Summary
holding that a doctor's release suggesting that the plaintiff's post-surgery work restrictions were temporary was not enough to constitute a request for specific reasonable accommodations under the ADA
Summary of this case from Dortch v. Memorial Herman Healthcare System-SouthwestOpinion
Civil Action No. 3:01-CV-1194-K.
June 1, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment. Having considered the merits of the motion, and for the reasons stated below, Defendant's motion is GRANTED.
I. Background
Plaintiff Laura E. Pasley ("Pasley") brings this suit pro se against Defendant City of Dallas ("the City") for violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq.
Pasley was employed by the City as a secretary in the Dallas Police Department ("DPD") from August of 1973 until her resignation in January of 1999. In May of 1995, Pasley began experiencing difficulties with her hands, which was diagnosed as carpel tunnel syndrome with ulnar parathasis. In July of 1996, Pasley had an incident with her forearm which resulted in a diagnosis of upper extremity overuse syndrome. Throughout 1996 and 1997, Pasley worked off and on, working a total of 96 full days in 1996 and 88 full days in 1997.
On June 10, 1998, Pasley was granted approval for up to 12 weeks of leave pursuant to the FMLA in order to have surgery on her left shoulder. Pasley returned to work from her FMLA leave on September 21, 1998.
The City complains that upon Pasley's return to her job, she continued to miss work for various reasons. Pasley complains that from her return to work in September through her resignation, her supervisors and other DPD officers conspired to harass her and badger her in an attempt to discriminate against her and force her to quit.
On or about November 30, 1998, Pasley applied for disability retirement. However, before any decision was made about Pasley's status, Pasley tendered her resignation to the City on December 29, 1998. The resignation was effective on January 3, 1999.
Pasley met with a representative of the Equal Employment Opportunity Commission ("EEOC") on August 19, 1999 and September 2, 1999. Pasley provided additional information to the EEOC on September 22, 1999. On December 7, 1999, Pasley signed an official charge of discrimination against the City, alleging (1) failure to accommodate; (2) harassment; (3) she had her work-shift changed; and (4) constructive discharge.
After receiving her EEOC Notice of Right To Sue Letter on March 26, 2001, Pasley filed the present suit on June 21, 2001.
II. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25, 106 S.Ct. at 2551-54. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25, 106 S.Ct. at 2551-54; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962).
III. The Timeliness of Plaintiff's Charge
Under the ADA, a plaintiff has to file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. See Manning v. Chevron Chemical Co., LLC, 332 F.3d 874, 878 (5th Cir. 2003) (holding that the ADA incorporates the notice and procedure provisions of 42 U.S.C. § 2000e-5(e) (Title VII)). The City claims that Pasley's charge of discrimination with the EEOC was not timely filed.
It is not disputed that Pasley's last day of employment with the City was January 3, 1999. Pasley claims that she contacted the EEOC on August 19, 1999, within the required 300 day limit, to file her complaint of discrimination. Pasley also claims that she made subsequent contacts with the EEOC on September 2, 1999 and September 22, 1999. However, the date of the official verified Form 5 charge filed with the EEOC was December 7, 1999, which falls outside the 300 day limit. Pasley claims that the contacts she made with the EEOC in August and September of 1999 were sufficient to constitute a charge of discrimination under the relevant federal regulations. See 29 C.F.R. § 1601.12.
The City argues that Pasley's communications with the EEOC in August and September of 1999 do not constitute a charge under § 1601.12, and thus that Pasley failed to timely file her charge with the EEOC. Pasley responds that those communications were sufficient to constitute a charge with the EEOC. In support of her argument, Pasley submits the affidavit of Alma J. Anderson, Enforcement Manager for the Dallas District Office of the EEOC. In her affidavit, Ms. Anderson testifies that the information Pasley supplied to the EEOC in August and September of 1999 was "considered to meet the requirements for a minimally sufficient charge in accordance with" § 1601.12. In its reply, the City did not respond to the existence of Ms. Anderson's affidavit.
Based on the affidavit of Ms. Anderson, Pasley's charge was timely filed with the EEOC within the 300 day limit. See Edelman v. Lynchburg College, 535 U.S. 106 (2002). In Edelman, the Supreme Court held that when a plaintiff files an unverified charge with the EEOC that complies with § 1601.12 in all other respects, later verification of the charge relates back to the date of the original charge, even if the verification occurs outside the 300 day period. See id. at 119. Edelman applies directly to the facts in this case, as Pasley's initial information, while not an officially verified charge, is sufficient to allow later verification of the information.
Therefore, Pasley's EEOC charge itself was filed within 300 days of the date of her resignation. However, as will be discussed below, the mere filing of the charge within 300 days of her resignation does not mean every claim in the charge is timely.
IV. Whether Plaintiff is "Disabled" Under the ADA
To bring any cause of action pursuant to the ADA, one must qualify as "disabled" under the meaning of the law. See Gowesky v. Singing River Hosp. Systems, 321 F.3d 503, 508 (5th Cir. 2003). Before addressing the merits of Pasley's substantive ADA claims, the Court will consider this threshold requirement.
The ADA defines the term "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment. See 42 U.S.C. § 12102(2). The regulations provide that whether an impairment substantially limits a major life activity is determined in light of: (1) the nature and severity of the impairment; (2) the impairment's duration or expected duration; and (3) the permanent or long term impact, or the expected impact, resulting from the impairment. See 29 C.F.R. § 1630.2(j)(2).
Because the City does not have the burden at trial of proving that Pasley is disabled, it can meet its summary judgment obligation by pointing the Court to the absence of evidence to support her claims that she is disabled. See Celotex, 477 U.S. at 325. If the City does so, then Pasley must go beyond her pleadings and designate specific facts showing that there is a genuine issue for trial. See id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Summary judgment is mandatory where the nonmoving party fails to meet this burden. See id. at 1076.
Pasley must adduce evidence that would permit a reasonable jury to find that she had an impairment that substantially limited one or more of the major life activities. The only evidence before the Court of any major life activity that Pasley's condition could have substantially impaired is that of working. In order to establish a substantial limitation on the major life activity of working, Pasley must demonstrate a significant restriction in the ability to perform either a class of jobs or a broad range of jobs in various classes. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998). Pasley has not adduced evidence that would permit a reasonable jury to find that at the time of any of the employment decisions about which she complains, her arm damage substantially limited the major life activity of working. Indeed, when Pasley returned to work after her FMLA leave on September 21, 1998, she presented the City with a release signed by her treating physician that indicated she was ready to resume her workplace duties.
Pasley has failed to point the court to evidence in the summary judgment record that she contends would support a reasonable finding that her arm damage substantially limited her in the major life activity of working. Therefore, the City is entitled to summary judgment on this issue.
The Court must also consider whether Pasley qualifies as disabled under the "record of disability" or "being regarded as disabled" prongs under the regulations. The regulations state that having a record of impairment means having a history of, or being misclassified as having, a mental or physical impairment that substantially limits one ore more major life activities. See 29 C.F.R. § 1630.2(k). Additionally, the regulations define being regarded as having such an impairment as follows: (1) having a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such a limitation; (2) having a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards such impairment; and (3) when (1) and (2) do not apply, being treated by a covered entity as having a substantially limiting impairment. See 29 C.F.R. § 1630.2(1). Pasley has failed to offer any evidence of a record of disability or that Pasley was regarded as disabled by the City.
Accordingly, Pasley does not qualify as "disabled" under the ADA, and the City is entitled to summary judgment on her ADA claims as a matter of law.
V. Plaintiff's Claims under the ADA
Even assuming Pasley does meet the standards of a "qualified individual with a disability" under the ADA, she nevertheless fails to present evidence which creates a genuine issue of material fact as to any of her ADA claims.
A. Discrimination under the ADA
Pasley alleges that the City discriminated against her in violation of the ADA by effectively forcing her to resign from her position with the City.
The ADA provides that no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual. See 42 U.S.C. § 12112(a). One may establish a claim for discrimination under the ADA by presenting either direct evidence of discrimination or by using the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999). To establish a prima facie case of discrimination under the ADA though the McDonnell Douglas method, the plaintiff must show that (1) she had a disability; (2) she was qualified for the job; and (3) she was subjected to an adverse employment activity. See Dupree v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001).
Adverse employment actions include discharges, demotions, refusals to hire, refusals to promote, and reprimands. See Pierce v. Texas Department of Criminal Justice, Institutional Division, 37 F.3d 1146, 1149 (5th Cir. 1994), cert. denied, 514 U.S. 1107 (1995). Pasley does not allege that the City improperly refused to hire her, refused to promote her, or reprimanded her. Therefore, because Pasley resigned her position, the only way she could establish any adverse employment action against her would be through constructive discharge. See Tyler v. Union Oil Co. of California, 304 F.3d 379, 394 (5th Cir. 2002).
For an employee's decision to resign to constitute constructive discharge, employment conditions must at the time of the resignation be so intolerable as to force a reasonable employee to make the decision to resign. See id. The test is an objective one. See id. at 395. Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but the Court considers the following factors relevant, either individually or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to work that is menial or degrading; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer which is calculated to encourage the employee's resignation; or (7) offers of early retirement on terms which would make the employee worse off whether the offer was accepted or not. See Smith v. Lattimore Materials Co., 287 F. Supp.2d 667, 672 (E.D. Tex. 2003) (citing Barrow v. New Orleans SS, Ass'n, 10 F.3d 292, 297 (5th Cir. 1994).
Pasley complains of several instances where she felt harassed, berated, humiliated, and the like. In her Second Amended Complaint, she states that in 1998, the mission of Willie Taylor ("Taylor"), a deputy chief of police, was "the harassment of Pasley to force her out of employment with the City of Dallas." Similarly, Plaintiff claims that Craig Miller ("Miller"), a lieutenant in the Dallas Police Department, "made a habit of harassing the Plaintiff to the point of stress and pain so severe as to exacerbate her job related injuries." Specifically, Pasley states that (1) Taylor and Miller had several sergeants in the Dallas Police Department work in concert in an effort to cause each of her days at work to be as stressful as possible; (2) one of the sergeants ordered his personnel to stay away from Pasley, not to talk to Pasley, to slander Pasley, and otherwise attempted to isolate the Pasley from her coworkers; (3) another one of the sergeants treated Pasley in a rude an disrespectful manner designed to cause her emotional distress; and (4) yet another sergeant implemented discriminatory rules devised to make work harder on Pasley than on other employees.
Additionally, in her response to the City's motion, Pasley attaches the affidavit of one of her coworkers, Ms. Julie Looper, to support her allegations. Ms. Looper states that, among other things, (1) some personnel in Pasley's department gave her "the cold shoulder;" (2) Miller yelled at Pasley in a manner that made him sound like "a raging bull;" (3) the dress code was changed in order to prevent Pasley from wearing a certain type of shirt; (4) one detective told his personnel not to talk to Pasley in order to upset her; (5) and Pasley's department was "a `good ole boy' division."
Of the several factors set out in Barrow, the only ones applicable to this situation are (1) reassignment to work that is menial or degrading and (2) badgering, harassment, or humiliation by the employer which is calculated to encourage the employee's resignation. Though Pasley's shift was changed, there is no indication that the work she was assigned to following her return from surgery was menial or degrading. Indeed, the evidence shows that Pasley received a two percent raise when her hours were changed following her surgery in June of 1998. Additionally, while Pasley alleges that Miller, Taylor, and several sergeants harassed and humiliated her in order to force her to resign, the evidence shows that any such behavior, while no doubt subjectively objectionable to Pasley, was not so intolerable as to force a reasonable person to feel compelled to resign.
Even if Pasley has presented evidence sufficient to support her theory of constructive discharge, thus establishing a prima facie case of disability-based discrimination, the City presents legitimate, non-discriminatory reasons for its conduct. The City states that Pasley's shift was changed from 8:00 am — 5:00 pm to 2:00 pm — 10:00 pm in order to allow Pasley to attend the aquatic water therapy she states she had to have after her surgery. Additionally, Pasley states that the City harassed her and humiliated her by requiring her to undergo a psychiatric "fitness for duty" evaluation. Taking into account Pasley's own testimony that she was frequently upset, and would cry on occasion, this was presumably a reasonable measure to take.
Pasley does not set forth evidence which establishes these legitimate, nondiscriminatory reasons to be pretextual. Ultimately, there is no proof that the conduct of the City towards Pasley was based on her disability, which is the key question.
Pasley has produced evidence, and has discussed at length, her supervisors' sometimes harsh management style. However, the federal discrimination statute under which she brings suit requires more. A discharge, or actions resulting in constructive discharge, may be unfair or even unlawful yet still not be a discriminatory action based a disability. See, e.g., Moore v. Eli Lilly Co., 990 F.2d 812, 819 (5th Cir.), cert. denied, 510 U.S. 976 (1993) (holding that discharge may well be unfair or even unlawful yet not be evidence of age discrimination under the ADEA). Pasley bears the burden of connecting evidence of harsh treatment to proof of discriminatory motive. She has failed to introduce the necessary evidence.
This court does not sit as a personnel manager whose role is to judge whether employment decisions are fair. Cf. Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-08 (5th Cir. 1988) (holding that the ADEA was not intended to be either a vehicle for judicial second-guessing of employment decisions, or to transform the courts into personnel managers). Federal law protects persons against discrimination based on race, age, or disability. It does not safeguard them from harsh management styles or even unfair employment decisions, if the employee's race, age, or disability was not a factor. In this case, there is no evidence that Pasley's alleged disability played a factor in the way she was treated at work.
Pasley has failed to establish a prima facie case of disability-based discrimination. Therefore, the City is entitled to summary judgment on this claim as a matter of law.
B. Plaintiff's Harassment Claim
Pasley also alleges that the City unlawfully harassed her because of her disability. Even if Pasley was considered a "qualified individual with a disability" under the ADA, the alleged harassment she complains of does not rise to the level of an actionable offense under the ADA.
To succeed on a claim of disability-based harassment, Pasley must demonstrate the following: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action. See Gowesky, 321 F.3d at 509.
The legal standard for workplace harassment in this circuit is high. See id. For workplace abuse to rise to the level of an actionable offense the disability-based harassment must be sufficiently pervasive or severe to alter the conditions of the employment and create an abusive working environment. See id. One case where the Fifth Circuit has held a question of fact on disability-based harassment to exist exhibited much harsher facts than are at play here. In Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (5th Cir. 2001), the court held that there was sufficient evidence to create a genuine issue of material fact as to whether the employer unlawfully harassed the employee in violation of the ADA. There, the employer's attitude towards the employee radically changed with it discovered she had HIV. After the discovery, the employee's immediate supervisor — who had previously been close friends with her — ceased socializing with the employee, intercepted her phone calls, and eavesdropped on her conversations. See id. at 236-37. Also, the evidence showed that the company's president became very "distant," as he refused to shake the employee's hand and would go to great lengths in order to circumvent her office when he would normally have to go past it. See id. at 237. Additionally, the employee was placed on probation at a meeting where the president spoke disparagingly to her. See id.
However, in McConathy v. Dr. Pepper/Seven-Up Corp., 131 F.3d 558 (5th Cir. 1998), the court held that an employee's supervisor's tasteless comments toward the employee regarding the slow pace of the employee's recovery from her temporomandibular joint disease, the supervisor's reassignment of work away from her, and the supervisor's insensitivity toward her need for surgery and time to recuperate would not constitute disability-based harassment sufficiently pervasive enough to state a claim under the cause of action. See id. at 560, 563-64. As the court stated in McConathy, some workers will not get along well with each other in the workplace, and courts should not elevate a few harsh words or "cold shouldering" to the level of an actionable offense. See id. at 564.
This case is more like McConathy than Flowers. Here, Pasley complains that work was assigned away from her, that Miller and others were insensitive to her position, and that several of the employees in the Dallas Police Department ignored her and gave her the "cold shoulder" upon her return from surgery in September of 1998. However, this evidence does not meet the high standard necessary to establish a fact issue on a claim for disability-based harassment.
Accordingly, Pasley fails to raise a genuine issue of material fact on her harassment claim. Therefore, the City is entitled to summary judgment on this claim as a matter of law.
C. Plaintiff's Reasonable Accommodation Claim
In addition to her discrimination claim, Pasley also alleges that the City failed to reasonably accommodate her limitations in violation of the ADA.
1. The Timeliness of Plaintiff's Accommodation Claim
Pasley's accommodation claim is untimely. As stated above, in an ADA case, an employee must file a charge of discrimination within 300 days of the alleged unlawful act. The Fifth Circuit has stated that the limitations period on an ADA claim begins to run from the time the employee knows or reasonably should have known that the challenged act has occurred. See Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002).
In her Second Amended Complaint, Pasley states that she "made her supervision acutely aware, both verbally and in writing, of her physical limitations and the need for very reasonable accommodations as far back as 1995. . . ." Additionally, the Second Amended Complaint states that the Pasley would have required reasonable accommodations in order for her to effectively return to work following her surgery on June 12, 1998.
Similarly, in her response to the City's motion, Pasley responds to the City's allegation that she never requested any accommodations by stating that "Plaintiff made [deputy chief] Taylor completely aware of the entire situation even prior to his transfer to the Narcotics division," which, according to Pasley's response, took place in February of 1998.
With these alleged occurrences, Pasley knew, or should have known, that the City had no plans to accommodate her condition. As these dates preceded Pasley's filing of her charge with the EEOC by more than 300 days, her accommodation claim is untimely.
2. Plaintiff Failed to Identify her Necessary Accommodations
Even if Pasley's accommodation claim was timely, she has failed to present any evidence to the Court indicating that she identified her limitations and requested reasonable accommodations accordingly.
Discrimination under the ADA includes an employer's not making reasonable accommodations to the known physical or mental limitations of an employee who is otherwise a qualified individual with a disability. See 42 U.S.C. § 12112(b)(5)(A). However, an employer's duty to accommodate is not triggered until the employee makes a request for an accommodation. See Tips v. Regents of Texas Tech Univ., 921 F. Supp. 1515, 1518 (N.D. Tex. 1996). The City contends that Pasley "has failed to provide evidence that she requested and identified a reasonable accommodation."
Pasley states that following her surgery on June 12, 1998, she would have required the following reasonable accommodations: (1) typing not more than thirty minutes per hour; (2) taking one ten minute stretch-break per hour; (3) not lifting anything greater than ten pounds; (4) working early hours and staying on a regular schedule; (5) continuing aquatic therapy; and (6) not filing anything above her head.
On September 1, 1998, Pasley's doctor's release stated that she was released to limited duty, which included working no more than twenty hours per week, not filing, not lifting anything greater than ten pounds, and limiting her typing. However, on September 21, 1998, Pasley's doctor's release included no such restrictions, and indicated that Pasley was able to resume regular duties. There is no other evidence before the Court that Pasley's need for accommodations was reflected to the City in any other way.
Accordingly, because Pasley failed to request specific reasonable accommodations, she is precluded from arguing that the City failed to provide her any. The City is entitled to summary judgment on this claim as a matter of law.
VI. Plaintiff's FMLA Claims
In addition to her ADA claims, Pasley alleges that the City violated the FMLA by not restoring her to the position she held before she took her FMLA leave. Specifically, Pasley's Second Amended Complaint states that "Pasley's position as Secretary in the Narcotics Division should never have been taken away nor should she have been assigned to work evenings or rotating shifts."
Under the FMLA, eligible employees are entitled to a total of 12 weeks of unpaid leave during any 12-month period due to a serious health conditions which make the employee unable to perform the functions of the position of such employee. See 29 U.S.C. § 2612(a)(1)(D); see also Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 763 (5th Cir. 2001). The FMLA provides that, upon the return from any FMLA leave, an eligible employee shall be restored to the position of employment held when the leave commenced or to an equivalent position. See 29 U.S.C. § 2614(1). Further, the FMLA implementing regulations provide that if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee does not have the right to restoration to another position under the FMLA. See 29 C.F.R. § 825.214(b) (1997). If an employee does not seek to return to work before the expiration of her FMLA leave, the employer is not under an express statutory duty to reinstate her. See Hunt, 277 F.3d at 764.
In this case, Pasley sought medical leave on June 10, 1998, and the evidence is undisputed that she was not cleared to return to her full duties until September 21, 1998. Therefore, more than 12 weeks had elapsed between the time she sought FMLA leave and the time she was cleared to return to work on a full-time basis. Accordingly, the City's express duty of reinstatement no longer applied, and the City is entitled to summary judgment on this claim as a matter of law.
Based on her pleadings and her response to the City's motion, it is unclear whether Pasley also alleges a retaliation cause of action under the FMLA. To the extent that Pasley raises such a claim, this claim also fails as a matter of law.
In addition to an employee having the right to reinstatement within twelve weeks of taking FMLA leave, the law provides that an employer cannot retaliate against an employee for claiming such benefits. See id. at 768. To establish a prima facie case of a retaliation cause of action under the FMLA, an employee must show that: (1) she is protected under the FMLA; (2) she suffered an adverse employment decision; and either (3a) that she was treated less favorably than an employee who had not requested leave under the FMLA; or (3b) the adverse decision was made because of her request for leave. See Bocalbos v. National Western Life Ins. Co., 162 F.3d 379, 383 (5th Cir. 1998). As discussed above, Pasley's absence of more than twelve weeks forfeited her protection under the FMLA. Additionally, as also discussed above, the evidence does not show that Pasley was constructively discharged; therefore, no adverse employment action occurred.
Accordingly, Pasley's FMLA causes of action fail as a matter of law, and the City is entitled to summary judgment on those claims.
VII. Conclusion
For the reasons stated herein, the City's Motion for Summary Judgment is GRANTED. Judgment will enter that Plaintiff take nothing in her suit against Defendant.
Additionally, even considering the affidavits which Pasley included with her response to the City's motion, she fails to create a genuine issue of material fact as to any of her claims before the Court. Therefore, the City's Motion to Strike is DENIED as moot.