The opinion of the court was delivered by: Urbina, District Judge.
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
On September 29, 1999, the plaintiff filed a five-count complaint,
alleging that: (1) the defendant subjected him to a hostile work
environment from 1992 to 1994; (2) his supervisor retaliated against him
in 1994 for his earlier complaints about the way she ran the office; (3)
the defendant failed to provide a reasonable accommodation, in violation
of the Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794 ("the
Rehabilitation Act"); (4) his supervisor created a hostile work
environment by subjecting him to heightened surveillance, by harassing
him intentionally, and by scrutinizing his work more closely; and (5) the
defendant fired him in retaliation for his EEO activity.
The defendant moves for summary judgment. For the reasons that follow,
the court will grant the defendant's motion for summary judgment on Count
III, and will deny the defendant's motion on Counts I, II, IV, and V.
Carl Bowdré, an African-American man who lives in Virginia,
worked at the DOE from 1981 to 1997. See Compl. at 4. During the time
period relevant to this case, Mr. Bowdré served as an Equal
Employment Opportunity investigator in DOE's Office of Civil Rights
(OCR). See id. at 1. He worked in this capacity from 1992 to 1994 and
from 1995 until the agency terminated him in January 1997. See Compl. at
1, 11. In his complaint, the plaintiff states that during this time,
"Carl Bowdré was the only African-American Equal Employment
Opportunity (EEO) investigator in the Agency's Office of Civil Rights
(OCR)." Id. at 5.
Throughout the time period at issue, Mary Katherine Hembree, who is
white, was the director of the OCR's Complaints and Investigations
office. See id. at 5. Mr. Bowdré alleges that from 1992 to 1994,
Ms. Hembree subjected him to "repeated and pervasive conditions of
discrimination, harassment and retaliation for prior protected activity."
Id. The plaintiff portrays this hostile work environment as follows:
Ms. Hembree would, inter alia, impose additional
requirements on Mr. Bowdré that were not
imposed on others, would assign trainees to review and
monitor his performance, would single out his work
product to be reviewed and supplemented by Mr.
Bowdré's peers and subordinates, would
embarrass him with public statements and conduct that
reflected negatively (and inaccurately) on his
performance, would remove cover sheets from his
reports and then sanction him for submitting reports
without cover sheets, and would arbitrarily edit his
reports to prevent them from being finalized and to
cause his work product to appear to be delayed.
Between 1992 to 1994, Mr. Bowdré complained to Jay Pagano, the
director of the OCR, to William Garrett, the deputy director, and to Ms.
Hembree to no avail. As a result of these complaints, Ms. Hembree
allegedly retaliated against Mr. Bowdré by increasing the degree
of her misconduct. See id. at 5-6. In the starkest example of this
behavior, Mr. Bowdré alleges that Ms. Hembree manufactured two
false charges of sexual harassment against Mr. Bowdré in the names
of other women. In addition, she allegedly disseminated these charges
widely, "resulting in profound humiliation and psychological harm to Mr.
Bowdré" See Plaintiff's Opposition to Defendant's Motion for
Summary Judgment ("Pl.'s Opp'n") at 2.
In response to the hostile work environment claim, the defendant argues
that "It is, indeed, extraordinary for one such as plaintiff, who
threatened to kill Ms. Hembree, to argue that her activities in carrying
out her duties constituted `harassment' of him simply because she knew
that he had threatened to kill her." Mot. for Summ. J. at 13. Rejecting
this characterization, the plaintiff acknowledges that four days after
learning of Ms. Draughn's complaint, he suffered a "breakdown." See Pl.'s
Opp'n at 5. Indeed, on July 31, 1994, he presented himself for admission
at the emergency room at Andrews Air Force Base complaining of painful
thoughts, including "suicidal and homicidal ideations." See Pl.'s Opp'n
at 2. Subsequentiy, Mr. Bowdré went on medical leave due to his
psychological condition and did not return to the DOE until February
1995. See Compl. at 8.
Effective August 1, 1994, the DOE barred Mr. Bowdré from
entering the premises of the DOE and placed him on forced administrative
leave. See Pl.'s Opp'n at 6. On Aug. 30, 1994, the plaintiff's lawyer,
Suzanne Levin, had a meeting with Mr. Pagano about the plaintiff's claims
of retaliation and discrimination. See Pl.'s Opp'n at 7. According to the
plaintiff, Mr. Pagano acknowledged at the meeting that Mr. Bowdré's
complaints would be considered "pending" at the time, and advised Ms.
Levin that because the plaintiff was physically barred from the DOE, the
time limitations would be tolled and the normal time frame for processing
an EEO complaint would not apply, until Mr. Bowdré's return to
regular work status. See Pl.'s Opp'n at 7-8.
Mr. Bowdré returned to work in February 1995. See Compl. at 8.
On February 17, 1995, and on several occasions thereafter, he requested
what he called a reasonable accommodation for the medical conditions he
had developed as a consequence of the alleged workplace discrimination
and retaliation. See id. Specifically, "Plaintiff's physician and
plaintiff repeatedly requested that Mr. Bowdré be placed in a
position whereby he would not be exposed to the same managers who had
perpetrated, facilitated or refused to halt the harassment that caused
Mr. Bowdré's impairment and medical condition." Id. Mr.
Bowdré states that the OCR refused his requests. See id. The
defendant, however, states that it is undisputed that Mr. Bowdré
was transferred away from Ms. Hembree's supervision. See Mot. for Summ.
J. at 3.
The plaintiff alleges that the hostile work environment continued after
his return to work in February 1995. For example, on May 17, 1995, his
car tire was slashed. See Compl. at 7. His car was parked in the North
section of the DOE's Forrestal Building garage, which is secured by
federal law enforcement officers, with access restricted to employees and
those with special clearance. See id. On May 25, 1995, his car tire was
again slashed while he was parked in the Forrestal Building garage. See
The DOE's report of investigation, performed by an office independent
of the OCR, stated that "Many witnesses provide evidence that would
support the charge that DOE managers created and subjected the
Complainant to a hostile work environment . . . ." Id.
The complaint alleges that after Mr. Bowdré's return to work in
February 1995, the OCR transferred him to the Germantown, Maryland
office, prohibited him from using the shuttle bus between the Washington
D.C. and Germantown offices, and required him to provide a detailed
itinerary of his hour-by-hour whereabouts in advance of visiting the
D.C. office. See Compl. at 11. Mr. Bowdré's daily itinerary was allegedly
conveyed to Ms. Hembree. See id.
In October 1996, the DOE notified Mr. Bowdré that he would be
separated from service on January 3, 1997 by a Reduction in Force
("RIF"). See id. Mr. Bowdré claims that Corliss Moody, the
director of the Office of Economic Impact and Diversity, who knew about
Mr. Bowdré's complaints, intentionally altered the RIF so that he
would be separated from service. See id. at 11-12.
On September 29, 1999, the plaintiff filed his complaint in this
court. The defendant now moves for summary judgment.
Federal Rule of Civil Procedure 56(c) states that summary judgment is
appropriate when the pleadings and evidence demonstrate that there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. See FED. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Diamond v. Atwood; 43 F.3d 1538, 1540 (D.C.Cir. 1995). To determine what
facts are "material," a court must look to the substantive law on which
each claim rests. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one
whose resolution could establish ...