UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) DEBRA DORSEY, ) ) P laintif f, )

) v. ) Civil Action No. 09-1085 (R MC) ) JACOBSON HO LMAN, P LLC, et al ., ) ) Defendan ts. ) ) MEMORAN DUM OP INION Suffer ing from car

pel tunnel sy

ndrome in both of her wrists, Plaintiff Debr a Dorsey took leave from her position as a secr etar y at the law firm of J acobson Holman, PL L C, f or surg ery in September 2007. The firm trea ted her absenc e as protec ted under the Family Medica l L eave Act (“F ML A”) , 29 U.S.C. §§ 2601, et seq ., and the District of Columbi a Family and Medica l L eave Act (“D CFML A”) , D.C. Code §§ 32-501, et seq ., althoug h it g ave her no notice of those rig hts. Plaintiff had surg ery

on one wr ist in S eptember 2007 and surge ry on the other w rist in Dece mber 2007. I n Fe bruar y 2008, she complete d paper work to apply

for disability

insurance and deliver ed a c opy to h er b o s s. I n J une 2008, her application for disability insurance was approve d, retroa cti v e t o Dec ember 2007. Plaintiff sues here alleg ing the following violations: (1) failure to make a y ear -end contribution to the J acobson Holman PL L C Profit Sharing Plan (“Prof it Sharing Plan”) on her behalf ; (2) failure to pay her a 2007 y ear -end bonus; (3) failure to pay her acc umulated vacation leave ; and (4) reta liation via termin at ion of her employ ment and interfe renc e reg arding her rig hts under the FML

A/DCFML A. Def

endants are the law firm, the Profit Sharing Plan, and J ohn C. Holman as Plan Administrator of the Profit Sharing Plan, all of whom move for summary judgme nt.Def endants’ motion for summary judgme nt will be g rante d in part and denied in part. Be cause Plaintiff c ould not perf orm her job a t the end of the FML A/DCFML A protec tion period, the Court will g rant summary judgme nt to Def endants on the claims o f v i o l at ion of FML A/DCFML A for termination of her position and interfe renc e with h er rig hts under those
statutes. The Court will also gra n t s u m m ary judgme nt on the claim that Plaintiff was not paid a discretionar

y y ear -end bonus, contra

ry to the D.C. Wage Pay

ment Act. Summary judgme nt will be denied on a ll other claims. I

. F ACTS

Plaintiff worke d as a secr et ar y for J acobson Holman since Fe bruar y of 1991. On September 17, 2007, Plaintiff went out on worke rs’ compen s a ti o n d u e to h e r c a

r p el tunnel sy

ndrome. She worke d for memb er J ohn “Jace” Holman during the entire period of employ ment. Plaintiff underw ent surg ery for h er ca rp el t u nnel sy ndrome on September 18, 2007 for one wrist and Dec ember

16, 2007 for the othe r wrist. U n f o r tu n a te ly , th e s e surg erie s did not improve Plaintiff’s condition a n d s h e c o n ti n

u e d
to experience sever e pain. Ultimately , on Fe bruar y 20, 2008, Plaintiff applied for disabil i t y insurance

. When she applied for disability , Plaintiff g ave a copy of the application to Mr. Holman

on Fe bruar

y 22, 2008. Her acc ompany ing letter asked for “all documentation nece ssary to roll over my Fidelity profit sharing and 401(k) funds to my new acc ount.” Def s.’ Mem. in Support of its Mot. For Sum. J

. (“D efs.’ Mem.”) [Dkt. #25], Ex

. 4. Simor Moskowitz of J acobson Holman wrote to Plaintiff on Fe bru ary 26, 2007, indicating that “it is understood that y ou have resig ned y our employ ment” as a result of her conver sation with Mr. Holman, but he noted that her letter “does not specific ally say that y ou have resig ned,” which he stated the law firm neede d in order to initiate the

2roll-over paper work. Def

s.’ Mem., Ex

. 5. Mr. Moskowitz asked for “a written letter of resig nation, simply stating that y ou have resig ned from and are no longe r employ ed by J acobson Holman PL L C.” Id. Plaintiff’s respo n s e is not ref lected in the rec ord, but Mr. Moskowitz wrote to her ag ain on Marc h 4, 2008, to tell her that J acobson Holman “conside r[s] that y ou have resig ned as of Fe bruar y 22, 2008.” Id ., Ex

. 6. Mr. Moskowitz sent the nece ssary forms for Plaintiff t o ro l l o v er her retire ment acc ounts. Id

. Plaintiff signe d the space by which she “[a]cknowledg ed and [r] ece ived” that letter. Id

. I n J une 2008, Plaintiff’s application for disability insurance was approve d b y the insuror, re troac tive to mid-Dece mber 2007.

Def endants maintained a Profit Sharing Plan, which was an e mp lo y e e b e n e f it pension plan offe red by Def

endants for the benef

it of its employ ees. Second Am. Compl. ¶ 5. The Employ ee Retirement I ncome Security Act (“ERI SA”), 29 U.S.C. §§ 1001, et seq ., provides employ ees cer tain rig hts under the Profit Sharing Plan, including enforc ement rights i n fe d er al court. Pl.’s Mem. in Opp’n to Mot. for Sum. J . (“Pl.’s Mem.”) [Dkt. # 31] , Ex

. 3, at19–20. Under section I I I (B )(1) of the Profit Sharing Plan, to be elig ible for profit sharing contributions, an employ ee must “complete at least 1,000 hours of

service during the Plan Yea r and be employ ed as of

the last day

of the Plan Yea r.” Id ., p. 9. Plaintiff completed 1,000 hours of service in 2007. Id . at 8. Def endants a dmit that Plaintiff “wa s not paid a prof it sharing contribution for Plan Yea r 2007,” Def

s.’ Fa cts in Support of its Mot. for Sum. J

. [Dkt. # 25] (“D efs.’ Fa cts”) ¶ 6; “wa s not paid a bonus for 2007,” id. ¶ 4; and “wa s paid for 4.51 hours of acc rued but unused leave ” later than require d under the D.C. Wage Pay ment Ac t , id. ¶ 5. Def

endants insist that Plaintiff was not discharg ed, but ra ther, that she r esig ned. Id . ¶ 8.

3II

. LEGAL STANDARDS A. F MLA/DCF MLA Under cer tain circ umstances, the FML A and its DC counter part, the DCFML A, g rant an employ ee the rig ht to take tempora ry medical lea

ve fr om employ

ment, without the threa t of , or actua l termination, from her job. The F ML A provides that “an e ligible e mploy ee sha ll be entitled
to a total of 12 workwe eks of leave during any 12-month period

. . . [b] eca use of a serious health condition that makes the employ ee unable to p er fo rm t h e functions of the position of such employ ee,” 2 9 U.S .C. § 2612(a) (1)( D), and the DCFML A provides that “any employ ee who become s unable to perf

orm the functions of the employ ee' s position beca use of a seriou s h ealth condition shall be entitled t o m edica l leave for as long as the employ ee is unable to perf orm the functions, except that the medical leave shall not exceed 1 6 wo rk we ek s during any 24-month period.” D.C. Code § 32-503.

As stated in Roseboro v. Billingt on , 606 F. Supp. 2d 104 (D.D.C. 2009), there are two viable cla ims under the F ML A:

(1) an interfe renc e claim under §§ 2615(a) (1), in which the employ er has restra ined, denied, or interf ere d with the employ ee' s substantive rig hts under the Act, and (2) a reta liation claim under §§ 2615(a) (2), in which the employ er has taken adver se action ag ainst the employ ee beca use the employ ee took leave or otherwise en gaged in activity protec ted by

the Act. 606 F. Supp. 2d at 107–108.

B. Employee Ret irem ent Incom e Securit y Act The Employ ee Retirement I ncome Security Act (“ERI S A” ), 2 9 U.S.C. §§ 1001, et seq ., sets uniform minimum s tandar ds for private sector employ ee benef it plans to ensure these

4benef

it plans are established and maintained in a fair and financ ially sound manner . See generally 29 U.S.C. § 1001. ERI SA provides for a civil action “by a participa nt or benef

iciary

. . . to rec over benef its due to him under the terms of his pla n, to e nforc e his rights unde r the ter ms of the plan,or to clarify his rights to future benef its under the ter

ms of the plan.” 29 U .S.C. § 1132(a)(1) (B ). C. D.C. Wage P aym ent Ac t Under the D.C. Wage Pay

ment Act, an employ er must remit all wag es to an employ ee the next working day afte r terminating that employ ee, unless there is a dispute about those wag es. See D.C. Code §32-1303(1)

. I f this does not occur , “such employ er shall pay , or be additionally liable to, the employ ee, as liquidated damag es, 10 per centum of the unpaid wag es for eac h working day during which such failure shall continue afte r the day upon which pay ment is here under require d,

or an a mount equal to the unpaid wa g es, whiche ver is smaller.” Id . §32-1303(4)

. D. Summ ary Judgm ent Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt must be g rante d when “the pleading s, the discovery and disclosure materia ls on file, and any aff idavits show that there is no g enuine issue as to any materia l fac t and that the movant is entitled to a judgme nt as

a matter of law.” Fe d. R. Civ. P. 56 (c) ; Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986);

see also Celotex Corp. v. Catrett , 477 U.S. 317, 3 2 2 (1986); Diamond v. Atwood , 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreove r, summary judgme nt is proper ly g rante d ag ainst a party that “af ter adequate time for discovery and upon motion

. . . fails to make a showing sufficie nt to establish the exis tence of an e lement essential to that par ty ’s ca se, and on w hich that par ty will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). To deter mine which fac ts are “mater ial,” a court must look to the substantive law on which eac h claim rests. Anderson , 477 U.S.

5at 248 (1986). A “g enuine issue” is one whose resolution could establish an element of a claim or

defe nse and, the ref

ore, a ffe ct the outcome of the ac tion. Id .; Celotex , 477 U.S. at 322. I n ruling on a motion for sum m ary judgme nt, the court must draw all justifiable infere nces in the nonmoving party ’s favor and acc ep t t h e n o nmoving party ’s evidenc e as true. A n derson , 477 U.S. at 255. A nonmoving party , howeve r, must establish more than “t h e m er e exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. To preva il on a motion for summary judgme nt, the moving party must s h o w t h at t h e nonmoving party “fa il[ ed] to make a showing s u fficie nt to establish the exis tence of an element essential to that party ’s case , and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the absenc e of evidenc e proffer ed by the nonm oving party , a m o v i ng party may succe ed on summary judgme nt. Id. I n addition, the nonmoving party may not rely sole l y o n al l eg ations or conclusory
statements. Gree ne v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray , 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must prese nt specific fac ts that would enable a

rea sonable jury to f

ind in its fa

vor. Gree ne , 164 F.3d at 675. I f the evidenc e “is mere ly colora ble,

or is not signific antly probative, summary judgme nt may be g rante d.” Anderson , 477 U.S. at 249-50 (citations omitted). III

. ANALYSIS

Plaintiff bring s suit ag ainst Def endants for their: (1) failure to make contributions to a Profit Sharing Plan to which P laintiff arg ues she was entitl ed; (2) failure to pay unpaid leave , in violation of

the D.C. Wag e Pay

ment Act; (3) failure to pa y Plaintiff a y ear -end bonus, in violation of the D.C. Wage Pay

ment Act; and (4) violation of her rig hts under the FML A/DCFML A throug h interfe renc e and r etaliation.

6A. P rofit Sh aring P lan Def endants arg ue Plaintiff was not entitled to contributions in the Profit Sharing Plan beca use she was not a

n employ ee on the last day of the y ear , as is r equire d under section I I I (B )(1) of t h e P ro fit Sharing Plan. Pl.’s Mem., Ex

. 3, p. 9. Def endants point to the P rofit S haring Plan’s Adoptive Ag ree ment, which outli n es t h ese same continuing elig ibilit y require ments, i.e. , (1) employ ed on last day of the plan y ear ; and (2) worke d at least 1,000 hours of service in that y ear , id ., Ex

. 4, at18–19, but also contains a section that allows for an exception to those continuing elig ibilit y require ments for death, disability , or retire ment, but only if that section is marke d, which it is not in this case . Id. at 19. The Def endants arg ue that , i n t h e absence of an exception, Plaintiff, as retroa ctively disabled starting Dec ember 17, 2010, was not “employ ed” on Dec ember 31, 2007, and there fore was not elig ible for c ontributions to t he Profit Sharing Plan.

Def endants misapprehe nd Plaintiff’s status as of the last day of the plan y ear . Plaintiff was on sick leave at that time, protec ted by the FML A/DCFML A, and thus he r job could 1

not be taken awa

y . See 29 U.S.C. § 2612(a) (1)( D) (entitling employ ee to sick leave ); D.C. Code § 32-503. Yet that is exactly what Def endants tell this Court that they did. They asser t that Plaintiff “has been rec eiving long term disab i l i t y b en ef its since Dec embe r 17, 2007 , due to the ninety -day waiting period require d by the insurance policy betwee n the date of the disability ’s onset and the date

on which benef

its beg in to be pay able.” Def s.’ Fa cts ¶ 3 (empha sis a dded). As a result, acc ording
to Def endants, “it is undisputed that Plaintiff was not employ ed by [J acobson Holman] as of the last day of the Plan Yea

r, i.e., as of Dec ember 31, 2007.” Def s.’ Mem. at 8. Neither of these statements is borne out by

the re cord or

the law.

Whether this leave w as paid or unpa id makes no diffe renc e to the ana ly sis. 1 7The fac ts show a differ ent scena rio: Plaintiff was indeed an employ ee on Dec ember 3 1 , 2007, and there fore was entitled to contributions to the Profit Sharing Plan on her beha l f. Plaintiff was absent from work beca use of a serious medical condition that De fe n d an t s admit is

cover ed by the FML A/DCFML A. She could not be terminated during the twelve- wee k period afte r September 17, 2007, under fede ral law, and she could not be terminated during the six teen- wee k period afte r September 17, 2007, under the DCFML A, i.e. J anuar y 7, 2008. Fur

ther, Def endants did
not consider her a non-e m p l o y ee , g iven Mr. Moskowitz ’s car eful eff orts to g et her to “re sign” in Fe bruar y 2008. Def endants just did not wa n t t o m ake a profit sharing contribution to Plaintiff’s

acc ount, for which they g ive no leg itimate explanatio n. They arg ue that Plaintiff was not entitled
to a profit sharing contribution beca use she was disabled on Dec ember 31, 2007, and that the Profit Sharing Plan does not include the option to provide benef its to “‘A ctive Participants who do not meet any last day

. . . require ment

. . . beca use they become disabled.’” Def s.’ Mem., Ex

. 4, p. 19. But Plaintiff was not disabled in Dec ember 2007. She rema ined in the employ of J acobson Holman j u s t as m u ch as the person who missed work on Dec ember 31, 2007, beca use of a cold. That an insurance company

decide d in J une 2008 that Plaintiff’s disability benef its could commence as of Dec ember 17, 2007, did not–and could not – chang e her protec ted status under the FML A/DCFML A

on Decem b er 3 1, 2007. Plaintiff had not resig ned and the Def endants could not fire her as of Dec ember 31, 2007; she was employ ed on the l ast day of t he plan y ear and ther efor e qualifie d for a prof it sharing contribution. Def endants brea ched the Profit Sharing Plan by ref using to trea t Plaintiff as an active employ ee on Dec ember 31, 2007, and there by failing to make a contribution for h er t o the Profit

8Sharing Plan. Plain t i ff fully qualified for a contribution beca use she had worke d at least 1,000 2 hours and was an employ ee at y ear ’s end. See Pl.’s Mem., Ex

. 3, p. 9. Def endants’ motion for summary judgme nt as to the contribution to the Profit Sharing Plan will be denied. B. Unp aid L eave Defendants conce de that Plaintiff was paid for 4.51 hours of acc rued, but unused leave , later than require d under the D.C. Wag e Pay ment Act. Def

s.’ Fa cts ¶ 5. Plaintiff r equeste d the maxi mum amount of liquidated damag es allowed under this statute, an am o u n t equal to the unpaid leave

. See Second Am. Compl. ¶ 47. Def endants have ag ree d to pay the amount of unpaid leave , plus the maxi mum amount of l iquidated damage s. See Notice of Offe r of Judgment [Dkt. # 26]. Plaintiff, however , ref uses to acc ept this amount, as she see ks rea sonable a ttorney ’s fees and costs, pursuant to D.C. Code §32-1303. I t is prema ture to consider attorney fee s and costs, but the Court finds that liability exis ts under the D.C. Wage Pay ment Act. As such, Def

endants’ motion for summary judgme nt as to the unpaid lea ve will be denie d. C. Year -End B onus Whether P laintiff would have r ece ived a bonus in Dec ember 2007 had Defenda nts

rec og nized her leg al employ ment status, is a more difficult question. As Def endants poin t o u t, Plaintiff c ould not identify the criter ia for bonuses, whether there was any written document of the policy , who dec ided bonus amounts, or other important aspec ts of the policy . Def

s.’ Mem. at 10. Howeve r, in sixteen y ear s with Jacobson Holman, Plaintiff r ece ived a Christmas bonus ever y y ear

Def endants’ sta tement that Plaintiff “has be en re ceiving long te rm disability benef its 2 since De cembe r 17, 2007,” D efs.’ Fa cts ¶ 3, distorts the fac ts. Months after De cembe r 17, 2007, Plaintiff applied for, qua lified for, a nd was g rante d long te rm disability benef its, made retr oactive to Dece mber 17, 2007. Those fac ts do not cure the D efe ndants’ fa ilure to rec og nize Pl aintiff’s leg ally -protec ted employ

ment status in Dece mber 2007.

9but one; all other employ ees rec eived a bonus in 2007; Plaintiff’s 2007 perf ormanc e revie w was very positive; and Defe ndants at that time failed to r ecog nize Pl aintiff’s leg al employ ment status. Pla i ntiff allege s that the failure t o pay her a bonus in 2007 violated t he D.C. Wage Pay ment Act. The D.C. Wage Pa y me n t A c t s p e c if

ically define s “wa g es” as “monetar y compensa tion afte r lawful deductions, owed by an employ er for labor or service s rende red, whether the amount is determined on a time, task, piece , commission, or other basis of calc ulation.” D.C. Code § 32- 1301(3). Def

endants arg ue that their y ear ly discretionar y bonuses are not g uara

nteed compensa tion and, ar g uably , do not fall under the definition of “wa g es.” D efs.’ Mem. p. 11. The Court ag ree s. “B onuses” are cover ed under the D.C. Wage Pay ment Act only when they are “ow ed , ” and discretionar

y pay ments are not owed, but are g iven only by l ea v e o f the employ er. As such, the 3 Court will g rant summary judgme nt in favor of the Def endants on the claim of violation of the D.C. Wage Pay

ment Act beca

use Def endants wer e not require d to pay Plain t i ff an end-of -y ear discretionar

y bonus. D. F MLA/DCF MLA violations 1. Ret aliation b y ter m ination of em ployme nt Plain t iff alleg es that the termination of her employ ment violated the FML A/DCFML A beca

use it was in reta liation for filing a worke rs’ compensa tion claim. Claims of
reta liation under the FML A a r e a n a ly ze d u n d e r th e b u

r d e n - shifting fra mework adopted in McD onnell

Plaintiff arg ues, alter

natively , that the bonus plan is cover ed by ERI SA, as the bonus 3 plan annua lly

pay s out benefits to its employ ees. Such a n alleg ation is miss ing f

rom the Complaint and there is no evide nce in the r ecor d to support such a c laim. Additionally , the Court notes that Plaintiff conce des that an ERI SA plan require s maintenanc e of “ a sche me by which [t he employ er] has ong oing a dminist rative a nd financ ial promise of be nefits to desig nated benef iciarie s.” Pl.’s Mem. at 17. Ther e is no “fina ncial promise” associate d with a discre tionary bonus. For the se re asons, the Court re jects this new ar g ument. 10Douglas Corp. v. Gree n , 411 U.S. 792 (1973). See Roseboro , 606 F. Supp. 2d at 109. Unde r that

burden- shifting f

rame work,

an employ ee may establish a prima fac ie case cre ating a presumption of reta liation by showing (1) that he exercised rig hts a ffor ded by the [FML A], (2) that he suffe red an adver se employ ment action, and (3) that there was a causa l connec tion betwee n the exercise of his r ights and the a dverse employ

ment action. Id

. (citation omitted). I f a prima fac ie case is established, the burden then shifts to the defe ndant to

overc ome this presumpti o n b y p ro ff ering a leg itimate basis for this adver se action, and then the burden shifts bac k to a plaintiff to show that the prof fer ed re ason is prete x tual. Id

. Even assuming a prima facie case was established by Plaintiff, Def endants proff

er 4

a leg itimate, non-discrim i n at o ry rea son for termination, with no evidenc e from Plaintiff that the

rea son is prete x tual. “The FML A permits termination when an employ ee rema ins absent from work afte r his qualified leave expires.” Roseboro , 606 F. Supp 2d at 111 (citing Dogmanits v. Capital Blue Cross , 413 F. Supp. 2d 452, 462 (E.D. Pa. 2005) (" [E] mploy ees w ho exhaust the twelve weeks of leave provided under the FML A s tand t o lose their entit lement t o job restora tion

. . . .") ; Austin v. Fuel Sys., LLC , 379 F. Supp. 2d 884, 889 (W.D. Mich. 2004) (" [A] n employ ee who exceeds the permitted FML A leave time has no rig ht to be restore d to his or her job.") ; 29 C.F.R. §§ 825.214(b) (an employ ee who cannot work beca use of the continuation of a serious health condition has no rig ht to job restoration under

the FML A)). Def endants wer e l ega lly allowed to discharg e Plaintiff when her protec ted leave

I t is questionable whether Plaintiff has shown a c ausal c onnection betwe en the e x erc ise 4 of her rig hts and her a lleg ed ter mination. I f terminate d at all, it would appea r that Plaintiff was terminated be cause she wa s unable to work a fter e x erc ising he r rig hts to unpaid medical lea ve, not for ac tually

exercising such rig hts. 11ended and she was unable to return to work. Plaintiff rema ined an employ ee entitled to job

restora tion under FML A/DCFML A until the lon ger p ro tected time period expired. At that point, Def endants could lawfully require her to return to work or lose her position. Plaintiff made it clea r that she could not work afte r the expiration of that period of time: she told Mr. Holman that her pain

was worse and she could not ty pe; and she told the insurance company that she was perma nently disabled, i.e. , unable to work. I n fac t, she has been continuously unable to return to her former job since Septembe r 17, 2007.

Whil e both par

ties disag ree as to whethe r Plaintiff r esig ned or w as terminate d, this distinction is irrele vant. Defenda nts wer e lega lly within their right t o terminate Pl aintiff after she had expended her allotted medical leave and she rema ined absent from work. She did so in this case . Be cause Def

endants had a legi t i m at e, non-discriminatory rea son for terminating Plaintiff, and Plaintiff has offe red no evidenc e of prete x t, this claim must be dismiss ed. There fore , sum m ary judgme nt will be g rante d to Def endants on Plaintiff’s termination claim within Count I V of the Second Amende d Complaint.

2. Interfere nce with FMLA/DC F MLA rights Plaintiff al s o ch alleng es the failure of Def endants to notify her of her FM L A/ DC FML A rig hts. She arg ues that “the failure to inform an employ ee that they are n o w considere d to be cover ed under a rule that will chang e their status if they do not follow proper notification, repor

ting or fail to re t u rn to work at a particula r date, interfe res with the employ ee’ s rig hts to protec t their position.” Pl.’s Mem., p. 14. She sug g ests that she could have inquired about light duty , taken inter

mittent leave, or soug ht acc ommodations for her disa bility

. Id. Whil e the Court might accep t t h e p remise of Plaintiff’s arg ument on other facts, i t

12fails here. “Unde r bot h the i nterfe renc e and reta liation theories, the FML A affords relief onl y for

actua l damag es. Prejudice to the employ ee is a nece ssary element of these claims

. . . .” Roseboro , 606 F. Supp. 2d at 108. As indicated above, Plaintiff could not perform her job in Febr uary 2008

or at any time there afte r. E ar l i er or later, notice of her FML A/DCFML A rig hts would not have 5 chang ed that dispositi ve fac t. Had Def endants g iven Plaintiff notice of her FML A/DCFML A rig hts in Fe bruar

y 2008, as she wo u l d n o w pref er, the result would be no differ ent than it is. Thus, the Court can f

ind no violation of her rig hts on this record. Sum mary judgme nt will be be g rante d on the claim of interfe renc e with her FML A/DCFML A rig hts within Count I V of the Second Amended Complaint, t here by

dismiss ing Count I V in its entirety

.

IV. CONCLUSION Def endants’ motion for summary judgme nt will be g rante d in part and denied in part. The Court will g rant summary j u d gment to Def endants and ag ainst Plaintiff on Count I V of the Second Amended Complaint on her claim of violations of FML A/DCFML A for termination of her position and interfe renc e with he r rig hts unde r those statutes, as well as on the claim of a violation of the D.C. Wage Pay

ment Act for not providing Plaintiff with a discretionar y y ear -end bonus within Count I I I of the Second Amended Complaint. Summary judgme nt will be denied on all o t her claims. A memorializing Or der a ccompa nies this Memorandum Opinion. 6

For this reason, Plaintiff would not have been a qualified pe rson with a disability under 5 the Amer icans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. , even ha d she soug ht an acc ommodation. Acc ording ly , the claims that re main are : (1) the c laim of failure to make contr ibution to 6 the Profit Sharing Plan within C ount I of the Sec ond Amended Complaint; and (2) the claim of unpaid leave within Count I I I of the Sec ond Amended Complaint. 13Date: De cembe r 21, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

14