Library of Congress (“the Library”) alleges in a two-count complaint that the defendant, the Librarian of Congress, violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (2000) (“ADA”). Specifically, Johnson, who has bipolar disorder, claims that the defendant failed to accommodate his disability, and also intentionally discriminated against him by harassing him due to his disability and damaging his professional reputation. Defendant has moved to dismiss the complaint for plaintiffs failure to exhaust his administrative remedies timely and to amend the answer to add an affirmative defense of failure to exhaust administrative remedies. Because defendant has waived the defense by failing to assert it timely, the motion to amend and the motion to dismiss will be denied. Defendant has also moved for summary judgment, arguing that plaintiff failed to make a pri-ma facie showing of discrimination. Because the plaintiff has made out a prima facie case as to both counts and because there are genuine disputes between the *160 parties about material facts, defendant’s motion will be denied. In addition, plaintiff has moved for partial summary judgment, arguing that a finding of disability by the Department of Labor relating to his application for workers’ compensation benefits is conclusive as to the issue of disability so that only damages are at issue in this suit. Because the issue of liability is a contested material issue and because the finding by the Department of Labor has no legally preclusive effect in this forum, plaintiffs motion will be denied.
BACKGROUND
Johnson started working at the Library in September 1991. (Def.’s Stmt. Material Facts as to Which There is No Genuine Issue (“Def.’s Stmt.”) ¶ 1.) In March 1993, he was promoted and began reporting to Lesia Bodnaruk. Bodnaruk’s supervisor was Tamara Swora. (Id. ¶ 2.) Plaintiff alleges that Bodnaruk was an abusive supervisor and that as a result of the hostility and mistreatment both she and Swora directed toward him, his mental health destabilized. (Pl.’s Mem. Supp. Partial Summ. J. (“PL’s Mem.”) at 1.) On July 12, 1994, Johnson’s doctor wrote in a letter to the Library’s doctor that the plaintiff suffered from bipolar disorder and had been diagnosed with that condition in 1989. The letter informed the defendant that plaintiffs work situation was causing him stress at such a level that he needed one week of leave to “regroup his coping skills.” (PL’s Stmt, of Undisputed Facts Supp. Partial Summ. J. (“PL’s Stmt.”) Ex. 2.) Defendant granted the plaintiff one week of leave. (Def.’s Stmt. ¶ 3.)
The letter also said that in the doctor’s opinion, Johnson should be permanently reassigned because his working situation could “seriously jeopardize his mental health.” (PL’s Stmt. Ex. 2.) When the plaintiff returned from sick leave, he was temporarily detailed to a different assignment so that he would not have to report to Bodnaruk. (Def.’s Stmt. ¶ 4.) Plaintiff alleges, however, that his work area was still located near the area where Bodnaruk and Swora worked so that he was still exposed to the abusive atmosphere that he alleges those individuals fostered. (PL’s Mem. at 4-5.) Specifically, plaintiff alleges that the supervisors’ hostile conduct intensified after he requested a transfer (id. at 21), and that Bodnaruk and Swora refused to speak with him and encouraged others to ignore him as well. As a result, communication occurred through notes left on his chair. (Id. at 20.) Plaintiff also alleges that Bodnaruk harassed him by “making disparaging remarks about him and particularly about his medical condition” while he was within earshot. (Id. at 5.) Plaintiff avers that Bodnaruk set out to ruin his reputation at the Library and thereby limited his career opportunities there. Finally, plaintiff states that Bodna-ruk hindered his work productivity by failing to adequately respond to his requests for supplies, fax codes and workspace. (Id.)
In February 1995, Johnson requested that he. be permanently transferred out of the group and area in which Bodnaruk and Swora worked. (PL’s Stmt, at 12.) Over the course of the next three months, at the defendant’s request, plaintiff provided defendant with medical documentation to support the plaintiffs claim that he needed a permanent transfer. (PL’s Stmt at 12-15.) In April 1995, the Library’s doctor sought from plaintiffs doctor additional medical information to support the plaintiffs request for a permanent reassignment. (PL’s Stmt. Ex. 15.) Plaintiffs doctor responded that the plaintiff reported that his supervisor was causing him stress because she behaved in a demeaning and antagonistic way toward him. Plaintiffs doctor recommended that the plaintiff *161 “should not be positioned in an unstable work environment” if and when he was reassigned, but that he would be able to perform his job without special accommodations. (Id. Ex. 16.)
On May 4, 1995, Johnson was informed that he would not be permanently transferred but rather would be required to return on May 20, 1995, to his previous position working for Bodnaruk. Defendant acknowledged at that time that some modifications would be necessary in order to assure a smooth working environment. (Def.’s Stmt. ¶ 8.) The plaintiff left work that day and did not return until August 28,1995. (Pl.’s Stmt, at 16.)
Plaintiff states that from May 4, 1995 to August 28, 1995, he suffered “the worst depressive episode of his life” due to the Library’s decision to deny his reassignment request. (Pl.’s Mem. at 8.) This episode interfered with his ability “to think, concentrate, care for himself, and work.” (Id.) Defendant placed the plaintiff on leave without pay from May 5 through June 15, 1995. (Def.’s Stmt. ¶ 11.) On June 15, 1995, the Library wrote a letter to the plaintiff indicating that he would be considered absent without leave from that date forward until further documentation of his medical status was received. (Id. Ex. 1 Attach. 6.) In response, plaintiff wrote a letter to the Library indicating that he wished his status to be continued as leave without pay and further stating that he had retained legal counsel in connection with this ongoing employment dispute. (Id. Ex. 1 Attach. 8.)
On August 10, 1995, plaintiff contacted the Library’s Equal Employment Opportunity Complaints Office (“EEOCO”) and filed a complaint regarding his employer’s failure to accommodate his disability by refusing his transfer request. (Id. Ex. 4.) On August 28, 1995, Johnson returned to his old position. (Pl.’s Stmt. Ex. 7 at 1; Def.’s Stmt. ¶ 13.) By then, Bodnaruk and Swora were no longer supervising his position and at no time after his return to work in August 1995 was he required to deal with them. (Pl.’s Mem. at 8-9.) He remained there, apparently without further incident, until December 3, 1997, when he voluntarily left to take another job. (Def.’s Stmt. ¶ 13.) Plaintiff filed a workers’ compensation claim with the Department of Labor, submitting approximately 100 pages of medical records in support, and was awarded workers’ compensation benefits. (Def.’s Stmt. ¶ 15 & Ex. 2, ¶ 11.)
DISCUSSION
I. THE MOTIONS TO DISMISS AND TO AMEND
Defendant has moved to dismiss the complaint arguing that plaintiffs claim is time-barred. In addition, defendant has filed a motion to amend his answer to add a parallel defense that plaintiff failed to timely exhaust his administrative remedies.
Under the ADA, the Librarian of Congress is empowered to enact regulations governing discrimination complaints by employees. See 42 U.S.C. § 12209(5). Under that authority, the Library established its EEOCO which in turn promulgated regulations to govern ADA complaints. The regulations in force in 1995 required plaintiff to “notify and consult with a Counselor [in the EEOCO] not later than 20 workdays after the date of the alleged discriminatory matter.” Library of Congress Regulation 2010-3.1 § 4a. (Def.’s Mem. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at 2, 9 & Ex. 12; Def.’s Reply to PL’s Opp’n (“Def.’s Reply”) at 4-7.) On May 4, 1995, plaintiff learned that the Library had denied his request for a *162 permanent reassignment, but he did not consult with an EEO officer until August 10, 1995, more than the 20 workdays allowed by regulation.
Administrative time limits operate as statutes of limitations on administrative complaints.
See Bowden v. United States,
Failure to exhaust administrative remedies is considered an affirmative defense.
See Bowden,
A defendant waives the exhaustion defense by failing to raise it in a timely fashion.
See Bowden,
Expressly relying on
Bowden,
Nevertheless,
Bowden
states that when an agency is able to investigate a case in a timely fashion, before evidence is stale or lost and before expectations about the consequences of the actions at issue are settled, “[the agency] has no legitimate reason to complain about a judicial decision on the merits.” The Library has fully investigated the claim and has adjudicated the merits of the claim. No mention was made of lack of timeliness when the claim was filed at the EEOCO, nor when a decision was issued by that office, nor even when the case was filed and answered in this court. Plaintiffs claim was not stale at the time the agency proceeded and no argument has been made to that effect. Nor does litigation of this case on the merits unsettle expectations. Thus, the policy behind enforcing the exhaustion defense does not support doing so in this case. Because the defendant has waived his exhaustion defense by not asserting it timely, his motion to dismiss the complaint as time-barred will be denied and his motion to amend the answer to add this defense will be denied as futile.
See James Madison Ltd. v. Ludwig,
II. MOTIONS FOR SUMMARY JUDGMENT
Defendant has moved for dismissal or summary judgment regarding both the failure to accommodate claim and the intentional discrimination claim. 2 Plaintiff *164 has filed a motion for partial summary-judgment on the issue of liability, arguing that the Department of Labor has already determined that plaintiff has a disability.
Summary judgment is appropriate if the “ ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.’ ”
Burke v. Gould,
The ADA prohibits an employer from discriminating against “qualified individuals with a disability because of their 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.”
Sutton v. United Air Lines,
A “qualified individual with a disability” is identified as “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.” [42 U.S.C.] § 12111(8). In turn, a “disability” is defined as:
“(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;”
“(B) a record of such an impairment;” or
“(C) being regarded as having such an impairment.”
[42 U.S.C.] § 12102(2).
Id.
at 478,
The term “substantially limits” means, among other things, “[ujnable to perform a major life activity that the average person in the general population can perform”; or “[significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” § 1630.2(j). Finally, “[m]ajor [l]ife [ajctivities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” § 1630.2(i).
Id.
at 480,
does not, by itself, relieve one’s disability. Rather, one has a disability under [42 U.S.C. § 12102(2) ] subsection (A) if, not withstanding the use of a corrective device, that individual is substantially limited in a major life activity. For example, ... individuals who take medi *165 cine to lessen the symptoms of an impairment so that they can function [may] nevertheless remain substantially limited.... The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting.
Id.
at 488,
an intermittent impairment that is a characteristic manifestation of the underlying admitted disability is ... a part of the underlying disability and hence a condition that the employer must reasonably accommodate. Often the disabling aspect of a disability is, precisely, an intermittent manifestation of the disability rather than the underlying impairment.
Vande Zande v. Wis. Dep’t of Admin.,
A. Defendant’s Motion
1. Failure to Accommodate under the ADA
To survive a motion for summary judgment on a reasonable accommodation claim, a plaintiff must first produce evidence from which a reasonable jury could conclude that he suffered from an impairment that substantially interfered with a major life activity. Then, a plaintiff who is qualified for the job — a matter not in dispute in this case — is entitled to have the employer take “reasonable steps to accommodate [the] employee’s disability unless the steps in question would impose an undue hardship.”
Aka v. Washington Hosp. Ctr.,
Johnson asserts he is an individual with a disability — a diagnosed chronic bipolar disorder — that substantially interferes with his ability to think, concentrate, care for himself, interact with others, and to work. (Pl.’s Mem. at 11.) Johnson claims that the Library’s failure to permanently place him in another work space away from the alleged hostile environment constitutes a failure to accommodate his disability. (Pl.’s Mem. at 4, 15.) Defendant counters in the first instance that plaintiff has failed to make a prima facie showing that he is a disabled individual under the ADA. In addition, defendant argues that during his employment, plaintiff failed to provide medical documentation to establish that an accommodation was necessary, and therefore, his claim that the Library failed to accommodate his disability must now be rejected. (Def.’s Mem. at 15-16.)
Bipolar disorder, as described by the plaintiff, is an impairment under the ADA.
See Duda v. Board of Educ. of Franklin Park Public Sch. Dist. No. 81,
Defendant likens this case to
Duncan v. Wash. Metro. Area Transit Auth.,
Defendant also argues that the plaintiff was not disabled under the ADA because his disability was temporary, lasting only from May 4, 1995 to August 10, 1995. Defendant reasons that even if the plaintiff suffered from bipolar disorder, that disorder could not substantially interfere with a major life activity because it lasted only four months.
Plaintiff has a well-documented history of bipolar disorder since 1989. (Pl.’s Stmt. Ex. 2.) Defendant’s view of plaintiffs disability ignores the teaching of
Sutton,
where the Supreme Court acknowledged that medication may partially, but not wholly, relieve an impairment that substantially limits a major life activity, and expressly rejected the notion that partial amelioration of a disabling condition renders the individual ineligible for protection under the ADA.
Sutton,
In addition, contrary to the defendant’s view, there is ample evidence in the record to suggest that the plaintiffs bipolar disorder interfered with his life with some regularity. First, plaintiff took a one-week *167 leave of absence in July 1994, prompted by plaintiffs clinical depression. ' (Pl.’s Stmt, at 5 & Ex. 2; Def.’s Stmt. ¶ 3.) Second, in 1995, the plaintiff was on leave for three and one-half months due to his disorder. (Def.’s Stmt. ¶ 10-11.) Plaintiff alleges that during this period he suffered a major depressive episode which left him unable to care for himself or work. 3 (PL’s Mem. at 8.) Third, as the defendant himself describes, the plaintiffs medical records indicate that the plaintiffs mental status varied widely from October 1994 through March 1995. (Def.’s Mem. at 17 and Ex. 3.) In January 1995, plaintiff plunged into depression. (Id. Ex. 3 at 6.) In March 1995, plaintiffs condition began to interfere with his ability to sleep. (Id. at 7.) In sum, plaintiff has offered sufficient evidence from which a jury could find that the plaintiffs condition and its effect on his major life activities was more than temporary.
Defendant argues that he could not have known that a reasonable accommodation was necessary and, therefore, is not responsible for any alleged failure to provide one. Pointing to the communications from Johnson’s doctors, defendant asserts that the information he received about Johnson’s condition did not support a conclusion that a reasonable accommodation was necessary. Further, defendant notes that plaintiff did not provide full medical documentation in support of his disability accommodation request, but provided far more medical documentation to the Department of Labor for his workers compensation claim than he provided to defendant. (Def.’s Mem. at 16.)
Plaintiff counters that defendant knew of plaintiffs bipolar diagnosis in July 1994 at the latest, by virtue of his doctor’s letter to the Library stating that plaintiff had a “well documented history of Bipolar Disorder since 1989.” (PL’s Mem. at 4; PL’s Stmt. Ex. 2.) The letter further “strongly recommended that he be transferred permanently from his present work” in order to avoid “seriously jeopardizing] his mental health.” (Id.) Plaintiff also points to a letter written by his doctor on April 11, 1995, stating that Johnson’s supervisors’ conduct toward Johnson was causing Johnson undue stress and that, in considering reasonable accommodations for the plaintiffs future work placement, the Library should avoid placing him “in an unstable work environment.” (PL’s Stmt. Ex. 16.) Taking the evidence in the light most favorable to the plaintiff, a reasonable jury could find that the plaintiff was disabled and in need of accommodation and that defendant had sufficient notice of his need at the time of the decision not to grant plaintiffs transfer request.
Defendant also maintains that plaintiffs requested accommodation was unreasonable per se, arguing that the plaintiff is essentially complaining about a personality conflict with his supervisors and that the ADA does not require employers to guarantee workers a stress-free work place. (Def.’s Mem. at 18-19.) Although the ADA does not require supervisors to act civilly to their employees, Johnson requested a transfer because he allegedly was being harassed
because
of his disability which prevented him from functioning in a job for which he was otherwise qualified and capable of performing. The cases defendant cites to support his argument involve dissimilar claims or plaintiffs not qualified to do their jobs. In
Gaul v. Lucent Technologies, Inc.,
In other cases cited by the defendant in which a plaintiff with a claimed disability requested a transfer to avoid a certain level of stress, the claimed disability was so severe that the normal level of stress involved in the job was too much to handle.
See Pesterfield v. TVA,
The Seventh Circuit decision in
Duda
noted the distinction “between claims of personal conflicts with others, or mere temperament and irritability, which do not amount to ‘disabilities’ under the ADA, and medically diagnosed mental conditions ... which are recognized disabilities under the ADA.”
Duda,
2. Intentional discrimination under the ADA
To establish a claim of intentional disability discrimination, an ADA plaintiff may use the
McDonnell Douglas
burden-shifting frame-work, first making a prima facie showing that “ ‘he had a disability within the meaning of the ADA, that he was qualified for the position with or without a reasonable accommodation, and that he suffered an adverse employment action because of his disability.’ ”
Duncan v. WMATA
Although district judges in the District of Columbia have recognized an ADA hostile work environment claim for at least a decade, the District of Columbia Circuit Court has never explicitly decided that the cause of action exists.
See Kuraner v. Mineta,
No. 00-5416,
To establish such a claim, plaintiff has to allege that:
*170 (1) he is a qualified individual with a disability; (2) he was subjected to unwelcome harassment; (3) the harassment .was based on his disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer.
Fox,
As is reflected in the discussion above, plaintiff has made a prima facie showing that he is a qualified individual with a disability of bipolar disorder. He has also made a prima facie showing that he was subjected to unwelcome harassment and that it was because of his disability that he was harassed. Plaintiff alleges that he “experienced personal hostility and harassment” at work daily. (Pl.’s Mem. at 19, 21.) He states that his supervisors, Bodnaruk and Swora, completely alienated him by refusing to speak to him after he requested a transfer. (Id. at 20.) He further alleges that they directed others not to speak to him so that communication occurred by notes placed on the plaintiffs chair. (Id.) According to plaintiff, Bodnaruk made disparaging remarks about the plaintiff'and his medical condition (id.), and set out to ruin his reputation. (Id. at 5.) Bodnaruk often ignored the plaintiffs requests for resources such as office supplies, fax codes, or computer work-space. (Id. at 21.) Plaintiff alleges that the hostile conduct intensified after he requested a transfer. Plaintiff further states that this harassment interfered with his ability to work and with his productivity to such an extent that it altered the terms of his employment. (Id.)
Johnson’s characterization of his experience must be viewed in the light most supportive of his claim and, in that light, is not insufficient to make a prima facie showing. If Johnson was ostracized at work because of his disability, if he was subjected to daily disparaging conduct by his supervisors because of his disability, if he was denied basic resources to do his work because of his disability, and if he was blocked from advancement opportunities due to disability-based animus, a reasonable jury could conclude that Johnson was subjected to a hostile work environment so extreme as to alter the terms and conditions of his employment. Furthermore, it is entirely possible that discovery in this case could yield additional evidence bearing on this claim.
Finally, plaintiff has advanced evidence that the employer knew of the harassment. In 1994, plaintiff, through his doctor, informed the Library that he wanted a transfer because his supervisors’ conduct was exacerbating his mental disorder to the point that his medication was not effective to maintain his equilibrium. (Pl.’s Mem. at 4.) After Johnson’s leave in 1994 triggered by his disorder, the defendant did in fact temporarily detail the plaintiff to another assignment upon his return. From this evidence, a reasonable jury could find that the defendant was aware of the alleged harassment. Taking all factual assertions and inferences in the light most favorable to the plaintiff, a jury could find that through Bodnaruk and Swora, the defendant created a hostile work environment for this plaintiff in violation of the ADA.
On the other hand, plaintiff also states that Bodnaruk engaged in heated arguments with “all other staff members,” that she made demeaning remarks to staff members and that she tended to “select a scapegoat to focus on for a period of time.” (Pl.’s Mem. at 19.) These facts undermine the plaintiffs claims. No cause of action is available against an employer whose su
*171
pervisors engage in generally unpleasant behavior toward employees equally. The plaintiff must show that he was subjected to harassment
because
he was disabled.
Fox,
B. Plaintiff’s Motion
Plaintiff argues that because the Department of Labor found that he had a disability, he is entitled to summary judgment here as to liability. (Pl.’s Stmt. Ex. 6.) ADA liability, however, is not established by mere proof of disability. In any event, Labor’s findings are not preclusive against the Library because the Library was not a party to that proceeding.
See Ethnic Employees of the Library of Congress v. Boorstin,
Summary judgment in the plaintiffs favor is also inappropriate because material facts remain at issue. Specifically, the parties dispute the extent to which plaintiff suffered from bipolar disorder and the extent to which the defendant was aware of the plaintiffs need for accommodation. As is stated above, plaintiff argues that his evidence shows that his bipolar condition is of long standing, and that defendant was aware of both his medical condition and the need for a job reassignment. Defendant argues that the plaintiff did not provide the Library with information sufficient to ascertain the extent to which the condition interfered with plaintiffs major life activities and the consequent need for a reasonable accommodation. (Def.’s Mem. at 15-16.) Defendant also places great weight on the same letter from the plaintiffs doctor, which also stated that the plaintiff could perform his duties “with no special accommodations.” (Pl.’s Stmt. Ex. 16.) Defendant takes this clause to mean that the plaintiff was not disabled because he did not need to be accommodated in order to work. Defendant disputes that plaintiff was harassed because of his disability.
The parties clearly have differing interpretations of the evidence on this issue and in particular of the April 11, 1995 letter from plaintiffs treating physician. Given the legitimate dispute about the nature and extent of the plaintiffs disability, defendant’s awareness of it, the consequent need for a reasonable accommodation, and whether his disability motivated his supervisors’ alleged animus, summary judgment is unavailable.
CONCLUSION AND ORDER
Defendant sat on his right to assert that plaintiff failed timely to exhaust his administrative remedies. Thus, defendant’s motion to amend his answer and his motion to dismiss plaintiffs action for failure to exhaust administrative remedies timely will be denied. Because the parties dispute material facts in this case, both the plaintiffs motion for partial summary judgment and the defendant’s motion for summary judgment will be denied. Therefore, it is hereby
ORDERED that the defendant’s Motion to Amend Answer [19] be, and hereby is, DENIED. It is further
ORDERED that the plaintiffs Motion for Partial Summary Judgment [7] be, and hereby is, DENIED. It is further
ORDERED that the defendant’s Motion to Dismiss or, in the Alternative, for Summary Judgment [11] be, and hereby is, DENIED. It is further
*172 ORDERED that plaintiffs Request for Status Conference [32] be, and hereby is, GRANTED. A separate Order for an initial scheduling conference will be issued.
Notes
. Plaintiff advances two additional arguments as to why his failure to exhaust administrative remedies in a timely manner should be overlooked. First, plaintiff argues that the discrimination in this case involved a continuing violation. However, plaintiff admits that a theory of continuing violation would start the twenty-day clock on May 4, 1995, the date of the last act of discrimination. (Pl.’s Opp’n at 6.) Plaintiff did not file his EEOCO complaint until August 10, 1995, well beyond twenty days after May 4, 1995. The continuing violation theory therefore does not defeat the defendant’s exhaustion defense.
Plaintiff’s second argument is that the time between May and August 1995 should be equitably tolled because he was so ill during that time that he was unable to protect his legal rights. His treating physician, Dr. Mi-hael H. Polymeropoulos, states in an affidavit that from May 4, 1995 until August 28, 1995, the plaintiff's ability to handle his own affairs was greatly degraded, that plaintiff was disoriented as to place and time and unable to care for himself, and that the doctor seriously considered hospitalizing the plaintiff during this time due to these symptoms. (Pl.’s Opp’n Ex. 21 ¶ 6.) The doctor also states that while *163 Johnson had “periods of greater clarity and awareness” during that summer, those periods were short-lived. (Id.) Plaintiff's own affidavit avers that this period was “the worst and most devastating clinical depression” he had ever experienced, and that he "lost [his] appetite, could not complete thoughts and was often forgetting things.” (Pl.’s Stmt. Ex. 1 ¶ 18.)
Defendant counters by pointing out that plaintiff was lucid enough during this time period to respond to a letter from his employer.
(Id.
Ex. 1 Attach. 8.) In his letter, plaintiff described his current condition, asked that his status be continued as leave without pay, and stated that he had hired legal counsel to address the ongoing legal dispute with the defendant.
(Id.)
This evidence does suggest that plaintiff experienced a major psychiatric episode with significant attendant difficulties. However, plaintiff's ability to respond quickly and lucidly to the letter from his employer, combined with his statement that he had hired a lawyer to represent him on the matter of his employment dispute, substantially undercuts his argument that he was so incapacitated for that entire period that he could not have protected his legal rights.
See Bowden,
. Because information submitted by both parties outside the pleadings will be considered, the defendant's motion will be treated as a *164 motion for summary judgment. See Fed. R.Civ.P. 12(b).
. Plaintiffs assertion that his disorder interfered with his life regularly is not defeated by the finding that at one point in 1995, he was sufficiently able to perform acts to protect his legal rights. See n. 1 supra.
. In the plaintiff's motion for partial summary judgment, he appears to attempt to assert a *169 claim for retaliation relating to his claim for hostile work environment. (Pl.’s Mem. at 19-20.) The complaint did not plead retaliation as a cause of action.