The opinion of the court was delivered by: Gladys Kessler United States District Judge
Plaintiff Nathaniel Daniels, an employee of the Government Printing Office ("GPO"), brings this action against Robert C. Tapella in his official capacity as Public Printer. Plaintiff alleges gender discrimination in violation of Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e, et seq. (Count I); retaliation (Count II); age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") 29 U.S.C. § 621 et seq. (Count III); and intentional infliction of emotional distress resulting from the alleged violations of these statutes (Count IV). This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 19]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted as to Counts I and II and denied as to Counts III and IV.
On February 25, 2002, the GPO hired Plaintiff, a fifty-five year old male, as a Grade 1 Printing Plant Worker in the Delivery Section of its Production Department. He was hired subject to a one-year probationary period that was to conclude on February 24, 2003. His work responsibilities included unloading delivery vehicles and carrying materials to drop-off points.
On August 30, 2002, GPO posted vacancy announcements for four Grade 5 Motor Vehicle Operator positions. The positions involved driving, loading, and unloading light delivery trucks that delivered printed materials throughout the greater Washington, D.C. area. Plaintiff applied for one of the positions, and although he had a total of five years of experience driving a mail truck for the United States Postal Service and a delivery van for Bayview Hospital, both in Baltimore, he was not selected. In October 0f 2002, Terrence Dudley, the Chief of the Delivery Section selected two candidates for the four open positions: a fifty-six year old male candidate and a thirty-one year old female candidate. During the same time frame, Paul Kirby, Dudley's Deputy, selected candidates for the two remaining vacancies: a thirty-year old male candidate and a forty-year old male candidate who were supposedly selected for their prior experience driving delivery vehicles.
On December 19, 2002, Plaintiff claimed that he was singled out by Dudley for conversing with a co-worker who had filed a discrimination complaint. Dudley called Plaintiff into his office and questioned him about the conversation in an extremely hostile tone of voice and informed him that as a probationary employee, he could be terminated.
Plaintiff filed a discrimination complaint with the agency on December 31, 2002, alleging that he was discriminated against on the basis of age when he was not selected for one of the open Motor Vehicle Operator positions. On April 29, 2003, Plaintiff filed another administrative complaint claiming that he had been retaliated against for past protected Equal Employment Opportunity ("EEO") activity.
Plaintiff was scheduled to work overtime on the weekend of February 1 and 2, 2003 delivering copies of the Congressional Record. On Friday, January 31, 2003, Dudley informed Plaintiff that it would not be necessary for him to report for work on Saturday, February 1. Although Plaintiff was only scheduled to work on Saturday, he nevertheless arrived at work on Sunday, February 2 and insisted on working overtime. Dudley then ordered him to leave.
On February 4, 2003, Plaintiff set up office partitions and office furniture in the rear of a delivery platform for use as a break area. This action was not authorized by his supervisors and allegedly created a work hazard, as forklifts regularly operated in this area. On February 5, 2003, Dudley instructed Plaintiff's immediate supervisor, Gerald Simms, to order Plaintiff to remove the partitions. This instruction was conveyed to Plaintiff, who failed to dismantle the partitions. Dudley then directly instructed Plaintiff to remove the partitions, which he agreed to do.
On the morning of February 6, 2003, Dudley noted that the partitions had not yet been removed. Plaintiff and three other employees requested permission to keep the partitions in place, which Dudley denied. Only after a further direction from Dudley, one of the employees did dismantle the partitions.
As a result of this incident, Dudley determined that Plaintiff's probationary employment status should be terminated. Robert Schwenk, Acting Production Manager, agreed and issued a letter on February 21, 2003 informing Plaintiff that he would be dismissed by the agency. Sometime after this letter was signed the Director of GPO's Office of Employee Relations and Programs noticed that the letter erroneously made Plaintiff's removal effective on February 25, 2003, one day after his probationary period expired.
Accordingly, on April 9, 2003, she reinstated Plaintiff as a GPO employee, with backpay from February 25, 2003. Plaintiff was then given a verbal warning as alternative discipline for his role in the partition incident.
On November 18, 2005, GPO issued a Final Agency Decision finding that no discrimination had occurred. Plaintiff then filed suit ...