ROSEMARY M. COLLYER, District Judge.
Sheila Alford was discharged by Providence Hospital after multiple on-the-job injuries because she had exhausted all leave and was unable to get to work. She sues here for alleged violations of the federal and District of Columbia family and medical leave statutes, as well as intentional and negligent misrepresentation. The parties have filed cross motions for summary judgment. Because Ms. Alford mischaracterizes additional personal leave granted by the Hospital as required by federal or D.C. law, and because there is no evidence to support her misrepresentation claims, summary judgment will be granted in favor of Providence Hospital.
Sheila Alford worked for Providence Hospital as a secretary or front desk operator since July 1983 and has been a paraplegic requiring a wheelchair since 1991. Her job did not require her to perform heavy lifting. Ms. Alford experienced a workplace injury to her hand that required her to be away from work for a lengthy period, with job protection under the federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and its local counterpart, the District of Columbia Family and Medical Leave Act (DCFMLA), D.C. Code. § 32-501 et seq. On March 31, 2010, an independent medical examiner declared the hand injury to be healed, and the Hospital then required Ms. Alford to report back to work. Ms. Alford alleges that, despite the fact that her hand had not fully healed, she returned to work. Soon thereafter, on April 2, 2010, Ms. Alford was injured as she arrived at work. She fell while transferring from her car to her chair in the Hospital parking lot, injuring her left shoulder, head, and neck. Am. Compl. [Dkt. 20] ¶ 11. She then took additional FMLA/DCFMLA leave.
Ms. Alford exhausted all federal FMLA and DCFMLA leave as of April 14, 2010. Due to her injuries, however, she was not able to come back to work at that time. The Hospital's Human Resources Department (HR) notified her direct supervisor, Bonnie Lancaster, that Ms. Alford (1) could be terminated if there were an operational need to fill her position, or (2) could be granted an additional 60 days of personal leave. Def.'s MSJ [Dkt. 21-15], Ex. E (Apr. 29, 2010 Email) [Dkt. 21-6]. Ms. Lancaster chose the latter, and the Hospital granted Ms. Alford 60 days of personal leave without pay. See id.; Def.'s SOF [Dkt. 21-1] ¶ 5; Pl.'s Facts in Dispute at 2 (admitting that there are no genuine issues regarding Defendant's SOF ¶ 5). Ms. Alford took personal leave from April 14 to May 7 and then returned to work, before she had exhausted the 60 additional days of personal leave. Am. Compl. ¶ 13. Ms. Alford worked for the Hospital until December 3, 2010. Id.
On December 3, 2010, Ms. Alford reported to the Hospital's Occupational Health Department (OHD) crying and complaining that she had shoulder pain and decreased range of motion. See Def.'s MSJ, Ex. G (OHD Medical Records) [Dkt. 21-8] at 2 (patient reported pain level of 9 on a 10 point scale). OHD sent her to the Hospital's Emergency Department for treatment and directed her to return to OHD on December 7, 2010 for clearance to return to work. Id. On the morning of December 7, before coming to the Hospital, Ms. Alford saw Dr. Wilson. She complained of pain and upon examination, Dr. Wilson determined that she suffered from trapezius tenderness, limited range of motion in her shoulder, and an acute cervical [neck] sprain. Id., Ex. H (Medical Records of Dr. Wilson) [Dkt. 21-9] at 2. Ms. Alford requested time off from work, until December 14; accordingly, Dr. Wilson signed a disability certificate excusing her from work through that date. Id. at 2, 4. He instructed her not to lift anything weighing more than 10 pounds. Id. at 4. Ms. Alford presented the disability certificate to OHD on December 7. Id., Ex. F (Abbott Dep.) [Dkt. 21-7] at 105. At that time, Ms. Alford expressed "concern" about her ability to lift her 48-pound wheelchair to get it in and out of her car. OHD Medical Records at 4. The Hospital released her from work and instructed her to report back to OHD on December 14 for follow-up and work clearance. Abbott Dep. at 57; OHD Medical Records at 5. When she left the Hospital on December 7, a security officer was directed to help her get her wheelchair into her car, since it was too heavy for her to lift, and it was noted that her husband would help her get out when she got home. Id. at 4.
On December 14, 2010, Ms. Alford told OHD that her shoulder pain had not improved and she could not transport herself to work. Abbott Dep. at 66, 76, 78; OHD Medical Records at 6. Because she could not transport herself, OHD arranged transportation for Ms. Alford to see Dr. Wilson on December 15, 2010. OHD Medical Records at 6. At the December 15 appointment, Ms. Alford reported to Dr. Wilson that she still had shoulder trouble and was having difficulties getting to work. Medical Records of Dr. Wilson at 5. Dr. Wilson cleared Ms. Alford to return to work with a 20-pound lifting restriction, id., still less than the weight of her wheelchair. Id. In her deposition, Ms. Alford admitted that the 20 pound lifting restriction prohibited her from lifting her wheelchair, which weighs more than 40 pounds. Pl.'s Opp'n [Dkt. 27], Ex. 3 (Alford Dep.) [Dkt. 27-4] at 27. Despite being cleared by Dr. Wilson to return to work, Ms. Alford did not do so.
On December 17, 2010, Sedgwick Claims, a third party administrator that processes workers' compensation claims filed by Hospital employees, sent Ms. Alford a letter directing her to undergo an independent medical examination (IME). Def.'s Opp'n [Dkt. 25], Ex. P (Dec. 17, 2010 Letter to Ms. Alford) [Dkt. 25-4]; Am. Compl. ¶¶ 18, 20. Dr. John O'Connell conducted the IME on January 3, 2011. Dr. O'Connell concluded that although Ms. Alford could drive, she could not lift more than 10 pounds. Def.'s Opp'n, Ex. R (IME Report) [Dkt. 25-6] at 6. He also reported that she could not lift her wheelchair in and out of her car, but that with four to six weeks of physical therapy she should be able to do so. Id. at 7.
Seeing little progress in Ms. Alford's ability to get herself to work, personnel from HR and OHD met on January 6, 2011, to discuss Ms. Alford's employment status. OHD advised that Ms. Alford could not transport herself to work, and the Hospital determined that there was an operational need to fill Ms. Alford's position. Because she had exhausted all FMLA and DCFMLA leave in April 2010 and she had been unable to work since December 3, 2010, the Hospital terminated Ms. Alford. Am. Compl. ¶¶ 33, 34. By letter dated January 25, 2011, the Hospital notified her of her termination, effective as of January 7, 2011. Id. ¶ 32; Def.'s MSJ, Ex. M (Jan. 25, 2011 Letter from HR to Ms. Alford) [Dkt. 21-14].
Arising from these circumstances, Ms. Alford brought suit against the Hospital. She characterizes the additional 60 leave days that the Hospital had granted to her in the spring of 2010 as additional statutory FMLA/DCFMLA leave, and contends that because she did not exhaust this leave she was protected from termination by the FMLA and the DCFMLA. She also baldly alleges, despite evidence to the contrary, that her condition did not prevent her from going to work. She claims that she stayed out of work because Latoya Abbott of OHD told her to remain home until she was cleared to return by an independent medical exam. She filed an Amended Complaint consisting of five Counts:
Count I - violation of the FMLA;
Count II - violation of the DCFMLA;
Count III - retaliation under the FMLA and the DCFMLA;
Count IV - Intentional ...