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Bowden v. Clough

September 29, 2009

ANTHONY BOWDEN, PLAINTIFF,
v.
G. WAYNE CLOUGH, SECRETARY, SMITHSONIAN INSTITUTION, DEFENDANT.*FN1



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Plaintiff Anthony Bowden brings this action against the Secretary of the Smithsonian Institution ("Institution") in his official capacity, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 16(a) (2000) ("Title VII"), Second Amended Complaint of Employment Discrimination and Breach of Contract ("Second Am. Compl.") ¶¶ 47-59, 66-73, 88-101, 107-110, and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (2000) ("Rehabilitation Act"), Second Am. Compl. ¶¶ 60-65, 74-81, 102-106, 107-110, on the basis that the Institution, an agency of the United States government and his employer, engaged in discriminatory employment practices against him based on his race (African-American), Second Am. Compl. ¶¶ 47-49, 66-69, 82-86, color (black), id. ¶¶ 50-52, 70-73, 87-91, sex (male), id. ¶¶ 53-55, 92-96, religion (Baptist), id. ¶¶ 56-59, 97-101, and disabilities (panic disorder, anxiety disorder and depression), id. ¶¶ 60-62, 74-77, 102-106, and retaliated against him because of his participation in statutorily protected Equal Employment Opportunity ("EEO") activity and a related lawsuit, id. ¶¶ 63-65, 78-81, 107-110. The plaintiff also alleges that the Institution violated the Rehabilitation Act, id. ¶¶ 114-17, and its settlement agreement with him, id. ¶¶ 111-13, by failing to provide him the reasonable accommodations he requested for his disabilities. This matter is currently before the Court on the defendant's Motion for Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Plaintiff's Opposition To Defendant's Motion For Judgment On The Pleadings Or, In The Alternative, For Summary Judgment ("Pl.'s Opp'n").*fn2 For the following reasons, the Court must grant the Institution's motion.

I. BACKGROUND

Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows.

A. The Plaintiff's Employment with the Institution

At all relevant times pertaining to this lawsuit, the plaintiff, a black African-American, was a practicing Baptist and "suffer[ed] from various mental disabilities, including panic disorder, anxiety disorder and depression." Second Am. Compl. ¶ 4. At the time of the filing of this lawsuit, the plaintiff had been working for the Institution for twenty-two-years, and held the position of an Exhibits Specialist in the production unit of the Exhibits Department at the National Zoological Park ("Zoo"), a component of the Institution, at the GS-1010-11 pay grade level. Id. ¶¶ 4, 12. At any given time during the plaintiff's employment between two and three other employees held the same job title as the plaintiff. Pl.'s Opp'n, Ex. 1 (Sept. 27, 2007 Deposition of Lynn Dolnick ("Dolnick Dep.")) at 143; id., Ex. 7 (Dec. 5, 2007 Deposition of Charles Fillah ("Fillah Dep.")) at 120. Among the other Exhibits Specialists were one Philippine female with a brown complexion and no religious affiliation, several African-American males of either black or brown skin color and with various religious affiliations, and none with any known disabilities. Pl.'s Opp'n, Ex. 5 (Dec. 4, 2007 Deposition of Anthony Bowden ("Bowden Dep. I")) at 66-67; id., Ex. 1 (Dolnick Dep.) at 143, 146-47; id., Ex. 7 (Fillah Dep.) at 57; id., Ex. 11 (Sept. 28, 2007 Deposition of Jeffery Baxter ("Baxter Dep.")) at 120-21; see also Second Am. Compl. ¶ 27(c), (e). The plaintiff maintains that his employment at the Institution has been marred by the following instances of unfairness, discrimination, and hostility.*fn3 Second Am. Compl. ¶ 23.

1. The Plaintiff's Allegation of Inadequate Compensation

At his request, the plaintiff received a "desk audit" on October 17, 2003, to determine the accuracy of his responsibilities as compared with his grade level and compensation. Id. ¶ 23(e)- (f). The desk audit determined that the plaintiff's position was accurately graded as an 11, which was the plaintiff's existing grade level. Def.'s Mem., Ex. 28 (Evaluation Statement); see also id., Ex. 34 (Federal Position Description Cover Sheet); id., Ex. 32 (Grade Evaluation Guide for Visual Arts Work). The plaintiff disputed the outcome of the desk audit, alleging that it was "discriminatory, retaliatory, and inaccurate" because the audit "did not include many of the duties [that he] actually performed." Second Am. Compl. ¶¶ 23(e)-(g), (o), 25; Def.'s Mem., Ex. 33 (Nov. 6, 2003 Letter from Anthony Bowden to Lynn Dolnick). The desk audit included an interview with both the plaintiff and his supervisor, and, although the plaintiff does not know what information his supervisors provided the auditor, Pl.'s Stmt. of Facts at 44, he contends that his supervisors must have "lied to the auditor about [the plaintiff's] duties in order to prevent him from receiving a promotion" and must have neglected to "include in his position description the additional duties that he was performing so that he would not be promoted."*fn4 Second Am. Compl. ¶ 23(j); see also id., ¶¶ 23(g), 25.

In response to the plaintiff's complaints about the audit, the Institution offered to re-conduct it, but the plaintiff refused a second desk audit, stating that he "[had] given the auditor all of the info[rmation] that was needed for [the auditor] to make a clear and accurate assessment of what [his] job [entails]." Def.'s Mem., Ex. 18 (Nov. 12, 2003 E-mail from Anthony Bowden to Lynn Dolnick).

2. The Plaintiff's Performance Assessments Allegations

The plaintiff challenges two assessments of his work performance. The first assessment that he contests was his "Fully Successful" rating for his job performance from "June 2004 through December 2004."*fn5 Second Am. Compl. ¶ 28(f). The plaintiff alleges that the rating he received is inexplicable because it was the first time during his tenure with the Zoo that he had not received an "Outstanding" rating. Pl.'s Stmt. of Facts at 22; Def.'s Mem., Ex. 9 (Apr. 22, 2004 National Zoological Park, Smithsonian Institution, Performance Appraisal Form). He also challenges his "Improvement Needed" rating for his 2005 job performance. Second Am. Compl. ¶ 42. That assessment was rendered because although the plaintiff received a "Met" or "Exceeded" rating in six of the seven categories of that review, he received an "Improvement Needed" rating in the areas of "Communication, Teamwork and Customer Service Skills." Id.; Def.'s Mem., Ex. 10 (Feb. 3, 2006 National Zoological Park, Smithsonian Institution, Performance Appraisal Form). The plaintiff disputed this rating when he received it and refused to sign the appraisal form based upon his own assessment of his "strong communication skills" and the fact that the rating was inconsistent with the verbal comments that his supervisor conveyed when reviewing the performance assessment with the plaintiff, a verbal review which did not address the plaintiff's communication skills but included reassuring phrases like "everything [i]s working out fine" and "keep up the good work." Second Am. Compl. ¶ 43.

3. The Plaintiff's Non-Selection Allegations

The plaintiff also challenges the Institution's hiring of his superior, a job the plaintiff aspired to acquire. The position was filled on April 22, 2004, by the selection of a "white, male, Christian [with] no disability" as the GS-1010-12 Supervisory Exhibits Specialist, the immediate supervisory position over the position held by the plaintiff. Id. ¶ 18; see also id. ¶ 24(a). After the vacancy of the position was first posted, the position's description was revised to include the need for computer skills. Pl.'s Stmt. of Facts at 38-39. Following this revision, the plaintiff contacted one of his supervisors to inquire about the position's computer skills requirement and was informed by the supervisor that she would not be aware of who applied for the position until the date for submitting applications for the position closed, although she told the plaintiff that she was aware that he had not applied for the position before the computer-skills revision was added. Def.'s Mem., Ex. 40 (Aug. 28, 2003 E-mail from Lynn Dolnick to Anthony Bowden). The plaintiff then applied for the position and he contends that his non-selection was wrongful because he "was significantly better qualified for the position than [the selectee] and had been performing many of the position's duties for some time." Second Am. Compl. ¶ 24(b). The plaintiff also alleges that the revision for the position was made in retaliation for his prior EEO activity because computer skills "were not relevant to the position but . . . [had] the effect of reducing [the] [p]laintiff's ability to compete and/or qualify for the position." Id. ¶ 24(g). The plaintiff also complains that his "interview for the position was different from that of other candidates in that it lasted only about 15 minutes[,] . . . during [which] . . . he was told words to the effect that [the interviewers] 'knew everything about [him].'" Id. ¶ 24(d).

4. The Plaintiff's Hostile Work Environment Allegations

The plaintiff provides a litany of general allegations that he contends form the basis for the hostile work environment to which he was purportedly subjected. Those allegations include that he was: question[ed] . . . about his activities (. . . [while] other employees [were not subjected to such questions]); assign[ed] duties . . . that [he] should not be doing because they [we]re properly [his supervisor's responsibilities]; sp[oken] to . . . in a harsh and demanding manner when [his supervisor] d[id] not treat other employees of other protected groups in that manner; more closely monitor[ed] . . . than . . . other employees; re-assigned . . . to a small, windowless office; deliberately overloaded . . . with work assignments; [not] . . . provide[d] [with] reasonable accommodations to which he is entitled by law and [by the terms of a] settlement [agreement;] and sp[oken] to . . . in an unprofessional manner.

Id. ¶¶ 23(t), 28(d). He also lists the following specific incidents that he contends created a hostile work environment: a supervisor stating "you people" in his presence, which he took as a racial slur, id. ¶ 28(h); his supervisor calling him "broad shoulder[ed]," which he took as a euphemism for being a black, African-American male, Pl.'s Opp'n at 11-12; see also Second Am. Compl. ¶ 23(l)-(k), his receipt of a counseling letter after he remarked that one of his co-workers "must be crazy," Second Am. Compl. ¶ 28(b); requiring him to "schedule in advance all sick leave," which the plaintiff understood to include unanticipated illnesses (not simply the planned scheduling of his doctors' appointments), id. ¶ 28(c); requiring that he "attend a meeting only for supervisors[,] which was clearly above his . . . job responsibilities and [that] made [him] feel uncomfortable," id. ¶ 28(e); his supervisor "yell[ing] at [him] in front of many [Zoo] visitors" regarding one of his job related tasks, id. ¶ 41(a); being provided with "impossible work deadlines," id. ¶ 41(c); being assigned more "work tickets" than his co-workers, id. ¶ 41(d); "[permitting an Asian-American, brown, atheist female co-worker with unknown disability status] to work in a comfortable office environment while [he] ha[d] to do 'grunt work' [outdoors] in all types of weather," id. ¶¶ 27(e), 41(e); and being assigned "to clean a wall in the Giraffe House which was filled with animal droppings and other hazardous germs" despite the plaintiff's protestations that he "suffered from allergies," and "didn't have the proper safety equipment . . . and . . . had not been vaccinated against the germs that might be in th[e] [giraffe] area [due to one giraffe's death from tuberculosis]," id.

The plaintiff further alleges that he was mocked and ignored when he complained about having "to work alone on large and heavy projects," despite his back injury that had been caused by similar "heavy lifting" assignments. Id. ¶ 23(k)-(l). In particular, the plaintiff alleges that when he complained to his immediate supervisor that he "could not physically do [the work assigned to him] by himself because of the magnitude of the work and the size/weight of the machines (up to 500 pounds)," the supervisor recommended that the plaintiff "assign other employees to help," an unhelpful suggestion, according to the plaintiff, due to the fact that he was not a "supervisor" or "team leader" and therefore "ha[d] no authority to assign [these] duties [to others]" or "direct other employee [sic] to assist him." Id. ¶ 28(g).

5. The Plaintiff's Settlement Agreement Breach Allegations

In April 1999, the plaintiff was transferred to the Zoo from the American Museum of Natural History, both components of the Institution, pursuant to a settlement agreement stemming from his previous lawsuit against the Institution. Id. ¶¶ 14-15. The settlement agreement required that the Institution "make certain specific reasonable accommodations to [address the] [p]laintiff's medical conditions," id. ¶¶ 14-15, i.e., his panic disorder, anxiety disorder and depression, id. ¶ 32, by "allow[ing him] short breaks to go to the bathroom or if he is not feeling well, . . . permit[ing him] to go outside for a breath of fresh air when working in the spray booth, . . . allow[ing him] to eat snacks when he takes his medication . . . [and] continu[ing] to . . . permit[] [him to take] time for doctor's appointment [sic] in accordance with agency policies and availability of leave." Id. ¶ 15.

The plaintiff alleges that on many occasions since his transfer to the Zoo he has complained to his supervisors that the Institution was not honoring the provisions of the settlement agreement to accommodate his disabilities due to his supervisor's "continuous[] question[ing]" of him when he leaves for bathroom breaks and doctors' appointments, and his supervisor's requirement that he document his medical visits. Id. ¶¶ 26, 29-34. The plaintiff also maintains that the Institution "failed to take action appropriate action [sic] regarding an assault on [him] by a [female] co-worker," id. ¶ 29, when she "intentionally and repeatedly bump[ed] against him," id. ¶ 37, and that the Institution "subject[s] [him] to physical assault, intimidation and humiliation," id. ¶ 39, by forcing him to attend meetings with this co-worker because she "aggravate[s] his disabilities," id. ¶ 38.

B. Procedural History

1. The Plaintiff's Judicial Complaint

The plaintiff filed five EEO administrative complaints against the Institution between August 6, 2004, and May 26, 2006.*fn6 Id. ¶¶ 7-10. After receiving the Institution's final decisions on three of his five EEO administrative complaints, Second. Am. Compl. ¶¶ 7, 9-10, and waiting 180 days after the filing of the two remaining administrative complaints during which no action was taken by the Institute, id. ¶¶ 8, 11 (citing 42 U.S.C. § 2000e-16(c) (stating that the plaintiff may bring a lawsuit "after one hundred eighty days from the filing of the initial charge with the department, agency, or unit"), the plaintiff initiated this action, Second Am. Compl. ¶ 6.

In his Second Amended Complaint, the plaintiff has pled eighteen counts, comprising four legal theories: (1) that the Institution violated Title VII and the Rehabilitation Act by unlawfully subjecting him to a hostile work environment based on his race (Count 1), id. ¶¶ 47-49; color (Count 2), id. ¶¶ 50-52, gender (Count 3), id. ¶¶ 53-55; religion (Count 4), id. ¶¶ 56-59; and disabilities (Count 5), id. ¶¶ 60-62; (2) that the Institution violated Title VII and the Rehabilitation Act by unlawfully discriminating against him by (a) not selecting him for the Supervisory Exhibits Specialist position based on his race (Count 7), id. ¶¶ 66-69; color (Count 8), id. ¶¶ 70-73; and disabilities (Count 9), id. ¶¶ 74-77; (b) not compensating him for the duties that he was actually performing based on his race (Count 11), id. ¶¶ 82-86; color (Count 12), id. ¶¶ 87-91; gender (Count 13), id. ¶¶ 92-96; religion (Count 14), id. ¶¶ 97-100; and disabilities (Count 15), id. ¶¶ 102-06; and (c) not providing him accommodations he was entitled to based on his disabilities (Count 18), id. ¶¶ 114-17; (3) that the Institution violated Title VII and the Rehabilitation Act when it unlawfully retaliating against him based on his prior EEO activity and related litigation by (a) harassing him and fostering a hostile work environment (Count 6), id. ¶¶ 63-65; (b) not selecting him for the Supervisory Exhibits Specialist position (Count 10), id. ¶¶ 78-81; and (c) not compensating him for the duties that he was actually performing, (Count 16), id. ¶¶ 107-10; and (4) that the Institution breached its settlement agreement with him by not providing him reasonable accommodations according to the terms of that agreement (Count 17), id. ¶¶ 111-13.

As a result of the allegations advanced in each count of his complaint, the plaintiff contends that (1) he lost wages he would have otherwise received and a promotion to the proper grade level in recognition of the responsibilities he is currently performing, (2) was unjustly denied a promotion to the Supervisory Exhibits Specialist position when someone not of his protected class was selected, and (3) was forced to work in a hostile and discriminatory environment causing him to "suffer[] great " including the following symptoms:

exacertation of his anxiety distorder; panic distorder and depression; distress, humiliation and work related stress; physical pain and suffering such as shortness of breath, heart palpitations, dizziness, headaches, lack of appetite and lack of sleep à.

Id. ΒΆ 46(a)-(d). The plaintiff maintains that he "has been forced to seek medical treatment for [these] work-caused symptoms," resulting in hospital visits and the ...


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