HOLLOWAY v. DISTRICT OF COLUMBIA GOVERNMENT
MEMORANDUM OPINION AND ORDER granting in part and denying in part the defendant's motion 17 for summary judgment, and setting a scheduling conference for February 14, 2014 at 9:15 a.m. Signed by Chief Judge Richard W. Roberts on 12/30/2013. (DCL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 09-512 (RWR)
DISTRICT OF COLUMBIA
MEMORANDUM OPINION AND ORDER
Plaintiff Milton Holloway brings this action against his
former employer, the District of Columbia, alleging violations of
his rights under the Family and Medical Leave Act (“FMLA”), and
his Fifth Amendment right to due process, arising out of the
termination of his employment as a sanitation worker.
District of Columbia has moved for summary judgment.
District has shown that it is entitled to judgment as a matter of
law on Holloway’s due process claim, but Holloway has shown that
there is a genuine issue of material fact precluding judgment for
the defendant on part of his FMLA claim, the motion for summary
judgment will be granted in part and denied in part.
From 1997 through September 2006, Holloway was employed by
D.C.’s Department of Solid Waste Collection (“Department”) as a
Am. Compl. ¶ 5.
Between June 1999 and
-2October 2005, Holloway was reprimanded on four separate occasions
for failing to maintain regular attendance at work.
in Supp. of Mot. for Summ. J. (“Def.’s Mem.”) at 3-4; id., Ex. 3.
In January 2006, the Department suspended Holloway without pay
from February 21, 2006 through March 1, 2006, for “failure to
maintain regular attendance.”
Def.’s Mem. at 4; id., Ex. 5.
On March 13, 2006, Holloway was notified of a proposal to
terminate his employment for being absent without leave for ten
consecutive days, and for accruing 352 hours of unauthorized
absence between May 2005 and February 2006.
Def.’s Mem. at 4; id., Ex. 7 at 1.
Am. Compl. ¶ 7;
Holloway and Angela Pringle,
his Union representative, sought rescission of the proposed
letter of removal.
A hearing officer, Lloyd Carter, held a
hearing in May 2006 to decide Holloway’s request to rescind the
letter of removal.
Am. Compl. ¶ 7; Def.’s Mem., Ex. 9.
June 2006, Carter issued a report and recommendation denying the
request to rescind the letter of termination because the
Department showed by a preponderance of the evidence that
Holloway was absent on the charged dates, but also recommending
that the Department suspend Holloway without pay for 45 days
instead of terminating his employment because Holloway was
enrolled in an employee assistance program and was being
monitored by the Union.
Def.’s Mem. at 5; id., Ex. 9.
thereafter, in July 2006, Holloway entered the Salvation Army
-3Adult Rehabilitation Center substance abuse program.
District alleges that Holloway did not inform his supervisor
about how long he would be in the program, nor did he formally
request leave to attend the program.
However, Holloway argues
that in March 2006, he and Pringle asked Holloway’s supervisor,
Cassandra Boyd, to grant him leave to enter a substance abuse
treatment program, but Boyd failed to respond.
states that after he entered the Salvation Army program, he
notified his union representative, who informed Holloway’s
supervisor, that he had enrolled in a long term substance abuse
program and that Holloway would need to use FMLA leave.
Compl. ¶¶ 6, 9; Pl.’s Opp’n at 5; id., Ex. A (“Holloway Decl.”)
at ¶¶ 6-7, Ex. B (“Pringle Decl.”) at ¶¶ 4, 6; see also Def.’s
Mem., Ex. 6 (“Holloway Dep.”) at 26:5-22, 27: 1-17.
On August 3, 2006, a deciding official rejected Carter’s
recommendation without explanation, and Holloway’s employment was
terminated on August 11, 2006.
Am. Compl. ¶ 8; Def.’s Mem.,
Holloway did not learn about the termination of his
employment until May 2007, when he left the Salvation Army’s
Adult Rehabilitation Center.
Am. Compl. ¶ 9; Def’s Mem. at 6.
Holloway filed his amended complaint in this matter against the
District of Columbia containing two counts: violating Holloway’s
rights under the FMLA, 29 U.S.C. 2601 et. seq., by preventing him
from taking 12 weeks of leave and by retaliating against him for
-4requesting leave (Count I); and violating Holloway’s Fifth
Amendment right to due process by terminating his employment, and
thus infringing his constitutionally protected interest, without
providing Holloway notice or an opportunity to challenge the
termination (Count II).
Am. Compl. ¶¶ 10-19.
The District of Columbia moves for summary judgment on both
counts, arguing that Holloway has not shown that the District
interfered with his FMLA rights or retaliated against him for
exercising FMLA rights, and that it did not violate Holloway’s
right to due process because Holloway was given notice and a pretermination opportunity to challenge his dismissal.
“‘Summary judgment may be appropriately granted when the
moving party demonstrates that there is no genuine issue as to
any material fact and that moving party is entitled to judgment
as a matter of law.’”
Modis v. Infotran, 893 F. Supp. 2d 237,
240 (D.D.C. 2012) (quoting Pueschel v. Nat’l Air Traffic
Controllers Ass'n, 772 F. Supp. 2d 181, 183 (D.D.C. 2011)
(internal quotation omitted)).
“‘In considering a motion for
summary judgment, [a court is to draw] all ‘justifiable
inferences’ from the evidence . . . in favor of the nonmovant.’”
Modis, 893 F. Supp. 2d at 240 (quoting Pueschel, 772 F. Supp. 2d
at 183 (quoting Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d
-5181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 255 (1986)))); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
However, a non-moving
party cannot defeat summary judgment by “‘simply show[ing] that
there is some metaphysical doubt as to the material facts.’”
Peterson v. Archstone, 925 F. Supp. 2d 78, 84 (D.D.C. 2013)
(quoting Matsushita, 475 U.S. at 586).
The important question is
“‘whether there is a need for a trial — whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.’”
Morris v. Jackson, Civil
Action No. 07-491 (RWR), 2013 WL 5943519, at * 3 (D.D.C.
October 30, 2013) (quoting Anderson, 477 U.S. at 250).
genuine issue is present in a case where the ‘evidence is such
that a reasonable jury could return a verdict for the non-moving
party,’ a situation separate and distinct from a case where the
evidence is ‘so one-sided that one party must prevail as a matter
Morris, 2013 WL 5943519, at * 3 (quoting Anderson, 477
U.S. at 248, 252).
The FMLA “provides that an ‘eligible employee’ may be
entitled to twelve weeks of unpaid leave during any twelve-month
period if a ‘serious health condition’ prevents him from
performing his job functions.”
Hopkins v. Grant Thornton Int’l,
-6851 F. Supp. 2d 146, 151-152 (D.D.C. 2012) (quoting 29 U.S.C.
An eligible employee (1) has been employed by
the employer from whom leave is requested for at least twelve
months, and (2) has worked a minimum of 1250 hours in the
previous twelve-month period.1
See 29 U.S.C. §§ 2611(2)(A).
Serious health conditions that justify FMLA leave include an
illness, injury, impairment, or physical or mental condition that
involves either inpatient care, 29 C.F.R. §§ 825.114(a)(1), or
continuing treatment under the supervision of a health care
provider where the employee is incapacitated for over three
29 C.F.R. §§ 825.114(a)(2)(i).
prerequisites are met, substance abuse qualifies as a serious
Roseboro v. Billington, 606 F. Supp. 2d 104,
106 (D.D.C. 2009) (citing 29 C.F.R. §§ 825.114(d)).
An employer may be held liable for violating the FMLA under
two distinct claims: (1) interference, if the employer
restrained, denied, or interfered with the employee’s FMLA
rights, and (2) retaliation, if the employer took adverse action
against the employee because the employee took leave or otherwise
Holloway’s amended complaint states that in the year
before his termination, he worked more than 1250 hours. Am.
Compl. ¶ 5. The District “does not concede” that Holloway was
employed the necessary number of hours in the previous year to
qualify as a covered employee under the FMLA, but the District
has not produced evidence, such as its employment record of the
actual number of hours that Holloway worked, to show that there
is no factual dispute regarding the issue.
-7engaged in activity protected by the Act.
Deloatch v. Harris
Teeter, 797 F. Supp. 2d 48, 64 (D.D.C. 2011); see also Price v.
Washington Hosp. Ctr., 321 F. Supp. 2d 38, 45-46 (D.D.C. 2004).
The elements of a claim of interference under the FMLA are:
(1) the “plaintiff is an ‘[e]ligible employee’; (2) the defendant
is an ‘[e]mployer’; (3) the plaintiff was entitled to take leave;
(4) the plaintiff provided the defendant notice of his or her
intention to take leave; . . . (5) the defendant interfered with
the plaintiff's right to take leave,” and (6) the interference
prejudiced the plaintiff.
Haile-Iyanu v. Cent. Parking Sys. of
Va., Inc., Civil Action No. 06-2171 (EGS), 2007 WL 1954325, at *6
(D.D.C. July 5, 2007) (citing Cavin v. Honda of Am. Mfg., Inc.,
346 F.3d 713, 719 (6th Cir. 2003)); McFadden v. Ballard, Spahr,
Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C. Cir. 2010).
The District’s lone argument regarding Holloway’s
interference claim challenges Holloway’s showing under the fourth
The District argues that it did not interfere with
Holloway’s FMLA rights because Holloway did not inform the
Department that he would need to take leave to enter the
Salvation Army program before he entered the program.
Mem. at 10-11.
Whenever possible, an employee must give his
employer sufficient notice of his intention to use FMLA leave.
29 C.F.R. § 825.302(a).
The employee may provide notice
-8verbally, and the notice “need not expressly assert rights under
the FMLA . . . .”
29 C.F.R. § 825.302(c).
Although under the
version of 29 C.F.R. § 825.302(d) that was in effect in 2006, an
employer was allowed to require employees to comply “with the
employer’s usual and customary notice and procedural requirements
for requesting leave[,]” the regulation also stated that “failure
to follow such internal employer procedures will not permit an
employer to disallow or delay an employee’s taking FMLA leave if
the employee gives timely verbal or other notice.”
§ 825.302(d) (2008).
Under the regulations in effect in 2006, if
an employee did not give reasonable notice, the employer was
allowed to choose between two courses of action: it could waive
the notice requirements or it could delay the employee’s leave.
29 C.F.R. § 825.304(a),(b)(2008).
Here, Holloway alleges that he and Pringle asked Boyd in
March 2006 to grant him leave to enter a substance abuse
treatment program, and that Pringle later informed Boyd that
Holloway had enrolled in a long term substance abuse program and
would need to use FMLA leave.
Am. Compl. ¶¶ 6, 9; Def.’s Mem. at
5; Holloway Decl. at ¶¶ 6-7; Pringle Decl. ¶¶ 4, 6.
District cites portions of Holloway’s deposition where Holloway
acknowledged that he did not follow the normal procedures for
requesting FMLA leave, see Def.’s Mem. at 10-11, the same
deposition transcript shows that Holloway notified Boyd that he
-9“was going to into [the] Salvation Army, and [requested] leave
. . . to get drug - - and get drug treatment.”
Holloway also stated in his deposition that at the time
he entered the Salvation Army program, he was unaware that it
would last for nine months.
The District has
provided no authority for its position that the notice
purportedly provided by Holloway and Pringle was insufficient to
put the District on notice of Holloway’s need for FMLA leave.
Because a reasonable finder of fact could accept Holloway’s
assertion that he provided his supervisor with notice of his
desire to take FMLA leave, the District’s motion will be denied
with respect to Holloway’s claim that the District interfered
with Holloway’s FMLA rights.
To analyze claims of retaliation in violation of FMLA,
“courts apply the burden-shifting framework adopted in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Roseboro, 606 F.
Supp. 2d at 109 (citing Winder v. Erste, 511 F. Supp. 2d 160, 184
Under that framework, “an employee may establish
a prima facie case creating a presumption of retaliation by
showing (1) that he exercised rights afforded by the FMLA, (2)
that he suffered an adverse employment action, and (3) that there
was a causal connection between the exercise of his rights and
the adverse employment action.”
Roseboro, 606 F. Supp. 2d at 109
-10(internal quotation omitted).
“A materially adverse action is
one that ‘might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’”
Cole v. Powell, 605 F.
Supp. 2d 20, 26 (D.D.C. 2009) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1213 (D.C. Cir. 2006))).
can establish a causal connection by showing that ‘the protected
activity and the adverse action were not wholly unrelated.’”
Roseboro, 606 F. Supp. 2d at 109 (quoting Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (emphasis in
One method a plaintiff may use to establish a causal
connection is to demonstrate temporal proximity.
If an employee establishes a prima facie case of
retaliation, the employer must produce evidence of a legitimate,
non-discriminatory reason for its action.
If the employer does
so, the employee is obligated to produce evidence that the
employer’s purported legitimate reason was pretextual, and that
“the real reason for the adverse action was retaliation.”
Roseboro, 606 F. Supp. 2d at 109-110 (citing Campbell v. Gambro
Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007) and
Chaffin v. John H. Carter Co., 179 F.3d 316, 320 (5th Cir.
“The employee must demonstrate that retaliation was not
just ‘a mere factor among many,’ but the ‘determinative factor’
or ‘real' and ‘true reason’ behind the adverse action.”
-11Roseboro, 609 F. Supp. 2d at 110 (quoting Provencher v. CVS
Pharmacy, Div. of Melville Corp., 145 F.3d 5, 10 (1st Cir.
When determining whether an employer’s proffered
legitimate, non-discriminatory reason was pretext,
[a] court looks to whether a reasonable jury could
infer intentional discrimination from all of the
evidence including: 1) the plaintiff's prima facie
case, 2) evidence presented to attack the employer’s
proffered explanation for its actions, and 3) further
evidence of discrimination such as evidence of
discriminatory statements or attitudes by the employer.
Carter v. George Washington Univ., 387 F.3d 872, 878
(D.C. Cir. 2004). A plaintiff can show in a number of
ways that the employer’s proffered explanation for its
actions is a pretext, including by “produc[ing]
evidence suggesting that the employer treated other
employees . . . more favorably in the same factual
circumstances” or “demonstrat[ing] that the employer is
making up or lying about the underlying facts that
formed the predicate for the employment decision.”
Brady [v. Office of Sergeant at Arms, 520 F.3d 490, 495
(D.C. Cir. 2008)]. A plaintiff can also discredit the
employer’s reason by “pointing to changes and
inconsistencies in the stated reasons for the adverse
action; the employer’s failure to follow established
procedures or criteria; . . . or discriminatory
statements by the decisionmaker.” Id. at 495 n.3.
However, to show pretext, a plaintiff “‘must show both
that the reason was false, and that discrimination
. . . was the real reason.’”
Weber v. Battista, 494
F.3d 179, 186 (D.C. Cir. 2007) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
Houston v. SecTek, Inc., 680 F. Supp. 2d 215, 221 (D.D.C. 2010).
The District first argues that Holloway did not exercise
rights afforded by the FMLA because he failed to inform the
Department that he would need to take leave to enter the program
before he entered the program.
Def.’s Mem. at 12-13.
mentioned above, Holloway has presented enough evidence for a
-12reasonable fact finder to determine that he provided sufficient
notice to the District of his desire to take FMLA leave to attend
the Salvation Army program, and thus has established a prima
The District next argues that even if Holloway had requested
leave for the Salvation Army substance abuse program, Holloway
failed to show any causal connection between that request and the
termination of his employment because the termination of his
employment was premised on absences that occurred at least four
months before he entered the program.
Def’s Reply at 4-5.
Def.’s Mem. at 13-14;
Holloway disagrees, and argues that he did
establish a causal connection between his request for FMLA leave
to enter the Salvation Army program and the termination of his
Pl.’s Opp’n at 11.
There is sufficient temporal
proximity between Holloway’s purported attempt to use FMLA leave
to enter the Salvation Army rehabilitation program in July 2006,
and the termination of his employment on August 11, 2006, to
permit an inference of a causal connection between the two.
general rule is that close temporal proximity between an
employee’s protected activity and an employer’s adverse action is
sufficient . . . to create genuine issue of material fact as to
Breeden v. Novartis Pharms. Corp., 684 F.
Supp. 2d 58, 62 (D.D.C. 2010) (finding a sufficient temporal
proximity to establish a causal nexus where the plaintiff’s FMLA
-13leave began in March 2005, and her sales territory was changed in
July 2005); see also Miles v. University of the Dist. of
Columbia, Civil Action No. 12-378 (RBW), 2013 WL 5817657, at * 12
(D.D.C. October 30, 2013) (finding a sufficient temporal
proximity to establish a causal nexus where the plaintiff’s FMLA
leave began in April 2011, and her employment was terminated in
The District next argues that it had a legitimate, nondiscriminatory reason for terminating Holloway’s employment - his “history of unexcused absences from work.”
Holloway disagrees, and argues that the District’s reason
was pretext because there were inconsistencies in the amount of
AWOL with which Holloway was charged.
Pl.’s Opp’n at 11.
However, Holloway does not submit any evidence that employees
with similar absence records who did not seek FMLA leave were
He does not provide any evidence of
discriminatory statements directed at him or at people seeking
FMLA leave in general.
He does not point to any examples of the
defendant violating its procedure.
Despite the purported
discrepancies in the amount of time the District believed
Holloway had been absent without leave, the rationale behind the
termination of his employment remained constant - - he missed too
While Holloway has demonstrated temporal proximity
between his purported FMLA request and the termination of his
-14employment, a plaintiff “cannot reply on temporal proximity alone
to establish pretext; he must point to additional evidence.”
Butler v. Dist. of Columbia Hous. Fin. Agency, 593 F. Supp. 2d
61, 67 n.13 (D.D.C. 2009) (stating that “[a]lthough close
temporal proximity between [the plaintiff’s] leave (and leave
request) and his termination alone may be sufficient for a
reasonable jury to infer causation, once [the defendant]
proffered a legitimate non-Acts-violating reason for his
termination, as it did, [the plaintiff] cannot rely on temporal
proximity alone to establish pretext; he must point to additional
evidence”) (citing Winder v. Erste, 511 F. Supp. 2d 160, 185
Here, Holloway falls short.
may proceed with his FMLA claim on a theory of interference, but
may not proceed with that claim on the theory of retaliation.
Holloway’s amended complaint alleges that the termination of
his employment violated his right to procedural due process
because “defendant failed to provide [Holloway] notice of the
termination, due process and a means to challenge his
Am. Compl. ¶ 17.
“The Fifth Amendment of the
Constitution prohibits the deprivation of property without the
due process of law.”
Matthews v. Dist. of Columbia, 675 F. Supp.
2d 180, 185 (D.D.C. 2009) (citing U.S. Const. amend. V).
“Procedural due process imposes constraints on
governmental decisions which deprive individuals of
-15‘liberty’ or ‘property’ interests within the meaning of
the Due Process Clause of the Fifth or Fourteenth
McManus [v. Dist. of Columbia], 530 F.
Supp. 2d , 72 [(D.D.C. 2007)] (quoting Mathews v.
Eldridge, 424 U.S. 319, 323 (1976)). “Procedural due
process requires sufficient notice and ‘opportunity to
be heard at a meaningful time and in a meaningful
manner.’” Elkins v. Dist. of Columbia, 527 F. Supp. 2d
36, 48 (D.D.C. 2007) (quoting UDC Chairs Chapter, Am.
Ass'n of Univ. Professors v. Bd. of Trustees of the
Univ. of the Dist. of Columbia, 56 F.3d 1469, 1472
(D.C. Cir. 1995)).
Matthews, 675 F. Supp. 2d at 185.
“‘[D]ue process is flexible
and calls for such procedural protections as the particular
Int’l Union v. Clark, 706 F. Supp. 2d 59,
68 (D.D.C. 2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
Courts consider three factors in deciding whether due
process has been provided: “[f]irst, the private
interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest,
including the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail.”
Int’l Union, 706 F. Supp. 2d at 68 (quoting Mathews, 424 U.S. at
Assuming that Holloway had a property interest in his
employment, an issue essentially unaddressed by the parties, the
question is whether Holloway received adequate process before his
employment was terminated.
See Tabb v. Dist. of Columbia, 605 F.
Supp. 2d 89, 97 (D.D.C. 2009).
Here, Holloway received a letter
-16informing him of the proposal to terminate his employment and the
basis for that proposal, and a formal hearing before a neutral
(Carter) where Holloway was allowed to both present evidence and
to bring a union representative on his behalf.
Holloway does not
provide any authority showing that the level of process he
received is insufficient.
He does not dispute that he received
pre-termination notice and a hearing, and he does not contest the
strong interest that the District of Columbia has in employing
See Pl.’s Opp’n at 14; O’Donnell v. Barry, 148
F.3d 1126, 1133 (D.C. Cir. 1998).
Holloway argues that his
removal was similar to the plaintiff’s removal described in the
opinion in Thompson v. Dist. of Columbia, 530 F.3d 914 (D.C. Cir.
However, in Thompson, the District did not provide the
plaintiff any process at all and did not “contend it afforded him
Thompson, 530 F.3d at 920.
District transferred the plaintiff to a position that was going
to be eliminated as part of a reduction in force, without
providing notice of the transfer, or a process to challenge it.
Thus, that case provides no support for Holloway’s position.
Further, while Holloway complains that he received the notice
that Carter’s recommendation would be rejected too late to
administratively challenge it, the letter informed him of his
right to appeal his removal “through the negotiated grievance
procedure of AFSCME Local 2091,” which allowed him ten days after
-17learning of the termination to file a grievance.
Ex. 1; id., Ex. 11.
Holloway does not dispute that he did not
file a grievance in accordance with that procedure.
cannot plausibly claim to have been deprived of due process,
particularly where they have failed to fully take advantage of
the process afforded to them by [a] CBA’s grievance procedures.”
AFGE, Local 2741 v. Dist. of Columbia, 689 F. Supp. 2d 30, 35
(D.D.C. 2009) (citing Yates v. Dist. of Columbia, 324 F.3d 724,
726 (D.C. Cir. 2003)).
CONCLUSION AND ORDER
Holloway has demonstrated the presence of a disputed issue
of material fact that, if resolved in Holloway’s favor, could
support his claim that the District of Columbia interfered with
his FMLA rights.
However, the District has shown that it is
entitled to judgment as a matter of law on Holloway’s retaliation
and due process claims.
Therefore, it is hereby
ORDERED that the District of Columbia’s motion  for
summary judgment be, and hereby is, GRANTED in part and DENIED in
Judgment is entered for the defendant on Holloway’s
retaliation and due process claims.
The defendant’s motion
regarding the interference claim is denied.
It is further
ORDERED that the parties appear for a scheduling conference
on February 14, 2014 at 9:15 a.m.
-18SIGNED this 30th day of December, 2013.
RICHARD W. ROBERTS
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