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BOWDRÉ v. RICHARDSON

January 25, 2001

CARL C. BOWDRÉ, PLAINTIFF,
v.
BILL RICHARDSON, SECRETARY DEPARTMENT OF ENERGY, DEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Carl Bowdré ("the plaintiff" or "Mr. Bowdré") brings this employment discrimination case against the Department of Energy ("the defendant" or "the DOE"). The plaintiff, a former Equal Employment Opportunity ("EEO") investigator in the DOE's Office of Civil Rights, alleges that the defendant discriminated against him on the basis of his race (African-American), color (black), gender (male), and disability (post-traumatic stress disorder caused by job harassment and asthma) in retaliation for his prior EEO activity. Specifically, the plaintiff alleges that the defendant discriminated against him by creating a hostile work environment in which the plaintiff was the target of threatening voice-mail messages, false sexual harassment charges, and vandalism to his car. This alleged discrimination culminated in the plaintiffs firing in 1997.

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.

II. BACKGROUND

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.

Id.

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 id.

During the fall of 1995, the DOE was investigating Mr. Bowdré's EEO complaints. See Compl. at 8. In October 1995, the investigator deposed Ms. Hembree and other top OCR officials. See id. Mr. Bowdré alleges that in October 1995, his car was once again vandalized while he was parked in the Forrestal Building garage. See id. at 9. The plaintiff also alleges that on or about the day of the depositions, he received a number of racist telephone messages threatening him with personal injury if he continued to press his complaint. See id. The voice allegedly said, "I'm warning you, mother fucker. You had better not fuck shit up." Id. In addition, the voice allegedly warned him, "Listen, nigger. Leave the shit alone. We are going to fuck you up . . . You ever notice the fucking tires got fucking cut?" Id.

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.

III. DISCUSSION

A. Legal Standard

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 ...


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