Alford v. Providence Hospital

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

__________________________________
)
SHEILA ALFORD, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2121 (RMC)
)
PROVIDENCE HOSPITAL, )
)
Defendant. )
_________________________________ )

OPINION

Sheila Alford was discharged by Providence Hospital after multiple on-the-job

injuries because she had exhausted all leave and was unable to get to work. She sues here for

alleged violations of the federal and District of Columbia family and medical leave statutes, as

well as intentional and negligent misrepresentation. The parties have filed cross motions for

summary judgment. Because Ms. Alford mischaracterizes additional personal leave granted by

the Hospital as required by federal or D.C. law, and because there is no evidence to support her

misrepresentation claims, summary judgment will be granted in favor of Providence Hospital.

I. FACTS

Sheila Alford worked for Providence Hospital as a secretary or front desk

operator since July 1983 and has been a paraplegic requiring a wheelchair since 1991. Her job

did not require her to perform heavy lifting. Ms. Alford experienced a workplace injury to her

hand that required her to be away from work for a lengthy period, with job protection under the

federal Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and its local

counterpart, the District of Columbia Family and Medical Leave Act (DCFMLA), D.C. Code.
§ 32-501 et seq. On March 31, 2010, an independent medical examiner declared the hand injury

to be healed, and the Hospital then required Ms. Alford to report back to work. Ms. Alford

alleges that, despite the fact that her hand had not fully healed, she returned to work. Soon

thereafter, on April 2, 2010, Ms. Alford was injured as she arrived at work. She fell while

transferring from her car to her chair in the Hospital parking lot, injuring her left shoulder, head,

and neck. Am. Compl. [Dkt. 20] ¶ 11. She then took additional FMLA/DCFMLA leave.

Ms. Alford exhausted all federal FMLA and DCFMLA leave as of April 14,

2010. 1 Due to her injuries, however, she was not able to come back to work at that time. The

Hospital’s Human Resources Department (HR) notified her direct supervisor, Bonnie Lancaster,

that Ms. Alford (1) could be terminated if there were an operational need to fill her position, or

(2) could be granted an additional 60 days of personal leave. Def.’s MSJ [Dkt. 21-15], Ex. E

(Apr. 29, 2010 Email) [Dkt. 21-6]. Ms. Lancaster chose the latter, and the Hospital granted Ms.

Alford 60 days of personal leave without pay. See id.; Def.’s SOF [Dkt. 21-1] ¶ 5; Pl.’s Facts in

Dispute at 2 (admitting that there are no genuine issues regarding Defendant’s SOF ¶ 5). Ms.

Alford took personal leave from April 14 to May 7 2 and then returned to work, before she had

1
Hospital records demonstrate that Ms. Alford’s FMLA and DCFMLA leave expired as of April
14, 2010. See Def.’s Statement of Facts [Dkt. 21-1] (Def.’s SOF) ¶¶ 3-4; Def.’s Mot. for Summ.
J. [Dkt. 21-15] (Def.’s MSJ), Ex. A (Parker Aff.) [Dkt. 21-1]; id., Ex. M (Jan. 25, 2011 letter
from HR) [Dkt. 21-14]. Ms. Alford has been confused at times regarding the exhaustion date.
See Def.’s MSJ, Ex. C (Pl.’s Answer to Interrog.) [Dkt. 21-4] at 6 (stating that her FMLA leave
was exhausted on April 10, 2010 and that her DCFMLA leave was exhausted four weeks later);
Pl.’s Opp’n [Dkt. 27] at 2 (referencing March 2010 as the exhaustion date). In her response to
the Hospital’s statement of undisputed facts, however, she agrees that she exhausted all FMLA
and DCFMLA leave as of April 14, 2010. See Pl.’s Statement of Facts in Dispute [Dkt. 27-1]
(Pl.’s Facts in Dispute) at 2 (admitting that there are no genuine issues regarding Defendant’s
SOF ¶¶ 3-4, asserting the April 14 exhaustion date).
2
See Def.’s Opp’n [Dkt. 25], Ex. O (Hospital’s Answer to Interrog.) [Dkt. 25-3] at 2-3 (setting
forth Ms. Alford’s 2010-2011 leave record).

2
exhausted the 60 additional days of personal leave. Am. Compl. ¶ 13. Ms. Alford worked for

the Hospital until December 3, 2010. 3 Id.

On December 3, 2010, Ms. Alford reported to the Hospital’s Occupational Health

Department (OHD) crying and complaining that she had shoulder pain and decreased range of

motion. See Def.’s MSJ, Ex. G (OHD Medical Records) [Dkt. 21-8] at 2 (patient reported pain

level of 9 on a 10 point scale). OHD sent her to the Hospital’s Emergency Department for

treatment and directed her to return to OHD on December 7, 2010 for clearance to return to

work. Id. On the morning of December 7, before coming to the Hospital, Ms. Alford saw Dr.

Wilson.4 She complained of pain and upon examination, Dr. Wilson determined that she

suffered from trapezius tenderness, limited range of motion in her shoulder, and an acute cervical

[neck] sprain. Id., Ex. H (Medical Records of Dr. Wilson) [Dkt. 21-9] at 2. Ms. Alford

requested time off from work, until December 14; accordingly, Dr. Wilson signed a disability

certificate excusing her from work through that date. Id. at 2, 4. He instructed her not to lift

anything weighing more than 10 pounds. Id. at 4. Ms. Alford presented the disability certificate

to OHD on December 7. Id., Ex. F (Abbott Dep.) [Dkt. 21-7] at 105. At that time, Ms. Alford

expressed “concern” about her ability to lift her 48-pound wheelchair to get it in and out of her

car. OHD Medical Records at 4. The Hospital released her from work and instructed her to

3
Upon her return to work in May 2010, Ms. Alford continued to see an orthopedist, Robert
Wilson, M.D. Am. Compl. ¶ 14. She saw Dr. Wilson five times between May 5 and October 27,
2010.
4
Ms. Alford had two outstanding workers’ compensation claims––one for injury to her hand and
the other for injury to her shoulder and upper body. The record does not distinguish doctor
visits/reports related to those injuries and those related to her difficulty getting herself to work
due to an inability to lift her wheelchair in and out of her car. Because Ms. Alford does not
contest her difficulties with her wheelchair, but argues that medically-imposed weight
restrictions did not impact her performance on the job, the Court does not parse out which
doctors Ms. Alford saw at the request of the Hospital’s workers’ compensation administrator,
which doctors she saw on her own, and which doctors she saw at the Hospital’s direction.

3
report back to OHD on December 14 for follow-up and work clearance. Abbott Dep. at 57;

OHD Medical Records at 5. When she left the Hospital on December 7, a security officer was

directed to help her get her wheelchair into her car, since it was too heavy for her to lift, and it

was noted that her husband would help her get out when she got home. Id. at 4.

On December 14, 2010, Ms. Alford told OHD that her shoulder pain had not

improved and she could not transport herself to work. Abbott Dep. at 66, 76, 78; OHD Medical

Records at 6. Because she could not transport herself, OHD arranged transportation for Ms.

Alford to see Dr. Wilson on December 15, 2010. OHD Medical Records at 6. At the December

15 appointment, Ms. Alford reported to Dr. Wilson that she still had shoulder trouble and was

having difficulties getting to work. Medical Records of Dr. Wilson at 5. Dr. Wilson cleared Ms.

Alford to return to work with a 20-pound lifting restriction, id., still less than the weight of her

wheelchair. Id. In her deposition, Ms. Alford admitted that the 20 pound lifting restriction

prohibited her from lifting her wheelchair, which weighs more than 40 pounds. Pl.’s Opp’n

[Dkt. 27], Ex. 3 (Alford Dep.) [Dkt. 27-4] at 27. Despite being cleared by Dr. Wilson to return

to work, Ms. Alford did not do so.

On December 17, 2010, Sedgwick Claims, a third party administrator that

processes workers’ compensation claims filed by Hospital employees, sent Ms. Alford a letter

directing her to undergo an independent medical examination (IME). Def.’s Opp’n [Dkt. 25],

Ex. P (Dec. 17, 2010 Letter to Ms. Alford) [Dkt. 25-4]; Am. Compl. ¶¶ 18, 20. 5 Dr. John

O’Connell conducted the IME on January 3, 2011. Dr. O’Connell concluded that although Ms.

Alford could drive, she could not lift more than 10 pounds. Def.’s Opp’n, Ex. R (IME Report)

5
OHD asked the workers’ compensation administrator if workers’ compensation would provide
transportation to Ms. Alford to enable her to get to and from work, but the administrator
declined. Def.’s MSJ, Ex. I (12/22/2010 Email from Ms. Abbott) [Dkt. 21-10] at 1.

4
[Dkt. 25-6] at 6. He also reported that she could not lift her wheelchair in and out of her car, but

that with four to six weeks of physical therapy she should be able to do so. Id. at 7.

Seeing little progress in Ms. Alford’s ability to get herself to work, personnel

from HR and OHD met on January 6, 2011, to discuss Ms. Alford’s employment status. OHD

advised that Ms. Alford could not transport herself to work, and the Hospital determined that

there was an operational need to fill Ms. Alford’s position. Because she had exhausted all

FMLA and DCFMLA leave in April 2010 and she had been unable to work since December 3,

2010, the Hospital terminated Ms. Alford. Am. Compl. ¶¶ 33, 34. By letter dated January 25,

2011, the Hospital notified her of her termination, effective as of January 7, 2011. Id. ¶ 32;

Def.’s MSJ, Ex. M (Jan. 25, 2011 Letter from HR to Ms. Alford) [Dkt. 21-14].

Arising from these circumstances, Ms. Alford brought suit against the Hospital.

She characterizes the additional 60 leave days that the Hospital had granted to her in the spring

of 2010 as additional statutory FMLA/DCFMLA leave, and contends that because she did not

exhaust this leave she was protected from termination by the FMLA and the DCFMLA. She also

baldly alleges, despite evidence to the contrary, that her condition did not prevent her from going

to work. She claims that she stayed out of work because LaToya Abbott of OHD told her to

remain home until she was cleared to return by an independent medical exam. She filed an

Amended Complaint consisting of five Counts:

Count I – violation of the FMLA;

Count II – violation of the DCFMLA;

Count III – retaliation under the FMLA and the DCFMLA;

Count IV – Intentional Misrepresentation; and

Count V – Negligent Misrepresentation.

5
Ms. Alford seeks monetary damages, damages for pain and suffering, punitive damages, and

attorney fees. 6 The parties have filed cross motions for summary judgment.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). On summary judgment, the burden on a moving

party who does not bear the ultimate burden of proof in the case may be satisfied by making an

initial showing that there is an absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by

‘showing’––that is, pointing out to the district court––that there is an absence of evidence to

support the nonmoving party’s case.” Id.

The burden then shifts to the nonmovant to demonstrate the existence of a

genuine issue of material fact. The nonmovant may not rest on mere allegations or denials, but

must instead by affidavit or otherwise, present specific facts showing that there is a genuine issue

for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; see also Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999) (nonmovant must present specific facts that would enable a

reasonable jury to find in its favor).

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party,

6
Recovery under FMLA is limited to actual monetary losses. Walker v. United Parcel Serv.,
Inc., 240 F.3d 1268, 1277 (10th Cir. 2001); see 29 U.S.C. § 2617(a)(1)(A)(i). Other kinds of
damages––such as punitive damages and damages for emotional distress––are not recoverable.
Settle v. S.W. Rodgers Co., Inc., 998 F. Supp. 657, 666 (E.D. Va. 1998), aff’d, 182 F.3d 909 (4th
Cir. 1999). Recovery under the DCFMLA is similarly limited to monetary loss. See D.C. Code
§ 32-509.

6
however, must establish more than “the mere existence of a scintilla of evidence” in support of

its position. Id. at 252. In addition, if the evidence “is merely colorable, or is not significantly

probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations

omitted). Summary judgment is properly granted against a party who “after adequate time for

discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an

element essential to that party=s case, and on which that party will bear the burden of proof at

trial.” Celotex, 477 U.S. at 322.

III. ANALYSIS

A. FMLA and DCFMLA

Under certain circumstances, the FMLA and its DC counterpart, the DCFMLA,

grant an employee the right to take temporary medical leave from employment, with protection

from the threat of, or actual, termination from her job. The FMLA provides that “an eligible

employee shall be entitled to a total of 12 workweeks of leave during any 12-month period . . .

[b]ecause of a serious health condition that makes the employee unable to perform the functions

of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The DCFMLA provides that

“any employee who becomes unable to perform the functions of the employee's position because

of a serious health condition shall be entitled to medical leave for as long as the employee is

unable to perform the functions, except that the medical leave shall not exceed 16 workweeks

during any 24-month period.” D.C. Code § 32-503.

Under the FMLA, a plaintiff may state: (1) an interference claim under

§ 2615(a)(1), alleging that her employer has restrained, denied, or interfered with her substantive

rights under the Act, and/or (2) a retaliation claim under § 2615(a)(2), alleging that her employer

has taken adverse action against her because she took leave or engaged in activity protected by

7
the Act, such as by filing a complaint. Roseboro v. Billington, 606 F. Supp. 2d 104, 107-08

(D.D.C. 2009); see Strickland v. Waterworks & Sewer Bd. of the City of Birmingham, 239 F.3d

1199, 1206 n.9 (11th Cir. 2001) (while the FMLA does not clearly label claims as alleging

“interference” or “retaliation,” those are the labels courts have used to describe violations of the

Act). Claims under the DCFMLA similarly include claims for interference and claims for

retaliation. D.C. Code § 32-507(a) (interference); id. § 32-507(b)(1) (retaliation).

Ms. Alford alleges interference claims, i.e., that when she was terminated, she

was denied the rights and protections of the FMLA and the DCFMLA. See Am. Compl., Counts

I and II. She also alleges retaliation claims, i.e., that the Hospital terminated her in retaliation for

having exercised her rights under the FMLA and the DCFMLA. Id., Count III.

1. Interference

Ms. Alford alleges that the Hospital did not permit her to return to work in

January 2010 in violation of the FMLA and the DCFMLA. As described above, the FMLA

provides an employee with 12 weeks of unpaid leave in a 12-month period due to a serious

health condition that renders the employee unable to perform her job, 29 U.S.C. § 2612(a)(1)(D),

and the DCFMLA provides 16 weeks of leave in a 24-month period under similar circumstances.

D.C. Code § 32-503(a). Once these periods are exhausted, an employer is not required to hold

the employee’s job for her eventual return. In other words, the Acts do not provide a guarantee

that employment will continue if the unpaid leave expires and the employee is still unable to

return to work. “[A]n employee who exceeds the permitted FMLA leave time has no right to be

restored to his or her job.” Austin v. Fuel Sys., LLC, 379 F. Supp. 2d 884, 889 (W.D. Mich.

2004); see 29 C.F.R. § 825.216(c) (an employee who is unable to perform an essential function

of his job due to a physical or mental condition has no right to job restoration under the FMLA).

8
The FMLA and the DCFMLA permit termination when an employee remains absent from work

after her qualified leave expires. Roseboro, 606 F. Supp. 2d at 111; see Etheridge v. FedChoice

Fed. Credit Union, 789 F. Supp. 2d 27, 39-40 (D.D.C. 2011) (after plaintiff received her full 16

weeks off and she was unable to return to work, her termination did not violate the DCFMLA). 7

Ms. Alford exhausted both her FMLA and her DCFMLA leave by April 14,

2010. See Def.’s SOF ¶¶ 3-4; Pl.’s Facts in Dispute at 2 (admitting that there are no genuine

issues regarding Def.’s SOF ¶¶ 3-4). Thus, Ms. Alford remained an employee entitled to job

restoration under FMLA/DCFMLA until April 14, 2010. At that point, the Hospital could

lawfully require her to return to work or lose her position.

Instead of imposing such a requirement, the Hospital granted Ms. Alford an

additional 60 days of leave. Ms. Alford did not use all 60 days before she returned to work in

early May 2010. She now argues that the Hospital had an obligation to allow her to use the

remainder of such leave in December 2010, when shoulder pain forced her out of work again. 8

She posits that the additional 60 days of leave was an extension of her FMLA and DCFMLA

statutory leave and that her discharge in January 2011 resulted from her exercise of statutory

rights in taking protected leave.

Ms. Alford overlooks the fact that she did, in fact, receive all statutory leave to

which she was entitled under federal and local law and her job was protected throughout. She

exhausted the last of such leave on April 14, 2010. Her discharge in January 2011 cannot

7
Courts interpret the FMLA and the DCFMLA similarly. Cobbs v. Bluemercury, Inc., 746 F.
Supp. 2d 137, 142 (D.D.C. 2010). Accordingly, this Court applies the case law arising from
suits involving the FMLA to Ms. Alford’s claims under the DCFMLA.
8
The Hospital notes that, if it applied, the remainder of the 60 days of extended personal leave
would have been exhausted as of January 7, 2011, the last date of Ms. Alford’s employment.
Hospital’s Answer to Interrog. at 2-3.

9
constitute interference with her FMLA or DCFMLA rights because all such rights were

recognized and exhausted more than nine months earlier.

In opposition to summary judgment and in support of her own dispositive motion,

Ms. Alford labels the additional 60 days of leave as “constructive,” “extended,” or “additional”

FMLA/DCFMLA leave. Pl.’s Opp’n at 2; Pl.’s Mot. for Summ. J. (Pl.’s MSJ) [Dkt. 22] at 10.

This characterization of the 60-day leave period overlooks an elementary concept: statutes are

adopted by federal and local legislatures and cannot be amended by private companies or

citizens. The Hospital had no power or authority to extend Ms. Alford’s statutory medical leave

because the Hospital is neither the U.S. Congress nor the D.C. City Council. Rather, the

Hospital granted Ms. Alford an additional 60 days of personal leave, which no law required it to

do. It may be that Ms. Alford’s years of service to the Hospital, since 1983, prompted this

extension. The rationale for granting additional leave is not revealed in the record. That

rationale is not relevant, however, to whether the additional 60 days constituted statutory or

personal leave. Since it was clearly the latter, Ms. Alford’s claims of interference with FMLA

and DCFMLA rights have no merit.

Ms. Alford further argues that the Hospital should not be allowed to terminate her

in January 2011 based on the exhaustion of her FMLA/DCFMLA leave nine months prior

because the exhaustion of leave was too distant in time. See Pl.’s Opp’n at 12 (arguing that

Defendant should not be allowed to “reach back” so far in time for a reason for termination); id.

at 16 (arguing that the Court should impose a temporal proximity requirement and Ms. Alford’s

exhaustion of protected leave time was too distant in time from her termination). Ms. Alford’s

argument is based on a false premise––that the Hospital terminated her for using her FMLA and

DCFMLA leave. In fact, the Hospital’s reason for termination on January 7, 2011 was that Ms.

10
Alford was unable to come to work at that time and for the foreseeable future. Because she had

exhausted her FMLA/DCFMLA leave the prior spring, those statutes no longer protected her job.

Ms. Alford also contends that the modified duty restrictions of 10 and 20 pounds

imposed by Drs. Wilson and O’Donnell should not have been factored into the Hospital’s

reasoning for terminating her since neither restriction impacted her ability to perform her job, a

desk job that required no lifting. The Hospital does not contend that the weight restrictions

impeded Ms. Alford’s ability to do her job, once she arrived at work. Those restrictions,

however, were directly germane to the question of whether she could get herself to work.

Attendance is a basic necessity for all jobs. On and after December 3, 2010, Ms. Alford

repeatedly made it clear to OHD and to her doctors that she had shoulder pain; that she could not

lift her wheelchair in and out of her car; and that she could not transport herself to work. See

OHD Medical Records at 4, 6 (Ms. Alford was concerned with lifting her 48-pound wheelchair

overhead to get it in and out of her car; OHD directed a security guard to help her into her car;

OHD arranged transportation to Dr. Wilson’s office); Medical Records of Dr. Wilson at 5 (Ms.

Alford reported that she was having difficulties getting to work). Drs. Wilson and O’Donnell

limited her to lifting 10 or 20 pounds, significantly less than the weight of her wheelchair. See

Medical Records of Dr. Wilson at 4-5; IME Report at 6. A priori, she could not single-handedly

get herself into her car, to the Hospital, out of her car, to her desk to work, and back home again.

The Hospital was legally permitted to discharge Ms. Alford after she had expended her allotted

FMLA and DCFMLA leave and she remained unable to get herself to work.

Ms. Alford attempts to revise history by alleging that despite her acute cervical

sprain and shoulder pain she was ready, willing, and able to return to work at any time after

December 3, 2010, that the Hospital put her on “involuntary” leave starting on that day, and she

11
stayed out of work in compliance with Ms. Abbott’s directive that she should do so. See Pl.’s

Opp’n at 2, 14; id. at 10 (alleging that the Hospital terminated Ms. Alford despite her “desire and

ability to return to work”); Alford Dep. at 27 (explaining that her husband could assist her or she

could use Metro Access (public transportation which accommodates persons in wheelchairs), and

stating that “[t]here was no issue about getting to work or anything like that”). In ruling on the

Hospital’s motion for summary judgment, the Court recognizes that it must draw all justifiable

inferences in Ms. Alford’s favor and accept her evidence as true. See Anderson, 477 U.S. at 255.

Even so, the Court is not required to accept as true Ms. Alford’s bald, conclusory allegations. In

response to the Hospital’s motion, Ms. Alford may not rest on mere allegations or denials, but

must instead present specific facts showing that there is a genuine issue for trial. See Celotex,

477 U.S. at 324; Greene, 164 F.3d at 675. Further, “[w]hen opposing parties tell two different

stories, one of which is blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see Reetz v. Jackson, 176

F.R.D. 412, 414-15 (D.D.C. 1997) (a plaintiff cannot create a genuine issue of material fact by

contradicting her own deposition testimony).

Ms. Alford has not presented any evidence that corroborates her own self-serving

testimony that she was ready, willing, and able to get to the Hospital to work; in fact, her

allegations and deposition testimony are directly contradicted by both the record and her own

prior statements. The evidence demonstrates that Ms. Alford was not able to return to work from

December 3, 2010 to the date she was terminated, January 7, 2010, due to her inability to

transport herself. Ms. Alford’s own admissions reveal that she suffered from severe shoulder

pain on December 3, 2010. OHD Medical Records at 2 (patient reported pain level of 9 on a

12
scale of 1-10). On December 7, 2010, she asked for more time off, see Medical Records of Dr.

Wilson at 2, and reported “concern” with lifting her 48-pound wheelchair overhead to get it in

and out of her car. See OHD Medical Records at 4. On December 15, 2010, she reported to Dr.

Wilson that she was having difficulties getting to work. Medical Records of Dr. Wilson at 5. In

December 2010 and January 2011, Drs. Wilson and O’Donnell limited her to lifting 20 pounds

or less, which meant she could not lift her wheelchair. See Medical Records of Dr. Wilson at 4-

5; IME Report at 6.

Ms. Alford’s attempt to create an issue of material fact that would preclude

summary judgment in favor of the Hospital fails. The Hospital’s motion for summary judgment

will be granted, and Ms. Alford’s cross motion will be denied. Judgment will be entered in

favor of the Hospital on Counts I and II.

2. Retaliation

Ms. Alford alleges in Count III of the Amended Complaint that the Hospital

terminated her employment in retaliation for her having taken FMLA/DCFMLA leave in the

spring of 2010. The McDonnell Douglas 9 framework applies to retaliation claims. See Gaujacq

v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010). Under that burden-shifting framework, an

employee may establish a prima facie case creating a presumption of retaliation by showing that

(1) she exercised rights afforded by the [FMLA or DCFMLA]; (2) she suffered an adverse

employment action; and (3) there was a causal connection between the exercise of her rights and

the adverse employment action. See Roseboro, 606 F. Supp. 2d at 109. Once the plaintiff

establishes a prima facie case, the burden shifts to the defendant to proffer a legitimate basis for

9
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

13
the adverse action; then the burden shifts back to the plaintiff to show that the proffered reason is

pretextual. Id.; Dorsey v. Jacobson Holman, PLLC, 756 F. Supp. 2d 30, 37 (D.D.C. 2010).

Ms. Alford has not established a prima facie case of retaliation. When a plaintiff

relies on temporal proximity to establish causation, events must have occurred close in time. See

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (under Title VII, 42 U.S.C. § 2000e et

seq., three months is too long to show proximity demonstrating causation); Gustave-Schmidt v.

Chao, 360 F. Supp. 2d 105, 118-19 (D.D.C. 2004) (three months is the “outer limit” of temporal

requirement under Title VII). Here, Ms. Alford exhausted her FMLA and DCFMLA leave on

April 14, 2010. The Hospital terminated her nine months later, in January 2011. Due to the

nine-month passage of time, Ms. Alford has not shown a causal connection between the exercise

of her FMLA and DCFMLA rights and her termination.

Even if Ms. Alford had a prima facie case, her claim for retaliation still would fail

as the Hospital proffers a legitimate reason for termination––because she could not lift her

wheelchair, Ms. Alford could not transport herself and could not come to work. Ms. Alford

presents no evidence that the reason was pretextual. In sum, because she could not get to work,

Ms. Alford stopped going to work on December 3, 2010. The Hospital had a legitimate, non-

discriminatory reason for terminating Ms. Alford––she was unable to come to work.

Accordingly, the Hospital’s motion for summary judgment will be granted, and Ms. Alford’s

motion will be denied. Judgment will be entered in favor of the Hospital on Count III, retaliation

under the FMLA and DCFMLA.

B. Fraudulent Misrepresentation

Count IV of the Amended Complaint alleges fraudulent misrepresentation. Ms.

Alford alleges that LaToya Abbott directed her to stay out of work until she underwent

14
independent medical examinations and was cleared to return to work. Ms. Alford asserts that she

complied with this directive, but the Hospital terminated her for failing to come to work. Ms.

Abbott denies that she told Ms. Alford to remain at home or that she directed Ms. Alford to

submit to an independent medical examination as a condition precedent to return to work.

Abbott Dep. at 78, 80. The nature and extent of any such conversation is not material to the

disposition of the cross motions for summary judgment.

In order to establish fraudulent misrepresentation under D.C. law, a plaintiff must

prove by clear and convincing evidence that (1) there was a false representation; (2) made about

a material fact; (3) with knowledge of its falsity or with reckless indifference to knowledge of its

falsity; (4) with intent to deceive; and (5) plaintiff acted in reliance on the misrepresentation. In

re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008).

Ms. Alford has not provided evidence that she acted in reliance on this alleged

misrepresentation. On summary judgment, she may not rely solely on conclusory and self-

serving allegations, but must present specific facts that would enable a reasonable jury to find in

her favor. Greene, 164 F.3d at 675. Her allegation that she remained away from work in

reliance on Ms. Abbott’s directive is clearly contradicted by the record. See Scott, 550 U.S. at

380 (on summary judgment, a court should not rely on allegations blatantly contradicted by the

record). As detailed above, the record reveals that Ms. Alford was in pain and could not

transport herself to work; that she requested time off; and that her doctors restricted her lifting to

10-20 pounds, much less than the weight of her wheelchair. Ms. Alford remained away from

work because she was unable to transport herself there.

In her response to the Hospital’s motion for summary judgment, Ms. Alford

advances a series of allegedly disputed and material facts. Her disputes, however, are distinctly

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marginal. Moreover, she does not actually contest any of the material facts bearing on Ms.

Abbott’s understanding of Ms. Alford’s inability to get to work.

Ms. Alford contends that she was cleared to return to work by the Emergency

Department on Monday, December 6, 2010, but Ms. Abbott told her to return to work on the

next day, after her appointment with Dr. Wilson. Pl.’s Notice [Dkt. 23], Pl.’s Facts Not in

Dispute [Dkt. 23-1] ¶¶ 1-2. She also alleges that she did not ask Dr. Wilson for a disability

certificate, see Pl.’s Facts in Dispute [Dkt. 27-1] ¶ 9, and that “there was no issue about getting to

work or anything like that,” see Alford Dep. at 27; more to the point, Ms. Alford asked Dr.

Wilson for time off of work, Dr. Wilson provided a disability certificate, and she submitted it to

the Hospital on December 7, thereby excusing her from work through December 14. See

Medical Records of Dr. Wilson at 2, 4. She asserts that she did not call Ms. Abbott on December

14 because it was Ms. Abbott who placed the call, and she asserts that “without reason” Ms.

Abbott extended her leave from December 14 to December 20 and arranged transport for Ms.

Alford to see Dr. Wilson on December 15––but she does not contest that she told Ms. Abbott

that her pain still had not improved, that she was having difficulties driving, and that she could

not transport herself to work. Pl.’s Facts in Dispute ¶¶ 13-14. Ms. Alford notes that Dr. Wilson

was puzzled to see her on December 15 and cleared her to work with a 20-pound lifting

restriction, yet Ms. Alford does not contest that she told Dr. Wilson that she was “having

difficulties getting to work.” Id. ¶¶ 16-17. Ms. Alford claims that she never advised Ms. Abbott

that anything prevented her from lifting her wheelchair in and out of her car but acknowledges,

as she must, that Ms. Abbott advised other managers in HR that Ms. Alford could not “lift[] her

wheelchair to get in and out of her automobile,” without attributing the statement to Ms. Alford.

Id. ¶ 18; see Ex. I (12/22/2010 Email from Ms. Abbott) [Dkt. 21-10]. Further, Ms. Alford admits

16
that “[a]t the time of that meeting [on January 6, 2011, to discuss Ms. Alford’s employment] it

was Ms. Abbott’s understanding based on her conversations with Alford that she was still unable

to transport herself to work.” Pl.’s Facts in Dispute ¶ 20.

The disputes identified by Ms. Alford do not advance her case. The question is

not whether, once at the Hospital and at her desk, she could have performed her job. The lifting

restrictions imposed by doctors who examined Ms. Alford in this time period would not have

prevented her job performance. The question is not even whether she could have, in fact, gotten

herself to and from work despite her pain. Rather, the question with regard to Count IV is

whether there is clear and convincing evidence that Ms. Abbott falsely represented a material

fact to Ms. Alford that Ms. Abbott knew or did not care was false, with the intention of deceiving

Ms. Alford. There is no evidence to support the allegation, much less clear and convincing

evidence, as admitted by Ms. Alford herself: she admits that there are no genuine issues of

material fact as pertains to the Hospital’s statement that at the time of the January 6, 2011

meeting to discuss Ms. Alford’s job it was Ms. Abbott’s understanding based on her

conversations with Ms. Alford that Ms. Alford was still unable to transport herself to work. See

id. ¶ 20.

Inasmuch as Ms. Abbott understood that Ms. Alford could not transport herself to

work based on what Ms. Alford had told her, and since the Hospital terminated Ms. Alford

because she could not meet the basic job requirement of getting to work, the allegation that Ms.

Abbott engaged in fraudulent misrepresentation that injured Ms. Alford fails. Because Ms.

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Alford has failed to raise a genuine issue of material fact, summary judgment will be granted in

favor of the Hospital on Count IV, the claim of intentional misrepresentation. 10

C. Negligent Misrepresentation

Count V of the Complaint, alleging negligent misrepresentation, repeats Count IV

as a matter of negligence, not fraud. Count V asserts that Ms. Abbott negligently and falsely told

Ms. Alford that her return to work was contingent on passing additional independent medical

examinations. To establish negligent misrepresentation, a plaintiff must prove that (1) defendant

made a false statement or omitted a fact he had a duty to disclose; (2) the false statement or

omitted fact was material; and (3) the plaintiff reasonably relied on the false statement or

omission to his detriment. Redmond v State Farm Ins. Co., 728 A.2d 1202, 1207 (D.C. 1999).

For the same reasons that apply to the claim of intentional misrepresentation, summary judgment

will be granted in favor of the Hospital on the claim of negligent misrepresentation.

IV. CONCLUSION

For the reasons stated above, the Hospital’s motion for summary judgment [Dkt.

21] will be granted, Ms. Alford’s motion for summary judgment [Dkt. 22] will be denied, and

10
While at a glance Count IV might be read to allege fraudulent concealment, on closer
examination it does not state such a claim. Count IV alleges that Ms. Abbott intentionally failed
to inform Mr. Fabiyi that she had told Ms. Alford to stay home. To prove fraudulent
concealment, a plaintiff must show by clear and convincing evidence that (1) the defendant had a
duty to disclose a material fact to the plaintiff; (2) the defendant failed to disclose the fact; (3) the
defendant had an intention to defraud or deceive the plaintiff; (4) the plaintiff took action in
justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the
concealment. Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 36-37 (D.D.C. 2006).
Count IV does not state a claim for fraudulent concealment, however, as it asserts that Ms.
Abbott concealed material information from Mr. Fabiyi––not that Ms. Abbott concealed
information from Ms. Alford.

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judgment will be entered in favor of the Hospital. A memorializing Order accompanies this

Opinion. 11

Date: May 23, 2013

/s/
ROSEMARY M. COLLYER
United States District Judge

11
The previously scheduled trial date for this case will be vacated.

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