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Chowdhury v. Schafer

November 26, 2008

KHURSHED A. CHOWDHURY, PLAINTIFF,
v.
ED SCHAFER, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

Defendant Ed Schafer*fn1 ("Schafer"), Secretary of Agriculture, has moved [17] for summary judgment in his favor in this employment discrimination suit. The Court has considered the parties' filings, the entire record herein, and the applicable law. For the reasons explained below, defendant's motion shall be GRANTED.

BACKGROUND*fn2

Plaintiff Khurshed A. Chowdhury ("Chowdhury") worked for the Department of Agriculture ("DOA") as a Veterinary Medical Officer ("VMO") assigned to what became the Zoonoses Disease and Residue Surveillance Division in the Office of Public Health/Food Safety and Inspection Service. (Compl. ¶ 14.) The position description indicated:

The primary purpose of this position is to investigate and study potential meat and poultry bourne enteric disease; determine and document their cause and extent; and, develop sound scientific, factually supported recommendations to correct and prevent such conditions. The incumbent's investigation, analysis, conclusions, and recommendations may have an immediate impact on food hygiene programs, which affect the public's health.

The planning, evaluation, and recommendations contribute to the success of the Agency's efforts in surveillance, information gathering, and detection of food borne pathogens . . . . Problems solved are extremely difficult in nature and the results have a significant impact on program direction. (Def. Statement of Mat. Facts ¶ 3.) Further, "[T]he incumbent must be flexible, enterprising, and expedient in utilizing the full range of professional abilities. There are high requirements for good judgment and ability to conceptualize." (Id.)

From 1991 to 2004, Chowdhury consistently received fully satisfactory to superior performance evaluations. (Chowdhury Aff. ¶ 13.) Beginning in about March 2001, however, some supervisors had concerns with Chowdhury's performance. Specifically, Dr. Delila Parham, Chowdhury's front line supervisor, noted that "[h]e did not meet deadlines and when he provided work it nearly always had to be rewritten. I would have to send it back to him several times before his work was satisfactory and then eventually I had to do it myself." (Parham Aff. p. 51 ¶ 15.)

In a mid-year appraisal in December 2004, Chowdhury was verbally told that his performance was inadequate. (Id. ¶ 16.) Following this, Chowdhury was given a memorandum outlining the reasons why his performance had been found to be unacceptable. (Def. Statement of Mat. Facts ¶ 9.) In August 2005, Dr. Chowdhury received a notice of unacceptable performance and was advised that he would be placed on a Performance Improvement Plan ("PIP"). (Id. ¶ 13.) The PIP set forth two examples of Chowdhury's continued unacceptable performance, under the critical elements of Mission Support and Research and Analysis and the non-critical element of Communications, citing his work on a "Thinking Paper" and on the "toxoplasmosis paper." (Id. ¶¶18-20.) Prior to the PIP, Chowdhury contends that these elements were non-critical and therefore he should not have been given an unacceptable rating pursuant to DOA evaluation policy. (See Pl. Opp'n at 23.)

A. Performance on the Thinking Paper

In February 2005, Dr. Parham assigned Chowdhury to prepare a "Thinking Paper" setting forth suggestions for future work the Zoonoses Branch should undertake. On March 16, 2005, plaintiff sent Dr. Parham a two page document listing what he described as the four most common food borne pathogens and suggesting that the branch investigate their risk profiles. (Def. Mo. for Summ. J. TP 3/16/05 Attach.) Chowdhury's supervisors told him that the document was inadequate because it contained approximately seven sentences discussing one of the pathogens and no discussion of the others and lacked any references. (See id.) Four months later, Chowdhury sent a final eleven page draft of the paper which discussed the four pathogens, one of which was Toxoplasmosis. (Def. Mo. for Summ. J. TP 7/19/05 Attach.) In the final draft, only two references were cited in the four paragraphs devoted to toxoplasmosis. (Id.) The PIP explained that the "Thinking paper" was not well researched, lacked depth and did not provide adequate support for the work suggested; the drafts submitted were not comprehensive, did not provide an adequate analysis of the issues, and did not suggest an ability to design an effective study approach or utilize analytical methods and objectives. (Def. Mo. for Summ. J. PIP Attach.)

B. Performance on the Toxoplasmosis Article

After Chowdhury allegedly did not complete the toxoplasmosis article after originally being requested to do so, Dr. Parham, Chowdhury's supervisor, requested that Chowdhury create an outline of the work Chowdhury planned to do in order to complete the toxoplasmosis article. Chowdhury estimated he could finish a literature search of Prevalence at Slaughter by the end of December 2005 and produce a final report by the end of March 2006. (Pl. Disc. Resp. 43.) In response, Dr. Parham gave him a revised work plan because she felt that the work could be completed in a much shorter time span. (Id. 43.) The revised work plan suggested (A) an investigation of the status of developing a rapid test for T. Gondii at slaughter plants and (B) a literature review to assess the toxoplasma situation in the United States. (Id. 46-48.)

After Dr. Parham asked for an update on the toxoplasmosis project, Chowdhury told Dr. Parham that he thought her request for a thinking paper had replaced the toxoplasmosis project. (Id. 50.) As a result of this apparent misunderstanding, the two references in four paragraphs to toxoplasmosis in the Thinking Paper reflected the only literature research concerning toxoplasmosis Chowdhury had done in the five month time period. (Def. Mo. for Summ. J. TP 7/19/05 Attach. at 4) Following this incident, the PIP issued to Chowdhury on August, 16, 2005 explained why Dr. Parham believed the toxoplasmosis article was unacceptable in the three elements of Chowdhury's performance requirements. (Def. Statement of Material Facts ¶ 20.)

C. Requirements under the PIP

The PIP gave Chowdhury three tasks to complete successfully in a 90-day period in order to show improvement to the fully successful level - preparation of (1) a Toxoplasmosis paper, (2) a Salmonella Serotype Paper, and (3) Bi-monthly Zoonotic Disease Surveillance reports. (Id. ΒΆ 21.) The PIP also explained how successful completion of these tasks would demonstrate fully successful work under the applicable performance standards. (Def. Mo. for Summ. J.) The ...


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