*fn9,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,MICHAEL AKOSILE, PLAINTIFF, v. ARMED FORCES RETIREMENT HOME, DEFENDANT." />

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Akosile v. Armed forces Ret. Home

United States District Court, District of Columbia

April 11, 2013

MICHAEL AKOSILE, Plaintiff,
v.
ARMED FORCES RETIREMENT HOME, Defendant

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[Copyrighted Material Omitted]

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MICHAEL AKOSILE, Plaintiff, Pro se, Washington, DC.

For ARMED FORCES RETIREMENT HOME, Defendant: Addy R. Schmitt, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

OPINION

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REGGIE B. WALTON, United States District Judge.

MEMORANDUM OPINION

Plaintiff Michael Akosile, proceeding pro se, brings this action against his former employer, the Armed Forces Retirement Home (" Retirement Home" ), alleging libel by his former supervisor and violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2, 2000e-3 (2006). See Motion for Ame[n]dment to the Case (" Am. Compl." ) 1-2. The Defendant's Motion for Summary Judgment (" Def.'s Mot." ) and the plaintiff's Motion to Disallow the Deposition (Statement) Given by the Plaintiff for this Case as Part of the Legal Document (" Pl.'s Mot." ) are now before the Court. Upon consideration of the parties' submissions,[1] the Court concludes for the following reasons that the defendant's motion must be granted and the plaintiff's motion must be denied.

I. BACKGROUND

The following facts are undisputed.[2] The plaintiff, a Nigerian man, was employed

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by the Retirement Home as a Licensed Practical Nurse from September, 2001 to June, 2008. Def.'s Facts ¶ ¶ 2-3. The plaintiff was not a member of a collective bargaining unit at any point during his tenure at the Retirement Home. Id. ¶ 26. In 2005, prior to the events giving rise to this case, the plaintiff and several other nurses filed a complaint of discrimination based on national origin against the defendant. Id. ¶ 103. The complaint was settled on July 7, 2006. Id.

In the late summer or early fall of 2006, the plaintiff was transferred to the evening shift at the Retirement Home's Long Term Care Unit. Id. ¶ ¶ 14, 21. His direct supervisor while in this position was Clinical Supervisory Nurse Shirley Washington. Id. ¶ 21. During this time, Elizabeth Weathington served as the Director of Nursing. Id. ¶ 5. Except for a brief period of time, the plaintiff was the only male nurse assigned to his unit. Id. ¶ 24.

The incidents forming the basis of the plaintiff's claims began on February 15, 2007, when the plaintiff received a memorandum from Weathington regarding overtime approval procedures, which was sent because " [i]t ha[d] come to [her] attention" that the plaintiff and two female nurses had contacted the Bureau of Public Debt[3] alleging that they were not being paid for overtime work. Id. ¶ 32; Def.'s Mem. Ex. N (Memorandum from Weathington); see Am. Compl. ¶ 1.

That same day, the plaintiff worked an evening shift at the Retirement Home. See Def.'s Facts ¶ 43. The next day, the supervisor for the night shift reported to Washington, Weathington, and the Assistant Director of Nursing that one of the plaintiff's patients from his evening shift " was in 'respiratory distress' and 'almost blue,'" and that several problems with the patient's care had been identified. Id. ¶ ¶ 43, 45. Washington spoke to the plaintiff regarding the night shift supervisor's report later that day in the presence of a male nurse, Michel Brou, who Washington asked to witness the discussion. Id. ¶ ¶ 49, 50. Brou wrote a memorandum following the meeting indicating that Washington tried to discuss the issues identified in the report with the plaintiff, but the plaintiff interrupted her, was consistently " argumentative [and] disruptive" during the meeting, even when asked to stop acting in this manner, and that Washington eventually asked the plaintiff to leave the area " when he continued to be argumentative

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and loud after he went into the hall." Id. ¶ 52 (quoting Def.'s Mem. Ex. V (Statement of Michel Brou)). The plaintiff disputes the accuracy of the allegations regarding his care for the patient, Am. Compl. ¶ 4, but does not dispute the description of his or Washington's behavior during the meeting, see generally Pl.'s Opp'n. The plaintiff reported Washington's alleged " false accusation" that he failed to properly care for a patient to Weathington, but " nothing was done." Pl.'s Opp'n at 6.

On March 25, 2007, the plaintiff arrived at his unit late for his shift, and not dressed in his required uniform. Def.'s Facts ¶ 56. Ms. Washington observed the plaintiff arriving late and out of uniform and " pulled Plaintiff to the side . .., talked with him in a low voice [about being late], and . . . Plaintiff repeatedly responded to Ms. Washington in a loud voice before Ms. Washington asked Plaintiff to leave for the day." Id. ¶ ¶ 57, 59. After calling three nurses in order to find someone to work the plaintiff's shift after he was sent home, Washington replaced the plaintiff on the March 25 shift with a female coworker. See Def.'s Facts ¶ ¶ 61-62; see also Am. Compl. ¶ 4. The plaintiff did not report to work for his scheduled shifts during the following week. Def.'s Facts ¶ 65. Upon the advice of a human resources representative, Weathington placed the plaintiff on paid administrative leave " until she could hear what Plaintiff had to say about what had happened on March 25, 2007." Id. Under Retirement Home policy, an employee is placed on administrative leave under such circumstances at the defendant's discretion. Id. ¶ 64.

The defendant contends that the plaintiff was placed on administrative leave for one day, but due to an error by the Retirement Home timekeeper, the plaintiff's status was changed from paid administrative leave to paid annual leave for the period of March 27-30. Id. ¶ 66 n.3; Def.'s Mem. Ex. Z (Human Resources Records for the Plaintiff) at 2; Def.'s Mem. Ex. AA (Earnings and Leave Records for the Plaintiff) at 5. The plaintiff asserts that he received no pay for the period of March 27-29, but he has provided no evidence to support this claim. Am. Compl. ¶ 4. The plaintiff alleges that two female nurses were previously paid when placed on administrative leave. Pl.'s Opp'n at 3; see also Am. Compl. ¶ 4.

Following the incident on March 25, the plaintiff did not return to the Retirement Home to work until April 25, 2007. Def.'s Facts ¶ 63. After several attempts to reach the plaintiff to speak with him about the incident on March 25, the plaintiff met with Weathington and the Retirement Home's Director of Health Care Services on March 30, 2007. Id. ¶ ¶ 68-69. The plaintiff did not return to work after this meeting, however. Id. ¶ 70. Subsequently, between April 1-3, the plaintiff called the Retirement Home twice to report that he was sick and unable to work. Id. ¶ ¶ 71, 71 n.4. He was advised during both calls that he needed to speak with Weathington regarding extended sick leave. Id. ¶ ¶ 71, 71 n.4.

Under the defendant's policy regarding extended leave, any person requesting leave of more than three days must speak with either the Director or Assistant Director of Nursing and submit medical documentation. Id. ¶ ¶ 72, 78. Although the plaintiff was aware of this policy, id. ¶ 78, he did not contact Weathington regarding his need for extended leave, see id. ¶ 75. On April 16, 2007, the defendant sent the plaintiff a letter stating the following:

I am sending this letter directing you to report to work immediately on the day shift schedule that you have been placed. You are also directed to contact me immediately upon receipt of this letter. As

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of today, April 16, 2007, I have placed you on Absence Without Leave (AWOL). Please note a charge of AWOL can be cause for disciplinary action up to and including ...

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