Myrick v. Pruitt ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BARBARA ANN MYRICK, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:17-cv-2300 (TSC)
)
ANDREW WHEELER, 1 )
)
Defendant. )
)
MEMORANDUM OPINION
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
The current Acting EPA Director, Andrew Wheeler, is automatically substituted as Defendant
in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d).
2
The court references the ECF generated page-numbers in citing the plaintiff’s Complaint
Exhibits [ECF No. 1–1].
1
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.
I. FACTUAL BACKGROUND
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.
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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.
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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
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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 medical documentation until her medical appointment, she was
withdrawing her accommodation request until that time. Id. Plaintiff also told Haig that she
would be putting her accommodation request “on-hold.” Def.’s Stmt. at 4 ¶ 21.
On June 25, 2013, Plaintiff contacted the Office of Civil Rights (OCR), alleging that
Winchester had discriminated against her and harassed and threatened her starting June 24 and
June 25, 2013. Def.’s Stmt. at 4 ¶ 18. Defendant submitted Winchester’s sworn testimony that
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he was completely unaware of Plaintiff’s EEO activity and contact with OCR until sometime
after June 28, 2013. Def.’s Mem. at 11 ¶ 1. He also stated that he did not know of Plaintiff’s
prior EEO activity. Def.’s ROI Aff. B at 6, 8, 12.
On June 27, 2013, Winchester emailed Plaintiff, asking whether her doctor’s note meant
she could not (1) physically return to work at her duty station, or (2) work in any capacity,
including telework. Id. He also indicated that it appeared she had not followed proper sick leave
procedures; she had not requested his approval, had not submitted a SF-71, and had not
submitted her leave request through Webforms, and that she would be charged AWOL for June
26, 2013, and for any day that she did not follow the correct leave procedures. Id. Later that
same day, he charged Plaintiff as AWOL for June 26, 27, and 28, and notified her by email.
Def.’s Stmt. at 5 ¶ 24. Plaintiff responded that she had provided an SF-71 on June 26, 2013.
Def.’s Stmt. at 5 ¶ 26. Winchester searched Webforms and his emails but did not find a SF-71
for June 26–28, 2013. Def.’s Stmt. at 5 ¶ 27. It appears that Plaintiff used “PeoplePlus,” a
separate but related internal channel, to submit her leave request; there is no indication that she
submitted it through Webforms. Def.’s Stmt. at 5 ¶ 27; Pl.’s Opp. at 2 ¶ 1. Plaintiff claims she
was unable to do so because she used a personal computer, rather than a work laptop. Pl.’s Opp.
at 2 ¶ 1.
Two days later, on June 29, 2013, Plaintiff attempted to submit an SF-71 through
Webforms but was unable to log in to the system because her password had expired. Def.’s
Stmt. at 5 ¶ 28. Plaintiff notified Winchester that she was unable to log in and that she would
contact IT on July 1 for assistance. Pl.’s Surreply Exs. at 51. She also requested additional
annual leave, sick leave, and holiday leave for various dates in July. Id. at 59. Given Plaintiff’s
inability to log into Webforms, Winchester granted the requests for leave in July, but made clear
6
that he was not approving her prior requests for leave, including the dates for which she had been
charged AWOL (June 26–28). Id. He also told Plaintiff that he would need to evaluate internal
policy regarding her prior sick leave requests and her MFA proposals. Id.
On July 1, 2013, Plaintiff was able to submit her SF-71 through Webforms for June 26–
28, 2013. Def.’s Stmt. at 5 ¶ 29. On July 3, 2013, she also submitted a doctor’s note indicating
that she was sick and unable to work on June 26–28, 2013. Def.’s ROI Aff. A at 100.
On July 8, 2013, Plaintiff submitted three updated flexiplace agreements to Winchester; a
regular flexiplace agreement, an episodic flexiplace agreement, and a new MFA. Def.’s Stmt. at
6 ¶ 31. Plaintiff’s new MFA requested permission to telework whenever the temperature
registered above 90 degrees. Def.’s Stmt. at 6 ¶¶ 33, 35. It is unclear whether this new MFA
was meant to supplant or supplement the recently expired (full-time) MFA. Id. Plaintiff also
went on extended leave around this time. Def.’s Stmt. at 6 ¶ 32.
On July 25, 2013, Winchester wrote Plaintiff requesting medical documentation for her
request to extend her full-time MFA. Def.’s Stmt. at 6 ¶ 33. He specifically asked for a
physician’s statement regarding the impact of her condition on her ability to work and to
complete the tasks associated with her position. Id. Plaintiff responded with questions, to which
Winchester replied on July 31. Def.’s Stmt. at 6 ¶ 35. He explained that his request for
additional medical documentation was in response to Plaintiff’s late June/early July emails
claiming that she was unable to work and requesting an extension of her existing MFA. He also
explained that her new MFA request, to telework in hot weather, did not appear to be a
temporary request, and therefore it would be more appropriately processed as a reasonable
accommodation. Finally, he formally approved her proposed regular and episodic flexiplace
agreements. Id.
7
Plaintiff responded on August 1, 2013, requesting that her full-time MFA be extended to
August 12, 2013, and submitting a doctor’s note stating that she was unable to work from July
26–August 27, 2013. Def.’s Stmt. at 6 ¶ 36. Winchester then asked Plaintiff to submit medical
documentation showing that she was cleared for work and justifying the necessity for telework.
Def.’s Stmt. at 6–7 ¶ 37. He reminded her that her second MFA request, regarding telework in
hot weather, was better addressed as a reasonable accommodation request. Id.
On August 28, 2013, Plaintiff requested an additional reasonable accommodation to
adjust her arrival time and MFA when necessary. Def.’s Stmt. at 7 ¶ 38. On September 20,
2013 Winchester approved the requests, allowing Plaintiff to begin her workday at 7 am, to
telework if the temperature went above 90 degrees, and to attend certain medical appointments.
Def.’s Stmt. at 7 ¶ 38.
On January 7, 2014, Winchester informed Plaintiff that since she had provided a doctor’s
note regarding her June 26–28, 2013 absences, he would change her AWOL charge to sick leave.
Def.’s Stmt. at 7 ¶ 39. Plaintiff retired on March 31, 2014. Def.’s Stmt. at 7 ¶ 41.
Most, if not all, of Winchester’s actions described above were taken after consultation
with Lawrence. Def.’s Stmt. at 2 ¶¶ 7, 9, 3 ¶ 11, 4 ¶ 22, 6 ¶ 33. Defendant has also provided
examples of instances in which Winchester advised all PAOB staff of the leave and flexiplace
policies. Def.’s Stmt. at 3 ¶ 10; 5 ¶ 25.
II. STANDARD OF REVIEW
When a party moves to dismiss under Rule 12 for failure to state a claim upon which
relief may be granted, and presents matters outside the pleading and not excluded by the court,
“the motion shall be treated as one for summary judgment and disposed of as provided in Rule
56.” Colbert v. Potter, 471 F.3d 158, 167 (D.C. Cir. 2006) (quoting Fed. R. Civ. P. 12(b))
8
(internal quotation marks omitted). Defendant has presented matters outside the pleading which
the court will consider, and therefore the court will treat the motion as one for summary
judgment under Rule 56. Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
To defeat summary judgment, the non-moving party must “designate specific facts
showing there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotation marks omitted). A dispute is “genuine” only if a reasonable fact-finder could
find for the non-moving party; a fact is only “material” if it is capable of affecting the outcome
of the litigation. Id.; see also Laningham v. U.S. Navy, 813 F. 2d 1236, 1241 (D.C. Cir. 1987).
In assessing a party’s motion, “[a]ll underlying facts and inferences are analyzed in the light
most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia, 709 F. Supp.
2d 57, 65 (D.D.C. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).
In employment discrimination cases, “the operative question . . . is whether ‘the
employee produced sufficient evidence for a reasonable jury to find that the employer
intentionally discriminated against the employee on the basis of [protected status].’” Ayissi–Etoh
v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (citation and original alterations omitted).
“[W]hen the plaintiff offers direct evidence of discriminatory intent, that evidence will ‘generally
entitle a plaintiff to a jury trial.’” Id. (citation omitted). In the absence of direct evidence,
however, discrimination cases are governed by the burden-shifting framework laid out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the
plaintiff must first establish, by a preponderance of the evidence, a prima facie case of
discrimination. Id. Once the plaintiff establishes a prima facie case, the defendant must produce
9
evidence that the challenged employment actions were taken for a legitimate, non-discriminatory
reason. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). If the
defendant does so, “the presumption . . . raised by the prima facie case is rebutted and drops
from the case.” Id. at 1289 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993))
(internal quotation marks omitted). At this juncture, the burden reverts to the plaintiff to show
that a reasonable jury could infer that the proffered legitimate reason was false, and that the
defendant acted with discriminatory or retaliatory intent. Id.Finally, the court is mindful that pro se pleadings must be liberally construed, as they are
held to “less stringent standards than formal pleadings drafted by trained lawyers.” Budik v.
Dartmouth–Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C. 2013) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)) (internal quotation marks omitted). This liberal standard, on the
other hand, “is not . . . a license to ignore the Federal Rules of Civil Procedure.” Neuman v.
United States, 70 F. Supp. 3d 416, 422 (D.D.C. 2014) (internal citations and quotation marks
omitted). “Accordingly, in the context of Rule 56, a ‘pro se plaintiff must meet his burden of
proving that there exists a genuine dispute as to a material fact to survive a motion for summary
judgment.’” Mokhtar v. Kerry, 83 F. Supp. 3d 49, 61 (D.D.C. 2015) (citation omitted).
III. DISCUSSION
A. Hostile Work Environment
Plaintiff alleges that Winchester’s continued harassment created a hostile working
environment, and as a result, she was forced to take leave, experienced anxiety, and felt
slandered. Compl. at 2–3.
The D.C. Circuit has “recognized a special type of retaliation claim based on a ‘hostile
work environment.’” Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015) (citation omitted).
10
Such a claim may arise when several individual acts of retaliation that “may not be actionable on
their own . . . become actionable due to their cumulative effect.” Id. (citing Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 115 (2002) (internal quotation marks and alternations omitted)).
These “constituent acts must be adequately linked such that they form a coherent hostile
environment claim. For example, they might involve the same type of employment actions,
occur relatively frequently, and be perpetrated by the same managers.” Baird, 792 F.3d at 168–
69 (citations and alterations omitted).
In a hostile work environment claim, a plaintiff must show that an employer engaged in
‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working environment.’” Baloch
v. Kempthorne, 550 F.3d 1191, 1201 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). “To determine whether a hostile work environment exists, the court looks to the totality
of the circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee's work performance.” Id. (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998)). Conduct that is not severe or
pervasive enough to create an objectively hostile or abusive work environment—an environment
that a reasonable person would find hostile or abusive—is beyond Title VII's purview.” Id.(internal quotation marks omitted).
Here, Plaintiff has alleged that: (1) Winchester consistently requested updated medical
documentation, see Compl. at 1; (2) Winchester sent her correspondence while she was on leave,
see Compl. at 1–2; (3) she should not have been considered AWOL for June 26–28, see Compl.
at 1–2; (4) Winchester intentionally delayed approving her MFA, causing her to take unwanted
11
leave and affecting her retirement plans, see Pl.’s Surreply at 3; and (5) Defendant failed to
provide her with a laptop for telework. See Pl.’s Opp. at 2.
Plaintiff’s arguments regarding the work laptop appear to shift throughout her pleadings.
Plaintiff first alleged that she had difficulty completing her work and submitting leave forms
because she was not provided with a laptop for telework. Pl.’s Opp. at 2. However, in her
Surreply, she admitted that she did, in fact, receive a work laptop, but that she left it at her work
station and therefore used her personal computer instead. Pl.’s Surreply at 2.
The court finds that Plaintiff’s cited examples do not constitute continued harassment and
did not create a hostile working environment. Whether considered alone or cumulatively, the
alleged acts do not meet the “demanding standards” for such claims. Sewell v. Chao, 532 F.
Supp. 2d 125, 141–42 (D.D.C. 2008).
Defendant has proffered legitimate, non-discriminatory reasons, supported by affidavits,
documents and factual background, for Winchester’s decisions and actions. With regard to
Plaintiff’s claim that Winchester consistently requested updated medical information, Defendant
points out that those requests were based on internal policies and procedures. Def.’s Stmt. at 2 ¶
5. Winchester requested the information when Plaintiff’s existing MFA was set to expire, or
when she had submitted insufficient information. See, e.g., Def.’s ROI Exs. 6, 8, 9 at 18–19. He
also requested additional medical documentation when Plaintiff appeared to have modified her
MFA request, or when she had indicated a change in her ability to work and/or telework. Id.Very shortly after the required information was received, Defendant timely processed and
approved Plaintiff’s MFA requests. Id; see also Def.’s Stmt. at 4 ¶ 17, 7 ¶ 38. In fact, it does
not appear that any of Plaintiff’s requests were denied, at least for the time relevant to this case.
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Moreover, Plaintiff fails to explain why it was harassment for her immediate supervisor
to contact her while she was on leave. See Compl. at 1–2; Pl.’s Opp. at 1. It comports with
common sense that Winchester should be able to contact her when appropriate and necessary,
especially given that his contacts with Plaintiff were not excessive. He generally contacted her
to check in, remind her of impending deadlines, request supplemental information, answer her
questions, and inform her when she had failed to follow internal policies. See, e.g., Def.’s ROI
Ex. 6; Def.’s ROI Ex. 8. Based on the evidence in the record, Winchester seems to have
attempted to timely respond to her requests, process her proposals, and consult with Human
Resources, Lawrence, and/or Haig.
It is also clear from the record that Plaintiff was deemed AWOL for June 28–29 due to
her failure to comply with the sick-leave policy. Def’s Stmt. at 1–2, 2–3 ¶ 9. Plaintiff did not
initially submit an SF-71 through Webforms (any attempt she may have made was unsuccessful),
and therefore failed to get timely approval for three days of leave. Def.’s Stmt. at 5 ¶ 27.
Plaintiff also alleges, in passing, that she was treated differently than other employees.
Compl. at 1–2. But she does not proffer any facts or evidence to support this claim, and the
actions she claims Defendant took in response to her leave requests, even if assumed to be true,
do not constitute discriminatory behavior. See Bell v. Gonzales, 398 F. Supp. 2d 78, 92; see also
Stewart v. White, 61 F. Supp. 3d 118, 130–31 (D.D.C. 2014) (holding that employer's proffered
reasons for denying employee advanced sick leave and charging her with AWOL were not
pretext for discrimination).
Furthermore, once Plaintiff provided the required documentation, Defendant retroactively
changed the three June AWOL charges to approved sick leave. Def.’s Stmt. at 7 ¶¶ 39–40.
Plaintiff has since been compensated for those days, which makes any claim for relief moot. Id.;
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see also Stewart, 61 F. Supp. 3d. at 130–131 (“As to the AWOL charges, the plaintiff does not
dispute that after she complied with defendant's [internal policies] for the admittedly
unscheduled leave, her status for all of those days . . . was converted from AWOL to LWOP . . .
thereby rendering any issues surrounding the alleged adverse AWOL designation moot.”).
While this decision was not made until January 2014, the six-month delay does not in and of
itself constitute harassment or a hostile work environment. Def.’s Stmt. at 7 ¶ 34; see also Bell,
398 F. Supp. 2d at 92 (“Occasional instances of less favorable treatment involving ordinary daily
workplace decisions are not sufficient to establish a hostile work environment.”).
Plaintiff also essentially admits that she was unable to properly submit her leave requests
because she left her work laptop at work. 3 Def.’s Stmt. at 5 ¶ 27; Pl.’s Opp. at 2 ¶ 1.
Finally, a review of the correspondence submitted by both parties fails to reveal any
hostile interactions between them. See, e.g., Def.’s ROI Ex. 6; Def.’s ROI Ex. 8; Def.’s ROI Ex.
9 at 12–13. Winchester’s tone is generally professional and explanatory, and nothing in the
record constitutes a “threat.” Simply advising Plaintiff of the potential repercussions of her
failure to follow agency policy is not, in and of itself, hostile. See, e.g., Beckwith v. Ware, 174 F.
Supp. 3d 1, 5 (D.D.C. 2014) (citing Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94) (finding that
“the removal of important assignments, lowered performance evaluations, and close scrutiny of
assignments by management [cannot] be characterized as sufficiently intimidating or offensive in
an ordinary workplace context”). The court finds that Plaintiff has not proffered facts or
evidence indicating that Defendant’s conduct was severe nor pervasive.
B. Predicate Discrimination
3
Defendant submitted an affidavit and corroborating documentation showing that Plaintiff was
provided a work laptop from August 6, 2009 through April 1, 2014. Def.’s Reply. at 2; Def.’s
Reply Ex. 19.
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A hostile work environment is not a stand-alone cause of action under Title VII; a
plaintiff must establish as a predicate “some linkage between the hostile behavior and the
plaintiff's membership in a protected class,” Na'im v. Clinton, 626 F. Supp. 2d 63, 73 (D.D.C.
2009); see also Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C. 2003), or establish a
connection between the hostile environment and a protected activity, see Bloom v. McHugh, 828
F. Supp. 2d 43, 59 (D.D.C. 2001) (citing Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir.
2006) (“In this circuit, a hostile work environment claim can amount to retaliation under Title
VII.”).
Plaintiff appears to be a member of four protected classes related to her race, gender, age,
and disability. Compl. Exs. at 1–5. Although she has stated that her claims do not involve
discrimination relating to race, age, gender, or disability, Pl.’s Opp. at 1 ¶ 1–2, in an abundance
of caution the court reviewed the record and finds no connection between her membership in the
protected class(es) and the alleged hostile work environment. See Na'im, 626 F. Supp. 2d 63 at
73 (“Courts in this jurisdiction have routinely held that hostile behavior, no matter how
unjustified or egregious, cannot support a claim of hostile work environment unless there exists
some linkage between the hostile behavior and the plaintiff's membership in a protected class.”)
(citing Baloch, 550 F.3d at 1201).
Plaintiff provides no evidence to support a discrimination claim based on status, while
Defendant has provided detailed, non-discriminatory reasons for its actions. Therefore, the
burden shifts back to the Plaintiff, who must “seize the “opportunity to discredit the employer's
explanation.” Smith v. Jackson, 539 F. Supp. 2d 116, 136 (D.D.C. 2008) (internal citations and
quotation marks omitted). Plaintiff has not done so. She also fails to establish a connection
between the alleged harassment and a protected activity. While Plaintiff states that she filed an
15
EEO complaint on August 28, 2013, Defendant provided evidence that Winchester was unaware
of Plaintiff’s EEO activity or her correspondence with OCR before or when he decided to
declare Plaintiff AWOL. Def.’s Mem. at 11 ¶ 1. In fact, Plaintiff’s EEO complaint was filed
well after Winchester charged Plaintiff AWOL, making it impossible for him to have done so in
retaliation for her EEO activity. Id.; see also Def.’s Reply Ex. 1; Compl. Exs at 1–5.
Plaintiff has failed to adduce facts establishing a pattern of harassment or a hostile work
environment. See Fischbach v. D.C. Dep’t of Corrections, 86 F. 3d 1180, 1183 (D.C. Cir. 1996).
Likewise, she has not established the prima facie elements of a predicate discrimination or
retaliation claim. See Na'im, 626 F. Supp. 2d at 73. Therefore, summary judgment is warranted.
IV. PLAINTIFF’S MOTION FOR RECONSIDERATION
Plaintiff seeks reconsideration of the denial of her Motion to Appoint Counsel. Plaintiffs
in civil cases generally do not have a constitutional or statutory right to counsel. See Willis v.
F.B.I., 274 F.3d 531, 532–33 (D.C. Cir. 2001); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.
1981). If a plaintiff is proceeding in forma pauperis, the court is authorized to appoint counsel
under 28 U.S.C. ' 1915(e)(1), but it is not obliged to do so unless a plaintiff demonstrates that
such exceptional circumstances exist that the denial of counsel would result in fundamental
unfairness. See Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986). AWhether exceptional
circumstances exist requires an evaluation of the type and complexity of each case, and the
abilities of the individual bringing it.@ Id; see also Local Civil Rule 83.11(b)(3) (listing factors).
As the court noted in denying Plaintiff’s motion, in a Title VII action, it may appoint counsel
“[u]pon application by the complainant and in such circumstances as the court may deem just.”
Ord. Den. Mot. to Appt. Cnsl. [ECF No. 9] (D.D.C. March 1, 2018) at 2 ¶ 1; 42 U.S.C. §
2000e5(f)(1). In reviewing such an application, the court considers “(1) the ability of the plaintiff
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to afford an attorney; (2) the merits of the plaintiff’s case; (3) the efforts of the plaintiff to secure
counsel; and (4) the capacity of the plaintiff to present the case adequately without aid of
counsel.” Ficken v. Alvarez, 146 F.3d 978, 979–80 (D.C. Cir. 1998) (quoting Poindexter v. FBI,
737 F.2d 1173, 1185 (D.C. Cir. 1984)). See Ord. Den. Mot. to Appt. Cnsl. at 2 ¶ 1.
In denying the motion, the court found that Plaintiff had not set forth her efforts to secure
counsel, and that it was premature to appoint counsel. Id. The court also ruled that it would not
provide counsel before it resolved Defendant’s pending motion for dispositive relief. Id. at 2.
Plaintiff’s Motion for Reconsideration provides little additional information. She
indicates that she exists on a small retirement income but does not provide any information
regarding her efforts to obtain counsel. The court also finds that, despite the lack of prima facie
evidence, Plaintiff has ably represented herself thus far in both administrative proceedings and the
instant matter.
Moreover, Plaintiff has not shown that her claims are particularly complex or that any
greater interest of justice would be served by appointing counsel in this case than in any other pro
se case. Lamb v. Millennium Challenge Corp., 228 F. Supp. 3d 28, 47 (D.D.C. 2017); see also
Local Civil Rule 83.11(b)(3). Therefore, Plaintiff’s Motion for Reconsideration is denied.
V. PLAINTIFF’S REQUEST FOR SUMMARY JUDGMENT
Finally, in her Opposition, Plaintiff asks the court to “grant summary judgment in
Plaintiff’s favor for harassment and failing to provide employee with the government computer.”
Pl.’s Opp. at 2 ¶ 1. Summary judgment is appropriate only when the moving party proves that
there are no genuine issues of material fact in dispute. Fed.R.Civ.P. 56(c); Celotex Corp., 477
U.S. at 322. The court finds that Plaintiff has failed to demonstrate, in accordance with the
applicable federal and local rules, that she is entitled to summary judgment with respect her
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claims. Indeed, she has not set forth specific argument or even identified any material facts in
accordance with Rule 56 §§ (c), (e) of the Federal Rules of Civil Procedure and Local Civil Rule
7(h). Plaintiff attaches numerous documents to her surreply, most of which were also submitted
by Defendant. A review of those documents, as well as analysis of the relevant legal standards
and the parties’ arguments reveals that there is no disputed issue of material fact. Sun v. D.C.
Government, 133 F. Supp. 3d 155, 163 (D.D.C. 2015) (holding that “[w]hen, as here, both parties
file motions for summary judgment, each must carry its own burden under the applicable legal
standard.”).
VI. CONCLUSION
For all the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED,
and Plaintiff’s Motions for Reconsideration and for Summary Judgment are DENIED. A
separate Order accompanies this Memorandum Opinion.
Date: September 28, 2018
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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