STEPHANIE WAGGEL, APPELLANT v. GEORGE WASHINGTON UNIVERSITY, APPELLEE
No. 18-7181
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2019
Decided May 8, 2020
Appeal from the United States District Court for the District of Columbia
(No. 1:16-cv-01412)
Peter K. Tompa argued the cause for appellant. With him on the briefs was Jason H. Ehrenberg.
Nicholas S. McConnell argued the cause for appellee. With him on the brief was James N. Markels.
Before: ROGERS, GARLAND and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.
I.
Stephanie Waggel joined the George Washington University Hospital for a four-year psychiatry residency program in July 2014. The residency program involves both clinical rоtations under the supervision of attending physicians and academic coursework. To advance through each successive year, a resident must satisfy the program‘s minimum competency and training requirements. Residents receive intensive feedback from their supervising physicians channeled through the residency program‘s director, Dr. Lisa Catapano. From the beginning, Waggel‘s supervisors reported concerns about her allegedly unprofessional conduct, resistance to feedback, and lack of clinical knowledge.
In April 2015, Waggel was diagnosed with a renal cyst later confirmed to be stage one kidney cancer. Waggel suffered significant stress and anxiety from the diagnosis as well as physical discomfort related to the cyst. During this period, Waggel‘s supervising physicians reported a decline in her performance and in one instance sent Waggel home from a shift after determining she was unfit to deliver patient care. After this incident, Waggel conferred with Dr. Catapano and a University administrator about medical leave. Although the University offered Waggel the option of seeking leave as an ADA accommodation, Waggel ultimately took ordinary vacation days to travel within the United States and abroad. In July 2015, Waggel underwеnt an inpatient surgery that successfully removed the cyst. Although the University granted two weeks of medical leave, Waggel found it extremely difficult to arrange time off for surgery notwithstanding the seriousness of her condition. Further, despite approval for two weeks of light duty upon returning to work, Waggel worked very long hours during this time, including shifts lasting more than twenty hours. For the remainder of her time in the program, Waggel needed to attend medical appointments for follow-up cancer screenings, treatment related to lingering physical symptoms, and therapy for ongoing anxiety related to her diagnosis. Waggel often struggled to secure time off аnd had to deal with supervisors who sometimes kept her late when she had appointments and told her to plan the appointments around the program‘s schedule.
In her second year in the residency program, Waggel‘s behavior at work prompted several complaints by supervising physicians to Dr. Catapano. In one incident, Waggel allegedly exhibited dangerous patterns of dealing with psychiatric patients by using methods of restraint contrary to University policy. In several others, Waggel allegedly missed shifts or failed to appropriately communicate patient status to other physicians. Dr. Catapano interceded to notify Waggel of these deficiencies and develop a plan to remedy shortfalls in training and performance. Waggel attributed the complaints in large part to her illness and believed the University was
In October 2015, Waggel‘s relationship with Dr. Catapano and other program leaders deteriorated further when she encountered difficulties scheduling leave for a mandatory licensing exam. Although initially approved for a four-day administrative leave, the University revised Waggel‘s leave to two days for the stated purpose of maintaining uniform treatment with other residents. The program offered Waggеl the option of taking additional personal leave, but also noted that further absences might cause her to work fewer than the minimum number of days required to complete the rotation. After an increasingly hostile email exchange with her supervisors, Waggel announced the following day that she would be taking two weeks of FMLA leave from program responsibilities.
In November 2015, Waggel was placed on forced administrative leave by Dr. Jeffrey Berger, the University‘s Associate Dean for Graduate Medical Education, pending investigation into allegations about Waggel‘s behavior. According to several police and community reports, Waggel appeared publicly intoxicated at an apartment complex near the hospital, engaged in loud and disruptive conduct, and used abusive language toward observers. The University initially viewed these reports as raising concerns about Waggel‘s mental health and suitability for patient care. After discussing the issue with Waggel, however, Dean Berger accepted Waggel‘s explanation that the incident arose from disputes with a neighbor rather than a substance abuse problem. Several weeks later, the University determined Waggel was ineligible for promotion to her third year in the рrogram based on letters of deficiency she had accumulated over the previous year. In addition to describing instances of unprofessional conduct noted above, the letters indicated Waggel had failed two required courses and neglected to complete other administrative requirements.
Throughout Spring 2016, Waggel engaged in a series of discussions with Dr. Catapano and Dean Berger about remedying her performance, getting back on track to complete the program, and the possibility of transferring to a new residency program. According to the University, Waggel declined to follow up on offers to remedy identified deficiencies, threatened to bring legal action, and, in one instance, attempted to attend a class for which she lacked eligibility by misrepresenting her status to the instructor. According to Waggel, the University sought to burden her career by making it difficult to remedy her deficiencies, declining to provide specific feedback, and refusing to help her transfer to another residency program. Waggel took a second round of FMLA leave, this time as intermittent leave, to attend medical appointments in March.
In April 2016, a committee of supervising faculty voted unanimously to recommend dismissal, citing Waggel‘s letters of deficiency, a notice of unprofessional conduct related to her eligibility misrepresentation, and additional concerns about her suitability for patient care. This decision was adopted by Dr. Catapano, sustained on independent review, and affirmed on appeal by a senior University official.
After properly exhausting administrative remedies before the Equal Employment Opportunity Commission, Waggel filed suit against the University for failure to accommodate her disability and other disability discrimination under Title I of the ADA,
This timely appeal followed. We review grants of summary judgment de novo, considering the evidence in the light most favorable to the non-prevailing party under the same standards as the district court. See Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307 (D.C. Cir. 2010). In doing so, we do not “weigh the evidence and determine the truth of the matter” but instead “determine whether there is a genuine issue for trial.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
II.
Title I of the Americans with Disabilities Act requires employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,”
A.
We turn first to Waggel‘s accommodation claim. To prevail on a reasonable accommodation claim, a plaintiff must establish by a preponderance of the evidence that “(1) she was a qualified individual with a disability, (2) the [employer] had notice of her disability and (3) the [employer] denied her request for a reasonable accommodation.” Ward v. McDonald, 762 F.3d 24, 31 (D.C. Cir. 2014). We assume without deciding, as did the district court, that Waggel‘s renal cancer and the University‘s awareness of her diagnosis satisfy Ward‘s first and second prongs. See Waggel, 2018 WL 5886653, at *3; Waggel, 2018 WL 5893346, at *6. Thus, Waggel‘s claim turns on the third prong, which requires her to demonstrate both that she requested a reasonable accommodation and that the request was denied by the University. See Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C. Cir. 1999) (“An underlying assumption of any reasonable accommodatiоn claim is that the plaintiff-employee has requested an accommodation which the defendant-employer has denied.“).
Waggel concedes that she never expressly requested an ADA accommodation through the University‘s Office of Equal Employment Opportunity (“OEEO“). The OEEO processes ADA and FMLA requests
Waggel argues her individual requests for time off to attend medical appointments amounted to a request for accommodation under the ADA notwithstanding her failure to ask for an accommodation. In Flemmings, however, we held that a request for a medical leavе of absence standing alone was insufficient to make out a request for accommodation. See 198 F.3d at 861-62. Similarly, in Chenari v. George Washington University, we “doubt[ed]” that, notwithstanding the plaintiff‘s concession he never utilized the University‘s formal process for requesting ADA accommodation, his repeated notifications to the University of his ADHD made his “need for an accommodation ... so apparent that the defendant must [have] offer[ed] one.” 847 F.3d 740, 748 (D.C. Cir. 2017).
Relatedly, Waggel also claims that the “obvious problems” associated with her cancer diagnosis required the University to offer an accommodation in the absence of a valid request. Although we have assumed thаt the University had notice of her disability, Waggel argues that the problems arising from her disability—scheduling difficulties, serious anxiety, and perceived unprofessional conduct, for example—obligated the University to offer an accommodation. To be sure, in Chenari we recognized that “there may well be cases where the plaintiff‘s need for an accommodation is so apparent that the defendant must offer one regardless of whether the plaintiff requested it.” Id. (citing Pierce v. District of Columbia, 128 F. Supp. 3d 250, 269-70 (D.D.C. 2015)). But this is not such a case. Notice of a disability does not ordinarily satisfy the ADA‘s request requirement, which performs the independent function of informing an employer of the limitations imposed by a disability and the nature of the accommodation needed to remedy those limitations. See, e.g., Windham v. Harris Cty., 875 F.3d 229, 238 (5th Cir. 2017) (“[K]nowledge of a disability is different from knowledge of the resulting limitation. And it certainly is different from knowledge of the necessary accommodation.“). Here, the connection between Waggel‘s disability and her performance difficulties was not obvious. As noted above, “[a]n underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has requested an accommodation which the defendant-employer has denied.” Flemmings, 198 F.3d at 861.
Waggel chose to seek leave under the FMLA rather than request accommodation under the ADA. The ADA respects individual choices regarding whether and what type of accommodation to seek. See
B.
We turn next to Waggel‘s remaining ADA discrimination claims. “[T]he two basic elеments of a disability discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff‘s disability.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). When an employer asserts legitimate, nondiscriminatory reasons for an adverse employment action, we ask “whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer‘s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.” Id. To prevail on her discrimination claim, Waggel must point to evidence tending tо show the University‘s justifications for one or more adverse employment actions are pretextual.
The breadth and variety of discriminatory actions alleged in Waggel‘s complaint led the district court to analyze them categorically. See Waggel, 2018 WL 5886653, at *8-11; Waggel, 2018 WL 5893346, at *9-24. Waggel frames dozens of actions taken by the University during her two years in the
Waggel fails to demonstrate the University took adverse employment actions against her “because of” her disability. Adeyemi, 525 F.3d at 1226. Take, for example, Waggel‘s claim that program leaders discriminated against her by reducing her administrative leave allotment for the October 2015 licensing exam. The University explains it reduced Waggel‘s leave to correct a clerical mistake: residents are allowed only two days of administrative leave for the exam, but administrators had mistakеnly approved Waggel for four administrative days. Waggel points to no direct or circumstantial evidence rebutting the University‘s explanation and offers no reason to link the reduction in leave to her disability. The University here articulated a legitimate interest in following its policies and ensuring equal treatment of similarly situated employees.
Waggel was also unable to rebut the University‘s nondiscriminatory rationale for her termination. The faculty committee voted unanimously to dismiss Waggel based on many documented instances in which she fell short of the program‘s professional and academic requirements. This suffices as “a lеgitimate, nondiscriminatory reason” for the University‘s action. Figueroa v. Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019). Moreover, the University also provided Waggel with an independent review and appeals process before terminating her employment. Although there was some disagreement within the University regarding the extent to which her cancer diagnosis should have been a mitigating factor in the University‘s decision, Waggel cites no evidence capable of rebutting the University‘s affirmative reasons justifying termination.
In addition, Waggel fails to identify sufficient evidence that Dean Berger used troubling police and community reports about her behavior as a pretext to place her on forced administrative leave in November 2015. Waggel‘s evidence of pretext is the allegation that Dr. Catapano told her over the phone that the University disciplined her because she had taken “too much sick leave,” a comment Waggel interpreted as relating to her disability. Waggel Decl. ¶ 136. The district court noted Dean Berger, not Dr. Catapano, was the decisionmaker regarding forced leave, and concluded Dr. Catapano‘s “stray comment” was insufficient to raise a genuine issue of material fact regarding pretext. Waggel, 2018 WL 5893346, at *28-30 (evaluating comment as possible evidence for Waggel‘s FMLA retaliation claims). Our cases recognize that stray remarks by non-decisionmakers are not generally direct evidence of discrimination. See Adeyemi, 525 F.3d at 1229 (discounting comments made with respect to disabled employee by non-decisionmaker). However, the “actions of a discriminatory supervisor that feed into and causally influence the decisionmaker‘s ultimate determination” may establish a discrimination claim if sufficiently influential in the ultimate decision. Steele v. Mattis, 899 F.3d 943, 950 (D.C. Cir. 2018). Here, Dean Berger consulted Dr. Catapano before making his ultimate decision on forced administrative leave. See Decl. of Dr. Lisa Catapano ¶¶ 572-83 (Jan. 2,
Waggel‘s submission “boils down to the proposition that discrimination plaintiffs should receive jury trials as a matter of course.” Vatel v. All. of Auto. Mfrs., 627 F.3d 1245, 1249 (D.C. Cir. 2011). “But that is not the way the law has developed.” Id. The district court correctly awarded summary judgment to the University because Waggel failed to identify evidеnce allowing a reasonable jury to conclude her employer discriminated against her because of her disability.
III.
Waggel asserts retaliation and interference claims under the Family and Medical Leave Act, which guarantees leave to covered employees for, among other purposes, “a serious health condition that makes the employee unable to perform the functions of the position of such employee.”
A.
Waggel alleges the University retaliated against her for taking medical leave in October 2015 and March 2016. Although her complaint did not specify which provision of
Mаny of Waggel‘s retaliation allegations fail to satisfy one or more elements of the prima facie case. For example, Waggel alleges the University caused her to miss an appointment with her therapist in November 2015 by denying her additional time off. But the record notes only that she “could not leave work,” Waggel Decl. ¶ 136, and Waggel alleges no specific adverse decision by the University or a causal connection between the action and her earlier FMLA leave. Further, Waggel alleges the University retaliated against her for appealing the faculty‘s decision that she repeat certain coursework. But this allegation, too, fails to draw a causal connection between the alleged retaliatory actions and her exercise of FMLA rights.
Another set of Waggel‘s allegations plausibly state a prima facie case but fail to rebut the University‘s legitimate, nonretaliatory explanations. See Gleklen, 199 F.3d at 1368 (affirming summary judgment where plaintiff “fell far short of rebutting the [employer‘s] more plausible explanation for its actions“). For instance, Waggel claims the temporal proximity between her October 2015 FMLA leave and the University‘s decision to make her repeat certain coursework demonstrates the decision was retaliatory. As we have noted before, timing can help to establish the causal element of a prima facie case of retaliation. See id. (“Temporal proximity is often found sufficient to establish the requisite causal connection for such claims.“). But the University explained its decision by pointing to Waggel‘s poor exam performance and distracting in-class behavior. While timing can establish a prima facie case of retaliation, dislodging an employer‘s nonretaliatory explanation as pretextual at the third step of McDonnell Douglas requires “positive evidence beyond mere proximity.” Minter v. District of Columbia, 809 F.3d 66, 71-72 (D.C. Cir. 2015) (quoting Solomon v. Vilsack, 763 F.3d 1, 16 (D.C. Cir. 2014)).
On appeal, Waggel highlights one claim for which she points to more than proximity to rebut the University‘s explanation. Reframing her November 2015 forced administrative leave discrimination claim as an FMLA retaliation claim, Waggel argues Dr. Catapano‘s comment that she had “taken too much sick leave” rebuts the University‘s explanation as pretextual. Waggel Decl. ¶ 136. But as discussed above, this comment is not enough to overcome the University‘s justification and raise a genuine issue of material fact. Thus, the district court was correct to find the University entitled to summary judgment on Waggel‘s FMLA retaliation claims.
B.
Waggel also claims the University interfered with her FMLA rights in violation of
Although Waggel raised several claims of interference below, see Waggel, 2018 WL 5893346, at *33-35, she presses only one on appeal: that the University discouraged her from retaining an attorney to represent her interests. In support of this
As an initial matter, Waggel cites no authority suggesting her retention of an attorney constituted protected FMLA activity under these circumstances. The FMLA protects an employee‘s rights to take guaranteed leave, oppose or complain about an employer practice made unlawful by the statute, and participate in “legal proceedings or inquiries relating to an employee‘s rights.”
Even if we were to assume her activity falls under the protection of the FMLA, a reasonable employee could not be discouraged from exercising FMLA rights by the innocuous comments at issue here. Drawing all inferences in Waggel‘s favor, Dean Berger‘s comments merely suggest something that is both plausible and lawful: Waggel‘s retention of an attorney prompted the University to become more cautious in communicating with her. Without more, an employer‘s statements mentioning the lawful consequences of initiating litigation and asking an employee to refrain from threats do not run afoul of the FMLA‘s prohibition on interference.
Finally, Waggel fails to identify evidence of prejudice arising “by reason of the violation” or “as a direct result of the violation.” Ragsdale, 535 U.S. at 89 (quoting
***
For the foregoing reasons, the district court‘s grant of summary judgment in favor of the University is affirmed.
So ordered.