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Bullock v. Brennan

United States District Court, District of Columbia

January 8, 2016

ERIC L. BULLOCK, Plaintiff,


RANDOLPH D. MOSS, District Judge.

Plaintiff Eric L. Bullock is a former United States Postal Service mail carrier. As relevant here, Plaintiff's pro se complaint, construed liberally, alleges discrimination and retaliation claims against the Postmaster General[1] under Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which prohibits federal employers from discriminating on the basis of disability or retaliating against employees who engage in protected conduct. Plaintiff alleges that after he broke his left ankle in 2000, he was "targeted for removal" and ultimately fired in 2010 because he "could no longer deliver [his] route in the timely manner that was expected of [him]." Dkt. 1 at 3. He also alleges that he was terminated in retaliation for having filed numerous Equal Employment Opportunity ("EEO") complaints against various Postal Service supervisors over the years. Id. at 3-4. Defendant responds that she fired Plaintiff because he was incarcerated for 45 days and "tried to cover it up" by submitting "two fraudulent medical notes to cover his absence, " and that Plaintiff's termination was not based on disability or prior EEO activity. Dkt. 33 at 18.

The matter is currently before the Court on Defendant's Motion to Dismiss and for Summary Judgment. Dkt. 33. Defendant seeks: (1) dismissal based on Plaintiff's conduct during discovery, Dkt. 33 at 12; (2) dismissal of the complaint as untimely, id. at 7-8; and (3) summary judgment on the merits, id. at 12-24. For the reasons explained below, Defendant's motion to dismiss is DENIED, and her motion for summary judgment is GRANTED.


A. Disability and Prior EEO Activity

Plaintiff was employed as a letter carrier from February 1985 until his termination in July 2010. Dkt. 33-21 at 7. Most recently, he worked at the Postal Service's Ward Place Station in the District of Columbia. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 3). It is undisputed that Plaintiff injured his ankle on the job in 2000, but the supervisors at Ward Place who were directly involved in the events leading to his termination-his immediate supervisor, Todd Dickens, and his second-level supervisors, Acting Customer Services Manager Bryant Hubbard and Customer Services Manager Ricky Rucker-all aver that they lacked any knowledge that this injury continued to affect Plaintiff in 2009 and 2010 or that there were any medical restrictions on his work during that period. Dkt. 33-19 at 3 (Dickens Decl. I ¶¶ 7-8); Dkt. 33-18 at 2 (Hubbard Decl. ¶¶ 2-4); Dkt. 33-20 at 1-2 (Rucker Decl. I ¶¶ 2, 7). Plaintiff responds with unsworn assertions that at least some supervisors were aware of his medical problems. Dkt. 35 at 17, 22-25.

From 2003 to 2009, prior to the removal decision at issue in this case, Plaintiff filed eleven EEO complaints. Dkt. 33-3. The record lacks information about the substance of those complaints, but it does reflect that Hubbard was aware that Plaintiff had filed complaints against him, including naming Hubbard as a responsible official in an EEO complaint as recently as February 2009. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 5). Dickens and Rucker, however, aver that until the filing of the complaint in this case, they were unaware of Plaintiff's prior EEO activity. Dkt. 33-19 at 3 (Dickens Decl. I ¶ 9); Dkt. 33-20 at 2 (Rucker Decl. I ¶ 6). There is no evidence in the record, moreover, that Plaintiff filed an EEO complaint at any time in the year and a half between February 2009, e.g., Dkt. 33-18 at 2 (Hubbard Decl. ¶ 5), and May 10, 2010, when he was issued a notice of removal, Dkt. 33-3 at 1; Dkt. 33-6 at 1.

B. Incarceration and Purported Medical Excuse

In 2008, Plaintiff was convicted of driving under the influence ("DUI") and sentenced by the Circuit Court of Maryland for Baltimore City to a one-year suspended sentence and eighteen months' probation. Dkt. 33-4 at 21. On July 3, 2009, Plaintiff was charged with possession of marijuana, Dkt. 33-4 at 22, and although Plaintiff states that he was ultimately found not guilty of that charge, Dkt. 33-9 at 2, the Circuit Court revoked his probation on October 23, 2009, and sentenced him to 90 days' incarceration for the DUI conviction, beginning immediately. Dkt. 33-4 at 24.

On October 23, 2009, Plaintiff informed a supervisor at the Ward Place Station that he would be absent for the next month. Dkt. 33-18 at 2 (Hubbard Decl. ¶ 7). The same day, "[t]he Ward Place Station received a faxed medical document stating that [Plaintiff] would not return to work until November 23, 2009, because he had reinjured his ankle." Id. The medical excuse was sent by "Dr. G.K. Bharati, M.D., P.A., " and listed an address in Essex, Maryland. Dk. 33-4 at 10. Dr. Bharati reported that Plaintiff "was seen in my office today, " that Plaintiff had "re-injured his left ankle and will be out of work from October 23 through November 23, 2009, " and that a "follow-up appointment [was] scheduled for November." Id. Hence, "plaintiff's absences were marked as sick leave, and he was expected to return on November 23, 2009." Dkt. 33-18 at 3 (Hubbard Decl. ¶ 8).

Plaintiff did not return to work on November 23. In late November or early December 2009, Plaintiff and Hubbard spoke on the telephone. According to Plaintiff, the conversation occurred just before Thanksgiving, and Plaintiff called work from another inmate's illegal cell phone and informed Hubbard that he was incarcerated and that he would be released on December 12, 2009. Dkt. 1 at 3; Dkt. 35 at 100. In Plaintiff's telling, Hubbard responded that he "would deal with [Plaintiff] when [he] came back to work." Dkt. 1 at 3; Dkt. 35 at 100. According to Hubbard, however, the conversation occurred on or about December 2, 2009, and Plaintiff did not mention being incarcerated. Dkt. 33-18 at 3-4 (Hubbard Decl. ¶¶ 11-13). Rather, Plaintiff told Hubbard that he would return to work on December 14 and agreed to provide documentation supporting his absence. Id. Hubbard nonetheless "suspect[ed]" that Plaintiff was incarcerated "based on the combination of (1) the commotion in the background during [their] phone conversation and (2) [Plaintiff's] previous comments about [being on] probation." Id. (Hubbard Decl. ¶ 12). Hubbard e-mailed the Postal Service's Office of Inspector General ("OIG") on December 2, 2009, and asked Special Agent Joyce Younce to investigate Plaintiff's whereabouts. Id. at 4 (Hubbard Decl. ¶ 14).

On December 3, 2009, the Ward Place Station received another medical excuse by fax, purportedly sent by Dr. Bharati from Johns Hopkins University. Dkt. 33-4 at 11; Dkt. 33-18 at 4 (Hubbard Decl. ¶ 15). In that letter, which was dated November 23, 2009, Dr. Bharati reported that Plaintiff "was seen in my office today for a follow-up appointment" and was advised "to continue physical therapy and return to work December 14, 2009 with no restrictions." Dkt. 33-4 at 11. Around December 14, 2009, Plaintiff returned to work. Dkt. 33-18 at 4 (Hubbard Decl. ¶ 17).

C. OIG Investigation

The OIG investigated from December 8, 2009 to January 29, 2010. Dkt. 33-4 at 1. In a report issued on February 9, 2010, it confirmed that Plaintiff was in fact incarcerated from October 23, 2009 to December 10, 2009. Id. at 3. The report also recounts the OIG's unsuccessful attempts to locate Dr. Bharati. Special Agent Younce searched the Postal Service's address locator for the address listed on the faxed medical excuses, but found no such address in Essex, Maryland. Id. at 4. Younce then drove to locations in Baltimore and Middle River, Maryland with the same street name and house number as the listed address, but did not find a doctor's office. Id. OIG staff also tried, unsuccessfully, ...

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