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Richard Miller v. Deborah A.P. Hersman

January 4, 2010


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Richard Miller, a former employee of the National Transportation Safety Board ("NTSB" or "the Board"), brings suit against Defendant Deborah A. P. Hersman, Chairman of the NTSB. The Complaint, which was filed pro se, alleges that Defendant engaged in discrimination on the basis of Plaintiff's sex, age, and disability and in retaliation for Plaintiff's prior protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. This matter is presently before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 45] ("Def.'s Mot."). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion for Summary Judgment is granted in part, and denied in part.

I. Background*fn1

Plaintiff Richard Miller was employed by the NTSB from June 20, 1999 until his termination on June 30, 2006. His first position at NTSB was an excepted appointment in the Office of the Chief Financial Officer ("OCFO") as an "Expert (TWA Management Coordinator)." On July 16, 2000, Plaintiff's position was converted to a career conditional appointment as a Financial Management Specialist, GS-501-14, in OCFO. Def.'s Stmt. of Material Facts as to Which There Is No Genuine Dispute ("Def.'s Stmt. of Facts") ¶ 2; Pl.'s Stmt. of Genuine Issues ¶ 2. His responsibilities included assessing, improving, and managing the agency's credit card program, as well as other projects. Def.'s Stmt. of Facts ¶ 10. Miller was expected to perform these duties with a high degree of autonomy. Id. ¶ 9.

In each of the years between 2000 and 2003, Miller received both "excellent" performance evaluations and a $2,000 incentive award based on his performance. Plaintiff's Opposition to the Motion for Summary Judgment ("Pl.'s Opp'n") at 3 [Dkt. No. 47]. Don Libera, who was the Board's Acting Chief Financial Officer ("CFO") and Miller's first-line supervisor beginning in 2001,*fn2 personally praised Miller's good work, as did others.*fn3 Id. However, starting in 2003, Miller's performance evaluations declined considerably: for the period from June 1, 2003 through May 31, 2004, he received a "Minimally Successful" performance rating based on his failure to complete several tasks and his lack of timeliness. Def.'s Stmt. of Facts ¶ 12; see 2004 NTSB Performance Appraisal Form for Richard Miller (Ex. D to Def.'s Mot.).

Miller contends that his declining performance was the result of his physical and psychological impairments, which were worsening at that time. In 2003, Miller began therapy for acute anxiety with Dr. John C. Parkhurst, Ph.D. See Pl.'s Stmt. of Genuine Issues ¶ 3; Parkhurst Dep. 25:9-11, 26:13-6, June 16, 2009 (Ex. OO to Def.'s Mot.). In January 2004, he was hospitalized for an anxiety attack. See Miller Dep. 136:16-25, June 24, 2009 (Ex. JJ to Def.'s Mot.). The evidence in the record indicates that Libera knew of Miller's hospitalization and discussed it with him shortly after his return to the NTSB, although it is not clear that Libera or any other supervisors knew that the diagnosis was an anxiety attack. Libera Dep. 139:3-140:2, Apr. 16, 2009 (Ex. QQ to Def.'s Mot.); Ex. JJ at 133:1-134:3. At some point in 2004, Miller also suffered a herniated disc and floating disc fragment in his back. See Pl.'s

Stmt. of Facts ¶¶ 4-6; Pl.'s Stmt. of Genuine Issues ¶ 6.

Stmt. of Genuine Issues ¶ 3; Expert Report of Dr. Lamb at 2 (Feb. 15, 2009) (Ex. 11 to Pl.'s Opp'n); Ex. JJ at 129:7-130:18.

According to Miller's doctors, his physical ailments exacerbated his anxiety, which in turn led to depression and an inability to concentrate at work. On May 22, 2004, Dr. Parkhurst wrote a letter recommending that Miller immediately cease working in order to improve his health. Letter from Dr. Parkhurst (May 22, 2004) (Ex. 13 to Pl.'s Opp'n) (recommending that Miller cease work "until such time that he has regained the behavioral health objectives set forth by his medical doctor and myself"); see also Ex. OO at 40:15-43:14. There is conflicting evidence on whether Miller's supervisors were given the letter before or after the PIP period. Defendant claims that Miller's supervisors were not informed of Dr. Parkhurst's letter until October 21, 2005, when Miller submitted it in response to his proposed removal. Def.'s Mot. at 14. Miller, however, claims that he discussed the letter with Libera in May of 2004 and left a copy of it "on his chair." Ex. JJ at 169:25-170:20.

On May 30, 2004, Miller was reassigned to the Accounting Division as part of a reorganization of OCFO. The Director of the Accounting Division, William J. Mills, became Miller's first-line supervisor, eventually assuming all of Libera's supervisory duties. From June to November 2004, Libera retained supervisory responsibility for Miller's substantive assignments while Mills took on supervisory responsibility with respect to time, attendance, and leave. Beginning in November 2004, Mills gained full supervisory responsibility over Miller. Pl.'s Opp'n at 4 n.3.

While preparing his office for a furniture move earlier that month, Miller injured his back, exacerbating both his physical and psychological symptoms. On May 27, 2004, while discussing his workload and a project plan with Libera over e-mail, Miller mentioned that he was coming into the office against medical advice. However, the record does not indicate that Miller ever provided a doctor's note to Libera or his other supervisors containing that advice. See E-mail from Richard Miller to Don Libera (May 27, 2004) (Ex. 15 to Pl.'s Opp'n). Libera suggested that Miller "[t]ake some time to relax" over the weekend, and that they could discuss his workload the following Tuesday. E-mail from Don Libera to Richard Miller (May 28, 2004) (Ex. 16 to Pl.'s Opp'n).

In July 2004, Miller again injured his back at work. As a result of his two back injuries, he took approximately 300 hours of sick leave between May and December 2004. Miller claims he was given no assistance in this period, and that he fell behind in his work as a result. Pl.'s Opp'n at 6.

Miller also sought to take annual leave in late 2004, but his requests were largely denied. On September 24, 2004, Plaintiff submitted a request for annual leave for the period from September 27, 2004 until October 8, 2004, nine days after the September 15, 2004, deadline for leave requests and with only three days' notice. Mills denied the request because "the entire period from September 1 to November 15 is a time of increased activity," as financial statements were due on November 15, 2004. E-mail from Bill Mills to Richard Miller (Sept. 27, 2004) (Ex. I to Def.'s Mot.). However, Miller was given shorter periods of one or two days at a time through October and extended leave for two or more weeks in November and December. Miller's subsequent request on October 27, 2004, for nearly two months of leave was also denied because Mills believed that Miller would not be able to meet his work deadlines. See Letter from Bill Mills to Richard Miller (Nov. 1, 2004) (Ex. M to Def.'s Mot.).

Miller's performance ratings continued to decline throughout this period. On December 22, 2004, Libera and Mills met with Miller to formally issue his "Minimally Successful" performance rating for the period from June 1, 2003 to May 31, 2004. Def.'s Stmt. of Facts ¶ 21. On January 10, 2005, Mills also issued a written performance warning memorandum which described the improvements necessary to correct Miller's deficiencies. See Memorandum from Don Libera to Richard Miller on Performance Warning and Expectations (Jan. 10, 2005) (Ex. L to Def.'s Mot.). The memorandum warned Miller that his failure to correct the identified deficiencies and to maintain improvements could result in an "Unacceptable" performance rating and placement on a performance improvement plan ("PIP"). If his unacceptable performance persisted after being placed on a PIP, Miller was told he could be demoted or removed from his position.

Miller's anxiety and depression continued to worsen in this period. In a March 2005 letter, Dr. Parkhurst stated his opinion that Miller would not be able to adequately recover from his anxiety disorder or quit smoking if he continued to work, and indicated that his treatment would be "optimized" if he ceased working for six months to one year. Letter from Dr. John C. Parkhurst, Ph.D. (Mar. 5, 2005) (Ex. RR to Def.'s Mot.). Defendant contends again that Miller did not submit this letter to his supervisors, and that they first saw it in Miller's reply to his proposed removal. See Letter from Don Libera to Richard L. Miller (June 23, 2006) at 6 (Ex. T to Def.'s Mot.).

On May 16-27, 2005, Miller took two weeks of sick leave due to anxiety-related hives. He claims that Mills was informed of the reason for this leave. Ex. JJ at 134:19-35:2. Mills, however, does not recall ever discussing Miller's medical conditions with him, although he was aware of the sick leave. Mills Dep. 51:21-53:1, June 17, 2009 (Ex. PP to Def.'s Mot.).

On June 9, 2005, Miller received a memorandum from Mills notifying him that he had received an "Unacceptable" performance rating for the period from June 1, 2004 to May 31, 2005. Def.'s Stmt. of Facts ¶ 23; see NTSB Performance Appraisal Form (FINAL) for Richard Miller (Ex. LL to Def.'s Mot.). As a result, he was placed on a 60-day PIP pursuant to 5 C.F.R. 432.104. Def.'s Stmt. of Facts ¶ 24; see Memorandum from William J. Mills to Richard L. Miller, Notification of Unacceptable Performance and Implementation of a Performance Improvement Plan (June 9, 2005) (Ex. Q to Def.'s Mot.). The PIP required Miller to continue his duties to oversee the agency's credit card program, as well as to perform other specific tasks and to attend weekly status meetings with Mills.

On June 13, 2005, Miller submitted a hand-written letter from his physician, Dr. Joseph Lamb, requesting a part-time schedule of "4 hours per day" for a "week" on account of his "physical and psychological complaints." Letter from Dr. Joseph J. Lamb (June 13, 2005) (Ex. R to Def.'s Mot.). Mills tentatively approved the leave, but informed Miller that he was requesting further medical documentation to support it. Def.'s Stmt. of Facts ¶ 27; E-mail from William Mills to Richard Miller (June 15, 2005) (Ex. 20 to Pl.'s Opp'n). Miller did not take all of the leave approved for that week because Mills's approval was provisional and because his workload had not been reduced. Ex. JJ at 173:6-19.

After some delay, Dr. Lamb received Mills's request for medical documentation and provided his response on July 31, 2005. The NTSB's medical consultant, Dr. Neal L. Presant, reviewed all of the evidence, including Dr. Lamb's letter, and found that the recommendation for the part-time schedule was "medically reasonable" given the circumstances. Letter from Dr. Neal L. Presant to Cindy Lepson, Human Resources, NTSB (Sept. 14, 2005) (Ex. 21 to Pl.'s Opp'n).

By August 3, 2005, which was the date of the final weekly progress meeting with Mills, Miller had failed to complete any of the PIP tasks due under Critical Elements No. 1 ("Credit Card Program Oversight) and No. 4 ("Special Projects"). The PIP was extended to August 19, 2009, while Mills was out of the office, but Miller did not complete any of the tasks due in that period, either. Def.'s Stmt. of Facts ¶¶ 39-40.

On September 12, 2005, Mills informed Miller that he was proposing his removal from the NTSB based on unacceptable performance under the PIP. Miller was placed immediately on administrative leave with pay. Id. ¶¶ 44-45.

On October 4, 2005, Dr. Lamb faxed a letter to the Board stating that the proposed removal action had traumatized Miller and that he should "refrain from working (take sick leave) for the foreseeable future." Id. ¶ 46; Letter from Joseph J. Lamb, M.D. (Oct. 4, 2005) (Ex. N to Def.'s Mot.). Mills converted Miller's administrative leave to sick leave, although the parties dispute whether he did this in response to Dr. Lamb's recommendation or after consultation with the Board's human resources director, Cindy Lepson. Miller contends that he never requested to be placed on sick leave, as demonstrated by the fact that he received his normal pay without losing sick leave while on administrative leave. Pl.'s Stmt. of Genuine Issues ¶ 47.

On October 21, 2005, Miller submitted through an attorney a written and oral reply to his proposed removal. The oral reply was delivered to Libera, who was the deciding official. See Ex. T at 2. Miller argued in his oral and written replies, with supporting medical documentation, that his medical and psychological conditions had rendered him unable to perform his duties since July 2004. He also argued that he should not have been placed on a PIP because the Board was on notice of his condition, but instead should have been placed on twelve weeks of leave under the Family and Medical Leave Act, 29 USC § 2601 et seq. Finally, he requested an accommodation in the form of a leave of absence for six months in order to recover. Id. at 3-4.

Libera requested more information about Miller's medical condition for Dr. Presant's review of Miller's accommodation claim. Miller provided Reasonable Accommodation Inquiry material from three of his doctors, as well as a release permitting Dr. Presant to speak with Dr. Adrienne Smith, Miller's neurologist. Letter from Dr. Presant to Cindy Lepson, Human Resources Division, NTSB (Feb. 21, 2006) (Ex. HH to Def.'s Mot.). The parties dispute whether Miller provided a medical release for Dr. Parkhurst and Dr. Lamb to speak with Dr. Presant. Pl.'s Stmt. of Genuine Issues ¶¶ 41-53.

On February 21, 2006, Dr. Presant presented his conclusion to the Board that Miller's performance could have been impaired by his physical and psychological conditions during the PIP period. However, Dr. Presant also concluded that there was little medical accommodation the Board could provide because Miller's psychological issues resulted from his perceptions of harassment and threats at NTSB. Ex. HH. Finally, Dr. Presant stated that since there was no indication that Plaintiff's medical condition would change in the foreseeable future, he did not believe that a six-month leave of absence would accomplish anything. Id.

Libera requested that Dr. Lamb provide status updates every two weeks on Miller's condition while his accommodation request and the decision on his proposed removal were pending. Dr. Lamb's submissions reported that Miller's stress level, though still elevated, had abated slightly by February 2006. On June 1, 2006, Dr. Lamb recommended that Miller return to work on July 3, 2006.

Despite Dr. Lamb's June 1, 2006, recommendation, on June 23, 2006, Libera rejected Miller's written and oral replies and removed him from his position effective June 30, 2006. Ex. T at 8-9. Libera concluded that Miller's medical and psychological conditions did not qualify him as an individual with a disability under the law because he was not substantially limited in his ability to work.

In support of his decision, Libera cited evidence that Miller's medical providers believed he could perform his job duties if he were moved to another environment where he did not feel harassed and stressed. Libera also found that Miller actually had been given accommodations in the form of extra attention and additional help to help him complete his work. Finally, Libera noted that Dr. Lamb's July 31, 2005, letter simply requested a part-time schedule, not a leave of absence, and that Miller actually did complete some work in the PIP period, although he failed to complete many of the designated PIP tasks. Id.

On July 25, 2006, Miller appealed his removal to the Merit Systems Protection Board. A removal appeal hearing was held on November 27, 2006. On December 15, 2006, the MSPB Administrative Judge denied Miller's appeal, concluding that the agency's performance standards, as established in the PIP, were valid, that Miller's performance was deficient, and that he was given a reasonable opportunity to improve. Richard L. Miller v. Nat'l Transp. Safety Bd., No. DC-0432-06-0724-I-1, 3-10 (M.S.P.B. Dec. 15, 2006) (Ex. TT to Def.'s Mot.). The Administrative Judge also found that Miller had failed to provide evidence of age discrimination, that he was not a disabled person under the Rehabilitation Act during the PIP, that he had not articulated a reasonable accommodation, and that there was insufficient evidence to support Miller's retaliation claim. On February 19, 2007, Miller filed a Petition for Review with the MSPB, which was denied on June 20, 2007.

On July 19, 2007, Plaintiff filed a Petition for Review with the EEOC. See Richard Miller v. Ellen Engleman Conners, Chairman, NTSB, Petition No. 0320070099 (E.E.O.C. Aug. 21, 2007) (Ex. 35 to Pl.'s Opp'n). On August 21, 2007, the EEOC concurred with the MSPB's conclusion of no discrimination.

Finally, on October 11, 2007, Miller filed the present Complaint pro se,*fn4 bringing claims of age, sex, and disability discrimination and retaliation. On September 11, 2009, Defendant filed a Motion for Summary Judgment, arguing that Miller was justifiably removed from his position for legitimate, nondiscriminatory reasons. On November 2, 2009, Plaintiff filed an Opposition to Defendant's Motion, contending that NTSB's conduct violated Title VII and the ADEA, as well as its obligations under the Rehabilitation Act to "'mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified ...

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