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Myrick v. Wheeler

United States District Court, District of Columbia

September 28, 2018

ANDREW WHEELER, [1] Defendant.



         Plaintiff Barbara Ann Myrick, proceeding pro se, has sued the Environmental Protection Agency (“EPA”), where she worked as a Program Assistant for the EPA's Program Assessment and Outreach Branch (“PAOB”), National Program Chemicals Division, Office of Pollution Prevention and Toxics, until her retirement on March 31, 2014.

         The Complaint does not clearly indicate the authority upon which Plaintiff relies for her claims. However, in subsequent filings, she clarified that she brings her claims pursuant to Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16). Pl.'s Opp. at 1 ¶ 1, 2 ¶ 1. She specifically alleges “discriminating harassment” due to a hostile work environment. Id. at 2 ¶ 1.

         Plaintiff submitted several exhibits with her Complaint, including an April 7, 2016 decision by the Equal Employment Opportunity Commission (“EEOC”), Compl. Exhibits ([ECF 1-1] at 7-12, [2] as well as a subsequent August 15, 2017 EEOC appellate opinion, Compl. Exs. at 1-5. In the EEOC action, Plaintiff alleged that she was subject to a hostile work environment; specifically, she claimed discrimination based on her race, color, age, physical and mental disabilities, and retaliation for her EEO activity. Id. The EEOC granted summary judgment in favor of the EPA, and this decision was affirmed on appeal. Id. at 2, 6. In the instant matter, however, Plaintiff declares that her current claims are “not based on discrimination or retaliation on the basis of race, color, age, or disability . . . .” Plaintiff's Notice of Opposition (“Pl.'s Opp.”) [ECF No. 12] at 1 ¶ 2. Instead, she brings only claims of “harassment pursuant to Title VII . . . .” Id. at 1-2.

         Defendant has filed a Motion to Dismiss or Alternatively for Summary Judgment (“Def.'s Mot.”), and Plaintiff has moved for summary judgment and for reconsideration [ECF No. 11] of the court's previous denial of her Motion to Appoint Counsel [ECF No. 9].

         For the reasons stated herein, Defendant's Motion for Summary Judgment is GRANTED and Plaintiff's Motions for Reconsideration and for Summary Judgment are DENIED.


         A. Defendant's Relevant Internal Policies

         i. Flexiplace Policy

         Pursuant to Defendant's “Flexiplace Policy, ” part-time or full-time telework, or “flexiplace, ” is available to an employee at the absolute discretion of the supervisor. See Def.'s ROI Ex. 18 at 7-8. There are three types of flexiplace. Id. The first is “regular flexiplace, ” which is non-medical, and is based on an employee's level experience, past job performance, and position responsibilities. Id. at 7. The second is “episodic” flexiplace, which is normally granted for short-term projects only. Id.

         The third type of flexiplace is medical, for employees with temporary medical condition(s) who need to telework for no more than six months. Id. at 7-8; Def.'s Stmt. at 2 ¶ 5. An employee who wishes to continue a medical flexiplace agreement (“MFA”) beyond six months must submit updated and sufficiently detailed medical documentation regarding the status of the employee's condition, and supporting the employee's request for continued telework allowance. Id.

         ii. Sick Leave Policy

         Defendant's sick-leave policy requires that an employee wishing to take sick leave notify her supervisor either (1) before, or as soon as possible after, the time she is scheduled to report for duty (normally not more than two hours), or (2) before having to leave work during normal duty hours due to illness. Def's Stmt. at 1-2 ¶ 4. An employee must “[r]equest approval of sick-leave for the absence and indicate, if possible when [she] expect[s] to be able to return to duty.” Id. For absences of three workdays or less, an employee must complete a Standard Form (“SF”) 71, which must be submitted through the Defendant's internal electronic-system, “Webforms.” Def.'s Stmt. at 1-2. An employee who fails to follow this policy and procedure may be considered absent without leave (“AWOL”). Def.'s Stmt. at 2-3 ¶ 9.

         B. Factual History

         On or about January 4, 2013, Plaintiff requested permission to telework full-time for six months for medical reasons. Def.'s Stmt. at 2 ¶ 6. She submitted a doctor's note in support. Id. On January 7, 2013, Eric Winchester became Plaintiff's first level supervisor. Def.'s Stmt. at 1 ¶ 3. Shortly thereafter, Winchester informed Plaintiff that, due to her telework request, and based on internal policy requirements, she had to complete an MFA. Def.'s Stmt. at 2 ¶ 7.

         On January 29, 2013, Winchester sent Plaintiff the proposed MFA for her review and execution. Def.'s Stmt. at 2 ¶ 7. He informed her that the MFA would remain in place from January 4, 2013 (the date of her request) until July 4, 2013. Id. Plaintiff executed and returned the MFA on January 29, 2013, and Winchester approved it on January 30, 2013. Def.'s Stmt. at 2 ¶ 8.

         On several occasions in early 2013, Plaintiff left voice messages or sent emails to Winchester unilaterally notifying him that she was taking sick leave. Def.'s Stmt. at 2 ¶ 9. In response, Winchester emailed Plaintiff on March 28, 2013, reminding her of the sick-leave policy and procedures, and warning her that if she did not comply she would be charged AWOL. Def.'s Stmt. at 2-3 ¶ 9. He specifically reminded her that she must obtain his approval within the designated time and through the appropriate internal channels. Def.'s Stmt. at 2-3 ¶ 9.

         On June 18, 2013, Plaintiff emailed Wendy Lawrence, Labor and Employee Relations Specialist, regarding her existing MFA. Def.'s Stmt. at 3 ¶ 11. Following this exchange, Lawrence conferred with Winchester, and instructed him to send Plaintiff a “return to duty letter, ” because Plaintiff's MFA expired on July 4, 2013. Def.'s Stmt. at 3 ¶ 12. In an email on June 24, 2013, Winchester reminded Plaintiff of her sick leave expiration date, and told her that, pursuant to EPA policy, she would be required to submit updated medical documentation by July 3, 2013 if she sought an extension of her MFA beyond six months. Without an updated MFA, he would not be able to approve her teleworking beyond July 5, 2013 He also told her that if she did not seek to extend her MFA, she was expected to return to work by July 9, 2013, and that if she did not do so or have an approved extended MFA in place, she would be considered “AWOL.” Id. Finally, he told her that, if eligible, she could request reasonable accommodations through William Haig, the National Reasonable Accommodation Coordinator. Def.'s Stmt. at 3 ¶ 12.

         On June 25, 2013, Plaintiff responded by email, stating that she was under the (incorrect) assumption that her MFA expired on July 30, 2013. Def.'s Stmt. at 4 ¶ 14. She indicated that she was unable to return to her work station and felt that she could no longer continue to work with Winchester. Id. A few hours later, Plaintiff again emailed Winchester, informing him that she wanted to request a reasonable accommodation and that she would contact Haig. Def.'s Stmt. at 4 ¶ 15.

         Later that evening, Plaintiff again emailed Winchester, stating, “[h]ere is my doctor slip and I will be using my sick-leave and than [sic] my annual leave. I will also continue to take my compressed days off.” Def.'s Stmt. at 4 ¶ 16. The doctor's note indicated simply that Plaintiff was “unable to work at this time.” Def.'s Stmt. at 4 ¶ 16. The following morning Plaintiff called Winchester and again informed him that she intended to use her sick leave. Def.'s Stmt. at 4 ¶ 19. Later that same day, she again emailed Winchester and told him that her doctor told her she could not work until her next appointment on July 26, 2013, and she would be using sick leave until then. Def.'s Stmt. at 4 ¶ 20. She also said that while she was on leave she would not be checking her email, and that although she had requested a reasonable accommodation, since she could not get the necessary ...

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