Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
ANDREW H. LOWE, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1944 (RMC) )
LISA P. JACKSON, Administrator, )
U.S. Environmental Protection Agency, )
)
Defendant. )
)
OPINION
Andrew H. Lowe, a deaf Chinese-American male, sues the Environmental Protection Agency (EPA), for alleged employment discrimination on the basis of race, national origin, and disability, retaliation for his participation in protected activities, and a hostile work environment. Lisa Jackson, Administrator of EPA, responds that any adverse actions suffered by Mr. Lowe were legitimate and precipitated by his unwillingness to take direction from his supervisors and untimely completion of assignments. EPA moves for summary judgment. The Court will grant the motion in part and deny it in part. Mr. Lowe has offered direct evidence of discrimination based on his disability and evidence of retaliation that must be evaluated by a jury.
I. FACTS
Andrew H. Lowe is a sixty-two-year-old Asian American male of Chinese descent. At the age of thirteen, Mr. Lowe’s hearing was destroyed by ototoxicity and he now relies on sign language and written communication to interact with co-workers and *2 supervisors. See Pl. Ex. 1 (Lowe Decl.) [Dkt. 32-1] ¶ 1; Opp’n [Dkt. 33] at 8. [1] He began his career with EPA in 1987 as a GS–9 Computer Specialist in the Office of Air and Radiation. Lowe Decl. ¶ 3. During his tenure with EPA, Mr. Lowe earned a Master’s Degree in Information Assurance from the University of Maryland. Id. ¶ 2. He continued his federal employment with EPA until his termination in May 2010.
In January 2001, Mr. Lowe transferred to EPA’s Office of Environmental Information (OEI) as a GS–13 Information Technology Specialist. Opp’n at 5. During that time, OEI was headed by Director Mark Luttner and Deputy Director Andrew Battin. Def. Facts [Dkt. 27-1] ¶ 4. OEI has several component divisions, including the Information Exchange and Services Division, which was supervised by Director Doreen Sterling. Id. ¶¶ 3–4. The Information Exchange and Services Division is, in turn, supported by multiple branches, including the Information Services and Support Branch (ISSB). Id. ¶ 3. Mr. Lowe was assigned to ISSB and was directly supervised by Connie Dwyer. Opp’n at 5.
In June 2005, Steve Vineski, a Caucasian male GS–14 Information Security Officer in ISSB, moved to another office and recommended that Mr. Lowe assume his information security position. ; Am. Compl. [Dkt. 17] ¶ 11. Mr. Lowe accepted, and EPA amended his Performance Appraisal and Recognition System (PARS) to reflect Mr. Lowe’s duties as the Information Security Officer, as well as “the branch technical lead/project manager on information security, and [on] various branch *3 projects.” Def. Facts ¶ 7; Def. Ex. ROI 1 [2] Tab F, Ex. 48 (Lowe PARS Plan) [Dkt. 29-15] at 16. Although the information security position was located within ISSB, it appears to have served the entire Information Exchange and Services Division. See Lowe PARS Plan at 16. Mr. Lowe contends that when he became the Information Security Officer, “rebuilding the office’s information security infrastructure demanded 100% of his government duty time, as reflected in his weekly check-in summaries presented to his supervisors.” Am. Compl. ¶ 10; see Lowe Decl. ¶ 5 (“Mr. Vineski told me that it would be a full time job to fully satisfy the [information security] requirements.”). EPA contends that information security was never meant to consume all of Mr. Lowe’s time, and that he also was responsible for completing other tasks in support of ISSB. See Def. Facts ¶ 6. In contrast, Mr. Lowe contends that EPA managers failed to appreciate the time required to perform information security tasks for sixteen systems. See Opp’n at 7– 9.
A. Mr. Lowe’s GS-14 Promotion and Transfer to the Front Office Requests Mr. Lowe worked as a GS–13 Information Security Officer for several years, during which he “became aware that other [Information Security Officers] were working at the Grade 14 level.” at 1; Lowe Decl. ¶ 5 (“I found out that other [security officers] who shared the same responsibilities and [were] on the same organizational level . . . were either GS–14’s or GS–15’s.”). In February 2007, Mr. Lowe asked Mr. Leopard for a promotion to a GS–14 Information Security Officer position, requested that his position description be revised to reflect that he was exclusively devoted to *4 information security duties, and asked that he be moved to the front office of EPA’s Office of Environmental Information. [3] Def. Facts ¶¶ 8–9, 11.
Mr. Lowe’s request for a GS–14 promotion was governed, in part, by a collective bargaining agreement between EPA and the American Federation of Government Employees (AFGE). That contract provided two methods for promotion: (1) an employee could compete for a vacant position, or (2) an employee’s current position could be reclassified at a higher grade level due to an accretion of duties. Id. ¶ 25. It is undisputed that there were no GS–14 vacancies in the ISSB branch at the relevant time. Instead, Mr. Lowe requested that Mr. Leopard upgrade his position due to the predominance of his information security work, which he perceived to be at the GS– 14 level.
Mr. Leopard responded in April 2007 and denied each of Mr. Lowe’s requests. [4] Id. ¶¶ 12–14. Mr. Lowe then submitted his request to Division Director Doreen Sterling in July 2007, but she, too, denied all three proposals on July 23, 2007. ¶¶ 15, 17.
On October 22, 2007, Mr. Lowe met with Office Director Mark Luttner, again requesting a promotion, a revised position description, and relocation to the front office. Mr. Luttner responded by email on November 9, 2007, stating: “I believe that [your] position is appropriately graded. However, EPA employees may request desk *5 audits if they have concerns about their positions. You may contact the Office of Human Resources to begin that process.” Id. ¶ 20.
EPA contends that Mr. Lowe sent an email requesting a desk audit, but never submitted the necessary paperwork. Id. ¶ 21. To the contrary, Mr. Lowe avers that he submitted the desk audit paperwork, but Mr. Leopard failed to forward his request to the Office of Human Resources. Pl. Facts at 8–9. According to Mr. Lowe, he did not become aware that Mr. Leopard had failed to forward his paperwork until he already had filed an equal employment opportunity (EEO) complaint, and his managers had “made it clear that they would not support him.” Id. at 9. There was never a desk audit of Mr. Lowe’s job and he remained at the GS–13 level.
B. Mr. Kyle’s Assignment of Branch-Related Tasks By February 2009, there had been several changes in EPA’s mid-level management. Mr. Leopard, former chief of ISSB, had been replaced by Lee Kyle; Division Director Sterling had retired; and Lisa Schlosser had succeeded Mark Luttner as Director of OEI. Def. Facts ¶ 22. On February 19, 2009, Mr. Kyle, Ms. Schlosser, and Mr. Battin met with Mr. Lowe, and Mr. Lowe informed them that eighty percent of his time was focused on information security duties. Mr. Lowe also requested again to be relocated to the front office as a GS–14 Information Security Officer. Id. ¶ 23. Ms. Schlosser denied Mr. Lowe’s requests and reversed his priorities, directing him to reassess his workload with a goal of eighty percent project work, i.e. , duties in support of the branch, and no more than twenty percent information security work, id. ¶ 24. She also directed Mr. Kyle to help Mr. Lowe determine how best to divide his time between branch and information security assignments.
In furtherance of this new priority scheme, on March 11, 2009, Mr. Kyle sent Mr. Lowe an assignment to support ISSB. By email, Mr. Kyle directed Mr. Lowe to “evaluate opportunities for adding geospatial capabilities to mobile devices.” Id. ¶ 30. Mr. Kyle explained:
We’ve been tasked to evaluate the potential benefits of adding geospatial capabilities to mobile devices, in order to flow EPA data on regulated data, permits and inspections. Toward[] this end, I’d like you to look at needs for this technology across the Agency. I’d also like you to search for specific programs and existing applications/tools where this technology could be implemented . . . . Your goal is to research these needs generically, identify specific examples of potential application, and [] report your findings in a vision paper that includes recommendations for moving forward . . . . After we agree on a project plan, my initial thinking is that I’d like to see your report within [eight] weeks. While EPA states that, “over a two month period[,] [Mr. Lowe] had emailed only one
Region about their use of mobile devices, and that . . . email had only been sent on May 20, 2009, ” id. ¶ 33, Mr. Lowe avers that he “reviewed application software and EPA policies for regulatory data access, talked to colleagues in the Office of Information Access and Analysis . . . . , researched online,” and met with several field inspectors regarding mobile application technology in that time period, Pl. Facts at 10–11.
Mr. Lowe submitted a paper titled “Response to Project Request on Potential Uses of Mobile Devices (UMD), Location-Based Services and Applications” on May 26, 2009. In his response, Mr. Lowe wrote:
After going through a substantial amount of investigation and deep thinking through the last eight weeks, I have to respectfully decline the request. In the meantime, I . . . propose a modified project that I have the expertise, confidence, interest and motivation to execute. Rationale:
A. Inadequate understanding of mobile device usage [with seven explanatory paragraphs].
B. Inadequate understanding of rapid changes of technology and survey effectiveness [with one explanatory paragraph].
Pl. Ex. 16 (Lowe Response to Mobile Devices Project) [Dkt. 32-16] at 3–4.
In essence, Mr. Lowe was concerned that EPA employees would not await a detailed study before obtaining electronics that could improve their work efficiency. Id. at 4. From his observations and attendance at an EPA Information Technology Conference, he concluded that, “[o]utside the agency, it is seriously doubtful that one would resort to consumer-grade mobile devices to perform geospatial data analysis or management. First, the screen, the [central processing unit] and the keyboard[,] etc., are simply too small to support the functionality; second, no serious users would endorse the security safeguards.” Id. Mr. Lowe submitted a revised response to the mobile devices project on June 16, 2009. Def. Facts ¶ 35. The parties dispute whether Mr. Kyle told Mr. Lowe that his submissions were inadequate or whether he failed to review the submissions and provide Mr. Lowe with feedback. However, at a July 23, 2009 meeting, Mr. Lowe said that he could not devote more time to the project because his information security duties required eighty percent of his time, and he did not think that he was the right person for the task. ¶ 36.
Mr. Kyle “insist[ed]” that Mr. Lowe complete the mobile devices assignment. Am. Compl. ¶ 15. Mr. Kyle also consulted with an EPA labor relations specialist, who informed him that EPA needed to update Mr. Lowe’s performance standards to specify that his information security duties should take only twenty percent of his time. Def. Facts ¶ 38. Thereafter, on August 8, 2009, Mr. Kyle amended Mr. *8 Lowe’s performance standards. Id. ¶ 39. On Critical Element Four, Information Security, he deleted the statement that approximately fifty percent of Mr. Lowe’s time would be allocated to information security duties. See Pl. Ex. 9 (2009 Revised Performance Plan) [Dkt. 32-9] at 7. He also inserted a new criterion that transformed the mobile devices project into a critical element for purposes of evaluating Mr. Lowe’s job performance. Id. at 8; Def. Facts ¶ 39.
Tensions continued to escalate between Messrs. Lowe and Kyle with respect to the mobile devices project. While Mr. Kyle initially seemed to approve the use of an email survey to ascertain Global Positioning System (GPS) uses by EPA employees, see Pl. Ex. 17 (July 1, 2009 Kyle Email) [Dkt. 32-17] at 1, he later refused to follow that course, see Pl. Facts at 13. Mr. Lowe argues that, in August 2009, he was “forced to use a focus group . . . because [Mr.] Kyle would not allow him to send an email or conduct a written survey to solicit such information from potential users.” Mr. Kyle’s alleged insistence on a focus group was especially problematic for Mr. Lowe because, as a deaf employee, he needed to watch a sign language translator and therefore could not take notes or watch the participants as they spoke. The focus group ultimately proved to be an ineffective method, as the second meeting was significantly hampered by a failed teleconference arrangement.
On November 20, 2009, Pat Garvey, the manager of EPA’s Facility Registries System (FRS) database, sent Mr. Kyle an email requesting staff assistance to review and clear duplicate records from the database. Mr. Kyle forwarded this request to Mr. Lowe, stating, “Andy, this could be a very useful project. I’m roughly estimating it should take [ten percent] of your time. Let’s discuss, thanks.” Def. Ex. MSPB 4KKK *9 (Nov. 20, 2009 FRS Assignment Email) [Dkt. 28-10] at 1. Mr. Lowe responded that “[s]uch low-level coding work must be done by [a] contractor. I will be happy to examine the issues . . . . If you want me to do the micro-coding, no way. No other [Information Security Officer] would do that kind of work.” Id. Mr. Lowe alleges that Mr. Kyle asked Mr. Garvey to send the email so that he could assign Mr. Lowe to a menial task. See Pl. Facts at 15.
C. Mr. Lowe’s Unsatisfactory Rating and Performance Improvement Plan On November 12, 2009, three months and four days after he changed Mr.
Lowe’s Critical Elements, Mr. Kyle rated Mr. Lowe “Unsatisfactory” under Critical Element One, Work Products, and Critical Element Five, Support ISSB Geospatial Services. Pl. Ex. 28 (2009 PARS Interim Rating) [Dkt. 32-28] at 1. As a result of these two ratings, on December 4, 2009, Mr. Kyle informed Mr. Lowe that his overall PARS rating was unsatisfactory, and he placed Mr. Lowe on a Performance Improvement Plan (PIP), which gave Mr. Lowe seventy-five calendar days to bring his performance to the “Fully Satisfactory” level. Def. Facts ¶¶ 51–54. During the seventy-five-day period, the PIP required Mr. Lowe to complete: (1) the Geospatial Applications Project, i.e. , the mobile devices project; (2) the review and correction of data in EPA’s FRS database; and (3) the preparation of two calendars to identify the information security deadlines that Mr. Lowe faced in the upcoming year. Id. ¶ 53. The PIP further provided that “[Mr.] Lowe needed to devote between [forty and fifty percent] of his time [to] non-[information security] . . . projects that support the branch.” ¶ 54.
Mr. Lowe voiced his objections to the various assignments included in the PIP during a December 4, 2009 meeting. He complained that the mobile devices project *10 did not “respect[] [his] expertise,” the FRS data clean-up was “beneath [his] level of expertise,” and the calendars were “routine work.” Id. ¶¶ 55–57. Mr. Lowe believed that he already was performing his duties, and Mr. Kyle had purposely assigned three projects that were “outside . . . his experience and . . . particularly difficult for him given his age and his inability to hear and speak to his colleagues.” Pl. Facts at 2. Mr. Lowe was frustrated because “[Mr.] Kyle added these . . . projects without taking away any of Mr. Lowe’s [information security] duties, which was itself a full time job,” and Mr. Lowe did not believe “there was [any] business need for these assignments.” Id. Mr. Kyle explained how the assignments would support ISSB and the PIP remained in effect.
On December 8, 2009, Mr. Lowe attended a FRS data clean-up meeting with Mr. Garvey. On that same day, Mr. Garvey sent an email to Mr. Kyle, expressing his annoyance: “This was a disaster. [Mr. Lowe] did not want to be there, he did not want to do FRS direct work and felt no interest [in helping] out. He wanted it done by summer interns. We only did about [two] minutes of instruction before he said he wanted out.” Def. Ex. MSPB 4GG (Dec. 8, 2009 Garvey Email) [Dkt. 28-4]. Mr. Kyle issued a Letter of Warning to Mr. Lowe on December 11, 2009, to reprimand Mr. Lowe informally for his behavior during the FRS training session. Def. Facts ¶ 59.
Almost one week later, Mr. Lowe complained that he could not complete the FRS data clean-up project because he was “over 60 [years old], had high-level short- sightedness, and . . . had received a warning from [his] doctor that [he] may be developing cataracts.” Id. ¶ 62. Mr. Kyle sent Mr. Lowe an email outlining the procedures for seeking a reasonable accommodation. Mr. Lowe then met with William Haig, EPA’s National Reasonable Accommodation Coordinator, who reported *11 that Mr. Lowe had stated that “the medical condition that affects his eyes does not constitute a disability. Therefore, he is not, at this time, requesting a reasonable accommodation due to this medical condition.” Id. ¶ 63 (internal alterations omitted). However, as Mr. Lowe then reported, he could not timely complete the FRS data clean- up project because Mr. Garvey had not provided a password to the database until several weeks after the project had been assigned. See Pl. Ex. 40 (Jan. 25, 2010 Lowe Email) [Dkt. 32-40]. When Mr. Lowe finally received full access to the FRS database, the system indicated that the assigned duplicates had already been reviewed and cleared by contractors. Opp’n at 26. Mr. Lowe informed Mr. Kyle that the duplicates had been cleared, and Mr. Kyle responded by directing the contractors to stop clearing duplicates so that Mr. Lowe could finish the project. Id. at 26–27. On February 17, 2010, Mr. Lowe requested an extension to clear newly assigned duplicates. Id. at 27. Mr. Kyle did not respond to Mr. Lowe’s request, but instead “instructed the contractor to correct the duplicates before Mr. Lowe could get to them.”
Mr. Kyle exhibited increasing frustration with Mr. Lowe’s performance between December 2009 and March 2010. The parties dispute whether Mr. Lowe made a good faith effort to complete the PIP assignments on a timely basis; the record indicates that Mr. Kyle extended several deadlines and that Mr. Lowe submitted multiple revised work products. Mr. Lowe justified many of the delays by noting that “the [information security] role consumed [his] time.” Def. Ex. MSPB 4Y (Jan. 28, 2010 Weekly Check-In Meeting Notes) [Dkt. 28-27] at 12. While Mr. Lowe was on a PIP, Mr. Kyle maintained a log of work events, meetings, and employee progress concerning Mr. Lowe. See Pl. Ex. 4 [Dkt. 32-4]. On January 6, 2010, Mr. Kyle wrote in his log that “[m]ost people try *12 to work around [Mr. Lowe]. When he gets involved[,] things get more complicated.” Id. at 2.
Messrs. Lowe and Kyle held a final meeting on March 2, 2010, for Mr. Lowe to discuss his work performance under the PIP. Am. Compl. ¶ 23; Def. Facts ¶ 100. Mr. Lowe was ready to describe his accomplishments with respect to information security and his efforts on the other assignments. However, Mr. Kyle expressed his dissatisfaction with Mr. Lowe’s performance on each non-information security project under the PIP without any reference to his information security duties. Mr. Lowe refuted Mr. Kyle’s charge of unsatisfactory performance, and reiterated that most of his time was consumed by urgent security tasks. Def. Facts ¶ 100; Pl. Facts at 21–22.
Mr. Lowe received notification of proposed removal for unacceptable performance under Critical Element One, Work Products, and Critical Element Five, Support ISSB Geospatial Services, on March 3, 2010. Def. Facts ¶ 101. EPA immediately placed Mr. Lowe on paid administrative leave. Id. Mr. Lowe responded in writing on April 1, 2010, and he and his union representatives made an oral presentation to the Deputy Director of EPA’s Office of Environmental Information, Andrew Battin, one week later. Id. ¶ 102. On May 7, 2010, Mr. Battin issued a final decision finding Mr. Lowe’s performance unacceptable under Critical Element One based on his work product for each assignment under the PIP. Mr. Battin also found Mr. Lowe’s performance unacceptable under Critical Element Five based on his submissions for the mobile devices project. Mr. Lowe was fired from EPA as of May 14, 2010. Id. ¶ 103.
D. Procedural History
Mr. Lowe first made contact with an EEO counselor on November 29, 2007, [5] alleging discriminatory treatment based on, inter alia , EPA’s refusal to promote him to the GS–14 level, denial of his request to transfer to the front office, and refusal to update his position description to reflect his information security duties. EEO Counselor’s Report at 2, 23. He also alleged retaliatory treatment based on EPA management’s heightened scrutiny of his work product after he first contacted an EEO counselor. Id. at 2. After conciliation failed, Mr. Lowe was authorized on January 25, 2008, to file an in-agency formal administrative complaint within fifteen days. at 27.
Mr. Lowe filed his first formal in-agency EEO complaint (EPA No. 2008- 0030-HQ) on February 8, 2008. He alleged that he had suffered discrimination, retaliation, and a hostile work environment due to EPA’s refusal to promote him to a GS– 14 information security position, denial of his request to transfer to the front office, refusal to revise his position description, rating him as “Fully Successful” in an interim evaluation on January 25, 2008, and increasing scrutiny of his work product. Def. Ex. ROI 1, Tab A (Feb. 8, 2008 EEO Complaint) [Dkt. 29-3] at 4–6. After administrative investigation, consideration, and evaluation by EPA and the Office of Federal Operations (OFO) at the Equal Employment Opportunity Commission (EEOC), Mr. Lowe received a final agency decision denying his claims on February 17, 2012.
*14 Mr. Lowe filed a second EEO complaint (EPA No. 2010-0027) on January 7, 2010, alleging discrimination on the basis of race, national origin, and disability; retaliation for his prior protected EEO activities; and a hostile work environment. Am. Compl. ¶ 4(b). This complaint included allegations related to, among other incidents, Mr. Kyle’s Letter of Warning, his unsatisfactory performance review in November 2009, and Mr. Lowe’s placement on a PIP. Id. EPA issued a decision denying each of Mr. Lowe’s claims in complaint EPA No. 2010-0027 on August 6, 2011. See id. Mr. Lowe filed a timely appeal to EEOC OFO pursuant to 29 C.F.R. § 1614.401(a), and he notified EEOC on October 14, 2011 that he intended to pursue a lawsuit in federal court. See 29 C.F.R. § 1614.407(b) (allowing 180 days for EEOC consideration of an appeal and then allowing a charging party to file suit). Mr. Lowe also appealed EPA’s termination decision to the Merit Systems Protection Board (MSPB), which denied his claim. [6] See Am. Compl. ¶ 4(c).
Mr. Lowe filed the instant lawsuit on November 4, 2011, within thirty days of his receipt of EEOC OFO’s decision. See Compl. [Dkt. 1]. On April 16, 2012, Mr. Lowe filed his Amended Complaint, which alleges violations of Title VII, the Rehabilitation Act, 29 U.S.C. §§ 701–18, and the Civil Service Reform Act, 5 U.S.C. § 7703(b)(2). Am. Compl. [Dkt. 17]. Mr. Lowe specifically alleges discrimination on the basis of race, national origin, and disability because EPA (1) refused to promote him to a GS–14 position; (2) refused to pay him at the GS–14 grade for his information *15 security work; (3) subjected him to a hostile work environment; and (4) refused to update his position description to reflect his information security tasks. Am. Compl. ¶ 26. He further alleges discrimination on the same bases, as well as retaliation for prior protected activities, because EPA (1) denied his transfer request to the front office; (2) refused to assign him additional GS–14 responsibilities; (3) rated his performance “Fully Successful” in 2007; (4) rated his performance as unsatisfactory in 2009; (5) subjected his work product to heightened scrutiny; (6) failed to grant him performance awards; (7) failed to provide a sign language interpreter; [7] (8) placed him on a PIP; (9) claimed that he failed his PIP; and (10) terminated his employment. Id. ¶ 27.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 56
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.
,
B. Title VII of the Civil Rights Act of 1964
Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2. Title VII also prohibits retaliation against an employee for engaging in protected EEO activity. [8] 42 U.S.C. § 2000e–3(a).
To survive summary judgment, a plaintiff can prove discrimination by
offering direct evidence or, in the alternative, relying on circumstantial evidence.
U.S.
Postal Serv. Bd. of Governors v. Aikens
,
In the absence of direct discrimination, the burden-shifting scheme set
forth in
McDonnell Douglas Corp. v. Green
,
Once an employer articulates a legitimate, non-discriminatory reason, “the
prima-facie-case aspect of
McDonnell Douglas
[becomes] irrelevant.”
Adeyemi v.
District of Columbia
,
C. Rehabilitation Act of 1973
The Rehabilitation Act of 1973 prohibits federal agencies from
discriminating against employees on the basis of a disability.
See
29 U.S.C. § 794(a)
(“No otherwise qualified individual with a disability
[9]
. . . shall, solely by reason of her or
his disability . . . be subjected to discrimination under . . . any program or activity
conducted by any Executive agency . . . .”). A claim of discrimination under the
Rehabilitation Act is subject to the same framework that governs discrimination claims
under Title VII.
See McGill v. Munoz
,
III. ANALYSIS
Mr. Lowe alleges discrimination on the basis of race, national origin, and disability, retaliation for his prior protected EEO activities, and a hostile work environment. The Court has jurisdiction over this case because Mr. Lowe’s claims arise under federal law. See 28 U.S.C. § 1331. Venue is proper in this Court pursuant to Title VII’s venue provision. See 42 U.S.C. § 2000e–5(f)(3). For the reasons set forth below, the Court will grant summary judgment to EPA on Mr. Lowe’s claims of discrimination on the basis of race and national origin, a hostile work environment, and those alleged actions which are untimely or insufficient to be materially adverse. Genuine issues of material fact preclude summary judgment as to certain claims of disability discrimination under the Rehabilitation Act and retaliation under Title VII.
A. Timeliness
Federal employees must first seek counseling on claims of discriminatory
or retaliatory employment action by contacting an EEO counselor within forty-five days
of the alleged illegal conduct. 29 C.F.R. § 1614.105(a)(1) (“An aggrieved person must
initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action, within 45 days of the effective
date of the action.”). This time period may be extended by the agency or EEOC if an
employee shows that (1) he was not informed or aware of the deadline, (2) he did not
know and reasonably should not have known that the discriminatory action had occurred,
(3) despite due diligence, he was prevented from timely contacting a counselor due to
circumstances beyond his control, or (4) for other reasons considered sufficient by the
agency or EEOC.
Id.
§ 1614.105(a)(2). Unless a plaintiff receives an extension under
*20
the statute, he cannot pursue untimely allegations in federal court.
See, e.g., Greer v.
Paulson
,
Because Mr. Lowe first made contact with an EEO counselor on
November 29, 2007, his allegations concerning events that occurred before October 15,
2007, are untimely.
See Greer
,
Mr. Lowe further alleges discrimination based on race, national origin, and disability because EPA “lower[ed] his performance ratings in 2007 to ‘Fully Successful,’” Am. Compl. ¶ 27, and because EPA “pa[id] him less than similar[ly] *21 situated employees,” id. ¶ 26. Neither of these alleged acts of discrimination was raised with the EEO Counselor, and Mr. Lowe therefore has failed to exhaust his administrative remedies with respect to these claims.
Finally, Mr. Lowe claims that he suffered discriminatory and retaliatory treatment when EPA managers failed to reward his performance related to information security. See id. ¶ 27. However, some of the awards that Mr. Lowe alleges he should have received were distributed between 2003 and 2005. See July 11, 2008 EEO Memorandum at 13–14. These awards were conferred well before Mr. Lowe made contact with an EEO counselor and are not actionable here. Mr. Lowe also alleges that EPA failed to recognize his contributions with an award in 2008. Since this allegation was timely presented and exhausted, the Court considers it below, see infra at 21–22.
B. Waiver
“It is well understood in this Circuit that when a plaintiff files an
opposition to a [dispositive motion] addressing only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff failed to address as
conceded.”
Hopkins v. Women’s Div., Gen. Bd. of Global Ministries
, 238 F. Supp. 2d
174, 178 (D.D.C. 2002);
see CSX Transp., Inc. v. Commercial Union Ins., Co.
, 82 F.3d
478, 482–83 (D.C. Cir. 1996);
Jones v. Air Line Pilots Ass’n
,
In briefing, EPA contends that Mr. Lowe did not receive a 2008
performance award because such awards were “almost always reserved for intra-agency teams responsible for major initiatives, and [Mr.] Lowe had not been assigned to any team that received a gold or bronze medal.” Mot. for Summ. J. at 45–46. EPA also *22 argues that Mr. Lowe cannot establish a materially adverse action or a denied accommodation based on EPA’s failure to provide a sign language interpreter for certain meetings and informal gatherings. See id. at 21–22. Mr. Lowe does not respond to either point in his opposition, and he therefore has waived all claims based on his alleged non- receipt of performance awards in 2008 and EPA’s alleged refusal to provide a sign language interpreter.
C. Adverse Action
To support a claim of intentional discrimination, an employee must
demonstrate that his employer took an adverse action against him because of his
participation in protected EEO activities. “[N]ot everything that makes an employee
unhappy” is an adverse action under Title VII.
Russell v. Principi
,
Certain of Mr. Lowe’s claims fail to allege adverse employment action to support his charges of intentional discrimination. Specifically, Mr. Lowe asserts race, national origin, and disability discrimination because EPA refused to pay him at the GS– 14 level for his information security work, denied his request to transfer to the front office, and refused to assign him additional responsibilities commensurate with a GS–14 *23 grade. But none of these actions constituted an adverse employment action, and therefore, none are actionable here.
At bottom, the record demonstrates that Mr. Lowe and EPA disagreed about the importance of his information security duties. But, as specified in the Collective Bargaining Agreement, Mr. Lowe either was required to obtain a vacant GS– 14 position or have his GS–13 position upgraded based on an accretion of duties. See Def. Facts ¶ 25. There were no vacant GS–14 positions at the relevant time, and Mr. Lowe never established that his position should have been elevated based on an accretion of duties. Therefore, EPA was not required to pay Mr. Lowe as a GS–14 information security specialist. Even if Mr. Lowe had established that his position should have been at the GS–14 level—which he did not—EPA could have responded by minimizing his GS–14 tasks so as to fit his position within the GS–13 grade.
EPA’s failure to accede to Mr. Lowe’s requests to pay him at the GS–14
level, assign him additional GS–14 responsibilities, and transfer him to the front office
did not impose objectively tangible harm: Mr. Lowe’s position and grade remained
unaffected and he suffered no financial loss.
See Russell
,
Nor can Mr. Lowe demonstrate materially adverse action to support a
*24
retaliation claim based on EPA’s refusal to pay him at the GS–14 level, assign him
additional GS–14 responsibilities, and transfer him to the front office. A materially
adverse action is not necessarily confined to the workplace, as long as “a reasonable
employee would have found the challenged action materially adverse[.]”
Burlington N.
,
D. Race Discrimination
Mr. Lowe alleges disparate treatment due to his race because EPA (1) rated his performance unsatisfactory in 2009; (2) refused to promote him to a GS–14 position or update his position description; (3) subjected his work to heightened scrutiny; (4) placed him on a PIP; (5) claimed that he failed his PIP; and (6) terminated his employment. Am. Compl . ¶¶ 26–27. To establish a prima facie case of race discrimination, a plaintiff must show that: (1) he is a member of a protected class; (2) he suffered an adverse personnel action; and (3) the unfavorable action gives rise to an *25 inference of discrimination. Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO , 548 F.3d 137, 144 (D.C. Cir. 2008).
Mr. Lowe has not demonstrated any inference of race discrimination with respect to these allegations. While Mr. Lowe is an Asian American who allegedly suffered certain adverse personnel actions, there is no evidence that “the unfavorable action[s] give[] rise to an inference of [race] discrimination.” See id. The record is devoid of evidence that any EPA manager acted against Mr. Lowe because of his race. Further, Mr. Lowe mentions his race on a single occasion in his opposition and never with respect to an EPA manager’s comments or decisions. See Opp’n at 4 (“[Mr. Lowe’s] race is Asian and his [n]ational [o]rigin is Chinese.”). Since Mr. Lowe offers no evidence or argument linking EPA’s personnel decisions and adverse treatment to his race, the Court will grant summary judgment to EPA on all of Mr. Lowe’s race discrimination claims.
E. National Origin Discrimination
As with race discrimination, Mr. Lowe is required to show that EPA’s
unfavorable personnel actions “give[] rise to an inference of discrimination” because of
his national origin.
See Royall
,
F. Disability Discrimination
Mr. Lowe further avers that EPA discriminated against him based on his
disability when the agency (1) refused to promote him to a GS–14 position; (2) refused to
update his position description; (3) rated his performance as unsatisfactory in 2009;
(4) subjected his work to heightened scrutiny; (5) placed him on a PIP; (6) claimed that
he failed his PIP; and (7) terminated his employment. Am. Compl . ¶¶ 26–27. These
claims are covered by the Rehabilitation Act, which is subject to the same analytical
framework that applies to discrimination claims under Title VII.
See McGill
, 203 F.3d at
845;
Barth
,
The Court finds that the record includes indicia of direct discrimination
based on Mr. Lowe’s disability,
i.e.,
deafness. Mr. Lowe offers Mr. Kyle’s log of work-
related events as evidence of discriminatory intent. On January 6, 2010, during Mr.
Lowe’s PIP, Mr. Kyle wrote that “[m]ost people try to work around [Mr. Lowe]. When
he gets involved, things get more complicated.”
See
Pl. Ex. 4 at 2. Mr. Lowe contends,
without opposition, that Mr. Kyle refused to learn any sign language during the year and
a half that he supervised Mr. Lowe, and that “Mr. Kyle acted as if it was too much
trouble to try to understand Mr. Lowe.” Opp’n at 8. In addition, in evaluating Mr.
Lowe’s performance under the PIP, Mr. Kyle criticized Mr. Lowe’s handling of the focus
*27
group for the mobile devices project, despite the fact that Mr. Lowe’s disability made that
task particularly difficult to complete. In his evaluation of Mr. Lowe, Mr. Kyle also
criticized Mr. Lowe’s failure to attend branch meetings despite the fact that no sign
language interpreter was available.
See
Def. Ex. MSPB 4LLL (2009 PARS Interim
Rating) [Dkt. 28-13] at 4 (“Like all ISSB employees, [Mr. Lowe] is required to attend
each . . . branch meeting, and let me know in advance if he cannot . . . . I’ve had several
discussions with [Mr. Lowe] on the need for him to attend, and participate in, our Branch
meetings.”). These comments and actions constitute direct evidence of discrimination on
the basis of Mr. Lowe’s disability.
See Stone
,
At a minimum, the Court finds that Mr. Kyle’s comments and actions could be interpreted as instances of disability discrimination. Mr. Lowe’s remark that Mr. Lowe made things “more complicated” could have referred to Mr. Lowe’s deafness and the accommodations that EPA was required to provide on Mr. Lowe’s behalf. The Court cannot resolve these factual issues on summary judgment. As a result, the Court will deny summary judgment as to Mr. Lowe’s disability discrimination claims concerning Mr. Lowe’s non-promotion to a GS–14 position, limited position description, heightened scrutiny of his work product, unsatisfactory performance ratings, placement on a PIP, alleged unsatisfactory performance under the PIP, and discharge.
G. Retaliation
Mr. Lowe alleges retaliation based on EPA’s heightened scrutiny of his
work product, his “Unsatisfactory” performance rating in 2009, EPA’s claim that he
failed his PIP, and his termination. Am. Compl. ¶ 27. To establish a
prima facie
case of
retaliation, a plaintiff must show that: (1) he engaged in protected activity; (2) he suffered
*28
from a materially adverse act; and (3) a causal connection exists between the protected
activity and the employer’s act.
Holcomb v. Powell
,
Mr. Lowe engaged in protected activity when he contacted an EEO counselor on November 29, 2008, and then filed his first formal in-agency EEO complaint on February 8, 2008. That complaint was investigated and processed over the course of the following year. Lowe Decl. ¶ 17; see also Am. Compl. ¶ 13 (“[I]n March 2009, while Mr. Lowe was litigating his EEO complaint before an Administrative Judge of the EEOC . . . .”). Mr. Lowe filed a second formal EEO complaint on January 7, 2010, alleging six additional incidents of alleged discrimination and retaliation. See Am. Compl. ¶ 4(b).
1. Materially Adverse Action
Mr. Lowe alleges that EPA retaliated against him by rating his
performance unsatisfactory on two critical elements in 2009.
See
Opp’n at 19–20. In
essence, Mr. Lowe claims that EPA managers, including Mr. Kyle, created a termination
case against him by rating him unsatisfactory, and then using these ratings to justify
placing him on a PIP.
See id.
at 19 (“As a manager, Mr. Kyle was aware that the only
way to terminate an employee without conduct issues was to fail him in his performance
review after an unsuccessful PIP . . . .”). Ultimately, Mr. Lowe’s performance under the
PIP led to his termination in May 2010. Under these circumstances, Mr. Lowe’s
unsatisfactory performance ratings were materially adverse. It is true that Mr. Lowe’s
performance ratings did not directly contribute to a financial loss,
cf. Baloch v.
Kempthorne
,
2. Causation
Mr. Lowe also is required to demonstrate a causal nexus between his prior
protected EEO activity and EPA’s materially adverse actions. A plaintiff may establish a
causal connection “by showing that the employer had knowledge of the employee’s
protected activity, and that the [retaliatory] personnel action took place shortly after that
activity.”
Cones v. Shalala
,
Mr. Lowe contends that EPA retaliated against him by subjecting his work product to heightened scrutiny. On March 11, 2009, while Mr. Lowe’s attorney was involved in litigation before an Administrative Judge in connection with Mr. Lowe’s first formal EEO complaint, Mr. Kyle, at Ms. Schlosser’s direction, requested that Mr. Lowe increase his branch-related tasks and “evaluate opportunities for adding geospatial capabilities to mobile devices.” Def. Facts ¶ 30. The mobile devices project ultimately *30 led to several adverse work events, including Mr. Lowe’s placement on a PIP, the determination that Mr. Lowe failed his PIP, and Mr. Lowe’s termination. Because Mr. Kyle assigned the mobile devices project on March 11, 2009, while Mr. Lowe’s attorney was litigating his first formal EEO complaint, a reasonable juror could find that Mr. Kyle subjected Mr. Lowe’s work product to heightened scrutiny—particularly with respect to the mobile devices project—in retaliation for his involvement in the EEO process.
Mr. Lowe also cites Mr. Kyle’s issuance of an “Unsatisfactory”
performance rating on November 12, 2009, and imposition of a PIP on December 4,
2009, as retaliatory actions. These actions occurred more than one year after Mr. Lowe
filed his first formal EEO complaint. But there is no “bright-line three-month rule” to
determine whether a plaintiff has established an inference of causation.
Hamilton v.
Geithner
,
Finally, Mr. Lowe points to Mr. Kyle’s determination that Mr. Lowe failed the PIP on March 2, 2010, and Mr. Battin’s termination decision as of May 14, 2010, as retaliatory actions. Mr. Kyle evaluated Mr. Lowe’s performance under the PIP *31 within two months of Mr. Lowe’s second formal EEO complaint, and Mr. Battin terminated Mr. Lowe’s employment within four months of that EEO filing. Accordingly, the Court will deny summary judgment as to Mr. Lowe’s retaliation claims based on EPA’s increased scrutiny of his work product, issuance of unsatisfactory performance ratings, implementation of the PIP, claim that Mr. Lowe failed to perform under the PIP adequately, and termination.
H. Hostile Work Environment
Mr. Lowe alleges that EPA “discriminated against [him] based . . . upon his race, national origin, and disability [by] subjecting him to a hostile work environment.” Am. Compl. ¶ 26. Mr. Lowe timely included this claim in his first formal in-agency EEO complaint. See Feb. 8, 2008 EEO Complaint at 6.
“To determine whether a hostile work environment exists, the court looks
to the totality of the circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it interferes with an employee’s work
performance.”
Baloch
,
Mr. Lowe’s allegations do not support a finding of a hostile work environment. Mr. Lowe bases his claim on EPA’s assigning him to work “under a manager who did all that he could to thwart his performance [] under a continuing threat *32 of being fired” and who “made the [mobile devices project] harder by depriving Mr. Lowe of the means he needed to complete the assignment . . . [and] thereby making him get his information through a focus group.” Opp’n at 4, 40–41. Mr. Lowe contends that these obstructions created a hostile work environment by increasing the likelihood that he would be terminated for failure to fulfill the terms of the PIP. Id. EPA responds that, while it is reasonable to assume that any employee placed on a PIP would experience stress, that stress alone does not establish a hostile work environment. Def. Reply Facts [Dkt. 36-1] at 11. EPA also points out that “none of the comments made [to Mr. Lowe] during the PIP focused on any of [his] protected statuses. The criticisms of his performance were not abusive or offensive.” at 12.
Although Mr. Lowe alleges that Mr. Kyle thwarted his efforts to succeed,
the alleged incidents do not rise to the level of “discriminatory intimidation, ridicule, and
insult.”
See Harris
,
At best, Mr. Lowe’s allegations demonstrate a disagreement with EPA
management regarding his allocation of time; they do not show a genuine issue of
material fact as to whether EPA created a hostile work environment.
See Harris
, 510
U.S. at 21. It is clear that Ms. Schlosser and Mr. Kyle did not place much importance on
Mr. Lowe’s information security assignments. Instead, Mr. Lowe’s supervisors requested
that he focus his attention on branch-related duties and minimize his information security
role. The parties may contest whether EPA was justified in making that determination,
but in any event, “Title VII . . . does not authorize a federal court to become ‘a super-
personnel department that reexamines an entity’s business decisions.’”
Barbour v.
Browner
,
III. CONCLUSION
Summary judgment will be granted in favor of EPA on Mr. Lowe’s claims of discrimination on the basis of race and national origin under Title VII, as well as the alleged hostile work environment. Summary judgment also will be granted in favor of EPA on all claims concerning the agency’s failure to provide Mr. Lowe with performance awards, failure to provide a sign language interpreter, refusal to pay Mr. Lowe at the GS– *34 14 level, denial of his request to transfer to the front office, and refusal to assign him additional GS–14 responsibilities.
The following claims remain for trial: (1) disability discrimination under the Rehabilitation Act concerning Mr. Lowe’s non-promotion to a GS–14 position, limited position description, the increased scrutiny of his work product, unsatisfactory performance ratings, placement on a PIP, alleged unsatisfactory performance under the PIP, and discharge; and (2) retaliation under Title VII based on EPA’s increased scrutiny of Mr. Lowe’s work product, issuance of unsatisfactory performance ratings, implementation of the PIP, alleged unsatisfactory performance under the PIP, and termination. A memorializing Order accompanies this Opinion.
Date: March 26, 2014 /s/ ROSEMARY M. COLLYER
United States District Judge
Notes
[1] The page numbers listed in this Opinion are consistent with those supplied by the electronic case filing (ECF) system.
[2] The Court references Defendant’s exhibits according to the name and acronym conventions provided on the docket.
[3] Mr. Lowe never expressly describes the significance of being moved to the front office of EPA’s Office of Environmental Information, but Mr. Lowe presumably requested a transfer due to the number of higher-graded EPA employees in the front office.
[4] While Mr. Lowe generally describes the same series of events, he disputes that Mr. Leopard and Ms. Sterling had the authority to approve or deny his requests. See, e.g. , Pl. Facts [Dkt. 33-1] at 6 (“As a Branch Chief, [Mr.] Leopard had no ability to move [Mr.] Lowe to the staff of OIC.”). It is unnecessary to resolve this dispute.
[5] EPA noted that Mr. Lowe made contact with an EEO counselor on either November 13, 2007 or November 29, 2007, but the agency failed to attach any document corroborating the November 13, 2007 date. See Mot. for Summ. J. [Dkt. 27] at 9. Mr. Lowe neglected to address this issue in opposition. The EEO Counselor’s report indicates that Mr. Lowe first made contact on November 29, 2007. Def. Ex. ROI 1, Tab B (EEO Counselor’s Report) [Dkt. 29-4] at 2.
[6] Mr. Lowe attempts to sue MSPB and EEOC OFO for arbitrary and capricious agency
action here, but these claims are subsumed by Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e
et seq. See
5 U.S.C. § 7703(b)(2) (termination decisions involving
alleged discrimination “shall be filed under [Title VII] of the Civil Rights Act of 1964
. . . .”);
Chandler v. Roudebush
,
[7] Mr. Lowe alleges that EPA failed to provide a sign language interpreter for meetings and failed to grant him performance awards, but offers no facts concerning these claims in his Amended Complaint or in opposition to EPA’s Motion for Summary Judgment. EPA construes Mr. Lowe’s allegations as referring to the agency’s failure to provide Mr. Lowe with performance awards from 2003 to 2005, and again in 2008. Mot. for Summ. J. at 45–46; see Def. Ex. ROI 1, Tab F, Ex. 1 (July 11, 2008 EEO Memorandum) [Dkt. 29-5] at 13–14.
[8] Title VII speaks of retaliation as a form of discrimination. 42 U.S.C. § 2000e–3(a).
The Court refers to “discrimination” as the “antidiscrimination provision [of Title VII],”
(
i.e.
, discrimination based on race, color, religion, sex, or national origin),
Burlington N.
& Santa Fe Ry. Co. v. White
,
[9] A “qualified individual with a disability” includes, inter alia , an employee with “a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment.” 29 U.S.C. § 705(20)(A)(i). Since Mr. Lowe is deaf and relies on written communication and sign language to interact with co-workers and supervisors, he qualifies as a disabled individual under the statute.