United States District Court, District of Columbia
Marc Bowman Brown, Silver Spring, MD, pro se.
Theresa Ekeoma Dike, U.S. Attorney's Office, Washington, DC, for Defendant.
EMMET G. SULLIVAN, District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment on Plaintiff's Remaining Claim for Wrongful Termination [ECF No. 48].  For the reasons discussed below, defendant's motion will be granted.
Plaintiff was employed by the United States Department of Agriculture (" USDA" ) as a Management Analyst in the Information Technology Policy and Capital Planning Division (" ITPCPD" ), Office of Program Evaluation, Enforcement and Review (" OPEER" ), Food Safety and Inspection Service (" FSIS" ), see Complaint (" Compl." ), Ex. 9 (Initial Decision, Docket No. DC-0752-09-0726-I-1, dated June 28, 2010) at 1, from July 2003 until his termination on July 24, 2009, see Plaintiff's Motion in Opposition to Defendant[']s August 13, 2012 Motion for Summary Judgment (" Pl.'s Opp'n" ), Ex. 1A (Brown Aff.) at 46-47 [ECF No. 52-1 at 5-6].
A. Leave Restriction
Based on plaintiff's use of unscheduled leave, which within the first months of 2008 totaled 8 hours annual leave, 24 hours sick leave, and 75 hours of leave without pay, Marcelo Olascoaga, plaintiff's supervisor, imposed a leave restriction. See Pl.'s Opp'n, Ex. 7 (Memorandum to plaintiff from Marcelo Olascoaga, Director, ITPCPD, OPEER, dated April 29, 2008, regarding Leave Restriction Notice) at 1 [ECF No. 52-10 at 32]. For a period of six months, plaintiff was to comply with the following terms:
(1) Annual leave will not be granted, except in emergency situations, unless scheduled in advance and approved by [the supervisor]. Annual leave should be requested at least as far in advance as the amount of leave requested.... Annual leave for emergency purposes will not be granted unless, upon your return to work, you furnish proof that an emergency occurred which prevented you from returning to work during the entire period of your absence. If leave is taken without prior approval, you will be considered absent without leave (AWOL). Excessive use of AWOL status can become grounds for disciplinary action.
(2) Sick leave will be granted only if you provide an acceptable medical certificate for each absence, either for yourself or a family member. This certificate should provide the following information: (1) the date or dates examined by a physician, (2) the physician's diagnosis, (3) the physician's certification that you were unable to perform your duties for medical reasons on the dates covered by the certificate, (4) the name, address, and telephone number of the physician, and (5) the physician's signature.
(4) In case of emergency, you must call [the supervisor or his designee]. If you are unable to reach either [person], you must send an email to both [persons] explaining the emergency that is preventing you from being at work and you must speak with [either the supervisor or the designee] as soon as possible. Under no circumstances will merely leaving a voice message be acceptable. Documentation described under # 1 and # 2 must be provided to [the supervisor] when [he is] in the office.
(5) Arriving to work late without a proper excuse, leaving work prior to the end of a workday, or being absent from your assignment for extended periods of time is unacceptable and will be charged as AWOL.
Id., Ex. 7 (Leave Restriction Notice) at 2 [ECF No. 52-10 at 33] (emphasis in original). The Notice also informed plaintiff that " check[ing] the box on the SF-71, Leave form ... stat[ing] that [he is] invoking [his] right to ... leave" under the Family Medical Leave Act (" FMLA" ) was ineffective because he had " never provided adequate medical documentation that a serious health condition exist[ed] for either [him]self or [his] children." Id. Mr. Olascoaga instructed plaintiff that, " if [he] wish[ed] to be approved for leave usage as outlined under the FMLA," he was expected to return a form completed by his physician within 15 days. Id.
B. Five-Day Suspension
On June 24, 2008, plaintiff was issued a Notice of Proposed Suspension for improper conduct and unsatisfactory attendance. Notice of Filing Agency Record in Support of Defendant's Motion for Summary Judgment on Plaintiff's Remaining Claim of Wrongful Termination, Ex. (" Agency File" ), Tab 4ee (Memorandum to plaintiff from Quentin Barrett, Human Resources Specialist, Employee Relations Branch, dated June 24, 2008, regarding Notice of Proposed Suspension) at 1 [ECF No. 50-5 at 55]. Plaintiff was charged with improper conduct for failing to comply with the terms of the leave restriction. On Friday, May 2, 2008, plaintiff failed to contact Mr. Olascoaga by telephone before the start of the work day to inform him of his late arrival. Id., Tab 4ee at 1 [ECF No. 50-5 at 55] (Specification 1). On Wednesday, May 14, 2008, plaintiff left work before the end of his tour of duty, and on May 15, 2008, plaintiff was absent. Id., Tab 4ee at 2 [ECF No. 50-5 at 56] (Specification 2). Upon plaintiff's return to work, he " failed to furnish acceptable medical documentation or proof that an emergency occurred" which prevented him from reporting to work. Id., Tab 4ee at 2 [ECF No. 50-5 at 56] (Specification 3). Additionally, plaintiff was absent from work from Tuesday, June 3, 2008, through Thursday, June 5, 2008, without having contacted his supervisor by telephone, and without having produced acceptable medical documentation upon his return to work on Friday, June 6, 2008. Id., Tab 4ee at 3 [ECF No. 50-5 at 57-58] (Specifications 4-6).
The charges of unsatisfactory attendance correspond to the dates on which plaintiff arrived at work one hour late (Specification 1), left work early (Specification 2), and did not report to work at all (Specifications 3-6). Id., Tab 4ee at 4-5 [ECF No. 50-5 at 58-59]. All the specifications were sustained, and plaintiff was suspended for five days without pay. Id., Tab 4aa (Memorandum to plaintiff from Dawn R. Ruffner, Chief, Employee Relations Branch, dated September 3, 2008, regarding Decision on Notice of Proposed Suspension) at 6 [ECF No. 50-5 at 51].
C. Fourteen-Day Suspension
Plaintiff's subsequent conduct prompted a second suspension. On each of three days, from Tuesday, September 23, 2008 through Thursday, September 24, 2008,
plaintiff contacted Mr. Olascoaga by email to advise him of his illness and inability to report to work, yet plaintiff failed to supply medical documentation upon his return as the leave restriction required. Id., Tab 4x (Memorandum to plaintiff from Quentin Barrett dated December 4, 2008 regarding Notice of Proposed Suspension) at 1-2 [ECF No. 50-6 at 5-6] (Specifications 1-3). Similarly, on six occasions, plaintiff contacted Mr. Olascoaga by email to advise of his absence from work due to his daughter's illness, id., Tab 4ee at 2-4 [ECF No. 50-6 at 6-8] (Specifications 4-8 and 10), and on a seventh occasion to advise of his absence to care for his son, id., Tab 4ee at 4-5 [ECF No. 50-6 at 8-9] (Specification 9). Not once did plaintiff provide acceptable medical documentation or proof that an emergency had occurred on these ten dates, and, thus, plaintiff failed to follow the instructions set forth in the leave restriction. See generally id., Tab 4ee at 2-5 [ECF No. 50-6 at 6-9]. The charges of unsatisfactory attendance correspond to the dates on which plaintiff failed to report to work. See id., Tab 4ee at 5 [ECF No. 50-6 at 10] (Specifications 1-4). Because plaintiff had not provided supporting documentation upon his return to work, he was placed on AWOL status. All the specifications were sustained, and plaintiff was suspended for 14 days without pay. Id., Tab 4t (Memorandum to plaintiff from Dawn R. Ruffner dated January 27, 2009, regarding Decision on Notice of Suspension) at 6 [ECF No. 50-3 at 37].
Plaintiff's attendance problems persisted. The leave restriction was extended indefinitely when, between February and April 2009, plaintiff had been " absent from work for 88 hours in violation of the conditions of [the] leave restriction." Id., Tab 4ff (Memorandum to plaintiff from Matthew Michael, Acting ...