                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
MILTON HOLLOWAY,               )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 09-512 (RWR)
                               )
DISTRICT OF COLUMBIA           )
GOVERNMENT,                    )
                               )
          Defendant.           )
______________________________)


                     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.     The

District of Columbia has moved for summary judgment.     Because the

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.

                              BACKGROUND

     From 1997 through September 2006, Holloway was employed by

D.C.’s Department of Solid Waste Collection (“Department”) as a

sanitation worker.    Am. Compl. ¶ 5.   Between June 1999 and
                                -2-

October 2005, Holloway was reprimanded on four separate occasions

for failing to maintain regular attendance at work.   Def.’s Mem.

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.   Am. Compl. ¶ 7;

Def.’s Mem. at 4; id., Ex. 7 at 1.    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.   In

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.    Shortly

thereafter, in July 2006, Holloway entered the Salvation Army
                                 -3-

Adult Rehabilitation Center substance abuse program.   The

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.   Holloway further

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.   Am.

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.,

Ex. 11.   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
                                 -4-

requesting 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 pre-

termination opportunity to challenge his dismissal.   Def.’s Mem.

at 12-22.   Holloway opposes.

                            DISCUSSION

     “‘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
                                 -5-

181, 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).   “A

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

of law.’”   Morris, 2013 WL 5943519, at * 3 (quoting Anderson, 477

U.S. at 248, 252).

I.   FMLA

     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,
                                 -6-

851 F. Supp. 2d 146, 151-152 (D.D.C. 2012) (quoting 29 U.S.C.

§§ 2612(a)(1)(D)).    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

consecutive days.    29 C.F.R. §§ 825.114(a)(2)(i).   When “these

prerequisites are met, substance abuse qualifies as a serious

health condition.”    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



     1
       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.
                                -7-

engaged 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).

     A.    Interference

     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

element.   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.    Def.’s

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
                                -8-

verbally, 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.”    29 C.F.R.

§ 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.    While the

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 Dep.

26:8-15.   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.    Id. 26:16-21.   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.

     B.    Retaliation

     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

(D.D.C. 2007)).   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))).    “An employee

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

original).   One method a plaintiff may use to establish a causal

connection is to demonstrate temporal proximity.    Id.

     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.

1999)).   “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.”
                                 -11-

Roseboro, 609 F. Supp. 2d at 110 (quoting Provencher v. CVS

Pharmacy, Div. of Melville Corp., 145 F.3d 5, 10 (1st Cir.

1998)).   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.   As is

mentioned above, Holloway has presented enough evidence for a
                               -12-

reasonable 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

facie case.

     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 Mem. at 13-14;

Def’s Reply at 4-5.   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

employment.   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.      “The

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

causal connection.”   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
                                -13-

leave 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

June 2011).

     The District next argues that it had a legitimate, non-

discriminatory reason for terminating Holloway’s employment - -

his “history of unexcused absences from work.”     Def.’s Mem.

at 15.   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

treated differently.    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

much work.    While Holloway has demonstrated temporal proximity

between his purported FMLA request and the termination of his
                                 -14-

employment, 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

(D.D.C. 2007)).     Here, Holloway falls short.   Therefore, Holloway

may proceed with his FMLA claim on a theory of interference, but

may not proceed with that claim on the theory of retaliation.

II.   DUE PROCESS

      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

termination.”   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
     Amendment.”   McManus [v. Dist. of Columbia], 530 F.
     Supp. 2d [46], 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

situation demands.’”   Int’l Union v. Clark, 706 F. Supp. 2d 59,

68 (D.D.C. 2010) (quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972)).

     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

335).

     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
                               -16-

informing 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

reliable workers.   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.

2008).   However, in Thompson, the District did not provide the

plaintiff any process at all and did not “contend it afforded him

sufficient process.”   Thompson, 530 F.3d at 920.    Instead, the

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.

Id.   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
                                 -17-

learning of the termination to file a grievance.     Def.’s Mem.,

Ex. 1; id., Ex. 11.   Holloway does not dispute that he did not

file a grievance in accordance with that procedure.     “Plaintiffs

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 [17] for

summary judgment be, and hereby is, GRANTED in part and DENIED in

part.   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.
                         -18-

SIGNED this 30th day of December, 2013.



                                        /s/
                                RICHARD W. ROBERTS
                                Chief Judge
