The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Wilbur Scarborough brings this action for discrimination and retaliation pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. Scarborough, an African-American male born on September 19, 1939, is a former employee of the United States Agency for International Development ("USAID"). Defendant has moved to dismiss four of the twelve counts of plaintiff's complaint and seeks summary judgment on all twelve counts. At oral argument on March 7 and 8, 2002, the Court granted defendant's motion for summary judgment with regard to Counts III-IV, VI-XI, and part of Count XII. Upon consideration of the pleadings and the entire record contained therein, as well as the issues raised at the hearing on March 7 and 8, the Court now denies defendant's motion to dismiss, but grants summary judgment with respect to plaintiff's remaining claims.
I. Plaintiff's Employment and Medical History
At all times relevant to this action, plaintiff worked for USAID as a Program Officer in the Foreign Service. His career with USAID began in 1974, and prior to becoming a Program Officer, plaintiff served, inter alia, as an Agricultural Rural Development Specialist in Tanzania, Kenya, Sierra Leone, and Niger. From April 1988 to June 1992, plaintiff worked in Jakarta, Indonesia. While there, as is the case with many USAID workers, he contracted a gastrointestinal parasite, which was subsequently diagnosed as amebiasis. (Pl. Ex. 2, ¶ 2; Pl. Ex. 4; Def. Ex. 2, at 22:23-5; Def. Ex. 9, at 125:14-126:15.) Plaintiff contracted the parasite in 1988 and was treated for diarrhea. Scarborough also experienced sinus and allergy trouble in Indonesia, and at one point was rushed to Singapore for emergency treatment of a recurrent acute staphylococcus aureus infection. (Pl. Ex. 1, at 3; Pl. Ex. 2, at 23:4-24:4.
In 1990, plaintiff contacted the Equal Employment Opportunity ("EEO") office in Jakarta regarding a dispute with his supervisor, Robert Navin. This complaint was handled informally by plaintiff and Navin, and according to plaintiff, a "truce" was reached regarding the situation. (Def. Ex. 3, at 175:13-176:23.) In April 1991, plaintiff decided that he wished to retire and began exploring ways to receive disability retirement. (Def. Ex. 10, at 15.
A typical overseas Foreign Service assignment lasts approximately four years, and Foreign Service officers are generally assigned to Washington D.C. after eight years abroad. (Def. Ex. 9, at 30:2-8, 31:9-18.) On June 27, 1991, plaintiff submitted a "Completion of Assignment Report," in which he provided information that he wished to be considered in connection with his next assignment after Indonesia. He requested that he not be transferred to Washington, D.C. because of his "chronic hay fever/sinus allergy." (Def. Ex. 12, at 2.) Instead, Scarborough sought a post in Uganda, Egypt, Gambia, or Bangladesh. (Id. at 1; Def. Ex. 2, at 152:19-24.
Nonetheless, plaintiff was reassigned to Washington, D.C. as of August 1992. On October 6, 1992, plaintiff obtained an unlimited medical clearance for worldwide assignment after undergoing a physical examination conducted by the Department of State's Office of Medical Services. (Def. Ex. 8, at 1.) During the physical, amoebic parasites were identified in laboratory tests. (Def. Ex. 2, at 52:16-53:8.) Plaintiff filed a claim with the Office of Workers' Compensation ("OWCP") at the Department of Labor ("DOL") for this condition, and the claim was accepted for the specific condition of amebiasis on January 14, 1993. The date of the injury was identified as May 14, 1992. (Def. Ex. 13.
Plaintiff continued to experience health problems after returning to Washington, D.C. in August 1992. He contends that he could not sleep; had less energy, felt pain in his joints, feet, ankles, elbows, and knees; experienced gastrointestinal problems; suffered from flu-like symptoms; and had difficulty walking. (Amended Complaint ¶¶ 16-17; Pl. Ex. 1, at 3; Pl. Ex. 2, ¶ 3; Pl. Ex. 3, ¶ 3.) On January 25, 1993, Scarborough assumed the position of Assistant Country Development Officer in the Office of East Africa Affairs in the District of Columbia. This was functionally the equivalent of a Program Officer position. Plaintiff's first-level supervisor in that job was Gerald Cashion. Scarborough was absent from the office for a substantial amount of time during his first six months in the position. During that period, he used all of his annual and sick leave for the year, and was placed on Leave Without Pay ("LWOP") status for part of the time. Some of Scarborough's absences resulted from his attendance at the funerals of his father and brother in Chicago; the rest were due to rheumatism and bone soreness. (Def. Ex. 15, ¶ 3.)
As plaintiff states, "[b]ecause of his illnesses, [Scarborough] was unable to steadily work full-time at his position from May 1, 1993 to the time of his retirement on September 29, 1994." (Pl. Opp. at 6.) Beginning in June 1993, plaintiff provided some documentation from physicians regarding his medical condition. During this period, plaintiff was treated for "HTN," "arthritis," and "anemia" (Def. Ex. 16, June 21, 1993 Doctor's Note), "arthritic pain" (Def. Ex. 17, July 20, 1993 Doctor's Note), "arthritic pain," "HTN," "recurrent diarrhea," and his "allergic condition" (Def. Ex. 18, at 2, Aug. 2, 1993 Doctor's Note), "reactive arthritis associated with the gastrointestinal infestation by amoeba and, possibly, giardia" (Def. Ex. 19, at 3, Aug. 23, 1993 Doctor's Note), a "gastrointestinal complaint" (Def. Ex. 20, Aug. 25, 1993 Doctor's Note), "reactive arthritis," (Def. Ex. 21, at 2, Oct. 8, 1993 Attending Physician's Report; Def. Ex. 22, Nov. 13, 1993 Doctor's Note), and the "flu." (Def. Ex. 23, Nov. 15, 1993 Doctor's Note.)
At the same time, USAID repeatedly advised plaintiff of the consequences of his frequent absences in light of the "inadequate medical documentation" that he had provided. (Def. Mem. at 12.) On July 15, 1993, Cashion issued a leave restriction letter notifying plaintiff that failure to follow specific procedures would result in his being classified as Absent Without Leave ("AWOL") for any more missed work. (Def. Ex. 25, at 3.) Just eight days later, Cashion wrote plaintiff to inform him that he was being charged as AWOL for July 19 and 20, because the medical documentation he had submitted for those two days "does not suggest that you were incapacitated and therefore unable to come to work . . . ." (Def. Ex. 26.) Cashion reiterated this policy in memos to plaintiff dated September 3 and October 5, 1993. (Def. Exs. 27-28.) Plaintiff alleges that he made his first request that these missed workdays be classified as LWOP, rather than AWOL, in September 1993. *fn1 (See Pl. Opp. at 6; Pl. Ex. 22.) This request was denied. At the end of the same month, plaintiff was turned down for another job within USAID for which he had applied, in the Office of Development, Bureau for Private Enterprise. (Def. Ex. 15, at 2.)
On November 16, 1993, plaintiff was notified that he had been selected out for mandatory retirement, which was to become effective April 30, 1994. (Def. Ex. 33.) Plaintiff filed a grievance in response to this decision on April 20, 1994, arguing that 1) a relevant evaluation from 1993 was not reviewed by the boards that chose plaintiff for mandatory retirement, and 2) the boards committed a procedural error because members of the preliminary selection board also served on the Performance Standards Board that made the final determination of forced retirement. (Def. Ex. 34.) Pursuant to USAID procedures, plaintiff was granted "prescriptive relief," and thus, his mandatory retirement was stayed until a decision was reached on his grievance. (Def. Ex. 30, at 157.)
Plaintiff's absences continued following his selection for mandatory retirement. Between October 1993 and June 1994, plaintiff missed work and was placed on AWOL for 976 hours over 19 pay periods. That is, plaintiff missed nearly two-thirds of the 1520 hours that comprised those pay periods, and was AWOL for at least part of each of the 19 periods. (Def. Ex. 46, at 3.) Scarborough visited several doctors during this timeframe. On December 15, 1993, Dr. Marc Hochberg, a professor of medicine at the University of Maryland, wrote that Scarborough "no longer ha[d] the arthritis-related disabilities in activities requiring mobility and exercise tolerance and he is able to fulfill his job requirements. There is no reason, medically, why he can no longer work at his chosen occupation." (Def. Ex. 35.) *fn2 This diagnosis was supported by another doctor, who wrote eight days later that plaintiff's "symptoms [were] under control, so he should be able to fulfill his requirements for his job." (Def. Ex. 36, Dec. 23, 1993 Note from Dr. Gaurang Thaker.) Less than three weeks later, however, a third doctor found that Scarborough had "not been able to attend work because of his severe fatigue [and that] possible chronic fatigue may hinder his ability to attend work in the future." (Def. Ex. 37, Jan. 10, 1994 Doctor's Note; see also Def. Ex. 38, at 4, Jan. 27, 1994 Doctor's Note ("[I]t is possible that the patient does have a chronic fatigue syndrome." ("CFS")).
In March 1994, in response to his prolonged absence from work, USAID requested that plaintiff undergo an Agency physical examination. *fn3 (Def. Exs. 40, 46.) However, plaintiff says that he believed that the exam would be too physically rigorous, given his existing medical condition, and declined to comply. (Def. Ex. 2, at 110:6-111:13.) Two months later, Dr. Mohamed Al-Ibrahim, the Head of General Internal Medicine at the University of Maryland's School of Medicine, provided the most conclusive diagnosis of CFS to that point. "Basically, we have an individual previously in fairly good to excellent health who has debilitating fatigue, musculo-skeletal pains, poor sleep, concentrating difficulty, and headaches. In my opinion the medical picture is consistent with chronic fatigue syndrome." (Def. Ex. 44, at 2, May 16, 1994 Note from Dr. Al-Ibrahim.) On May 18, however, USAID's Assistant Director for Medical Clearances assessed plaintiff's condition differently, based on an examination of plaintiff's file, and found "nothing . . . to explain or justify his frequent absences from work." *fn4 (Def. Ex. 43.)
Throughout this period, plaintiff failed to report for work on a consistent basis. His April 12, 1994 employee evaluation report ("EER") for the period from April 1, 1993 to March 31, 1994 reflected this. "Mr. Scarborough's performance and attitude fell far short of what is expected of a Foreign Service professional with his many years of experience." (Def. Ex. 42, at 3.) This evaluation contrasted sharply with the performance reports that had been issued to plaintiff over the preceding five years, which were uniformly positive. (Pl. Ex. 7, ¶ 5.) Pursuant to applicable regulations, the 1993-94 EER did not mention plaintiff's medical condition. *fn5
In June 1994, plaintiff failed to respond to a second Agency request for a fitness-for-duty examination. (Def. Ex. 10, at 20; Def. Ex. 46, at 2.) On July 6, 1994, USAID's Office of Human Resources issued Scarborough a notice of proposed suspension without pay for twenty days for absence without leave and failure to follow instructions. (Def. Ex. 46.) This notice documented plaintiff's repeated lack of attendance at work since he had been reassigned to Washington D.C. in 1992, as well as the Agency's reply to his absences. In response to the notice of proposed suspension, on July 13, 1994, plaintiff made his first and only written request for accommodation for his illness.
Due to ongoing recurrences of my illness, I hereby request whenever my sick leave is exhausted to be placed on Leave Without Pay (LWOP) status at any time that I am unable to report to work. The attached documentation explains the Chronic Fatigue Syndrome that inhibits my performance from time to time. Your approval of this request would be greatly appreciated. *fn6 (Def. Ex. 47.)
Plaintiff attached the May 16, 1994 note from Dr. Al-Ibrahim to support his assertion that chronic fatigue syndrome "inhibits my performance from time to time." (Def. Ex. 47.) At the time plaintiff submitted this request for LWOP, he had been designated AWOL for 976 of his last 1520 work hours, from October 1993 to June 1994. (Def. Ex. 46, at 3.)
On August 26, 1994, Cashion denied plaintiff's request for LWOP. Cashion's response delineated the Agency's LWOP policy, and concluded that plaintiff had not met the requirements for that designation.
First, Handbook 27, Chapter 7, section 7H provides that "all requests for LWOP must be in writing and include proposed beginning and ending dates of the requested period, and reason(s) for the request." Your memo did not include the "proposed beginning and ending dates."
Second, 3 FAM 471.6 states that LWOP will be granted "for the purpose of recovering from illness or disability not of a permanent or disqualifying nature when continued employment or immediate return to employment would threaten impairment of the employee's health or the health of other employees. LWOP for reasons of health must be supported by a medical certificate."
I have reviewed the attachments to your memo of July 13. I note that the letter from Dr. Hochberg dated 15 December 1993 states: "There is no reason, medically, why he can no longer work at his chosen occupation." The letter from Dr. Thurang [sic] dated 23 December 1993 states: "He can, nonetheless, work at his chosen occupation at this time." The letter from Dr. Al-Ibrahim . . . does not state, nor does he suggest, that your physical condition prevents you from reporting for work. Thus, the attachments do not appear to adequately support your request. . . .
In light of the above, I regret I am unable to concur with your request. However, please feel free to submit any other appropriate documents that you believe may be helpful and I will be happy to reconsider your request." (Def. Ex. 48, at 1-2.)
The same day, USAID's Office of Human Resources again ordered plaintiff to undergo a medical examination to enable the Agency "to make a decision on the proposed suspension action." (Def. Ex. 49.) Plaintiff neither reported for the scheduled examination nor requested rescheduling. (Def. Ex. 50.)
Throughout this process, plaintiff's grievance over his selection out for mandatory retirement was pending. On September 6, however, he withdrew the grievance and stated that he would "mandatorily retire on or before September 29, 1994 as directed." (Def. Ex. 51.) On September 12, 1994, plaintiff submitted an application for retirement requesting a "date of final separation" of September 29, 1994. (Def. Ex. 52, at 1.) Six days before he was scheduled to retire, on September 23, 1994, Scarborough reported to the Veterans Administration Hospital in Baltimore, Maryland for an examination, the purpose of which was listed as "separation." (Def. Ex. 53.) Plaintiff had requested that the examination be conducted by a physician with experience in diagnosing chronic fatigue syndrome. (Def. Ex. 2, at 111:24-112:5.) Dr. James McPhillips examined plaintiff and found that he "has classical history of chronic fatigue syndrome as recognized by the Veterans Administration." (Def. Ex. 53, at 3.) But as had consistently been the case, the doctor expressed no opinion as to the severity of plaintiff's illness or its effect on his ability to work.
On September 29, 1994, plaintiff retired from USAID. Although the application for retirement indicated that his departure was an "involuntary separation" or a "selection out" (Def. Ex. 52), plaintiff testified in his deposition that he decided to retire, and that retirement itself was "not a big thing." (Def. Ex. 3, at 237:21-22.) Moreover, plaintiff specifically explained that he did not retire as a result of the selection out in November 1993.
Q: So isn't it true, Mr. Scarborough, that when you say you were forced to retire, you're not saying that the Agency's decision to mandatorily retire you was the basis for your retirement, are you?
A: No, because at that time, the mandatory retirement was still being adjudicated in the grievance process. It was still going forward. I didn't know how soon they were going to reach a decision, but I was optimistic ultimately I would, you know, prevail, but it was still being adjudicated. (Def. Ex. 1, at 157:4-13.)
In a subsequent deposition, plaintiff reiterated that the selection out did not lead to his retirement.
Q: Sir, you didn't retire because of the Agency's decision to mandatorily retire you, did you?
A: I retired because the Agency refused to allow me to have the rest, vis-a-vis, leave without pay which was needed for me to attempt to recover a modicum of health, and they refused. My health has to dictate my actions. (Def. Ex. 3, at 234:6-11.)
II. Plaintiff's Worker's Compensation Claim
On January 14, 1994, Scarborough submitted an Office of Worker's Compensation Programs ("OWCP") claim for reimbursement of his use of annual and sick leave between October 1992 and October 1993 due to amebiasis. (Def. Ex. 54.) According to plaintiff, in February 1994, Cashion refused to reclassify as reimbursable 158 hours of time for which plaintiff had been designated AWOL in July-October 1993. Plaintiff also contends that Navin refused to process paperwork for the worker's compensation claim at approximately the same time. (See Pl. Ex. 29.)
On March 30, 1994, plaintiff was granted compensation for 388 hours of leave, totaling $9,290.98, between October 9, 1992 and July 8, 1993. (Def. Ex. 55.) On June 28, 1994, the compensation was reviewed and increased to $10,452.33 over the period from October 8, 1992 to August 16, 1993. (Def. Ex. 56, at 1.) In an October 24, 1994 letter, OWCP approved the buy back of 316 hours of leave in the amount of $10,452.33. (Def. Ex. 58.) Following plaintiff's retirement, Joan King, the manager of USAID's payroll office at the OWCP, conducted a routine leave audit to confirm his payment amount. (Def. Ex. 60, at 1-2.) This audit determined that plaintiff had a balance of only 208 hours of annual leave, instead of the 316 hours ...