Bell v. Department of Defense

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YOLANDA BELL, :
:
Plaintiff, :
v. : Civil Action No. 16-02403 (RC)
:
DEPARTMENT OF DEFENSE, :
:
Defendant. :
MEMORANDUM OPINION
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.
FACTUAL BACKGROUND
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–
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For the purposes of this opinion, the court will cite only to the supplemental opposition, as it contains all of the
original argument from plaintiff’s first opposition, as well as any additional.
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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
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Plaintiff also makes passing reference to the False Claims Act and evidence spoliation. Compl. at 1 ¶ 1, 5 ¶ 3.
Aside from listing these claims in introductory paragraphs of her complaint, plaintiff provides no further facts or legal
bases relating thereto. No additional information is provided in plaintiff’s subsequent filings to support these causes
of action. Therefore, these allegations are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)). Additionally, it is
well established that in False Claims Act cases, “pro se parties may not pursue [qui tam] actions . . .” Walker v.
Nationstar Mortg. LLC, 142 F. Supp. 3d 63, 65 (D.D.C. 2015) (quoting U.S. ex rel. Fisher v. Network Software
Assocs., 377 F. Supp. 2d 195, 196–97 (D.D.C. 2005); Canen v. Wells Fargo Bank, N.A., 118 F. Supp. 3d 164, 170
(D.D.C. 2015) (noting that “courts in this jurisdiction consistently have held that pro se plaintiffs . . . are not adequately
able to represent the interests of the United States.”) (citing cases); 31 U.S.C. §§ 3729–3732.
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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
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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
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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
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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
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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 e-
mailed 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
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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.
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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
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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
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(“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 against her
for filing EEO claims. Lastly, plaintiff again claimed that DLA failed to reasonably accommodate
her disabilities. Def.’s Mot. at 5–6; Def.’s Ex. 6.
Informal EEO Complaints
Additionally, on March 28, April 15, and April 25, 2014, plaintiff filed three to five
additional informal EEO Complaints. Supp. Opp. at 5 ¶ 3; Def.’s Mot. at 5–6; EEO Pre-Complaint
Intake Forms (“Def.’s Ex. 7”). The parties disagree on the number of informal complaints filed,
which is immaterial. The parties agree, however, that these complaints contained allegations of
reprisal, disability discrimination, and hostile work environment. Id. The allegations relate to
incidents which purportedly took place on March 20, March 28, and April 3–5, 2014. Id.
Importantly, plaintiff points out that these complaints, which were later made part of her case
before the Eastern District of Virginia, raised claims regarding “denial of family leave act requests,
illegally placing [her] in a non-duty status [,] and charging [her] with AWOL.” Supp. Opp. at 5 ¶
3.
DLA determined that some, if not all, of these informal claims were related to the first and
second EEO complaints (13-0039 and 13-0263), which were already at the hearing stage. Def.’s
Mot. at 5-6; Def.’s Ex. 7 at 4, 12. Therefore, DLA informed plaintiff that she could petition the
administrate judge to amend her complaint with these additional allegations. Id.
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Prior District Court Complaint (E.D. VA) (No. 14-cv-470 (TSE) (IDD))
On April 29, 2014, plaintiff filed a pro se complaint against DOD in the U.S. District Court
for the Eastern District of Virginia. See Docket, No. 14-cv-470 (TSE) (IDD) (Apr. 29, 2014) (ECF
No. 1) (“Def.’s Ex. 8”). She was later granted leave to file an amended complaint and added
additional claims. See Pl.’s Mot. Am. Compl. & Am. Compl., Case No. 14-470 (E.D. Va. June
11, 2014) (collectively ECF No. 18) (collectively “Def.’s Ex. 9”); Order Granting Pl.’s Mot. Am.
Compl. (E.D. Va. June 20, 2014) (ECF No. 22) (“Def.’s Ex. 10”). Plaintiff sought “redress for
defendant’s failure to reasonably accommodate or to fully accommodate her disability for its
unreasonable intrusion into her private medical affairs as a condition of engaging in the interactive
accommodation, and for the other discrimination and retaliation that defendant visited upon
plaintiff on account of her disabilities and her protected EEO activity.” Def.’s Ex. 9 at 1–2.
Plaintiff brought specific claims under the Rehabilitation Act of 1973 (as amended, 29
U.S.C. § 701, et seq.) and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e–16). Id.
She also raised allegations of retaliation and violations of her civil rights. Id. at 2 ¶ 2. Plaintiff
alleged that defendant, in handling her medical information, unfairly infringed on her privacy
rights and violated its own policies and HIPPA. Id. at 11 ¶ 38. Importantly, plaintiff explicitly
alleged that she was forced into a non-pay status, which caused her to lose salary. Id. at 24 ¶ 85,
29 ¶ 109, 30 ¶111, 41–2 (Ct. III). Among other relief, plaintiff sought compensatory damages,
reimbursement for backpay, an injunction to grant her proposed reasonable accommodations,
reassignment to a new supervisor, correction of her personnel records, and written declarations
declaring that plaintiff faced unfair discrimination. Id. at 2 ¶ 4, 48–9.
Plaintiff now states that she only brought failure to accommodate claims before the Eastern
District of Virginia, without any disability discrimination claims. Supp. Opp. at 8 ¶¶ 1–2. This
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assertion is contrary to the plain record. The Eastern District of Virginia clearly adjudicated
plaintiff’s disability discrimination claims. Def.’s Ex. 12 at 41–4. In her complaint in that case,
plaintiff overtly alleges disability discrimination and retaliation, dedicating 30 pages to those
allegations. Def.’s Ex. 9 at 2 ¶¶ 2–4, 4 at n. 1 (“the discrimination portions. . . are part of
plaintiff[’]s complaint”); id. at 5–35.
Plaintiff also incorporated her formal EEO complaints into that action and explicitly sought
review therein. Id. at 14 ¶ 51 (referring to the filing of No. 13-0039), 18 ¶ 71 (referring to the
filing of No. 13-0263); 31 ¶ 116 (referring to the filing of No. 14-0083). Plaintiff also introduced
the issues from her informal EEO complaints into the amended complaint. Id. at 32 ¶¶ 122–28.
These amendments included claims for discrimination based on “race, color, disability, and
retaliation.” Id. at 19 ¶ 71.
In both her complaints, plaintiff also addressed her then-pending MSPB appeal. Id. at 4 n.
1, 24 ¶ 85, 29 ¶ 109, 30 ¶111, 27 ¶ 100, 28 ¶ 104, 41–2 (Ct. III). Although plaintiff may have
wished to postpone any determinations regarding her “constructive suspension” to avoid res
judicata, id. at 4 n. 1., that claim was necessarily intertwined with her other claims and adjudication
was unavoidable. See id. By definition, a suspension or constructive suspension is an “adverse
employment action.” See Tyndall v. Department of the Navy, 5 M.S.P.R. 194, 196 (1981). The
Eastern District of Virginia very clearly addressed and dismissed plaintiff’s claims that she
suffered a constructive suspension based on adverse action. Def.’s Ex. 12 at 59 ¶ 3, 60–3, 59 ¶ 3
(“[t]here is also an argument made by defendant about whether she has established the adverse
employment action that's required.”).
In the prior matter, DOD filed a Motion for Summary Judgment. DOD’s Mot. for Sum.
Jgmt., No. 14-cv-470 (TSE) (IDD) (July 28, 2014) (ECF No. 29) (“Def.’s Ex. 11”). On October
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14, 2014, the Eastern District of Virginia granted summary judgment on behalf of DOD as to all
claims. Def.’s Ex. 12 at 67; Def.’s Ex.13; Judgment, Bell v. Dept. of Defense, No. 14-cv-470
(TSE) (IDD) (E.D. Va. Oct. 27, 2014) (ECF No. 60) (“Def.’s Ex. 14”). The court found that there
was no violation of the Rehabilitation Act; defendant proved that plaintiff could not have
performed the essential functions of her position with full-time telework. Def.’s Ex. 12 at 46–50.
The court also found that plaintiff could not make a prima facie reasonable accommodation
violation claim, given that DOD had provided plaintiff an accommodation to partially telework.
Id. at 51–4. “[I]t just seems to the court as I review this record, that the agency did bend over
backward to try to accommodate her.” Id. at 54. In that regard, the court also found that DOD
participated in the interactive grievance process in good faith. Id. at 55.
Further, the court found no evidence to sustain any discrimination claim. Id. at 44, 57–64.
The court determined that DOD provided plaintiff substantial accommodations, and despite those
accommodations, plaintiff could still not perform her required duties. Id. Moreover, “[e]ven if
plaintiff could somehow make out a prima facie case with disability discrimination, which she
doesn’t, failing to meet three of the four elements, defendant nonetheless does articulate a
legitimate nondiscriminatory reason for the action.” Id. at 62–3. The court concluded, “[plaintiff]
can’t point to a single piece of record evidence to rebut defendant’s legitimate nondiscriminatory
reason that her poor job performance was the reason for any adverse action taken toward plaintiff.”
Id. at 63–4. DLA never disputed that Ms. Bell had a disability, and it “tried very hard to
accommodate that disability,” but when “she insisted on having five days a week [of telework],
that was too much.” Id. at 64. The court also denied plaintiff’s unlawful retaliation claim. Id. at
64–67. It found a lack of causal connection between defendant’s actions and any protected
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activity. Id. at 65. “She [plaintiff] cannot establish that her protected activity was a but-for cause
of any alleged adverse action by this employer.” Id. at 66.
Notably, the Eastern District found that plaintiff did not suffer any adverse employment
actions. The court specifically found that when she was placed in non-duty status, or when she
was taking unpaid leave, it was justified by plaintiff’s lack of cooperation and/or lack of response
to defendant’s many requests. Additionally, plaintiff was continually encouraged to return to work
and was given ample opportunity to do so. The court found that plaintiff had voluntarily chosen
to abstain from work because she was not approved for full-time telework. Id. at 60–2. More
specifically, the court held
. . . the undisputed summary judgment record shows clearly that
defendant was willing to continue dialogue with plaintiff as to how she
could return to duty and placed her in non-duty status temporarily due to
her nonresponsiveness and repeated refusal to comply with requests for
supporting documentation. I think contrasting this case with other cases
where an employee was placed in a non-pay or non-duty status for four
days could be an adverse employment action. In that case, for example,
in the Filius case in the 11th Circuit, the employee was not paid while on
a non-duty status, and he was not given any option to return to work. Here,
[plaintiff] was given an option to return to work, and she could have signed
a two-day telework agreement. She could have -- yes, she could have
signed the two-day telework agreement. So the summary judgment record
does not demonstrate that she suffered an adverse employment action
within the meaning of the Rehabilitation Act.
Id. at 61–2 (emphasis added). While the court does not use the buzzwords “constructively
suspended,” it is abundantly clear that it determined plaintiff’s AWOL status and periods of unpaid
leave to have been warranted. Id. In fact, plaintiff’s third EEO complaints, and informal EEO
complaints, contained allegations relating to “denial of family leave act requests, illegally placing
[her] in a non-duty status [,] and charging [her] with AWOL.” Supp. Opp. at 5 ¶ 3; Def.’s Exs. 1,
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2, 6, 7. Again, these EEO complaints were addressed by the Eastern District as part of that lawsuit.
Def.’s Ex. 12 at 60–2; Def.’s Ex. 9 at 14 ¶ 51, 18 ¶ 71, 19 ¶ 71, 31 ¶ 116, 32 ¶¶ 122–28.
Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit. On May 20, 2015,
the Fourth Circuit affirmed the decision of the district court. Bell v. Department of Defense, 603
Fed. Appx. 211 (4th Cir. May 20, 2015) (per curiam) (“Def.’s Ex. 15”) at 1–2. Plaintiff’s petition
for a rehearing and rehearing en banc were both denied on July 27, 2015. Bell v. Department of
Defense, Dkt. No. 14-cv- 2223 (4th Cir. July 27, 2015), id. at 3. Plaintiff then filed a Rule 60(b)
motion for relief from final judgment in the district court under Fed. R. Civ. P. 60(b), which was
also subsequently denied. Bell v. Department of Defense, No. 14-cv-470 (E.D. Va. Oct. 8, 2015)
(ECF Nos. 90, 96), id. at 4–5. Plaintiff appealed the district court’s order denying her Rule 60(b)
motion and denial of reconsideration of such. The Fourth Circuit affirmed in part and dismissed
in part, entreating judgment for DOD. Bell v. Department of Defense, 668 Fed. Appx. 454 (4th
Cir. August 29, 2015) (per curiam), id. at 8–12. The Fourth Circuit also denied an additional
request for a rehearing en banc. Bell v. Department of Defense, Dkt. No. 152367 (4th Cir.
December 13, 2015), id. at 14.
Second MSPB Appeal (No. 201500948)
On February 6, 2015, plaintiff was removed from her job in federal service for being absent
without leave (“AWOL”) for six months. Def.’s Mot. at 10 ¶ 2; Supp. Opp. at 15 ¶ 1. On March
5, 2015, plaintiff appealed her removal from federal service to the MSPB. Def.’s Ex. 16; MSPB
Appeal Form (Mar. 5, 2015) (“Def.’s Ex. 17”) at 12. She again alleged that DLA engaged in
unlawful discrimination and retaliation under Title VII and the Rehabilitation Act. Id. Until very
recently, plaintiff has explicitly indicated that the termination/removal claim and the second direct
MSPB appeal is not part of the instant litigation. Supp. Opp. at 6 ¶ 1; Sec. Mot. to Stay.
16
STANDARD OF REVIEW
Defendant moves to dismiss all claims pursuant to Federal Rules 12(b)(1) and 12(b)(6). 3
Def.’s Mot. at 12-15. In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a
court must “treat a complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit
of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States,
617 F.2d 605, 608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139
(D.C. Cir. 2011). Nevertheless, a court need not accept inferences drawn by a plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the court accept a plaintiff's
legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Subject Matter Jurisdiction
Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan
v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363
F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an
examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as
well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction
upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003)
(quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)).
3
Defendant also moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(3) or, in the alternative, defendant requests that
this court transfer venue to the Eastern District of Virginia pursuant to 28 U.S.C. § 1406(a). Def.’s Mot. at 13–14.
Given that the Court dismisses this case on other grounds, it does not address defendant’s venue argument.
17
When reviewing a challenge pursuant to Rule 12(b)(1), the court may consider documents
outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar, 330 U.S. 731, 735
n. 4 (1947); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). A court may consider material
outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction,
or subject-matter jurisdiction.” Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002). By
considering documents outside the pleadings when reviewing a motion to dismiss pursuant to Rule
12(b)(1), the court does not convert the motion into one for summary judgment; “the plain
language of Rule 12(b) permits only a 12(b)(6) motion to be converted into a motion for summary
judgment” when documents extraneous to the pleadings are considered by a court. Haase, 835
F.2d at 905.
Failure to State a Claim
In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,
the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels
and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting
18
Twombly, 550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id.
Where an action is brought by a pro se plaintiff, as in the instant matter, a district court has
an obligation “to consider his filings as a whole before dismissing a complaint,” Schnitzler v.
United States, 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States, 193 F.3d 545,
548 (D.C. Cir. 1999)), because such complaints are held “to less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Nevertheless, a
court need not accept inferences drawn by a plaintiff, pro se or otherwise, if those inferences are
unsupported by facts alleged in the complaint, nor must it be bound to accept plaintiff's legal
conclusions. See Kowal, 16 F.3d at 1276; see also Browning, 292 F.3d at 242. In ruling upon a
motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged
in the complaint, documents attached as exhibits or incorporated by reference in the complaint and
matters about which the Court may take judicial notice.” Gustave–Schmidt v. Chao, 226 F. Supp.
2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–
25 (D.C. Cir. 1997).
DISCUSSION
Res Judicata & Collateral Estoppel (All Claims)
Defendant argues that all of plaintiff’s claims in this case have been fully and finally
adjudicated and are therefore barred by the doctrine of res judicata. Def.’s Mot. at 18–20;
defendant’s reply to plaintiff’s opposition (“Def.’s Reply”) [ECF 29] at 2–6. “The doctrine of res
judicata prevents repetitious litigation involving the same causes of action or the same issues.”
I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C. Cir. 1983). The
doctrine contains two theoretical components, which may operate together or separately, more
19
specifically, claim preclusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
Both theories are applicable to the instant matter.
Claim Preclusion
“Under res judicata, a final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been raised in that action.” Allen v.
McCurry, 449 U.S. 90, 94 (1980) (citing Cromwell v. Cty. of Sac., 94 U.S. 351, 352 (1876)); SBC
Commc'ns, Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005). A party cannot escape the
preclusive effect of the doctrine by raising a different legal theory or seeking a different remedy
that was available to her in the prior action. See U.S. Indus., Inc. v. Blake Constr. Co., 765 F.2d
195, 205 (D.C. Cir. 1985). This court agrees with defendant.
Plaintiff’s current allegations are virtually identical to those she put forth in the Eastern
District of Virginia. See Def.’s Ex. 9 at 1–2, 48–9; Compl. at 1–2; 22–3. Plaintiff has sued the
same defendant for the same alleged course of conduct, namely, failure to accommodate,
discrimination, and retaliation. Id. Those claims were all thoroughly addressed by the Eastern
District of Virginia, and a final judgment was rendered in favor of DOD. See generally, Def.’s
Exs. 12–15. Plaintiff argues that only the failure to accommodate claim was filed in her prior
lawsuit, however, that is abjectly untrue. Supp. Opp. at 8 ¶¶ 1–2. The claims of failure to
accommodate, discrimination, and retaliation, were all filed with the Eastern District, and have
already been fully and completely adjudicated. Def.’s Ex. 9 at 14, 19, 35–47, Def.’s Ex. 12 at 41–
67. The pleadings and orders issued in that case are all matters of public record of which this
Court may take judicial notice. Sheppard v. District of Columbia, 791 F. Supp. 2d 1, 5 n. 3 (D.D.C.
2011); Lewis v. Drug Enforcement Admin., 777 F. Supp .2d 151, 159 (D.D.C.2011) (citing Covad
Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)).
20
A subsequent lawsuit will be precluded if “there has been prior litigation (1) involving the
same claims or cause of action (2) between the same parties or their privies, and (3) there has been
a final, valid judgment on the merits, (4) by a court of competent jurisdiction.” Smalls v. United
States, 471 F.3d 186, 192 (D.C. Cir. 2006). To determine whether the facts of two cases are similar
enough to constitute the same “cause of action,” courts must consider whether the lawsuits turn on
the same “nucleus of facts.” Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Page v.
United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). This involves an assessment of “whether the
facts are related in time, space, origin, or motivation, whether they form a convenient trial unit,
and whether their treatment as a unit conforms to the parties' expectations.” I.A.M. Nat'l Pension
Fund, 723 F.2d at 949 n.5 (internal citation omitted). The current claims inarguably arise from the
same nucleus of facts as the claims before the Eastern District of Virginia. Def.’s Ex. 12 at 41–
67.
In this matter, plaintiff raises the same claims against the same party. “This is precisely
what is barred by res judicata.” Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217–18 (D.C.
Cir. 2004). The parties to a suit and their privies are bound by a final judgment and may not
relitigate any ground for relief which they already have had an opportunity to litigate—even if they
chose not to exploit that opportunity—whether the initial judgment was erroneous or not.”
Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); Montana v. United States, 440 U.S.
147, 162 (1979).
Plaintiff attempts now to narrow her action to a review of her first MSPB appeal. Supp.
Opp. at 2–3. While this court has technical jurisdiction to review a decision of the MSPB in a
mixed-case appeal, see Perry v. Merit Systems Protection, 137 S. Ct. 1975, 1987–88 (2017), the
21
constructive suspension issue was already decided by the Eastern District of Virginia. Def.’s Ex.
12 at 59 ¶ 3, 60–3, 59 ¶ 3.
Plaintiff cannot escape this prior adjudication by now referring to the alleged adverse
employment action brought before the EEO and the Eastern District of Virginia as a “constructive
suspension.” Supp. Opp. at 2–3. The substance of the claim is the same. Def.’s Ex. 9 at 2 ¶ 3, 24
¶ 85, 29 ¶ 109, 30 ¶ 111, 41–2 (Ct. III); Def.’s Ex. 12 at 59 ¶ 3, 60–3, 59. As part of her complaint
in the Eastern District, plaintiff alleged several times that defendant harmed her by “forcing [her]
into non-pay status . . . repeatedly shifting and ultimately limiting and conditioning [her]
accommodation in such a way that prevents [her] from earning her full salary.” Def.’s Ex. 9 at 2
¶ 3, 24 ¶ 85, 29 ¶ 109, 30 ¶ 111, 41–2 (Ct. III). Plaintiff seeks the same relief here as in the prior
suit. Among the other same requests, plaintiff demands backpay from “2012 onward,” and the
approval of her preferred accommodations. Compl. at 43. Subsequently repurposing her claims
as “constructive suspension,” is a matter of semantics and form over function. Id. at 2 ¶ 3, 24 ¶
85, 29 ¶ 109, 30 ¶111, 41–2 (Ct. III). Although some time has passed since the Eastern District of
Virginia rendered its decision, plaintiff has not alleged any change in circumstances or new facts.
See Def.’s Exs. 12–14.
The Eastern District of Virginia granted summary judgment, and in doing so, clearly
addressed the subject of plaintiff’s alleged constructive suspension, regardless of the way the cause
of action was labeled. Def.’s Ex. 12 at 59 ¶ 3, 60–3, 59. The Court found that defendant reasonably
attempted to accommodate plaintiff and that it acted in good faith. Id. at 55. It further found that
plaintiff and her providers failed to cooperate and provide necessary information throughout the
accommodation request process. Id. at 30–41. It found that defendant exercised appropriate
discretion in determining that full telework accommodation was inappropriate based on plaintiff’s
22
required job duties and because plaintiff’s job performance had been suffering. Id. at 46–50. The
court found that plaintiff voluntarily determined not to work when full-time telework was not
afforded, and that such a request was unreasonable. Id. at 45, 51, 53–4.
In addition to granting summary judgment as to the failure to accommodate, retaliation,
and discrimination claims, the court also found that defendant appropriately placed plaintiff in
non-duty status “due to her unresponsiveness and refusal to comply with requests for supporting
documentation.” Id. at 61. Plaintiff was encouraged and given the option to return to work,
however, she refused because she did not want to return to work in-office. Id. at 32 ¶¶ 1–3.
Defendant provided performance-based reasons as to its determinations and was not provided any
information with which it could have modified its decision. Id. at 46–50. For those reasons, the
court found that plaintiff was not entitled to backpay when in “non-duty” status or otherwise. Id.
at 65–6. If this court were to address plaintiff’s instant claims, it would serve as a complete
replication of the analysis already undertaken by the Eastern District. Therefore, plaintiff’s claims
are barred. Page, 729 F.2d at 820.
The court also agrees with defendant that a claim of constructive suspension under the
Rehabilitation Act based on disability discrimination must be predicated on a showing of either
intentional discrimination or retaliation. Def.’s Reply at 2–4. An employee’s inability to prove a
failure to accommodate claim, as in the plaintiff’s case before the Eastern District of Virginia
necessarily means that a constructive suspension claim must also fail, if founded on the same
request(s). Ward v. McDonald, 762 F.3d 24, 35–6 (D.C. Cir. 2014) (applying this principle to
constructive discharge); see also Butler v. WMTA, 275 F. Supp. 3d 70 (D.D.C. 2017); Thibeault v.
MSPB, 611 F. App’x 975, 979 (Fed. Cir. 2015) (finding that a plaintiff must demonstrate that
employer erred by failing to provide reasonable accommodations in order to establish that he was
23
constructively suspended); Porter v. Jackson, 668 F. Supp. 2d 222, 235 (D.D.C. 2009) (noting that
employee’s constructive suspension and termination claims against her former employer were
“outgrowths of plaintiff’s refusal to accept [the agency’s] proposed accommodation and her
subsequent absence from work.”). Furthermore, plaintiff certainly could have brought an explicit
constructive suspension claim as part of her prior lawsuit, assuming for the sake of argument that
she did not. Drake, 291 F.3d at 66.
It should be noted that plaintiff attempted to preemptively preserve her right to litigate, or
relitigate, the constructive suspension claim, based on assertions in her filings before the Eastern
District. Def.’s Ex. 9 at 4 n. 1. However, plaintiff had no choice but to bring her constructive
suspension claim before the Eastern District, as it is inextricably connected to her allegations of
failure to accommodate, and her requests for alleged lost wages. Porter, 668 F. Supp. 2d at 235;
Def.’s Ex. 12 at 61–2. Regardless of any anticipatory disclaimer, a litigant may not proactively
and unliterally avoid res judicata by merely announcing an intention to do so, and certainly not
without a waiver by defendant. See, e.g., U. S. v. Sioux Nation of Indians, 448 U.S. 371, 433
(1980) (holding that res judicata is a defense “. . . adopted by the courts . . . [and] grounded on the
theory that one litigant cannot unduly consume the time of the court at the expense of other
litigants, and that, once the court has finally decided an issue, a litigant cannot demand that it be
decided again.”) (internal citation omitted).
The Eastern District of Virginia’s grant of summary judgment also included plaintiff’s
claims regarding privacy violations. Def.’s Ex. 12 at 67; Def.’s Ex. 13; Def.’s Ex. 14. Even if it
had not, plaintiff had ample opportunity to raise them. Sheppard, 791 F. Supp. 2d at 5 (quoting
Drake, 291 F.3d at 66); see also Apotex, 393 F.3d at 218 (D.C. Cir. 2004); Stanton v. District of
Columbia Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997). The alleged incidents regarding
24
improper disclosure of plaintiff’s medical information are nearly contemporaneous with her first
EEO complaint, making those incidents now approximately six years old. Compl. at 9–10. These
alleged incidents predated the lawsuit filed in the Eastern District. See generally, Def.’s Ex. 8.
Plaintiff also raised her claims relating to the Privacy Act and HIPPA in her prior lawsuit.
Def.’s Ex. 9 at 11 ¶ 38. While the Eastern District’s opinion does not devote significant time to
this particular claim, it was before that court and the grant of summary judgment was extended to
all claims. Def.’s Ex. 12 at 67; Def.’s Exs. 13–15. Even assuming arguendo that those claims are
not precluded, such claims are nonetheless barred as the statutory language of HIPAA does not
create a private cause of action. Lee-Thomas v. LabCorp, --- F. Supp. 3d ----, 2018 WL 3014824
at *2 (D.D.C. June 15, 2018) (internal citations omitted).
Issue Preclusion
Issue preclusion, or collateral estoppel, bars ‘successive litigation of an issue of fact or law
(1) actually litigated and (2) resolved in a valid court determination (3) essential to the prior
judgment.’ ” Swanson Grp. Mfg. LLC v. Jewell, 195 F. Supp. 3d 66, 72 (D.D.C. 2016) (quoting
New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001)). Issue preclusion bars successive
litigation even if the issue recurs in the context of a different claim, see Taylor, 553 U.S. at 892,
and it does not require mutuality of parties, see Gov't of Rwanda v. Johnson, 409 F.3d 368, 374
(D.C. Cir. 2005). Moreover, preclusion “must not work a basic unfairness to the party bound by
the first determination.” Martin v. U.S. Dep't of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007)
(internal citation omitted).
Issue preclusion prevents the re-litigation of any issue that was raised and decided in a prior
action. Ficken v. Golden, 696 F. Supp. 2d 21, 32 (D.D.C. 2010) (internal citations omitted). An
issue is precluded if
25
[t]he same issue . . . being raised [was] contested by
the parties and submitted for judicial determination in the
prior case, the issue [was] actually and necessarily
determined by a court of competent jurisdiction in that prior
case, [and] preclusion . . . must not work a basic unfairness
to the party bound by the first determination.
Martin, 488 F.3d at 454 (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C.
Cir. 1992)). Unfairness may occur where “the party to be bound lacked an incentive to litigate in
the first trial.” Otherson v. DOJ., 711 F.2d 267, 273 (D.C. Cir. 1983) (citing Blonder-Tongue
Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333 (1971)). Additionally, “[i]n determining
whether issue preclusion exists, a court may take judicial notice of all relevant facts that are shown
by the court’s own records, as well as public records from other proceedings.” Budik v. Ashley,
36 F. Supp. 3d 132, 142 (D.D.C. 2014). The issue preclusion analysis does not call for a court’s
review of the merits of the prior determination. See Consol. Edison Co. of N.Y. v. Bodman, 449
F.3d 1254, 1257 (D.C. Cir. 2006).
Again, plaintiff has already raised her allegation of constructive suspension. See Def.’s
Ex. 9 at 24 ¶ 85, 29 ¶ 109, 30 ¶111, 41–2 (Ct. III); Def.’s Ex. 12 at 59 ¶ 3, 60–3, 59; see generally
Def.’s Exs. 1–8, 17. She has repeatedly asserted that her disability accommodations were unfairly
denied, preventing plaintiff from working, causing her to unfairly sacrifice wages and exhaust her
leave. Plaintiff has been raising these same issues since 2012. Id. These issues were determined
by courts of competent jurisdiction. See generally Def.’s Exs. 12–15. Simply put, if this court
proceeded on the issues, it would constitute a re-litigation. See Ficken, 696 F. Supp. 2d at 32.
Therefore, plaintiff is foreclosed from litigating the issues anew, with the aimed attempt at a more
favorable outcome.
26
Remaining Constitutional Claims
Plaintiff raises alleged constitutional violations, namely, alleged Fifth and Fourteenth
Amendment violations of due process. Compl. at 1 ¶ 1; Supp. Opp. at 2 ¶ 1, 11 ¶ 1, 12 ¶ 2. While
her claims are not entirely clear, to the extent that the allegations are related to the denial of her
accommodations and surrounding actions, plaintiff certainly could have brought these
constitutional claims as part of her case in the Eastern District of Virginia. Drake, 291 F.3d at 66.
Additionally, these claims are dismissed for lack of subject matter jurisdiction because
Title VII, and by extension the Rehabilitation Act, provides an exclusive remedy for claims of
discrimination in federal employment. Brown v. Gen. Servs. Admin., 425 U.S. 820, 837–39 (1976).
See also Lewis v. Cohen, No. 97–5003, 1997 WL 362754, at *1 (D.C. Cir. May 15, 1997); Bush
v. Lucas, 462 U.S. 367, 372–73 (1983); Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir. 1983);
King v. Holder, 941 F. Supp. 2d 83, 92 (D.D.C. 2013). Furthermore, “the [CRSA] ‘is the exclusive
remedy’ for government employees who have suffered adverse personnel actions, ‘even if it
affords incomplete relief.’ ” Kursar v. Transp. Sec. Admin., 581 F. Supp. 2d 7, 16 (D.D.C. 2008)
(quoting Hall v. Clinton, 143 F. Supp. 2d 1, 5 (D.D.C. 2001)).
Therefore, because Title VII and the CSRA are the statutory schemes available to challenge
personnel actions occurring during her federal employment, plaintiff may not proceed with her
separate constitutional due process claims. Townsend v. United States, 236 F. Supp. 3d 280, 321
(D.D.C. 2017) (quoting Spagnola v. Mathis, 859 F.2d 223, 228 (D.D.C. 1988)); Davis v.
Billington, 681 F.3d 377, 388 (D.C. Cir. 2012); Cross v. Samper, 501 F. Supp. 2d 59, 62–3 (D.D.C.
2007). 4
4
Moreover, to the extent that plaintiff seeks money damages for such alleged constitutional violations, the United
States has not waived its sovereign immunity for such claims. See Lane v. Pena, 518 U.S. 187, 192 (1996); United
States v. Mitchell, 445 U.S. 535, 538 (1980); Dalehite v. United States, 346 U.S. 15, 30 (1953).
27
Judicial Review of First MSPB Appeal Determination
As res judicata precludes this court from making any original finding of fact regarding
plaintiff’s claims, plaintiff attempts to reposition this action as a request for review of the first
MSPB decision. Supp. Opp. at 2–3. She also puts forth supplemental “due process” violations,
alleging that the MSPB Administrative Law Judge and DOD engaged in misconduct during the
discovery process of her first MSPB appeal. Id. at 8–9.
As justification for her direct appeal to the MSPB, plaintiff alleged that DOD took an
“adverse action” against her, pursuant to the CSRA. See Greenhouse v. Geren, 574 F. Supp. 2d
57, 65–8 (D.D.C. 2008); Def.’s Ex. 12 at 59 ¶ 3, 60–3. Under the CRSA, these actions include (1)
a removal, (2) a suspension for more than 14 days, (3) a reduction in grade, (4) a reduction in pay,
or (5) a furlough of 30 days or less. 5 U.S.C. § 7512. When an employee challenges an adverse
personnel action that is subject to appeal to the MSPB, and such challenge is coupled with a
discrimination claim, it is considered a “mixed case.” 5 U.S.C. § 7702. In such cases a litigant
must navigate the procedural scheme of Title VII and the CRSA. Id.
First, the aggrieved party must decide whether to file a “mixed case complaint” with his or
her agency's EEO office or file a “mixed case appeal” directly with the MSPB. 29 C.F.R. §
1614.302(b). Whichever action is filed first is considered an election to proceed in that forum.
Mincer v. Whitmore, No. 02-5238, 2003 WL 21769851, at *1 (D.C. Cir. July 16, 2003) (citing 29
C.F.R. § 1614.302(b)); Economou v. Caldera, 286 F.3d 144, 149 (2d Cir. 2002). “This binding
‘election’ between the MSPB and EEO remedies occurs as soon as a formal petition is filed in
either forum.” Economou, 286 F.3d at 149 (citing 29 C.F.R. § 1614.302(b), § 1614.301(a)). “Once
a federal employee chooses a particular administrative route, she must exhaust the remedies in that
forum.” Morris v. Jackson, 842 F. Supp. 2d 171, 177 (D.D.C. 2012) (internal citation omitted);
28
see also Stoll v. Principi, 449 F.3d 263, 265–66 (1st Cir. 2006) (“The lodging of either a formal
appeal with the Board or a formal complaint with the agency demarcates the point of no return.”).
Defendant raises a valid question as to whether, given the existing EEO complaints and the
soon-after pending litigation in the Eastern District of Virginia, the MSPB should have even
addressed the first direct appeal. See Economou, 286 F.3d at 149; Def.’s Reply at 4–5. Plaintiff
first elected to file complaints on comparable issues with the EEO before she filed her first MSPB
mixed-case appeal. See generally, Def.’s Exs. 1–9. It would appear that plaintiff has
inappropriately split her claims in an attempt to obtain several bites at the apple.
Assuming, however, that the MSPB review was proper and, further, that plaintiff was
theoretically entitled to a review, her request would be denied as time-barred. Once the MSPB
decision became final, plaintiff had 30 days to appeal the claim to the appropriate district court. 5
U.S.C. § 7703(b). The MSPB decision became final on August 12, 2016. Def.’s Ex. 4 at 38.
Therefore, plaintiff was obligated to file an appeal of that decision in this court on or before
September 11, 2016. 5 U.S.C. § 7703(b). However, plaintiff did not commence this action until
December 7, 2016. See generally, Compl. [at docket, ECF No. 1]. Plaintiff filed this action nearly
three months after she would have received notice of the MSPB's final decision. Id. “The statutory
time limit contained in § 7703(b)([2]) is jurisdictional, and thus cannot be extended for any
reason,” Abou–Hussein v. Mabus, 953 F. Supp. 2d 251, 262 (D.D.C. 2013) (citing King v. Dole,
782 F.2d 274, 275–76 (D.C. Cir. 1986)). Consequently, the court must also dismiss the MSPB
claim for lack of subject-matter jurisdiction.
29
PLAINTIFF’S REMAINING MOTIONS
Motion for Reconsideration of Stay
Plaintiff has filed a motion for reconsideration of stay (“Mot. for Recon.”) [ECF No. 23],
which defendant opposed [ECF No. 25]. The court denied plaintiff’s motion to stay (“Mot. to
Stay”) [ECF No. 16] on May 9, 2018. See Order Dismissing Plaintiff’s Mot. to Stay (“Ord. Den.
St.”) (D.D.C. May 9, 2018). At the time, the court found that this matter has had been pending for
over seventeen months with little progress due to plaintiff's repeated motions for extension. Ord.
Den. St. at 1–2. Defendant’s motion to dismiss had been pending for well over a year with no
response from plaintiff. Id. Plaintiff requested that the court stay the litigation to await the
outcome of additional MSPB proceedings. Mot. to Stay at 1–2. The court found that there was
no compelling reason to issue such a stay, which would have resulted only in further delay of this
case. Ord. Den. St. at 1 ¶ 2.
The motion for reconsideration is devoid of any compelling reason to stay this litigation.
Plaintiff’s primary argument is that defendant contested the jurisdiction of this court to entertain a
review of the first MSPB determination. Mot. for Recon. at 2 ¶ 2. While it is not entirely clear
what this argument has to do with staying the case, defendant shortly thereafter conceded that this
court has jurisdiction over a mixed-case appeal. See Def.’s Reply at 7–8. Therefore, plaintiff’s
argument is moot, and her motion will be denied.
Motion to Clarify
Plaintiff also filed a motion to clarify (“Mot. to Cl.”) [ECF No. 25]. Plaintiff requests
clarification of certain arguments contained in defendant’s opposition to her motion to stay. Mot.
to Cl. at 1 ¶ 1. Plaintiff also requests that the court provide her with advice regarding the
appropriate timing and strategy for her current and potential future claims. Id. The court can
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neither instruct nor advocate for a pro se litigant.” MacLeod v. Georgetown Univ. Med. Ctr., 736
A.2d 977, 979 (D.D.C. 1999); Solomon v. Fairfax Vill. Condo. IV Unit Owner's Ass'n, 621 A.2d
378, 380 n. 2 (D.D.C. 1993) (holding that a pro se litigant cannot generally be permitted to shift
the burden of litigating his case to the courts, nor avoid the risks of failure that attend his decision
to forego expert assistance) (internal citations omitted); Moore v. Agency for Int'l Dev., 994 F.2d
874, 876 (D.C. Cir. 1993) (holding that courts “do [ ] not need to provide detailed guidance to pro
se litigants.”). Therefore, the motion and relief requested therein is denied.
“Ex Parte” Letter
On June 4, 2018, plaintiff filed an “ex parte” letter (“Ex P. Let.”) [ECF No. 28] requesting
certain accommodations. Plaintiff appeared to serve the other side with this letter, however,
because defendant filed an opposition [ECF No. 30]. In the letter, plaintiff discusses the hardships
of filing multiple cases in this court. 5 Ex P. Let. at 1 ¶ 1. Plaintiff asks that the court allow her to
“. . . take a moment . . . to lay [] out [her] actions side by side to see where they may cross or
overlap.” Id. Again, the court cannot advocate or provide advice to a litigant. MacLeod, 736 A.
2d at 979; Solomon, 621 A.2d at 380 n. 2; Moore, 994 F.2d at 876.
To the extent that plaintiff required time to compare her matters filed before this court, she
has now had ample time to do so. Plaintiff’s request was filed in early June, and the instant opinion
is now being rendered in September. See generally, Ex P. Let. Therefore, plaintiff has had
meaningful opportunity to assess her matters and any applicability one may have to one another.
5
In the past five years plaintiff has filed eleven cases in this court. Other than this case, plaintiff has filed: Bell v.
U.S., No. 1:18-cv-00738-RC (D.D.C. 2018) (currently active); Bell v. Dep’t of Defense, No. 1:18-cv-01498-RC
(D.D.C. 2018) (currently active); Bell v. U.S., No. 1:16-cv-02083-RC (D.D.C. 2018) (closed); Bell v. Dep’t of the
Interior, No. 1:16-cv-02407-RC (D.D.C. 2017) (closed); Bell v. Dep’t of Defense, No. 1:16-cv-0959-RC (D.D.C.
2016) (currently active); Bell v. Dep’t of Defense, No. 1:16-mc-01020-RC (D.D.C. 2016) (closed); Bell v. Dep’t of
the Interior, No. 1:16-mc-02434-RC (D.D.C. 2016) (closed); Bell v. Dep’t of Defense, No. 1:15-cv-01813-RBW
(D.D.C. 2015) (closed); Bell v. Dep’t of the Interior, No. 1:15-cv-01812-RBW (D.D.C. 2015) (closed); Bell v.
Jewell, No. 1:13-mc-00747-ABJ (D.D.C. 2013).
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Plaintiff has not filed any motion for consolidation to date. Id. at 1 ¶ 1. Therefore, plaintiff’s
request will be denied. Moreover, to the extent that she seeks more time, there is no indication
that more time is necessary to bring this case to a resolution and the record reflects that this Court
has been exceedingly generous in granting plaintiff extra time when requested.
Requests for Voluntary Dismissal
Plaintiff filed a response to defendant’s reply opposition regarding certain requests (“Pl.’s
Resp.”) [ECF No. 31]. As far as plaintiff requests voluntary dismissal of her age discrimination
claims, the court will allow dismissal without prejudice of those claims. Plaintiff has been clear
that she seeks to dismiss those specific claims, which were not addressed by defendant as part of
this action anyhow. See generally, Def.’s Mot; see also Supp. Opp. at 3 ¶ 2, 15 ¶ 3. However,
plaintiff’s other requests for voluntary dismissal, if any, are nebulous. Plaintiff seeks voluntary
dismissal of certain claims only in the alternative of dismissal of her age discrimination claims.
Pl.’s Resp. at 2 ¶ 3. Because the court has dismissed the age discrimination claims without
prejudice, it need not fully address the alternative relief requested. 6
Requests to Amend Complaint
Plaintiff requests to amend the complaint, a request which was included in her oppositions
to defendant’s motion to dismiss and in her response to defendant’s reply in opposition. Pl.’s Resp.
at 1–2; Supp. Opp. at 1, 5. Defendant opposes this request. Def.’s Reply at 8–9. It is not entirely
clear what portions of the complaint plaintiff seeks to amend. However, in plaintiff’s supplemental
6
It is worth noting that voluntary dismissal of the other claims in this matter, pursuant to Fed. R. Civ. P. 41(a)(2),
would be improper. The court finds that such a dismissal would cause defendant prejudice, and would further cause
excessive delay, which is indicative of a lack of diligence by plaintiff in prosecuting this action. See In re Vitamins
Antitrust Litigation, 198 F.R.D. 296, 304 (D.D.C. 2000). This case has been pending for close to two years.
Defendant’s motion to dismiss was filed on February 13, 2017, and plaintiff was provided with multiple extensions
before filing her reply, approximately thirteen months later. Only subsequent to the filing of a dispositive motion,
and after years of pending litigation, did plaintiff hint at requests for voluntary dismissal, which is the definition of
prejudicial. See id. Therefore, any additional requests for voluntary dismissal of claims would be inappropriate.
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opposition, she indicates that she filed her amended complaint as part of the arguments therein.
Supp. Opp. at 5 ¶ 2. In that regard, plaintiff includes underlined portions within the opposition,
which the court construes as the proposed amendments to the complaint. Id. at 8–10. The
additional arguments presented allege fraud and/or due process violations that occurred during the
MSPB process. Id. The court has addressed these additional claims herein and no relief is
therefore required. The court denies plaintiff’s requests to amend.
Motion to Hold in Abeyance/Second Motion for Stay
Lastly, plaintiff has filed a motion to hold this case in abeyance, and in furtherance, requests
a stay of this case. See Sec. Mot. to Stay at 1. Defendant opposes the request to suspend this
action. See Defendant’s Memorandum in Opposition to Sec. Mot. to Stay (“Def.’s Opp. to SMS”)
[ECF No. 34]. In support, plaintiff indicates that her Second MSPB Appeal (presumptively, No.
201500948) is now completed as the Administrative Law Judge issued a decision which became
final on or about August 31, 2018. Id. Plaintiff states that she intends to file a complaint in this
court regarding the MSPB appeal decision by September 26, 2018. Id. Plaintiff seeks to file this
new matter and then request leave to consolidate some or all of the pending discrimination claims
into her new case. Id.; see also Plaintiff’s Reply to Def.’s Opp. to SMS (“Pl.’s Reply to SMS
Opp.”) [ECF No. 36] at 1 ¶ 1. She asks the court to refrain from rendering any decisions in this
matter during her upcoming, yet undefined, filing and decision-making process. See id.
Defendant argues that a request for consolidation is premature, inappropriate, and
unwarranted. Def.’s Opp. to SMS at 1 ¶ 2. Defendant correctly points out that this case has been
pending for an extended amount of time, and that plaintiff has been granted repeated prior requests
for extensions. Id. Defendant further posits that staying this case and/or combining issues and
33
claims at this juncture would be contrary to judicial economy and would be prejudicial to the
defense. Id. at 1 ¶ 2; 2 ¶ 1. The Court agrees.
This case has now been pending for nearly two years, and it has reached its dispositive
conclusion. The court has granted several prior requests for extensions on plaintiff’s behalf,
protracting the outcome of this case. Granting plaintiff’s request to stay this case would
unnecessarily delay proceedings. Standing alone, a stay would significantly delay the resolution
of this matter; however, such delay would only be further compounded because plaintiff also
intends to file a new complaint, then effect service of the new complaint, and then file motion(s)
to consolidate, among other time-consuming procedures. Additionally, this would then necessitate
a renewed round of briefing by all parties, which is prejudicial, and an inefficient use of the parties’
time and expense.
To that end, the court notes that “[t]he decision whether to consolidate cases under Rule
42(a) is within the broad discretion of the trial court.” Stewart v. O'Neill, 225 F. Supp. 2d 16, 20
(D.D.C. 2002). “When determining whether to exercise such discretion, ‘courts weigh
considerations of convenience and economy against considerations of confusion and prejudice.’ ”
Am. Postal Workers, 422 F. Supp. 2d at 245 (quoting Chang v. United States, 217 F.R.D. 262, 265
(D.D.C. 2003)). The court finds that staying this case, for the purposes of a future unguaranteed
consolidation, is contrary to judicial economy. Staying and potentially consolidating the issues
and claims in this case, which have been long-ripe for disposition, would only serve to create
profound confusion and inconvenience. Moreover, there is no logical reason to allow the
consolidation of new claims with those that, as set forth above, have been determined to be barred
by res judicata. Plaintiff provides no other legal justification for staying this matter. Therefore,
plaintiff’s motion to stay and hold this case in abeyance is denied.
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CONCLUSION
For all of the foregoing reasons, the court has concluded that defendant is entitled to
dismissal of all claims. Defendant’s motion to dismiss is granted and this case is dismissed. A
separate order accompanies this memorandum opinion.
_________/s/______________
RUDOLPH CONTRERAS
Date: September 27, 2018 United States District Judge
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