Walker v. Children's Nat'l Med. Ctr.

236 F.Supp.3d 136

Leslie WALKER, Plaintiff,

v.CHILDREN'S NATIONAL MEDICAL CENTER, Defendant.

Civil Action No. 15–2000 (RMC)

United States District Court, District of Columbia.

Signed February 21, 2017

Raymond R. Jones, Law Office of Raymond R. Jones, Washington, DC, for Plaintiff.

Kraig B. Long, Veronica Dasha Jackson, Miles and Stockbridge P.C., Baltimore, MD, for Defendant.

OPINION

ROSEMARY M. COLLYER, United States District Judge

Leslie Walker sues Children's National Medical Center for alleged retaliation in anticipation of her testimony concerning a former employee's charge that Children's had discriminated against the employee in violation of the Americans with Disabilities Act (ADA). Ms. Walker brings her retaliation claim under Title VII of the Civil Rights Act of 1964, not the ADA. Neither party noted the disconnect and have briefed summary judgment as if it presented a question of retaliation under Title VII.

It does not, and Ms. Walker's Title VII claim must fail as a matter of law. The underlying claim by the former employee was brought under the ADA; alleged retaliation against Ms. Walker for her testimony concerning that claim might have violated the ADA but not Title VII, the statute on which the Complaint and the briefs rest. For the reasons discussed below, the Court finds that it would be futile to allow Ms. Walker to file an amended complaint. For these reasons, summary judgment will be granted to Children's National Medical Center.

I. FACTS

After a break in service, Leslie Walker was re-hired by Children's National Medical Center (Children's) in September 2013 as a temporary staff assistant in the Division of Fetal Medicine of the Children's Fetal Institute. Compl. [Dkt. 1–1] ¶ 5. She was promoted to Operations Coordinator in November 2013, which was a permanent supervisory position in the Fetal Institute. Id . ¶ 6. In her new position, Ms. Walker supervised Tamika Palmer and Sheralysta Faulkner. Mot., Ex. B, Deposition of Leslie Walker (Walker Dep.) [Dkt. 13–3] at 39. Ms. Walker's immediate supervisor was Dr. Andre DuPlessis and her next level supervisor was Paula Wadley. Id . at 41–43.

On January 23, 2014, Mses. Palmer and Faulkner complained to Ms. Walker about work conditions, in a conversation one of the employees secretly audio-recorded. Both women were concerned about the noise resulting from construction on the neighboring section of the medical center. Mot., Ex. C, Transcript of Recorded Conversation (Conversation Tr.) [Dkt. 13–4] at 2 ("When I came in this morning, that noise was so loud the ground shook."); id . at 3 ("[I]t's real loud, and like today, like literally, the banging on the floor."). Due to the noise, both women reported headaches and other ear-related ailments. Id . at 2 ("That weekend my ear hurt, it felt like water was in my [ ] ear, like swimmer's ear, so I came in Monday and it got worse. You know, I didn't think too much of it, so I did a little bit of research and you know, it said the ringing, the humming, and it's almost like a whistling in my ear, it can come from noise exposure."); id . at 3 ("I'm having the same issues. Well, I've been having headaches and all kinds of stuff going on, and I went to the doctor on Monday, and she checked my ears and saw they were real moist, and she asked about my noise exposure as well."); id . ("I'm not able to hear as well, I'm getting headaches and things like that.").

Ms. Walker responded that Mses. Palmer and Faulkner could take sick leave if they needed to be absent from work or she could try to find another location in the building for them to work. Id . at 4–5. Ms. Faulkner had already gone to Occupational Health at Children's and been told that if she were having problems hearing she should notify her manager and maybe file for worker's compensation for a work-related injury. Id . at 5–6. Both employees indicated they had been experiencing ear problems for a couple of months. Id . at 6.

Ms. Walker attempted to contact Dr. DuPlessis for advice but he told her to call Ms. Wadley. Ms. Wadley was not immediately available. See id . at 6–8. Ms. Walker then told Mses. Palmer and Faulkner that they could go to urgent care, but that she did not "know how [compensation stuff] goes or how that works, but at least there will be documentation, we'll have your documentation, because they're going to beat you up with that if you don't." Id . at 9. Ms. Walker testified at her deposition that she also said "[t]hey're going to chew you up and spit you out," explaining that she meant that "if it's going to be Workman's Compensation that you're filing, then you need to get your documents and you need to fill it out, you need to go to your doctor and be seen, you need to sign in Occupational Health, follow the right procedures, because if not, [Children's is] going to beat you up and spit you out or chew you." Walker Dep. at 99–100. Ms. Walker also warned that Children's could "dismiss you from your job if they find that anything is not [true]." Conversation Tr. at 11.

After further discussion, Ms. Walker called George Francois, assistant to Paula Wadley, to get advice on how the employees should proceed. See id . at 18–20; Walker Dep. at 105–106. After a brief conversation with Mr. Francois, Ms. Walker told the employees that she needed to speak to Ms. Wadley before she could advise them on what they should do. See Conversation Tr. at 20–21. Nonetheless, she continued to question Mses. Palmer and Faulkner about their complaints and what relief they were seeking. Once Ms. Faulkner asked "to go on workmen's comp because of [her] hearing loss," id . at 24, Ms. Walker told both women to go to the human resources department to obtain the required paperwork. Id . at 25. Rather than conclude the conversation with that advice, Ms. Walker continued to engage with the employees and made the following statements about their potential claims:

• "Just be very thorough and be sure that what you get is on paper, and be sure that you do what you're going to do." Id . at 27.

• "You need to go [to occupational health] and you need to sign in to occupational health. Occupational health needs to see you and needs to tell you on record." Id. at 29.

• "And really to be honest, I would not advise both of you to go together, but then again, it might be beneficial to you if it's going to be a compensation thing, you know. I'm just saying document it, cross your T's and dot your I's, you know, because you're messing around and won't have a job with Children's, and I know, because Children's just up and they just, they can deuce you with a click of a finger because of past history, past taking off, past this, past that, you know. And you know, even down to, you know, so much time being taken off, you know, at this phase, this phase, this phase, then they cross check, you've got to really watch stuff, really watch stuff. Don't f [—]k around and lose your job because of bulls[—]t." Id . at 29–30.

• "Watch yourself with compensation, because I'm letting you know, they let—I can't think of, and I probably shouldn't say her name anyway—they let her go and she thought her s[—]t was covered with [the Family Medical Leave Act], and they let her go because her documentation was not justified. ... No, it was not justified, and they took it to legal service and legal services said negative, and she was supposed to return on Monday. And when she returned that Monday, they told her to come to [human resources]. When she went to [human resources], they escorted her upstairs, let her get her stuff, and she lost her job on a technicality." Id . at 32.

• "So, you know, you need to make sure that your doctor's documentation says nothing about flu-like symptoms or this or that, or this or that, you know, because that could be a reason to go to the doctor and the doctor look in your ears, you know." Id . at 35.

• "Watch yourself, don't f[—]k around and lose your job over some bulls[—]t." Id . at 36.

None of these statements is challenged by Ms. Walker and she repeatedly admitted during her deposition that she should not have made them. Walker Dep. at 100, 102, 122, 131.

Mses. Palmer and Faulkner both took leave from Children's under the Family and Medical Leave Act (FMLA), which grants time off for illness for either 16 weeks under D.C. law, D.C. Code 32–501 et seq ., or 12 weeks under federal law, 29 U.S.C. §§ 2601 et seq . At some point after her FMLA-covered leave ended, Children's told Ms. Faulkner that it needed to fill her position and, because she was not yet cleared by her doctor to return to work, Children's discharged her and hired someone else. Ms. Faulkner filed a discrimination charge on June 16, 2014, claiming that Children's violated the ADA, Mot., Ex. E, Faulkner ADA Charge [Dkt. 13–6], when it fired her. Specifically, she complained that she "was injured at work after [she] heard a loud explosion noise" but that her supervisor, Leslie Walker, "intimidated [her] and tried to discourage [her] from filing a Workers' Compensation claim." Id . at 1. Ms. Palmer filed a similar discrimination charge on September 28, 2014 claiming she was "denied an accommodation and discharged due to [her] disability." Mot., Ex. F, Palmer ADA Charge [Dkt. 13–7] at 1. Ms. Walker asserts that she assisted Children's Human Resources Department (HR) respond to Ms. Faulkner's ADA charge filed with the Equal Employment Opportunity Commission (EEOC). See Opp'n [Dkt. 15] at 3. Despite being named in Ms. Faulkner's charge, Ms. Walker concedes by silence that she did not inform anyone at Children's of her January 23, 2014 conversation with Mses. Palmer and Faulkner.

Rosemary Carr, then-Children's Workers' Compensation Coordinator, learned that a recording existed of the January 23, 2014 conversation at some point during the processing of the two women's workers' compensation cases. Affidavit of Rosemary Carr (Carr Aff.) [Dkt. 13–14] ¶¶ 5–7. When Ms. Carr asked Ms. Walker about a recorded conversation, Ms. Walker...