United States District Court, District of Columbia
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's motion to
dismiss (“Def.'s Mot.”) [ECF No. 9]. In
addition to plaintiff's opposition [ECF No. 26] (with a
concomitant request for leave to amend), supplemental
opposition (“Supp. Opp.”) [ECF No. 27] to
the motion to dismiss, plaintiff has also filed a motion for
reconsideration of stay (“Mot. for Recon.”) [ECF
No. 23], and a motion to clarify (“Mot. to Cl.”)
[ECF No. 25]. Plaintiff has also filed a self-described
“ex parte” letter (“Ex P.
Let.”) [ECF No. 28] requesting certain accommodations.
Lastly, plaintiff has filed another motion to stay and hold
in abeyance (“Sec. Mot. to Stay”) [ECF No. 33].
For the reasons stated herein, defendant's motion to
dismiss is granted and plaintiff's motions are denied.
proceeding pro se, has filed suit against her former
employer, the U.S. Department of Defense (“DOD”).
Complaint (“Compl.”) at caption. The complaint
contains claims for “constructive suspension”
under the Civil Service Reform Act (“CSRA”) of
1978, race discrimination under Title VII of the Civil Rights
Act of 1964 (“Title VII”) (42 U.S.C. §
2000e- 16), and disability discrimination under the
Rehabilitation Act of 1973 (as amended, 29 U.S.C. § 701,
et seq.) and the Americans with Disabilities
Amendments Act of 2008 (42 U.S.C. 126 § 12101, et
seq.). Compl. at 1 ¶ 1. Plaintiff originally
brought claims of age discrimination, however, she has
requested to voluntarily dismiss those claims without
prejudice, which the court will allow. Supp. Opp. at 3 ¶
2. Lastly, plaintiff broadly alleges infringement of her due
process rights, as well as a conflation of violations of the
Privacy Act (5 U.S.C. § 552a) relevant to HIPPA
violations. Compl. at 1 ¶ 1.
alleges that defendant discriminated against her based on her
race and disabilities by denying her certain accommodations,
principally the right to exclusively telework. Id.
at 6-19; Def.'s Mot. at 6 ¶ 2. Plaintiff alleges
that she had been teleworking from home since early 2010 with
no issues and that defendant began denying her renewed
requests without adequate basis. Compl. at 6 ¶ 1. She
believes that she has been retaliated against and denied her
accommodations because she filed various administrative
grievances. Id. at 1 ¶ 1, 2 ¶ 1, 5 ¶
3; Supp. Opp. at 6 ¶ 4; 7 ¶ 1.
result of the purported intentional denial of disability
accommodations for full-time telework, plaintiff alleges that
she has been unable to work at all and was therefore
“constructively suspended.” Compl. at 2 ¶ 1;
Supp. Opp. at 2 ¶ 3, 3 ¶ 4. She seeks backpay for
unpaid leave she believes she was forced to take from 2012
onward, as well as other miscellaneous monetary compensation.
Compl. at 22-23. As a result of the alleged constructive
suspension, plaintiff states that defendant intentionally
refused to pay her for hours worked from 2012 through 2014.
Id. She also requests correction of her personnel
records. Id. at 22 ¶ 4. On February 6, 2015,
plaintiff was removed from her job in federal service for
being absent without leave (“AWOL”) for an
extended period of time. Def.'s Mot. at 10 ¶ 2. This
case has been pending for nearly two years, and until just
recently, plaintiff had expressly stated that she does not
seek to litigate her removal as part of this case. Supp. Opp.
at 6 ¶ 1; Sec. Mot. to Stay.
and Factual History
has filed several prior complaints with the Equal Opportunity
(“EEO”) office, the Merit Systems Protection
Board (“MSPB”) and with the United States
District Court for the Eastern District of Virginia
(“Eastern District of Virginia” &
“Eastern District”). See MSPB,
Washington Regional Office, Initial Decision (July 8, 2016)
(“Def.'s Ex. 4”); see also Mot. Hrg.
Tr., Bell v. Dept. of Defense, No. 14-cv-470 (E.D.
Va. Oct. 24, 2014) (“Def.'s Ex. 12”); Order,
Bell v. Dept. of Defense, No. 14-cv-470) (E.D. Va.
Oct. 24, 2014) (ECF No. 59) (“Def.'s Ex.
13”). The opinions issued in the first direct MSPB
appeal and in the matter filed before the Eastern District of
Virginia both contain painstakingly detailed accounts of the
factual background of plaintiff's claims which, in
addition to the information provided by the parties herein,
the Court has closely reviewed. See Id. Therefore,
this court will provide a more abbreviated account of the
relevant factual background.
is a former employee of DOD. Compl. 1 ¶¶ 1, 3. She
began her employment on November 21, 2009 as a GS-14 Program
Analyst with the Defense Travel System (“DTS”),
within the Business Transformation Agency. Id. As
part of her job responsibilities, she inspected completed
work from government contractors, which sometimes included
in-person meetings and travel. Def.'s Ex. 4 at 3 ¶
1. She also acted as a technical representative for contract
administration and represented defendant in meetings
concerning technical issues. Id. She began working
with the DOD's Defense Logistics Agency
(“DLA”) in July 2011 after DTS was absorbed by
DLA. Id.; Compl. at 1 ¶ 3.
December 7, 2009, plaintiff first requested permission to
telework twice per week to care for her dependent adult
sister. Def.'s Ex. 12 at 22-23. Defendant granted the
request on December 14, 2009. Id. In June 2011,
plaintiff indicates that she was granted voluntary leave for
an undetermined period of time. Id. at 23.
January 21, 2011, plaintiff submitted another request to
telework twice a week. This time, her basis was medical in
nature. Additionally, she stated that surrounding office
noises caused her anxiety. This request was approved by
defendant on January 24, 2011, again allowing her to telework
twice per week. On August 31, 2011, she received an updated
telework agreement, still allowing her to telework twice a
week. However, the agreement stipulated that telework would
be terminated if it adversely affected plaintiff's job
performance. The agreement also provided that defendant could
require plaintiff to work in-office at any time if project
needs required it. Id.
November 25, 2011, plaintiff requested that she be permitted
to increase her telework five days per week. Def.'s Ex.
12 at 23; Compl. at 6 ¶ 3. On January 5, 2012, defendant
responded by offering four days per week, rather than the
requested five. Def.'s Ex. 12 at 24. The telework
agreement was set to run from November 2011 through December
February 2012, plaintiff received a successful performance
evaluation for the year 2011. Def.'s Ex. 12 at 24. Of
course, in 2011, plaintiff was primarily teleworking only two
days per week, and was in-office three days per week. In
March 2012, concerns began to arise regarding plaintiff's
performance. Meetings were held in this regard. Id.
Shortly thereafter, plaintiff notified defendant that she did
not feel safe at work, primarily due to coworkers near her
work station. An investigation was held, and no safety issues
were found. Nonetheless, defendant offered five different
alternative work stations, all of which plaintiff rejected.
Def.'s Ex. 12 at 24; Compl. at 6 ¶ 3. Plaintiff
disagrees that defendant attempted to move her. Compl. at
8-10. Plaintiff also alleges that defendant's EEO office
failed to respond to several complaints. Id.
summer and early fall of 2012, plaintiff began submitting
medical notes regarding her claimed conditions and requests
for additional telework. Def.'s Ex. 12 at 25-6. According
to defendant, these notes were insufficient and often
contained contradictory information regarding plaintiff's
ability to work and the accommodation she required.
Id. Plaintiff disagrees that the medical notes were
insufficient. Compl. at 11. Plaintiff was also placed on
intermittent leave during this time period due to illness.
Def.'s Ex. 12 at 25-6. In October 2012, plaintiff
returned to work in a limited duty capacity, working
approximately 20 hours per week from home. Def.'s Ex. 12
at 26 ¶ 5; Compl. at 9 ¶ 12.
December 2012, plaintiff requested the renewal of her
agreement to telework four days per week. Def.'s Ex. 12
at 27 ¶ 3; Compl. at 11 ¶ 24. Defendant informed
plaintiff that it would not renew the agreement without
sufficient documentation from her medical providers.
Def.'s Ex. 12 at 27 ¶ 4. Again, plaintiff disagrees
that the information submitted was insufficient. Compl. at
11-12. This cycle continued; plaintiff sporadically provided
additional medical notes, and defendant continually responded
requesting additional information. Def.'s Ex. 12 at 27;
Compl. at 12. Plaintiff admits that she was hesitant to
provide additional medical information because of her
concerns for personal privacy. Compl. at 11 ¶ 22.
then-existing telework agreement expired on December 18,
2012. Def.'s Ex. 12 at 27 ¶ 4, 28 ¶ 1. In
January 2013, plaintiff requested additional paid leave
because she was sick and unable to work. Def.'s Ex. 12 at
27 ¶ 2; Compl. at 10-11. On January 9, 2013, plaintiff
was assessed for performance review for the 2012 calendar
year. Def.'s Ex. 12 at 28-30; Compl. at 12 ¶ 29. She
was given a successful rating; however, it was noted that her
performance had been deteriorating since October 2012.
Def.'s Ex. 12 at 28-30. Defendant continued to request
additional information regarding plaintiff's requests for
additional leave and/or telework. Id. at 30.
Plaintiff agrees with these stated facts, though she takes
issue with defendant's need for additional medical
information. Compl. at 12-13. She also believes she was
placed on leave without pay during this time as a form of
retribution for filing EEO complaint(s). Compl. at 3 ¶
2, 13 ¶ 31. This cycle continued throughout the winter
of 2013. Def.'s Ex. 12 at 30; Compl. at 12- 13.
February 2013, defendant denied plaintiff's request to
telework four days per week, again citing insufficient
supporting medical documentation, and also referring to
plaintiff's declining job performance. Def.'s Ex. 12
at 31 ¶ 3. Defendant referred plaintiff to DLA personnel
to discuss options, provided her with a performance plan, and
encouraged her to return to work. Id. at 32
¶¶ 1-3. Plaintiff asserts that DLA personnel were
less than accommodating. Compl. at 13 ¶ 35, 14
¶¶ 38-9, 15 ¶ 39. During March and April 2013,
plaintiff was intermittently working from home, with
alternating periods of leave. Def.'s Ex. 12 at 32
¶¶ 4-5. Plaintiff believes that defendant
intentionally delayed a decision regarding her requested
accommodations. Compl. at 16-18. Defendant responds that it
worked diligently to obtain necessary medical documentation.
Def.'s Ex. 12 at 33-4.
emailed plaintiff in May 2013 indicating that, although her
accommodation requests had not yet been formally denied,
additional medical documentation was required. Id.
at 33 ¶¶ 1-3. In the same email, plaintiff was
granted temporary accommodation for eight hours of telework
per week. Id. at 33 ¶ 4. Plaintiff alleges that
this arrangement unfairly forced her to take leave without
pay. Compl. at 18 ¶¶ 52-3.
then requested a graduated telework schedule allowing her to
work five days per week in the first month, four days per
week in the second month, and then three days per week in the
third month. Def.'s Ex. 12 at 36 ¶ 2; Compl. at 19
¶ 61. On September 12, 2013, defendant emailed plaintiff
asserting that her job responsibilities could not be
reasonably accomplished by full-time telework and without
personal interaction with the team, as expressed previously.
Def.'s Ex. 12 at 37 ¶ 4; Compl. at 19 ¶ 61.
November 13, 2013, defendant e-mailed plaintiff stating that
her lack of in-office presence was negatively impacting her
work team. Id. at 38 ¶ 3. On December 17, 2013,
defendant formally declined plaintiff's full-time
telework request. Id. at 39-40. The request was
declined because (1) plaintiff had failed to provide
sufficient medical documentation, (2) plaintiff's job
responsibilities required at least some in-office work, and
(3) plaintiff had demonstrated severe performance
deficiencies while working full-time from home. Id.
Defendant instead granted plaintiff an agreement to telework
two days per week. Id. at 40 ¶ 1. Plaintiff
declined this agreement. Id. at 40 ¶ 2.
December 20, 2013, plaintiff was notified that her refusal to
work in the office at least three days per week in compliance
with the offered agreement would result in her being placed
on “non-duty” status. Id. She was asked
to submit an appropriate leave request or be considered in
“absence without leave” (“AWOL”)
status. Id. at 40 ¶¶ 2-3. Plaintiff
submitted requests for reconsideration which were denied.
Id. at 40 ¶¶ 4, 7, 41 ¶ 1. On
February 28, 2014, plaintiff was provided with her evaluation
for the calendar year of 2013. Id. at 41
¶¶ 2. She was rated unacceptable. Id.
Defendant continued to offer the two-day per week telework
agreement throughout the spring of 2014, which plaintiff
continually rejected, and plaintiff continued to submit
medical notes for consideration. Id. at 41 ¶ 3.
She was encouraged to return to work at any time.
Id. at 60 ¶ 2, 61 ¶¶ 4-5, 62
April 2014 and November 2014, plaintiff was placed on AWOL
status, aside from some hours which were considered holiday
leave. Def.'s Ex. 4 at 16 ¶ 2. On November 19, 2014,
plaintiff was given notice of proposed removal as a result of
her AWOL status for approximately 14 pay periods.
Id. Plaintiff was informed that she could submit a
reply to this removal notice by December 19, 2014.
Id. at 16 ¶ 4. On December 8, 2014,
plaintiff's physician provided a letter which included
several diagnoses for plaintiff and further indicated that
plaintiff was deemed unable to work at all. Def.'s Ex. 4
at 16 ¶ 3.
December 2014 and mid-February 2015, plaintiff was
continually AWOL, excepting certain days under the Family
Medical Leave Act (“FMLA”) and for which holiday
leave applied. Id. at 16 ¶ 4, 17 ¶¶
1-4. In a memorandum dated January 20, 2015, defendant upheld
the proposed removal and issued defendant a decision letter.
Plaintiff was then removed from her position on February 6,
2015. See DLA, Memorandum for Ms. Yolanda Bell (Feb.
11, 2015) (“Def.'s Ex. 16”) at 1, 3.
appears that plaintiff has not worked onsite since on or
about January 7, 2013. DOD's Mem. of Law in Support of
MSJ (“Def.'s Ex. 11”) at 2 ¶ 1; Supp.
Opp. at 8 ¶ 1. DLA has placed plaintiff in AWOL duty
status off and on since December 30, 2013 until February 6,
2015, when she was removed. Def.'s Ex. 11 at 2 ¶ 1;
Def.'s Ex. 16 at 1, 3.
discussed, between 2013 and 2015, plaintiff filed several
administrative actions and a lawsuit in the Eastern District
of Virginia, as summarized below. See Supp. Opp. at
3-6; Def.'s Mot. at 3-10.
Formal EEO Complaint (No. DLAF-13-0039)
January 16, 2013, plaintiff filed her first formal EEO
complaint (No. DLAF-13-0039) against DLA for
“disability discrimination, failure to accommodate,
hostile work environment, and retaliation for prior EEO
activities.” Compl. at 13 ¶ 31; Def.'s Mot. at
3 ¶ 1; EEO Compl., No. DLAF-13-0039 (“Def.'s
Ex. 1”). Plaintiff alleged that her supervisor denied
her requests for reasonable accommodation to telework from
home, and instead continually pressured and harassed her to
work in-office. Def.'s Mot. at 3 ¶ 1; Def.'s Ex.
1 at 1. The events chronicled in plaintiff's first EEO
complaint occurred between February 28, 2012 and January 8,
2013. Id. However, plaintiff now alleges that the
discrimination and retaliation began before February 2012.
Supp. Opp. at 3 ¶ 4.
Formal EEO Complaint (No. DLAF-13-0039)
August 14, 2013, plaintiff filed her second formal EEO
Complaint, alleging “denial of reasonable
accommodation, discrimination due to race, color, disability,
and retaliation.” Compl. ¶ 51; Def.'s Mot. at
3-4; EEO Compl., No. DLAF-13-0263 (“Def.'s Ex.
2”). Plaintiff again also explicitly asserted that she
was subject to discrimination, retaliation, and a hostile
work environment. Def.'s Mot. at 3-4; Def.'s Ex. 2.
She chronicles incidents occurring between April 24, 2013 and
July 11, 2013. Id. Plaintiff again requested to
telework from home, as recommended by her physician,
contesting the denial relating thereto. Compl. ¶¶
52-9; Def.'s Mot. at 3 ¶ 2, 4 ¶ 1, Def.'s
Direct MSPB Appeal (Nos. DC-0752-14-0051-I-1 &
October 18, 2013, plaintiff filed her first direct appeal
with the MSPB. Def.'s Mot. at 4 ¶¶ 2-4, 5
¶¶ 1-2; MSPB Form 185-2 (“Def.'s Ex.
3”) at 5. Among other allegations, plaintiff claimed
that DLA constructively suspended her, beginning May 6, 2013,
by failing to accommodate her disability. Plaintiff amended
her appeal twice to include claims that she continued to be
constructively suspended through February 6, 2015, the date
she was removed from her position with DLA. Def.'s Mot.
at 4 ¶¶ 2-4, 5 ¶¶ 1-2; Def.'s Ex. 3
8, 2016, the MSPB ruled against plaintiff, thus dismissing
the appeal. Def.'s Ex. 4 at 36 ¶ 2. The MSPB found
that plaintiff could not have been constructively suspended
during certain time periods because her absences did not
extend beyond 14 consecutive days. The MSPB therefore lacked
jurisdiction over those claims. Id. at 21-22.
the time periods over which it did have jurisdiction, the
MSPB found conclusively that plaintiff failed to meet her
burden to prove that she was constructively suspended.
Id. at 35-36. “[T]he appellant failed to
establish, by preponderant evidence, that she was
constructively suspended because the agency prevented her
from reporting for duty, and/or because she requested to
return to work with certain medical restrictions and the
agency failed to provide her with reasonable
accommodation.” Id. at 36 ¶ 1-2.
MSPB notified plaintiff that its decision would become final
on August 12, 2016, unless plaintiff petitioned for review
with the full MSPB. Id. at 38. Plaintiff did not
file a petition for review. See 5 U.S.C. §
7703(b)(1)(A); see also Def.'s Mot. at 5 ¶
2. The MSPB also found that plaintiff failed to make a
non-frivolous allegation that she was constructively
suspended based upon intolerable working conditions.
Def.'s Ex. 4 at 24-6.
present action, plaintiff seeks review of the MSPB decision
regarding her alleged constructive suspension. Compl. at 2
¶ 1; Supp. Opp. at 2-3.
& Fourth Formal EEO Complaints (DLAF-14-0083)
filed third and fourth formal complaints in January 2014 and
on March 18, 2014, respectively. Def.'s Ex. 12 at 40
¶ 6; Def.'s Mot. at 5-6; EEO Compl., No.
DLAF-14-0083 (“Def.'s Ex. 6”). Plaintiff
alleged “disability discrimination, failure to
accommodate, hostile work environment, and retaliation for
prior EEO activities.” Compl. at 13 ¶ 31.
Plaintiff alleged that on December 18, 2013, her immediate
supervisor discriminated against her and created a hostile
work environment due to her race and disability, and,
further, that her supervisor retaliated ...