United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
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.
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 ¶
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,  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.
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].
reasons stated herein, Defendant's Motion for Summary
Judgment is GRANTED and Plaintiff's Motions for
Reconsideration and for Summary Judgment are DENIED.
Defendant's Relevant Internal Policies
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.
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.
Sick Leave Policy
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.
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.
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.
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.
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.
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.
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