McCrea v. Dist. of Columbia, Civil Action No. 16-cv-0808 (TSC)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtTANYA S. CHUTKAN United States District Judge
PartiesNICOLE RENA MCCREA, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
Docket NumberCivil Action No. 16-cv-0808 (TSC)
Decision Date31 March 2021

DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 16-cv-0808 (TSC)


March 31, 2021


Pro se Plaintiff Nicole McCrea is a former firefighter with the District of Columbia Fire and Emergency Medical Services Department (EMS). She alleges that two fellow firefighters sexually assaulted her while she was on duty. (ECF No. 68, 2d Am. Compl. ¶¶ 1-4.) She claims that although she reported the incident, EMS managers, city employees and mental health professionals conspired to deny her requests to classify her subsequent behavioral health challenges as job-related injuries and to force her into retirement.

Various defendants have filed the following motions:

1) Council of the District of Columbia's Motion to Dismiss (ECF No. 75);

2) Police and Fire Clinic Associates, LLC ("PFC"), Dr. Olusola Malomo, Dr. Raquel Gordon and Dr. Marc Cottrell's Motion to Dismiss (ECF No. 71); and

3) Lois Hochhauser's Motion to Dismiss (ECF No. 69).

For the reasons set forth below, the court will GRANT all three Motions to Dismiss.1

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1. Factual Background2

McCrea alleges that while at work at the fire station on or around May 30, 2013, she was awakened "by aggressive movement and touching along her inner thigh." (SAC ¶¶ 1-2.)3 She jumped in response and "the hand" fell "down, in between her legs," at which time she noticed movement near her bed and saw two individuals, one of whom she recognized as a co-worker, and the other whom she could not identify. (Id. ¶¶ 2-3.) She then saw another co-worker using his cell phone as a flashlight as he approached her bed and began reaching for her covers. (Id. ¶ 4.) When he saw McCrea staring at him he jumped and then retreated. (Id. ¶ 4.) McCrea reported the incident to Fire Department officials. (Id. ¶ 5.)

McCrea subsequently began experiencing stress, along with other cognitive and physical symptoms, and was placed on medical leave in June. (Id. ¶¶ 11-13, 15.) She was later diagnosed with acute stress reaction and sought to have her symptoms treated as "performance on duty" ("POD") injuries. Her request was denied, and she administratively appealed the decision. (Id. ¶¶ 15-18, 20.)

In October, McCrea's physician diagnosed her with Post Traumatic Stress Disorder, and on January 8, 2014, approved her request to return to light duty. (See id. ¶¶ 26-27, 30, 33.) Although the details are unclear, McCrea claims she subsequently completed all training prerequisites for returning to work but was "administratively barred" from doing so when she

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sought recertification credentials from the training academy. (Id. ¶ 34.) McCrea alleges that she was "forced" to attend "monitoring sessions" with PFC psychologist Dr. Raquel Gordon. (Id. ¶ 35.)

In March, McCrea learned that her appeal of the non-POD decision had been denied and she was ordered to report for recertification training. (Id. ¶¶ 37-39, 41.) It is unclear whether, as she asserts, EMS ultimately approved her recertification training, but she claims that during this time she recovered "deleted" files confirming that she had previously satisfied the training requirements. (Id. ¶¶ 41-42.)

McCrea alleges that around this time, Dr. Gordon issued a psychological report requiring her to undergo a battery of psychological tests. (Id. ¶¶ 43-45.) When she protested, McCrea was told that the testing was a Fitness for Duty examination. (Id. ¶ 45.) Still not allowed to return to work, McCrea requested advance sick leave, but it appears her request was denied. (See id. ¶ 44.) At some point, she received a letter regarding FMLA leave and claims she was told she should "accept" such leave to avoid unspecified disciplinary action. (Id. ¶ 56.)

Under protest, McCrea submitted to a psychological assessment by Dr. Gloria Morote (a Clinical Neuropsychologist at PFC) on March 31, 2014. (Id. ¶¶ 45, 54.) On May 1, 2014, Dr. Morote, Michael Donlon (Battalion Fire Chief and Medical Services Officer), and William B. Sarvis, Jr. (Police Department Director of Medical Services), submitted a report to the District of Columbia Police and Firefighters' Retirement and Relief Board (the "Board") recommending McCrea's involuntary non-POD disability retirement. (SAC ¶ 59; SAC, Attachment D.)4 The report outlined McCrea's history, explained the results of her psychological tests, indicated that

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she had been on leave in less than full duty status since June 2013 and concluded that she was suffering from "unspecified anxiety disorder" that prevented her from returning to "performance of full duty." (SAC, Attachment D at 4, 7-8.)

Despite the recommendation, McCrea repeatedly sought permission to return to work with "reasonable accommodations" as set forth by her treating physicians, but EMS required her to return to PFC for evaluation before it decided on her request. (SAC ¶¶ 75, 81-3.) McCrea acquiesced and signed a waiver allowing PFC to obtain information from her treating physician. (Id. ¶ 81.) She contends that PFC's Dr. Marc Cottrell "breached the stipulated constraints of the authorization" by demanding access to her "private records," as well as her treating physician's diagnosis and treatment protocols. (Id. ¶ 83.) When McCrea met with Dr. Cottrell, he explained that her ability to return to work depended on her treating physician answering specific written questions. (Id. ¶ 85.) McCrea refused to refer the questions to her physician, claiming that Cottrell's inquiries violated the Americans with Disabilities Act ("ADA") and the Health Insurance Portability and Accountability Act ("HIPAA"). (Id.)

In November, McCrea attended her first Board hearing on the proposed involuntary retirement. (SAC ¶ 87.) Over the next few months, the Board held another hearing and informed McCrea that she could not return to work if she did not provide PFC the requested information. (Id. ¶¶ 92, 97-98.)

Around this time, Dr. Morote submitted an affidavit to the Board confirming her previous psychological assessment of McCrea and, at the third and final Board hearing on February 12, 2015, testified that her assessment remained unchanged, despite having reviewed evidence from McCrea's treating physician. (SAC ¶¶ 93-94; SAC, Attachment E at 14-15). At that hearing, McCrea reiterated her belief that further medical inquiries violated her rights and challenged PFC's assessments. (SAC ¶ 99; see SAC, Attachment E at 14-15.) On April 30, 2015, the Board

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issued a decision ordering McCrea's involuntary retirement due to a non-POD disability. (SAC ¶ 108.) It found that McCrea's "paranoia and distrust is so pervasive that" she "could no longer work effectively with a team," thereby posing "a risk to herself and to the public" because she could not perform the "full duties of a firefighter." McCrea v. D.C. Police & Firefighters' Ret. & Relief Bd., 199 A.3d 208, 211 (D.C.), cert. denied, 140 S. Ct. 85 (2019).

In this case McCrea challenges the Board's decisions to deny her accommodations requests, classify her ailments as non-POD injuries, and force her to retire. She does not explain what type of accommodations she requested or how they might have allowed her to perform her job duties. She also challenges the legality of actions taken by PFC, the Mayor, EMS employees, numerous other D.C. employees and the D.C. Council, all of whom she contends conspired against her.

2. Procedural History

McCrea filed her initial Complaint on April 29, 2016. (ECF No. 1.) Shortly thereafter, the court entered its notice to pro se parties advising her that she faced dismissal of her claims if she failed to comply with the Federal Rules of Civil Procedure, this court's Local Civil Rules and the court's orders. (ECF No. 2.) In September 2016, the court ordered McCrea to amend her Complaint because it did not comply with Federal Rule of Civil Procedure 8(a). (ECF No. 10.) McCrea had named some individuals and their agencies in the Complaint but failed to indicate whether she asserted claims against the individuals in their individual capacities, their official capacities, or both. McCrea also named some individuals and agencies in the caption of her case but did not include any factual allegations about them in the Complaint. She also made allegations against certain individuals in her Complaint but did not name them as defendants in the caption. The court listed the relevant Defendants in its Order and identified the specific Rule 8(a) problem associated with each. After seeking multiple extensions, McCrea filed an

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Amended Complaint that was approximately twenty pages longer than the original version, but no more elucidating. (See ECF No. 23).

Several Defendants filed motions to dismiss. In response, McCrea referenced a different Complaint she had delivered to the Clerk's office, but which had not been docketed, and the court therefore struck her responses because they were based on a Complaint that did not appear in the record and McCrea had not sought leave to amend. (See 1/24/17 Min. Order; 1/25/17 Min. Order.)

At a hearing on April 20, 2017, the court granted McCrea's request to file a SAC. (ECF No. 61, Tr. 13.) During the hearing, the court explained to McCrea that her proposed SAC must indicate which claims are asserted against which Defendants and the actions each Defendant took, as well as the capacity in which the Defendants were being sued. (Id. at 4, 7, 16.) Although McCrea indicated that she had already begun drafting the SAC, the court gave her more than thirty additional days to file the SAC. (Id. at 11, 16.) One day after the deadline, McCrea filed a motion requesting an extension of several days. (ECF No. 38.) Although McCrea did not explain her reasons for needing an extension, the court gave her six additional days beyond those she requested, making her SAC due June 1, 2017. (Id.; May 24, 2017 Min. Order.)

More than eleven days after the deadline, the court...

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