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Alford v. Rosenberg

United States District Court, E.D. North Carolina, Southern Division

May 2, 2019

MAC. ALFORD, Plaintiff,



         On February 6, 2017, Mia C. Alford ("Alford" or "plaintiff'), proceeding pro se and in forma pauperis, filed a complaint against Chuck Rosenberg ("Rosenberg") and Beth Cobert ("Cobert"; collectively "defendants") [D.E. 1, 4, 5].[1] On October 26, 2018, defendants moved to dismiss for failure to state a claim or for summary judgment [D.E. 33], filed a memorandum in support [D.E. 34], and filed a statement of material facts and appendices [D.E. 35-37]. On October 29, 2018, the court notified Alford about the motions, the consequences of failure to respond, and the response deadlines [D.E. 38]. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (per curiam). On November 1, 2018, Alford responded in opposition [D.E. 39]. On December 17, 2018, defendants replied [D.E. 43]. As explained below, the court grants defendants' motion for summary judgment.


         On May 16, 1988, Alford began working at the Drug Enforcement Administration ("DEA") as a clerk-typist in the Office of Personnel. See [D.E. 35] ¶ l.[2] On August 16, 1989, Alford experienced pain and dizziness while lifting files. See Id. ¶ 2. The United States Department of Labor's Office of Workers' Compensation Programs ("OWCP") accepted Alford's claim that she had suffered job-related "cervical strain, trapezia strain and aggravation of bilateral carpal tunnel syndrome." Id. In September 1993, the DEA placed Alford in a limited duty position in the personnel file room. See Id. ¶ 3. From September 27, 1993, until September 1995, Alford received partial disability compensation. See id.

         On February 28, 1994, Alford returned to full-time status. See id ¶4. Dale Watts ("Watts") was her supervisor. See Id. ¶ 5. Alford answered telephones, handled mail, updated files, and photocopied documents. See Id. ¶ 6. She continued to experience intermittent back problems, which she attributed to her 1989 injury. See id ¶ 7; [D.E. 36-4] ¶ 4. On March 14, 1995, Eh-. Cantor, Alford's neurologist, excused Alford from work for two weeks. See [D.E. 35] ¶ 8.

         OWCP authorized twelve physical therapy sessions for Alford to occur between March 30, 1995, and May 30, 1995. See Id. ¶ 9. Alford informed one of her supervisors, Anne T. Murphy ("Murphy"), of her physical therapy sessions, and Alford asked if she would be "off work" for those months. Id. ¶ 10. Murphy informed Alford that Alford "would need to use accrued leave and provide a certificate from her therapist confirming each appointment and stating when the next appointment would be." Id. ¶ 11. In response, Alford asked whether there would be consequences if she was absent from work for two months. See Id. ¶ 12. Murphy stated that Alford would probably be placed on absent without leave status. See Id. ¶ 13; [D.E. 36-6]. Alford then asked if she could take off days on which she had physical therapy appointments. See [D.E. 35] ¶ 14. Murphy replied that Alford would be expected to work during the afternoon even on days in which she had physical therapy appointments scheduled in the morning. See Id. ¶ 15. Murphy directed Alford to speak with Watts about her physical therapy. See Id. ¶ 16.

         Alford repeatedly wrote incorrect times on her leave slips or failed to show up for work without obtaining leave. See Id. ¶ 17. Because of Alford's behavior, in March 1995, Watts placed Alford on leave restriction. See Id. Under leave restriction, Alford had to submit leave requests before taking leave. See Id. ¶ 18. On March 15, 1995, Alford, Watts, and Debra Coleman ("Coleman") met. See Id. ¶ 19. At the meeting, Coleman informed Alford that she must charge any leave taken to annual leave, leave without pay, or absent without leave status. See id.

         On June 19, 1995, Alford filed a formal complaint alleging discrimination on the basis of race and disability (i.e., her lower back injury). See Id. ¶ 20: [D.E. 36-9.36-10], Specifically, Alford alleged that Watts discriminated against her by placing her on leave restriction in March 1995. See [D.E. 35] ¶ 21. Alford also alleged that management held her to a different standard for decisions concerning leave and withheld and denied leave because of her disability. See Id. ¶ 22.

         Alford's final annual performance appraisal, covering the period between July 1, 1995, and June 30, 1996, shows that the DEA required Alford only "to answer the phone and pick up and deliver mail." Id. ¶ 23; [D.E. 36-11]. On March 28, 1996, Watts mailed a letter to Alford because Alford had not reported to work since March 4, 1996. See [D.E. 35] ¶ 24; [D.E. 36-12]. Because Alford had not explained her absence from work, Watts informed her that Watts had placed her on absent without leave status for the payment period that ended on March 30, 1996. See [D.E. 35] ¶ 24. Watts also directed Alford to respond in person to explain why Alford was absent. See id. ¶ 25. Alford received this letter. See id, ¶ 30. On August 7, 1996, Retha M. Fulmore ("Fulmore") informed Alford that the DEA was considering terminating her employment. See Id. ¶ 31. Alford did not respond to this letter. Cf. Id. ¶ 34.

         On October 10, 1996, John Brown, JU ("Brown"), then DEA Deciding Official, informed Alford that he had received charges of misconduct against Alford. See Id. ¶¶ 32, 41; [D.E. 36-16]. Specifically, Brown informed Alford that Fulmore had submitted complaints concerning Alford's excessive unauthorized absences and failure to adhere to leave reporting requirements. See [D.E. 35] ¶ 33. Accordingly, Brown informed Alford that the DEA had decided to terminate her employment. See id. ¶ 36.

         On December 11, 1996, Alford filed a second Equal Employment Opportunity Commission ("EEOC") charge, alleging race, sex, and disability discrimination, sexual harassment, and retaliation. See Id. ¶ 44; [D.E. 37-4]. Alford challenged her denial of leave, placement on absent without leave status, the failure of the DEA to recognize her disability or to accommodate her, and her termination. See[D.E. 35]¶ 44. On May 22, 2000, me EEOC dismissed the complaint because Alford had failed to contact an EEOC official concerning the claims and had failed to respond to requests for information. See Id. ¶ 45. At the time, counsel represented Alford. See id.

         Alford appealed the dismissal. See id.¶46. On March 22, 2001, the DEA's Senior Attorney in Civil Litigation notified the EEOC Director that Alford's attorney had been disbarred on January 13, 2000. See id ¶47. On April 23, 2001, the Senior Attorney informed the EEOC Director that a notice of agency representation was mailed to Alford's last known address, but it was returned as unclaimed. See Id. ¶ 48. On May 11, 2001, an administrative law judge ("ALJ") informed Alford that, if she did not respond by May 25, 2001, he would dismiss her complaints for failure to prosecute. See Id. ¶ 50. Alford did not respond, and the AU dismissed both of her complaints. See Id. ¶5l. On July 19, 2001, the Department of Justice Complaint Adjudication Officer issued a final decision that accepted the dismissal of Alford's two EEOC complaints for failure to prosecute. See id ¶52.

         On January 19, 2013, Alford appealed her 1996 termination from the DEA to the DEA's Merit Systems Protection Board ("MSPB"). Seei4¶53. OnMarchl8, 2Ol3, the MSPB dismissed the appeal as untimely. See Id. ¶ 54. Alford appealed to the United States Court of Appeals for the Federal Circuit, which transferred the case to this court. See Id. ¶ 56. On February 25, 2016, this court consolidated the appeal with a second civil action that Alford had filed, vacated the MSPB's decision that Alford's appeal was untimely, and remanded the case to the MSPB for consideration on the merits. See M. ¶ 58. On April 8, 2016, the MSPB authorized the parties to engage in discovery. See Id. ¶ 59.

         On July 13, 2016, the DEA responded to the MSPB's order and argued that the MSPB should dismiss the action under the doctrine of laches. See Id. ¶ 61. Under DEA document retention policies, the DEA routinely destroys documents for disciplinary or adverse actions against DEA employees four years after the DEA closes that case. See Id. ¶ 37. Uaida E. Watkins ("Watkins"), the head of the DEA's Employee Relations Unit, testified that the DEA could not locate Alford's files after repeated searches and that the DEA would likely have destroyed Alford's files in approximately 2000. See Id. ¶ 38; [D.E. 37-2] ¶ 5. These files would have contained a copy of the proposed action against Alford (i.e., her termination), her reply, and the final decision issued by Brown, the Deciding Official. See [D.E. 35] ¶ 39. Moreover, Brown retired in 2003. See Id. ΒΆ 41. During his time as Deciding Official, ...

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