The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Clifford F. Smith, brings this action against Defendant Alphonso R. Jackson, in his capacity as Secretary of the United States Department of Housing and Urban Development ("HUD" or the "Agency"), pursuant to Title VIII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as well as 42 U.S.C. § 1981. Plaintiff alleges that he was subjected to a hostile work environment and disparate treatment based on his race and age,*fn1 when his former supervisor allegedly attacked his performance, shouted at him and threatened him with disciplinary action, revoked his Compressed Work Schedule ("CWS"), charged him with Absence Without Leave ("AWOL"), issued a Proposal to Suspend him, and physically blocked his path when he tried to leave his office. Plaintiff further alleges that he was retaliated against for Union activity when he was ordered to return to a work station from which he had temporarily been relocated. Defendant has moved to dismiss certain of Plaintiff's factual allegations, and seeks summary judgment on Plaintiff's entire Complaint. Based upon a searching consideration of Defendant's motion, Plaintiff's Opposition, Defendant's Reply, the attached exhibits, the relevant case law, and the entire record herein, the Court shall grant Defendant's Motion to Dismiss and for Summary Judgment in its entirety.
A. Plaintiff's Employment by HUD and Work on the SASI Contract
Plaintiff Clifford F. Smith is an African-American, black male, who was 66 years old at the time of the events giving rise to this action.*fn2 At that point, Plaintiff was employed as a GS- 1101-13 Contract Oversight Specialist in the Office of Housing of the Procurement Management Division of HUD. Def.'s Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. From March 2002 until June 13, 2002, Plaintiff's first-line supervisor was Thomas Vincent, Deputy Director of the Procurement Management Division. Def.'s Stmt. ¶ 2; Pl.'s Stmt. ¶ 2. Plaintiff's second-line supervisor was Don Schade, Director of the Procurement Management Division. Id. During the same period, Plaintiff's team leader was Brenda Lambert, and the other team leader in the office was Bernard Morton. Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶ 3. Prior to April 25, 2002, Plaintiff was on a Compressed Work Schedule ("CWS"), whereby he worked four ten-hour days per week and was off every other Friday and the following Monday. See Def.'s Ex. 5 (EEO Report of Investigation ("ROI"), Ex. 14 (4/30/02 Mem. from T. Vincent to C. Smith).
At some point during March 2002, Plaintiff was assigned to handle a contract referred to as the SASI contract. See Pl.'s Stmt. ¶ 4; ROI, Ex. 7 (10/24/03 Lambert Aff.) at 3; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 6:14-22. On Thursday, April 25, 2002, Ms. Lambert went to Plaintiff's office and attempted to inquire as to the status of the SASI contract, which she believed was due to be issued the next day. See ROI, Ex. 7 (Lambert Aff.) at 9; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 15:13-16:16.*fn3 Plaintiff responded to Ms. Lambert's inquiry by telling her to leave him alone so that he could get his work done. ROI, Ex. 7 (Lambert Aff.) at 9; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 16:2-16. In light of the impending deadline, Ms. Lambert proceeded to report Plaintiff's behavior to Mr. Schade. ROI, Ex. 7 (Lambert Aff.) at 9; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 16:21-23.*fn4 Mr. Schade then accompanied Ms. Lambert into Plaintiff's office to discuss the status of the SASI contract. ROI, Ex. 7 (Lambert Aff.) at 9; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 16:21-23. According to Mr. Schade and Ms. Lambert, Plaintiff could not explain the status of his assignment on the SASI contract to Mr. Schade, and Mr. Schade therefore instructed Plaintiff to bring the completed assignment to his office in an hour (i.e., at approximately 2:15 p.m.). ROI, Ex. 7 (10/23/03 Schade Aff.) at 3; Ex. 7 (Lambert Aff.) at 9.
When Plaintiff did not bring the completed assignment to Mr. Schade's office at the designated time, Mr. Schade called Plaintiff into his office. Id. Also present in Mr. Schade's office when Plaintiff arrived were Mr. Vincent and Ms. Lambert. Id.; Pl.'s Ex. 4 (Pl.'s Ans. to Def.'s Interrogs.). at 4. Plaintiff's supervisors informed him that he was to complete his assignment by 5:00 p.m. that afternoon. ROI, Ex. 7 (Lambert Aff.) at 10; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 27:10-14; Pl.'s Ex. 4 (Ans. to Interrogs.) at 4. Plaintiff asserts that he did not agree to the 5:00 p.m. deadline, but admits that it was imposed. Def.'s Ex. 6B (2/27/07 Smith Dep.) at 27:10-14; Pl.'s Ex. 4 (Ans. to Interrogs.) at 4. At approximately 4:45 p.m., Plaintiff informed Mr. Vincent that he had encountered computer difficulties while attempting to complete his assignment. Pl.'s Ex. 4 (Ans. to Interrogs.) at 4-5; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 27:17-28:13; Def.'s Ex. 7 (3/28/07 Vincent Dep.) at 44:9-45:19. When it became clear to Mr. Vincent that Plaintiff would not complete the assignment before 5:00 p.m., Mr. Vincent told Plaintiff that he had to report to work on Friday, April 26, 2002 to finish the assignment. Pl.'s Ex. 4 (Ans. to Interrogs.) at 5; Def.'s Ex. 7 (Vincent Dep.) at 46:18-47:4. Friday, April 26, 2002 and Monday, April 29, 2002 were Plaintiff's scheduled days off on his CWS. Def.'s Ex. 14 (4/30/02 Mem. from T. Vincent to C. Smith); Pl.'s Ex. 4 (Ans. to Interrogs.) at 5. Thus, by requiring Plaintiff to report to work on Friday, April 26, 2002, Mr. Vincent was canceling Plaintiff's CWS. Def.'s Ex. 7 (Vincent Dep.) at 46:18-47:4.*fn5
Plaintiff asserts that he informed Mr. Vincent that he would not be coming in to work on Friday the 26th because he had already worked his scheduled 40 hours for the week. Def.'s Ex. 6B (2/27/07 Smith Dep.) at 29:16-31:12; Pl.'s Ex. 4 (Ans. to Interrogs.) at 5; Def.'s Ex. 7 (Vincent Dep.) at 47:5-15.*fn6 Plaintiff also asserts that he believed he had completed the assignment by 5:00 p.m., although he admits that he might have left something out. Def.'s Ex. 6B (2/27/07 Smith Dep.) at 29:23-30:11; Pl.'s Ex. 4 (Ans. to Interrogs.) at 5. Mr. Vincent warned Plaintiff before he left the office that Plaintiff's failure to report to work on April 26th would result in disciplinary action. Id. Plaintiff did not report to work on Friday, April 26 or Monday, April 29, 2002, but returned to work on Tuesday, April 30, as if his CWS was still in effect. Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 4; Pl.'s Ex. 4 (Ans. to Interrogs.) at 5; Def.'s Ex. 7 (Vincent Dep.) at 66:5-7. On Friday, April 26, Ms. Lambert reviewed the work Plaintiff had submitted at the end of the previous day and determined that it was "substantially not completed and several of the items [Plaintiff] considered to be complete had errors." ROI, Ex. 7 (Lambert Aff.) at 10.
B. Ramifications of the SASI Contract Difficulties
When Plaintiff returned to work on Tuesday, April 30, 2002, Mr. Vincent advised Plaintiff that the SASI contract was his responsibility, that he had not completed the assignment in a satisfactory manner, that he had disregarded a direct order from his supervisor by not reporting to work on Friday, April 26th, and that this was grounds for disciplinary action. Def.'s Ex. 7 (Vincent Dep.) at 66:8-69:8; Pl.'s Ex. 4 (Ans. to Interrogs.) at 5. On the same day, Mr. Vincent issued a memorandum to Plaintiff temporarily revoking his CWS effective May 5, 2002. ROI, Ex. 14 (4/30/02 Mem. from T. Vincent to C. Smith); Def.'s Stmt. ¶ 5; Pl.'s Stmt. ¶ 5. Mr. Vincent stated that the revocation was based on Plaintiff's failure to complete the SASI contract assignment on April 25, 2002, as well as Plaintiff's disregard of Mr. Vincent's order to report to work on April 26, 2002, and was intended to "enable Management to meet the operational needs of the office and better monitor [Plaintiff's] workload management." ROI, Ex. 14.*fn7 Mr. Vincent specifically noted that within sixty days management would review Plaintiff's workload and ability to meet deadlines, as well as the needs of the office, and determine whether Plaintiff could return to his CWS. Id.
Despite Mr. Vincent's revocation of Plaintiff's CWS, Plaintiff continued to work the hours of his CWS during the months of May and June 2002. Def.'s Stmt. ¶ 6; Pl.'s Stmt. ¶ 6. On April 30 or May 1, 2002, Plaintiff's Union submitted a "Demand to Bargain" memorandum on Plaintiff's behalf, which requested that Management not change Plaintiff's CWS pending resolution of an agreement on that issue. See Def.'s Ex. 15 (4/30/02 Mem. from C. Duckett to N. Mesewicz). Mr. Vincent did not accede to this request, apparently based on advice that a change in an employee's work schedule was not subject to union bargaining. Def.'s Ex. 7 (Vincent Dep.) at 71:9-72:4; ROI, Ex. 21 (9/9/02 Mem. from T. Vincent to C. Smith).*fn8
C. Plaintiff's Allegations of Hostile Work Environment
According to Plaintiff, when he returned to work on April 30, 2002, Mr. Vincent began "berating [him] on a daily basis throughout the day using the contract as a disguise since he felt that things were not moving fast enough." Pl.'s Ex. 4 (Ans. to Interrogs.) at 5. Plaintiff asserts that Mr. Vincent's "verbal and email attacks became so frequent, and the daily routine of calling me into his office at least eight or nine times a day inquiring about [the SASI] contract . . [were] sometimes explosive . . . ." Id. In particular, Plaintiff describes an incident on May 2, 2002, in which he asserts that Mr. Vincent called Plaintiff into his office several times to discuss the status of the SASI contract and "made negative remarks and threatened [him] again with disciplinary action." Id.*fn9 According to Plaintiff he "later suffered chest pains, warm feeling and shortness of breath and went to the health clinic[,]" where the nurse found his blood pressure to have "escalated to a dangerous level." Id. Plaintiff further asserts that he "was advised to go home due to the hostile work environment [he] encountered at work." Id. at 6.*fn10
Plaintiff saw his physician, Dr. Yasmin Panahy, the following morning--May 3, 2002--and asserts that she told him to remain at home rather than returning to work. Id. Plaintiff saw Dr. Panahy again on May 6, 2002 and asserts that she again told him to stay home. Id. Plaintiff returned to work on May 14, 2002 and submitted two letters from Dr. Panahy regarding his absences. Def.'s Stmt. ¶ 14; Pl.'s Stmt. ¶ 14; ROI, Ex. 17, Attachments X (5/3/02 Mem. from Dr. Panahy) and Y (5/9/02 Mem. from Dr. Panahy). Dr. Panahy's letters indicate that Plaintiff was under her care, as well as the care of a cardiologist, Dr. Katz. ROI, Ex. 17, Attach. X (5/3/02 Mem. from Dr. Panahy). In her May 3, 2002 letter, Dr. Panahy states, "[Plaintiff] has been under undue high stress recently at work and his blood pressure was extremely high [on May 2, 2002]," notes that elevated blood pressure might be extremely dangerous for Plaintiff given his heart condition, requests that Plaintiff's supervisors "take this into consideration," and reports that she had instructed Plaintiff to walk away from stressful situations. Id. Dr. Panahy's May 9, 2002 letter is more specific, recommending that Plaintiff's "recent contract (SASI) that has caused undue stress be reassigned and that he be reassigned to the other team." ROI, Ex. 17, Attach. Y (5/9/02 Mem. from Dr. Panahy).
Plaintiff asserts that "Mr. Vincent disregarded these notices . . . and continued harassing me and threatening me with disciplinary action for missing work. . . ." Pl.'s Ex. 4 (Ans. to Interrogs.) at 6. However, the record flatly contradicts Plaintiff's claim that Mr. Vincent ignored Dr. Panahy's letters. Rather, in a memorandum dated May 21, 2002, Mr. Vincent acknowledged receipt of those letters and requested additional medical information "to better understand [Plaintiff's] condition(s) and its impact on [his] performing [his] duties and any future requests for leave as an accommodation." Def.'s Stmt. ¶ 15; ROI, Ex. 16 (5/21/02 Mem. from T. Vincent to C. Smith). Mr. Vincent specifically requested that, by June 3, 2002, Plaintiff furnish a detailed medical statement addressing nine questions about his medical condition. Id. When Plaintiff did not respond to Mr. Vincent's request, Mr. Vincent made a second request via memorandum dated June 11, 2002. Def.'s Stmt. ¶ 16; ROI, Ex. 19 (6/11/02 Mem. from T. Vincent to C. Smith). Finally, on June 17, 2002, Theodore Ford, Director of the Resource Management Division, sent Plaintiff a memorandum requesting the medical information that Plaintiff had not provided in response to Mr. Vincent's requests. Def.'s Stmt. ¶ 17; ROI, Ex. 19 (6/17/02 Mem. from T. Ford to C. Smith). Plaintiff admits receiving these requests for additional medical information, and admits failing to provide the requested material. Pl.'s Stmt. ¶¶ 15-17. Plaintiff maintains--and appears to have maintained at the time--that Dr. Panahy's letters were sufficient to answer the requests for additional medical information. Id.
In support of his claim that Mr. Vincent "harassed" and "threatened" him, Plaintiff alleges that Mr. Vincent held meetings with Plaintiff "as frequently as five to eight or more times per day," and "would follow up these encounters with many e-mails per day in which he charged me with various disciplinary infractions. The situation reached a point where I on many occasions, had to go to the health unit." Id. Although Plaintiff includes more specific allegations regarding a handful of meetings, discussed below, his complaint regarding the majority of the meetings appears to relate to their frequency, rather than what occurred during them.*fn11 Further, although Plaintiff focuses upon Mr. Vincent's e-mails, he does not provide copies of any such e-mails or even cite to the e-mails proffered by Defendant, which date from the end of April and beginning of May 2002. See ROI, Ex. 17, Attachments J-T. While those e-mails reflect that Mr. Vincent sent Plaintiff multiple e-mails on some days, the Court notes that they reflect efforts on Mr. Vincent's part to ascertain the status of the SASI contract. Id. During his deposition, Mr. Vincent testified that he used frequent e-mails as a management tool and "sent multiple, constant e-mails to people to make sure that the work was moving." Def.'s Ex. 7 (Vincent Dep.) at 128:7-128:18. Mr. Vincent testified that it was not unusual for him to e-mail an employee multiple times per day or to require an employee to come to his office several times a day if he was working on a contract they were involved with. Id. Mr. Vincent also described his management style as "demanding," but not "particularly tough." See id. at 124:14-125:8. That description is corroborated by the affidavits of Plaintiff's former colleagues that were submitted in connection with the EEO investigation into Plaintiff's claims.*fn12 As Defendant notes, those same former colleagues either do not report, or specifically deny, Mr. Vincent making comments relating to age or race or treating anyone adversely based on a racial or age-related bias. See generally, ROI, Ex. 7 (Lambert Aff.), Ex. 8 (Smallwood Aff.), Ex. 9 (Wood Aff.).*fn13
According to Plaintiff, on May 22, 2002, Mr. Vincent "stormed into [his] office at approximately 5:20 p.m. in a hysterical manner and demanded that [Plaintiff] work on days [he] was not previously scheduled to work." Pl.'s Ex. 4 (Ans. to Interrogs.) at 6. Plaintiff claims that he tried to leave his office to avoid a confrontation that might elevate his blood pressure, but Mr. Vincent blocked the doorway and prevented Plaintiff from leaving. Id. Although Mr. Vincent allowed Plaintiff to leave his office to get water, Plaintiff claims that Mr. Vincent followed him to the water cooler and "in a boisterous manner continued to threaten me with disciplinary action, and AWOL if I failed to work on the days Mr. Vincent requested." Id. Plaintiff's account of the May 22, 2002 incident is contradicted by Ms. Lambert's EEO affidavit, in which she indicates that Mr. Vincent blocked Plaintiff's path simply by standing in the doorway of Plaintiff's office because it did not have a large walkway. See ROI, Ex. 7 (Lambert Aff.) at 5. Ms. Lambert further states that Mr. Vincent was attempting to get information from Plaintiff about the status of a work assignment and describes Plaintiff as "belligerent." Id.
During his deposition, Mr. Vincent did not recall the May 22, 2002 incident specifically, but explained that because Plaintiff's CWS had been revoked, he would not have been ordering Plaintiff to work on his days off, but rather on days he was required to work under his new schedule. Def.'s Ex. 7 (Vincent Dep.) at 87:5-88:17. To that end, also on May 22, 2002, Mr. Vincent sent Plaintiff an e-mail reminding him that his CWS had been revoked and that he would be charged AWOL if he did not report to work in accordance with his new schedule. ROI, Ex. 17, Attach. T (5/22/02 e-mail from T. Vincent to C. Smith); Def.'s Stmt. ¶ 7; Pl.'s Stmt. ¶ 7. When Plaintiff did not comply, he was charged with AWOL. Def.'s Stmt. ¶ 8; Pl.'s Stmt. ¶ 8.
Plaintiff asserts that on June 5, 2002, Mr. Vincent again blocked his path and prevented him from leaving his office. Pl.'s Ex. 4 (Ans. to Interrogs.) at 6. Plaintiff called security, was referred to the Federal Protection Agency, and reported the incident the following morning. Id.; Pl.'s Ex. 9 (6/6/02 Incident Report). Mr. Vincent does not recall the June 5, 2002 incident. Def.'s Ex. 7 (Vincent Dep.) at 96:1-17. Plaintiff claims that Mr. Vincent "threatened" him again on June 12, 2002. Pl.'s Ex. 4 (Ans. to Interrogs.) at 8. Although Plaintiff does not specify the nature of the "threats," the Court notes that his other allegations relate to threats of disciplinary action for failure to follow orders. In any event, Plaintiff alleges that he responded to Mr. Vincent's "threats" by calling a Union representative, who advised Plaintiff to leave with her. Pl.'s Ex. 4 (Ans. to Interrogs.) at 6-7. Plaintiff states that after this incident he again reported to the health unit where he was found to have elevated blood pressure. Id. at 7. Mr. Vincent does not recall the June 12, 2002 incident. Def.'s Ex. 7 (Vincent Dep.) at 96:1-17.
On May 29, 2002, Plaintiff filed a Step One Union grievance challenging the revocation of his CWS and his AWOL charge, which he described as "blatant disparate treatment." Def.'s Stmt. ¶ 10; Pl.'s Stmt. ¶ 10; Def.'s Ex. 15 (5/29/02 Step 1 Grievance). Mr. Vincent eventually denied Plaintiff's Step 1 Grievance on behalf of the Agency on September 9, 2002, see Def.'s Ex. 21 (9/9/02 Mem. from T. Vincent to C. Smith), and Plaintiff admitted in his deposition that neither he nor his Union pursued his grievance beyond Step 1, Def.'s Ex. 6B (2/27/07 Smith Dep.) at 52:16-53:4.
On May 31, 2002, Mr. Vincent issued a Proposal to Suspend Plaintiff for five days on the charges of failure to follow a direct order, failure to follow a proper order, insolent or disrespectful conduct towards his team leader, and absence without leave. Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 11; ROI, Ex. 17 (5/31/02 Proposal to Suspend). Plaintiff responded with a Rebuttal to Proposal to Suspend, in which he assertions raised in the instant litigation. Def.'s Stmt. ¶ 12; Pl.'s Stmt. ¶¶ 11-12; Def.'s Ex. 18 (Rebuttal to Proposal to Suspend). Plaintiff was suspended without pay for two days on August 19 and 20, 2002. Def.'s Stmt. ¶ 13; Pl.'s Stmt. ¶ 13.
On an unidentified date prior to June 11, 2002, Plaintiff submitted an Accommodation Request regarding his heart conditions and high blood pressure, in which he asked to be provided with a "Low stress/non-Hostile environment" and "No lifting, limited walking/stairs." Pl.'s Ex. 8 (Accomm. Request).*fn14 Despite Mr. Vincent's apparent rejection of that request and Plaintiff's failure to respond to Mr. Vincent and Mr. Ford's requests for additional medical information, the SASI contract was eventually reassigned to a lower grade Contract Oversight Specialist. ROI, Ex. 6 (Schade Aff.) at 3. In addition, on June 13, 2002 Plaintiff was temporarily relocated to the ninth floor of the HUD headquarters building and ordered to report to Mr. Schade and to Bernard Morton, the other team leader in the Procurement Management Division. Def.'s Stmt. ¶ 18; Pl.'s Stmt. ¶ 18.*fn15 During his deposition, Plaintiff admitted that his Division did not have offices on that floor. Def.'s Ex. 6B (2/27/07 Smith Dep.) at 80:10-11. Plaintiff also testified that he experienced no difficulties working for Mr. Schade and Mr. Morton during June and July 2002, Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19; Def.'s Ex. 6B (2/27/07 Smith Dep.) at 81:23-25, and that he did not have any physical contact with Mr. Vincent during that period, despite the fact that Mr. Vincent sometimes came to the ninth floor. Id. at 82:16-85:21; Def.'s Stmt. ¶ 20; Pl.'s Stmt. ¶ 20.*fn16 Plaintiff also had no contact with Ms. Lambert during the period. Id.
On July 29, 2002, Plaintiff was advised that he was reassigned to his previous workspace on the second floor, effective August 4, 2002, where Mr. Schade would become his permanent supervisor. Def.'s Stmt. ¶ 21; Pl.'s Stmt. ¶ 21; ROI, Ex. 20 (7/29/02 Mem. from T. Ford to C. Smith). The memo advising Plaintiff of his reassignment specifically stated that he was "to return to [his] original workstation in Room 2220 since that is where [his] supervisor [was] located." Id. The memo further instructed Plaintiff that his request to no longer report to Ms. Lambert and Mr. Vincent was granted, and that he was "to report directly to Mr. Schade, without any direct contact with [his] former supervisor and Team Leader." Id. Finally, the memorandum advised Plaintiff that he could return to his CWS and that any AWOL charges after July 14, 2002 would be expunged. Id.
Plaintiff did not return to work at his second floor work station. On August 1, 2002, he filed a workers' compensation claim asserting that he was unable to work due to the agency's actions that allegedly created a hostile work environment. Def.'s Stmt. ¶ 22, Pl.'s Stmt. ¶ 22. Plaintiff did not report to work from August 1, 2002 until June 2003. ROI, Ex. 23 (Record of Leave Activity). The Agency issued a response to Plaintiff's workers' compensation claim on October 29, 2002, Def.'s Stmt. ¶ 23; Pl.'s Stmt. ¶ 23; ROI, Ex. 22 (10/29/02 Letter from T. Ford to N. Lee), and the Department of Labor's Office of Workers' Compensation Programs denied Plaintiff's claim on January 27, 2003, Def.'s Stmt. ¶ 24; Pl.'s Stmt. ¶ 24; Def.'s Ex. 4 (1/27/03 Letter to C. Smith). On June 4, 2003, Mr. Ford requested that Plaintiff return to work in light of staffing changes in the Procurement Management Division. Def.'s Ex. 3 (6/4/03 Letter from T. Ford to C. Smith). Plaintiff appears ...