United States District Court, E.D. North Carolina, Southern Division
MAC. ALFORD, Plaintiff,
CHUCK ROSENBERG, and BETH COBERT, Defendants.
C. DEVER III UNITED STATES DISTRICT JUDGE
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,
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.
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. 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.
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] ¶
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.
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.
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.
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.
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.
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.
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.
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.
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. ¶ 41. During his time as Deciding