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Bell v. Department of Defense

United States District Court, District of Columbia

September 27, 2018

YOLANDA BELL, Plaintiff,



         This 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[1] (“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.


         Plaintiff, 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.[2] Compl. at 1 ¶ 1.

         Plaintiff 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.

         As a 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.

         Procedural and Factual History

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On 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.

         On 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 2012. Id.

         In 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.

         In the 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.

         In 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.

         The 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.

         In 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.

         Defendant 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.

         Plaintiff 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.

         On 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.

         On 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 ¶¶ 1-2.

         Between 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.

         Between 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.

         It 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.

         As 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.

         First Formal EEO Complaint (No. DLAF-13-0039)

         On 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.

         Second Formal EEO Complaint (No. DLAF-13-0039)

         On 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 Ex. 2.

         First Direct MSPB Appeal (Nos. DC-0752-14-0051-I-1 & DC-0752-15-0853-I-1)

         On 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 at 1-2.

         On July 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.

         Regarding 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.

         The 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.

         In the present action, plaintiff seeks review of the MSPB decision regarding her alleged constructive suspension. Compl. at 2 ¶ 1; Supp. Opp. at 2-3.

         Third & Fourth Formal EEO Complaints (DLAF-14-0083)

         Plaintiff 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 ...

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