The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff, a photographer with the Federal Bureau of Investigation ("FBI"), brings this action against defendants the Attorney General and the Director of the FBI alleging discrimination on the basis of disability and retaliation in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 et seq., and Title VII of the Civil Rights Act, 42 U.S.C. § 2000d et seq., and § 2000e-16. Defendants have submitted a motion for partial dismissal on the disability discrimination claims and for summary judgment on the remainder of the claims. Plaintiff has moved for partial summary judgment, seeking judgment as a matter of law on the disability discrimination claims. For the reasons explained below, the Court grants summary judgment in favor of defendants on the discrimination claims, but denies summary judgment on the retaliation claim.
Plaintiff's alleged disability is Tourette's Syndrome ("TS"), a neurological disorder characterized by multiple involuntary movements and uncontrollable vocalizations called tics. TS may also result in additional behavioral or emotional problems, such as obsessive-compulsive tendencies, emotional lability, irritability, impulsivity, and aggression. Plaintiff has experienced the behavioral characteristics of TS at various points in time.*fn3
Plaintiff has been employed by the FBI as a photographer since 1984. Since 1991, he has worked as a Science & Technical Photographer ("S&T") in the Special Photographic Unit ("SPU"), which includes two subunits -- the Forensics Studio and the Field Support Subunit. From 1991 to October of 2000, plaintiff was assigned to the Forensics Studio, where he was responsible for performing complex and sometimes high profile assignments, including photographing crime scenes in Kosovo, Tanzania, and Oklahoma City. In 1994, plaintiff began seeking treatment from a neurologist, Dr. Susan Caulkins, in an effort to control his TS symptoms. He began taking Clonadine to control his tics, and he increased his dosage in 1995, which he believes led to increased irritability. In 1995, Dr. Caulkins sent a letter to plaintiff's management explaining the side effects of the medicine. For the next three years, plaintiff was not given travel assignments, was not included in managerial meetings affecting the Forensics Studio, and was not given opportunities to serve in informal supervisory capacities (such as"acting" chief of the Studio). In 1996, Wayne Feyerherm became chief of the Forensics Studio - and hence plaintiff's direct supervisor. Plaintiff and Feyerherm had repeated conflicts in the office stemming from what plaintiff perceived to be unfair treatment, including criticisms, reprimands, and deprivation of desirable assignments. Nonetheless, plaintiff consistently earned superior performance appraisals, and from 1993 to 2000 he was consistently rated"exceptional" in the critical element of technical ability.
In January of 1998, Athena Varounis became the SPU Chief. Plaintiff voiced his concern to her about not being deployed on travel assignments, and Varounis instructed Feyerherm to allow plaintiff to travel. In March of 1999, plaintiff was promoted to a GS-13 level in the S&T Photographer position, the highest grade for the position.
On December 14, 1999, plaintiff was arrested for solicitation of prostitution while on business travel for the FBI. At this time, Varounis placed plaintiff under a travel restriction for a period of one year (until December 2000), while an investigation by the Office of Professional Responsibility ("OPR") was conducted. On December 6, 2000, OPR issued an adjudication letter finding plaintiff in violation of agency regulations based on the conduct underlying the arrest, and, inter alia, placed plaintiff on probation for one year. This resulted in a continuation of the travel restriction until December 2001.
During this same time frame, plaintiff remained unhappy with the manner in which he was being treated within SPU, primarily due to the ongoing conflict between plaintiff and Feyerherm. On or about August 25, 2000, plaintiff met with an EEO counselor, Ben Holliday, to discuss the difficulties he was experiencing in the Forensics Studio, but did not file an administrative complaint at that time. The EEO counselor suggested that plaintiff's problems were due to a"personality conflict" with Feyerherm, and advised plaintiff to meet with Tod Hildebrand, a supervisor further up the chain-of-command. Plaintiff then met with Hildebrand on September 5 to discuss his situation.
On October 5, 2000, Varounis notified plaintiff that he would be laterally reassigned to the Field Support Subunit, effective October 8, 2000. Varounis' stated reason for the reassignment was two-fold: first, plaintiff was unhappy working for Feyerherm, and she believed the reassignment would"make him happy"; and second, there was a need for another staff person to work in the Field Support Subunit because of the backlog in camera repair and cleanings. Plaintiff's recent arrest and the ongoing OPR investigation were unrelated to the decision to reassign plaintiff. Plaintiff and the EEO counselor notified Varounis that he objected to the reassignment, but Varounis did not change her decision. During this same time (August to October of 2000), the SPU was preparing to hire another S&T Photographer, and once the hiring decision was made, Varounis assigned the new photographer to the Forensics Studio.*fn4 On November 3, 2000, plaintiff filed an EEO administrative complaint alleging that the reassignment constituted (1) discrimination based on disability and (2) retaliation for contacting the EEO counselor on August 25, 2000.
Plaintiff proceeded to work in the Field Support Subunit for three years, from October 8, 2000, to September 22, 2003. He maintained his job title and GS-13 grade, but his duties changed and the opportunities to work paid overtime were diminished. Plaintiff was assigned primarily to camera cleaning work and taking inventory, and had no opportunity to do photography in the field with the exception of one occasion in September 2003.
In November 2001, Larry Sparks replaced Varounis as the Unit Chief of SPU. On March 22, 2002, he issued a memorandum to institute a policy of rotating photographers between SPU subunits, stating that all photographers in the subunits were"not given the same opportunity to maintain photography skills described in their performance standards." Pl.'s Exhibit 35. After this change in policy, plaintiff was allowed to take on the one photography assignment noted above. Plaintiff also had two other occasions to do work beyond camera cleaning and inventory: a training assignment in June 2002, and installation of a"concealment" in August 2002. Id.*fn5 In May 2003, Feyerherm retired and left the Forensics Studio. On September 22, 2003, plaintiff was rotated back to the Forensics Studio.
The Court has considered matters outside of the pleadings to rule on that part of defendants' motion requesting dismissal under Fed. R. Civ. P. 12(b)(6) and thus treats it as a motion for summary judgment, together with the rest of defendants' motion. Summary judgment is appropriate when the pleadings and the evidence demonstrate that"there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by"informing the district court of the basis for its motion, and identifying those portions of'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322."If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer"evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
I. Exhaustion of Administrative Remedies
Defendants initially move to dismiss all claims involving discrete acts of discrimination, with the exception of the lateral transfer to the Field Support Subunit, on the ground that plaintiff failed to initiate contact with an EEO counselor within 45 days of those acts. Pursuant to 29 C.F.R. § 1614.105(a)(1), prior to filing an administrative complaint, an aggrieved person must contact an EEO counselor in order to try to informally resolve the matter, and must do so"within 45 days of the date of the matter alleged to be discriminatory, or in the case of a personnel action, within 45 days of the action."*fn6 Because plaintiff made his initial contact with the EEO counselor on August 25, 2000, any claims based on discrete acts of discrimination occurring more than 45 days before that date -- that is, before July 10, 2000 -- are time-barred. A party must file a charge within the Title VII limitations period for each discrete act of discrimination alleged or lose the ability to recover for it. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002).
An assertion that the discrete acts constitute a"continuing violation" or a series of related violations will not save a claim that falls outside of the limitations period. Id.
The Court agrees that, with the exception of the lateral transfer, plaintiff cannot bring a claim for discrete acts of discrimination. Plaintiff's amended complaint alleges that commencing in the spring of 1995 and"during the ensuing years," defendants, primarily through Feyerherm, treated him less favorably than his non-disabled co-workers, including treating him as a"problem personality," blaming him for workplace conflict, excluding him from the informal chain of command and staff meetings, restricting his travel and teaching assignments, restricting his high visibility projects, unfairly reprimanding and criticizing him, and speaking to plaintiff in derogatory terms. Amended Compl. ¶¶ 23-29. Plaintiff has conceded that these events are not"independently actionable at this time." Pl.'s Mot. for Partial Summ. J. and Opp. to Defs.' Mot. at 43.
However, plaintiff appears to contend that these events, including the lateral reassignment, collectively rose to the level of a hostile work environment and should be actionable as such.*fn7 The Supreme Court has distinguished a claim regarding hostile work environment from discrete acts of discrimination:"A hostile work environment claim is composed of a series of separate acts that collectively constitute one'unlawful employment practice.'... Provided that an act contributing to the claim occurs within the filing period, the entire period of the hostile environment may be considered by a court for the purposes of determining liability." Morgan, 536 U.S. at 117. Here, the lateral reassignment occurred on October 5, 2000, and plaintiff contacted the EEO counselor on the same date, thus bringing one of the claims contributing to the alleged hostile work environment within the 45-day limitation period. Although plaintiff did not specify a"hostile work environment" claim as such in either of his EEO contacts, a Title VII lawsuit includes the claims that are"like or reasonably related to the allegations of the [administrative] charge and growing out of such allegations." Jones v. Billington, 12 F. Supp. 2d 1, 7 (D.D.C. 1997) (citations and quotations omitted) (holding that exhaustion requirement was satisfied even though hostile work environment was not included in formal EEO charge because it related to the conduct alleged in the charge), aff'd, 1998 WL 389101 (D.C. Cir. June 30, 1998). Plaintiff's hostile work environment claim appears to be based on substantially the same conduct discussed with the EEO counselor and alleged in his EEO administrative complaint. Thus, plaintiff has satisfied the exhaustion requirement for the hostile work environment claim. Accordingly, the Court grants defendants' motion to dismiss the claims alleging discrete acts of discrimination as violations of law, with the exception of the lateral transfer, and denies the motion to the extent it seeks to dismiss plaintiff's hostile work environment claim.
II. Discrimination Based on Disability
The Rehabilitation Act provides that"[n]o otherwise qualified individual with a disability" may be discriminated against by a federal agency"solely by reason of her or his disability." 29 U.S.C. § 794(a).*fn8 To establish a prima facie case of prohibited employment discrimination under the Act based on disparate treatment, a plaintiff must show: (1) that he is a disabled person with the meaning of the Act; (2) that he is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) that he suffered an adverse employment decision because of his disability. Baker v. Potter, 294 F. Supp. 2d 33, 42 (D.D.C. 2003). To establish a prima facie case of hostile work environment, a plaintiff must demonstrate that: (1) he is a member of a protected class; (2) he is subject to unwelcome harassment; (3) the harassment was based on his protected status; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take action to prevent further harassment. Jones v. Billington, 12 F. Supp. 2d at 11. Thus, for both claims, a key element is establishment of a disability covered by the Act. Defendants move for summary judgment on plaintiff's claims of disparate treatment and hostile work environment on the grounds that plaintiff does not have a"disability" within the meaning of the Act.
B. Definition of Disability -- Major Life Activity
A plaintiff is disabled under the Rehabilitation Act if he: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) has been regarded as having such an impairment. 29 U.S.C. § 705(20)(B).*fn9
The Rehabilitation Act requires that the plaintiff must show an"impairment that substantially limits one or more major life activities." Id. As the Supreme Court has emphasized,"merely having an impairment does not make [an individual] disabled." Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). A plaintiff also must demonstrate the impairment"substantially limits" a"major life activity." Id. Defendants move for summary judgment on the ground that TS does not limit plaintiff in any"major life activity," and thus is not a"disability" within the meaning of the Act. Alternatively, defendants argue that any such limitation is not"substantial." Plaintiff opposes summary judgment on this issue on the ground that plaintiff is substantially limited in the activity of"interacting with others" and"interpersonal interaction." Plaintiff also argues that the major life activity of sleeping is at issue, which defendants contest. The Court addresses each of these issues in turn.*fn10
1. Interacting With Others
The primary focus of the parties' disagreement is on whether"interacting with others" (essentially the same activity as"interpersonal interaction") is a"major life activity." This presents a question of law that has divided the Circuits. Neither the ADA nor the Rehabilitation Act defines"major life activity." However, the Supreme Court has set forth general standards to apply. The term"major life activities" refers to"those activities that are of central importance to daily life." Toyota, 534 U.S. at 197. Additionally,"these terms need to be interpreted strictly to create a demanding standard for qualifying as ...