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Nurriddin v. Bolden

December 4, 2009

AHMAD B. NURRIDDIN, PLAINTIFF,
v.
CHARLES F. BOLDEN, JR.,*FN1 ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Ahmad Nurriddin was employed by the National Aeronautics and Space Administration ("NASA") from May 1991 through February 2004 in the Educational Affairs Division. His time there was beset by a years-long series of conflicts with his supervisors and other NASA employees, which has resulted in two employment discrimination lawsuits against the agency. His first lawsuit, Civil Action No. 99-3401, covering a series of events from 1991 through August 1996, was brought pro se under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq, and alleged discrimination on the basis of race (African-American), gender (male), and religion (Muslim), hostile work environment, and retaliation. The Court entered summary judgment for defendant on all claims on August 17, 2005. See Nurriddin v. Goldin, 382 F. Supp. 2d 79, 92-109 (D.D.C. 2005) ("Nurriddin I"). The D.C. Circuit affirmed in all respects. Nurriddin v. Griffin, 222 Fed. Appx. 5 (D.C. Cir. Apr. 16, 2007).

The second lawsuit -- this action -- picks up where the first one left off, and covers a series of events from late 1996 through Nurriddin's termination on February 6, 2004. See Second Am. Compl. ¶¶ 51-140 (filed Sept. 14, 2009). As before, proceeding pro se, he brings claims against NASA under Title VII for allegedly discriminating against him on the basis of race, gender, and religion, hostile work environment, and retaliation. Id. ¶¶ 2-3, 141-61, 185-93. In this round of litigation, he has added claims of disability discrimination in violation of the Rehabilitation Act, as amended, 29 U.S.C. §§ 701 et seq., based largely on depression, anxiety, and back pain allegedly caused by the events underlying the first case.*fn2 Id. ¶¶ 2, 162-84, 189-93. He also has added four NASA employees as individual defendants -- Vicki Novak, Alfred Castillo, Mark Batkin, and Malcolm Phelps -- on the ground that they have been involved in a conspiracy to violate his constitutional rights, citing 42 U.S.C. § 1983. Id. ¶¶ 6-7, 180-84.

Defendants have responded to the lawsuit with a motion to dismiss or, in the alternative, for summary judgment, prior to the taking of discovery. Plaintiff has filed an opposition on the merits, and also moves for an order denying summary judgment pursuant to Fed. R. Civ. P. 56(f) on the ground that discovery is necessary before the motion can be resolved.*fn3 Additionally, he has filed a motion seeking a preliminary injunction to prevent NASA from soliciting personal information about him from the Department of Labor Office of Workers Compensation Programs ("OWCP"). Upon consideration of the voluminous record, the Court concludes that only the Title VII claims concerning discrete adverse actions may proceed; the remainder of Nurriddin's claims will be dismissed for the reasons set forth below.

BACKGROUND

The events underlying the current claims occurred from late 1996 through 2004, but for context, the Court, like the second amended complaint, will recount the most salient events of Nurriddin I to set the stage for evaluating the present claims. In May 1991, plaintiff, initially a contract employee working for NASA, was converted to a full-time civil servant as a Publications Specialist in NASA's Educational Affairs Division (also referred to as "Code FE"), at the GS-12 level. 382 F. Supp. 2d at 86. Shortly thereafter, he alleged that he had been hired at two grade-levels below others performing similar duties because of his race, and sought a noncompetitive promotion to the GS-13 and GS-14 levels, based on his level of duties and responsibilities. Id. at 86-87, 95-101; Second Am. Compl. ¶¶ 44-50.

Following his informal complaints about the discriminatory GS grade levels, plaintiff experienced what he perceived to be further discriminatory and retaliatory actions, including (1) a letter of reprimand citing him for a negative attitude, failure to follow instructions, failure to complete assignments on time, and failure to keep supervisors abreast of his location, (2) a failure by management to investigate offensive icons located on a co-worker's computer; (3) reassignment of duties; (4) denial of authorization to travel to a minority conference; and (5) further admonishments and reprimands by email. 382 F. Supp. 2d at 86-88. He made his first contact with an EEO counselor in December 1994, which was followed by an administrative complaint; he again contacted an EEO counselor on November 5, 1996, and filed a second administrative complaint on April 3, 1997. Id. at 88. He then filed his first Title VII lawsuit on December 21, 1999, alleging that the foregoing employment actions were motivated by discrimination on the basis of race, gender, and religion, by retaliation for engaging in EEO activity, and constituted a hostile work environment. Id. at 85-88.

This Court concluded that plaintiff had failed to exhaust his administrative remedies on some of the claims, including the initial decision in 1991 to hire him two grade levels below certain other employees; hence, summary judgment was entered for defendant on those claims.

Id. at 92-93 (citing 29 C.F.R. § 1614.105(a)). The Court then examined the remaining claims on the merits to determine whether plaintiff had presented evidence sufficient to support an inference of discrimination or retaliation behind any of the actions, focusing on the letter of reprimand, the decisions to deny him a noncompetitive promotion to GS-13 or GS-14 (once in the 1991 to 1994 time frame, and again in the 1994 to 1996 time frame), a refusal to fund travel to a minority conference, and an "ultimatum" issued to him concerning reassignment or a change in duties. 382 F. Supp. 2d at 93-106. In each instance, the Court found that there was insufficient evidence -- in some instances, no evidence at all -- from which a reasonable jury could find that discrimination or retaliation played a role in the challenged actions. Id. The Court also rejected plaintiff's claim of hostile work environment in toto, explaining that "[f]irst and foremost, many of the incidents . . . are not related to race or religion," and furthermore, that the alleged harassment was not "severe," "pervasive," or "abusive." Id. at 108-09. The Court then entered summary judgment for defendant on all claims. Id. at 92-109. That decision was subsequently affirmed.

Although the events underlying Nurriddin I closed in late 1996, plaintiff's troubles at NASA continued. Here begins the story of Nurriddin II -- the current action -- as recounted in the second amended complaint. Because the Court is reviewing the sufficiency of that complaint against defendants' motion to dismiss, the Court will presume the factual allegations are true.

By the time of the events under review, plaintiff had been assigned to manage the Graduate Student Research Program ("GSRP") and the National Physical Sciences Consortium ("NPSC") training grant, where he had been placed since October 1995, still at the GS-12 level.

Id. ¶ 52; see also 382 F. Supp. 2d at 102-04, 106 (rejecting plaintiff's claim that placement at the GS-12 level from 1994 to 1996 was discriminatory or retaliatory). On August 14, 1996, plaintiff received a performance rating of "Outstanding" -- the highest rating possible -- and was cited as an exemplary member of the Education Division. Second Am. Compl. ¶ 54. Subsequently, he received an $800 performance award for that rating, although workers outside of his protected classes received substantially higher amounts. Id. ¶ 55.

In June 1997, he filed a formal EEO complaint alleging continued disparate treatment based upon his race, gender and religion, and in reprisal for prior EEO activity. Id. ¶ 56. The next month, he was issued a lower performance evaluation -- "Fully Successful" -- which was based on the comments of Malcolm Phelps and Sherri McGee, his first-level supervisors; Franklin Owens, his second-level supervisor; and a "Dr. Dasch," who is described as an "informal supervisor."*fn4 Id. ¶¶ 57, 61. Phelps, McGee, Owens, and Dasch are each white; McGee is a woman. Id. ¶¶ 7, 10, 11. This evaluation came ten days after plaintiff had a verbal altercation with Dr. Phelps over his plans concerning an NAACP Youth Convention.*fn5 Id. ¶ 58. Plaintiff then initiated contact with an EEO Counselor on September 16, 1997 and filed another formal complaint on December 11, 1997. Id. ¶ 24. This and the June 1997 complaint were among the first of at least nine EEO complaints in the years to come.

In or around November 1997, plaintiff received a long-sought noncompetitive promotion to GS-13.*fn6 Id. ¶¶ 8, 49. That same month, however, plaintiff received another "lowered" performance evaluation. Id. ¶ 59. He heard, through Dr. Dasch, that this was due to Dr. Phelps' comment that plaintiff had attended "too many minority conferences." Id. As a result of the lowered rating, plaintiff received a diminished performance award. Id. ¶ 60. Plaintiff believes the lowered evaluation was inconsistent with the positive comments he received from others within and outside of the agency, including notes of appreciation from the NAACP and the American Indian Science and Engineering Society and a note stating "GSRP Success" from Dr. Gerald Soffen at the NASA Goddard Space Flight Center. Id. ¶ 62.

At some unspecified points in 1997, plaintiff also was pursuing reclassification of his position into the "1701 series" -- which the record implies would grant him improved promotion potential. Id. ¶ 63. He submitted documentation in support of the reclassification to Cliff Woods in Human Resources, but Woods allegedly told an EEO counselor that he stopped working on the reclassification "because the General Counsel's Office told him to stop after [Nurriddin] did not accept the agency's proposed EEO settlement offer." Id. ¶ 64. Woods also told the EEO counselor that plaintiff lacked the "required education" for reclassification to the 1701 series, but at least one other employee -- Ms. Lynn Marra -- was placed in the 1701 series without the required education. Id. ¶ 66. The reclassification review was never completed. Id. ¶ 65.

Plaintiff then catalogs a series of negative management actions that occurred throughout 1997 and 1998: Ms. McGee's denial of cubicle space that was distributed by lottery (July 11, 1997) (¶ 67); Mr. Owens' decision to remove plaintiff's responsibilities for the NPSC program and to reassign them to Ms. McGee (¶ 68-69); lack of support staff and funding for plaintiff's Graduate Student Research Program work (¶ 70); criticisms for untimely grant processing (¶ 70-71); Mr. Owens' solicitation of co-workers to "report on" plaintiff while he attended an NAACP Convention in June 1998 (¶ 72); and management opposition to his travel to minority conferences or liaison activities with minority groups (¶ 73).

Beginning in August 1998, the administrative investigation into plaintiff's pending EEO complaints advanced significantly, and in plaintiff's view, he suffered because of it. On or around August 26, 1998, the EEO counselor concluded her interviews of Owens, McGee, Phelps, and Vicki Novak, the Associate Administrator of Human Resources and Education. Id. ¶ 80. That same day, plaintiff was issued a letter of reprimand for failure to follow conference attendance procedures with respect to his attendance at the Blacks in Government Conference. Id. ¶ 79. That month, he was also denied a noncompetitive promotion (presumably to GS-14); but Gary Gans, a lesser qualified white co-worker, received a noncompetitive promotion. Id. ¶ 78. He was then placed on strict leave restrictions that September; received two more letters of reprimand; was denied travel to two minority conferences; and was partially denied administrative leave for EEO-related matters. Id. ¶ 84.

As these events transpired, plaintiff began the process of pursuing additional administrative grievances under Title VII by initiating contact with an EEO counselor -- on January 6, 1998; May 21, 1998; and September 9, 1998. Id. ¶¶ 26-31. Each contact resulted in the filing of a formal complaint. Id. During plaintiff's 1998 performance evaluation, Dr. Phelps told plaintiff that his EEO complaints were "a crock of shit" and "just bull shit." Id. ¶ 85. In response to a question from plaintiff about the profanity, Dr. Phelps remarked, "Go file another complaint." Id.

Plaintiff alleges that his health began to suffer as a result of the stress at the office. Id. ¶¶ 74, 77. He felt "stalked" and "intimidated" by Dr. Phelps, and took two weeks of stress and anxiety-related sick leave. Id. In response to his health concerns, a reassignment was explored by Novak and other managers -- a "permanent placement" in another office. Id. ¶ 74. But after the EEO interviews of management, Owens told plaintiff that the request for a detail or transfer would have to be put in writing to the EEO office. Id. ¶ 82. Plaintiff apparently made a written request for transfer, citing his health concerns, as reflected in an exchange of letters between his doctor and Paulette Quinn, the Chief of the Human Resources Operations Branch. See id. ¶ 82, 96-97; Pl.'s Ex. 82 (Letter from Quinn to Dr. Echeverry dated Nov. 12, 1998); Pl.'s Ex. 83 (Letter from Dr. Echeverry to Quinn dated Dec. 16, 1998) (submitted under seal). Plaintiff also met personally with the then-head of NASA, Daniel Goldin, regarding his discrimination and harassment complaints, but experienced no improvements to his situation. Id. ¶¶ 86-87. Plaintiff alleges that George Reese, the Associate Administrator for Equal Opportunity Programs, advised him that he "was being set-up for progressive disciplinary action -- including termination." Id. ¶ 90.

Plaintiff ultimately was granted a one-year detail to the National Science Foundation ("NSF"), which began in February 1999. Id. ¶ 92. Plaintiff attributes this to an inquiry into his EEO case by Congresswoman Eleanor Holmes Norton, although the record contains little on the specifics of how the detail came about.*fn7 See id. In any event, plaintiff considered the detail successful. Id. ¶ 93. Working under Dr. Joseph Reed at NSF, his performance was rated as "Outstanding." Id.

Upon his return to NASA in February or March 2000, problems arose once again -- this time focused on a request for a reasonable accommodation of a disability. Nurriddin was initially assigned to work in the Human Resources Office with Alfred Castillo as his supervisor. Id. ¶ 95. But by March, he was instructed to return to the Education Division, which meant returning to Dr. Phelps' supervision. Id. Plaintiff believed that Dr. Phelps and Franklin Owens took a "negative view" of his minority program activities. Id. ¶ 127. Furthermore, plaintiff believed that Dr. Phelps had denied him a within-grade increase because of a bias against him stemming from his numerous EEO complaints naming Phelps as a discriminating official, as well as plaintiff's 1995 allegation against Phelps regarding a government laptop computer containing racist and sexual icons.*fn8 Id. Plaintiff immediately began pursuing a transfer away from the Education Division, based on his 1998 request for a permanent transfer, which he and at least one other manager considered a request for reasonable accommodation of a disability. Id. ¶ 96.

After getting past some initial confusion on whether and when plaintiff had formally submitted a reasonable accommodation request, the agency began treating his request as such.

See Pl.'s Ex. 51a-c. On April 27, 2000, Ms. Quinn from Human Resources requested that an agency doctor, Dr. Steven Conway, review plaintiff's medical documentation to determine whether a reasonable accommodation was supported by the information submitted. Second Am. Compl. ¶ 98. Dr. Conway responded:

Medical information has been supplied to NASA Human Resources, by John Echeverry, Ph.D., and W. Scott Schroth, M.D., M.P.H., Associate Professor of Medicine, George Washington University, both practitioners in the care of Mr. Nurriddin. It is their opinion that Mr. Nurriddin has a medical condition [related to depression and anxiety], which impacts on his ability to perform his work. It is also their opinion that working conditions at NASA aggravate[] this disorder. Accordingly, they recommend a transfer to a less stressful work site for Mr. Nurriddin and continued treatment for his illness.

On the basis of their reports, I accept this opinion by these qualified Practitioners.

Pl.'s Ex. 2 (Mem. dated June 2, 2000). Based on the same medical documentation, one of plaintiff's first-line supervisors, McGee, circulated a draft email proposing to grant plaintiff sick leave for the period April 20th to May 12th. Second Am. Compl. ¶ 100; see also Pl.'s Ex. 55a-b. Other managers opposed the authorization of sick leave, as did NASA's legal counsel handling EEO matters, and plaintiff was ultimately coded as AWOL for that period as well as other periods. Second Am. Compl. ¶¶ 101-11, 117.

Around the same time, plaintiff applied for and was accepted into the NASA Voluntary Leave Transfer Program, which permits eligible employees to receive annual leave donated by other federal employees. Id. ¶ 112. Plaintiff's acceptance into the program was based on his medical condition and the documentation provided by his doctors. Id. Ultimately, his access to donated leave was severely restricted, and he was denied access to at least one instance of leave donated specifically to him. Id. ¶ 126. His managers characterized his acceptance into the program as a "problem" in light of the decision to designate him as AWOL and to deny other leave requests. Id. ¶ 113 & Pl.'s Ex. 60a-c. When the problem was raised in a series of emails, Castillo responded "Yegads! will we ever finish with this guy?" and decided to let the AWOL code remain in place. Second Am. Compl. ¶ 114 & Pl.'s Ex. 60a-c.

On August 8, 2000, Hillard Harrison, another NASA employee, noted by email that the pending litigation in Nurriddin I might affect their approach to plaintiff, stating "I guess this week might be key to know if there will be a settlement [from the mediation], but if it doesn't happen, we may want to take another look at how to proceed." Second Am. Compl. ¶ 118. The mediation was unsuccessful. Id. On August 10, Castillo sent an email to other managers stating: "Absent compelling reason for further accommodations, medical or otherwise, it's time to take corrective action for the continuing absences without acceptable reasons." Id. ¶ 119. Plaintiff, in turn, pursued administrative recourse on additional claims, contacting an EEO counselor on August 18, 2000. Id. ¶ 34.

Plaintiff's leave status remained an ongoing issue for management, as his leave requests accumulated and he ultimately sought and was granted workers' compensation based on his depression and anxiety. Second Am. Compl. ¶ 115-31. Indeed, the record reveals, undisputed by plaintiff, that he stopped reporting for duty after July 15, 2000, but remained an employee while out on various forms of leave and workers' compensation. See Defs.' Mem. at 28 (citing Affidavit of Sharmila de Mello-Zieschang ¶ 2)). On August 30, 2000, he requested 150 hours of advanced sick leave for the period September 12 through December 1. Id. ¶ 120. The request was denied. Id. ¶ 122. Hence, for over two months, he was considered AWOL, and had no source of income. Id. at 120-21. Plaintiff then requested coverage under the Family and Medical Leave Act on November 8, 2000. Id. ¶ 123. While that request was pending, on November 11th, the Department of Labor Office of Workers' Compensation Programs -- through Dr. Theodore Postolache -- diagnosed plaintiff with major depression, and also determined that there was a causal relationship between plaintiff's depression and certain employment-related incidents, including criticisms for attending "too many minority conferences." Id. ¶ 123-24. Ten weeks later, NASA approved his Family and Medical Leave Act request, retroactive to November 11, 2000, for a period of 12 weeks, expiring February 9, 2001. Id. ¶ 125. Plaintiff began receiving workers' compensation through the Department of Labor for "occupational disease" in late 2000 or early 2001, which continues to date. Defs.' Mem. at 28 (identifying effective date of workers' compensation as March 2001) (citing Affidavit of Dorothy Egbert ¶ 2); see also Pl.'s Ex. 104 (filed under seal May 10, 2007) (identifying effective date as December 6, 2000).

Although plaintiff was out on workers' compensation, his request for a transfer continued to be the subject of much discussion among management and NASA's legal office. Novak was against granting a transfer to another office. Second Am. Compl. ¶ 128. She sent an email on September 14, 2001, stating:

I really do not want to offer him another job in [Code] F. He's not qualified and he'll just create major problems if he should accept. A while back, Bob Stephens suggested that we (FE) take [Nurriddin] back, give him work (they have a job for him) and document it if he can't handle it . . . . I think it is better to work this at other than our level if we can.

Id.; Pl.'s Ex. 73a. In response, Castillo noted that "legal counsel" had suggested offering plaintiff a job that he would not accept as a "tactical ploy" that would enable the agency "to close off the OWCP [worker's compensation] claim." Second Am. Compl. ¶ 129; Pl.'s Ex. 73b. Novak then sent an email to Nurriddin's managers -- Castillo, Stephens, Batkin, Owens, McGee, Phelps, and Harrison -- to organize a meeting:

Ladies and gents, I am asking Denise Gross, of my staff, to set up a meeting with all of us to discuss the AN [Ahmad Nurriddin] "case" in terms of where we are going on this. It has become clear to me in the last few days that everyone is NOT on the same wave length in terms of strategy. . . . From there, we will take whatever action is necessary.

Second Am. Compl. ¶ 130; Pl.'s Ex. 74a-b. Plaintiff alleges that, at that meeting, a decision was made to close off his workers' compensation claim by making him a job offer in "Code FE" -- the office that was the source of his stress -- that his managers believed he would not accept. Second Am. Compl. ¶¶ 131, 135-36. This was called "the FE option" or "the FE approach." Id.

On October 9, 2001, Pamela Covington, an African American employee, suggested that a detail assignment was a "strong possibility at GSFC [Goddard Space Flight Center]." Id. ¶ 132. Novak rejected the option, also stating "looks like we are heading toward the FE option." Id. ¶ 133. Harrison echoed her comments: "A detail does nothing positive for us except delay whatever will happen. So moving ahead with FE appears to be the best way to proceed at this point." Id.

By letter dated October 12, 2001, management notified plaintiff of the decision to return him to his duties as an Education Programs Specialist in "FE", but with a "change" of supervisors -- McGee and Owens, instead of Dr. Phelps -- to "accommodate any limitations" -- referring to the stress and depression allegedly caused by his former situation -- and a change in the physical location of his office to "reduc[e] the possibility of contact with [his] former supervisor [Phelps]." Pl.'s Ex. 79 (Letter from Castillo to Nurriddin, dated Oct. 12, 2001); Second Am. Compl. ¶ 136. Plaintiff believed the accommodations offered were inadequate because he would be returned to the environment that caused his anxiety and depression, under the supervision of those who were the subject of his EEO complaints, and he refused the offer. Second Am. Compl. ¶ 137. He then initiated contact with an EEO counselor later that month. Id. ¶ 36. Based on the representations in the Castillo return-to-work letter, however, the Office of Workers' Compensation Programs terminated plaintiff's benefits on December 26, 2001. Pl.'s Ex. 84 (Letter from OWCP to Nurriddin, dated Dec. 26, 2001).

The OWCP then vacated its decision less than two months later. Second Am. Compl. ΒΆ 138. It explained that the workers' compensation claim was originally granted based on plaintiff's "Occupational Disease claim . . . [of] depression as a result of his federal job duties," and noted a physician's determination that "claimant could perform duties without necessary stress, such as ...


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