United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For PHILIP SABA, Plaintiff: Ziad Paul Haddad, LEAD ATTORNEY, TOBIN, O'CONNOR & EWING, Washington, DC.
For U.S. DEPARTMENT OF AGRICULTURE, Defendant: Claire M. Whitaker, U.S. ATTORNEY'S OFFICE, Washington, DC.
Royce C. Lamberth, United States District Judge.
Plaintiff Phillip Saba filed suit against his employer, the United States Department of Agriculture (" USDA" ), alleging multiple counts of discrimination and retaliation,
in violation of Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, and the Family and Medical Leave Act. Upon consideration of the defendant's Motion to Dismiss, Or In the Alternative, For Summary Judgment , the plaintiff's Opposition thereto , and the defendant's Reply , the Court will GRANT IN PART and DENY IN PART the defendant's Motion.
Phillip Saba has served as an electrical engineer with the USDA since June 24, 2007. Mr. Saba, who is of Lebanese descent and suffers from severe allergies, alleges that the USDA has engaged in a continual pattern of national origin and disability discrimination and retaliation.
According to Mr. Saba, the pattern began during his employment interview in February 2007, when his interviewer and future supervisor, Louis Riggs, became aware of Mr. Saba's Lebanese origin. Compl. ¶ 7. In response, Mr. Riggs recalled that three decades prior, he had been a passenger on an airplane hijacked by Lebanese nationals. Id. Whatever his feelings about this incident, Mr. Riggs found Mr. Saba the best qualified candidate and offered him the electrical engineer position at the GS-11 level. Id. ¶ 8. When Mr. Saba balked at the salary, Mr. Riggs re-offered the position at the GS-13 level. Id. Mr. Saba accepted the offer and began work on June 24, 2007. Id. ¶ 9.
Within a month of being hired, Mr. Saba informed Mr. Riggs of his severe allergies to dust, mold, dust mites, and pollen, which required weekly injections of allergy medication. Id.
On February 12, 2008, Mr. Riggs assigned Mr. Saba to work in a dusty basement that triggered Mr. Saba's allergies. Id. ¶ 11. As an accommodation of his medical condition, Mr. Saba requested gloves and a face mask. Id. Mr. Riggs denied this request. Id.
Mr. Saba alleges that, as retaliation for his accommodation request, Mr. Riggs began a pattern of harassment that included an increase in Mr. Saba's workload and a sustained attempt to paint Mr. Saba as a chronically absent and lackadaisical employee. Id. ¶ 14-15. This harassment included calls to Mr. Saba's mobile and home telephone numbers outside of office hours throughout the spring and summer of 2008. Id. Mr. Riggs also began to question the veracity of Mr. Saba's justifications for taking personal and sick leave. Id. ¶ 18-19. As a result of this " frequent harassment," Mr. Saba requested a transfer to a different division on September 10, 2008. Id. ¶ 20.
On September 24, 2008, Mr. Saba submitted a leave request pursuant to the Family and Medical Leave Act in order to care for an ill family member. Id. ¶ 21. Mr. Riggs approved the request but made several calls to Mr. Saba's mobile phone while he was on FMLA leave. Id.
On October 31, 2008, Mr. Saba received his first performance evaluation. Id. ¶ 22. In his written comments, Mr. Riggs noted that " despite being foreign born, [Mr. Saba] was a strong communicator." Id. While Mr. Riggs initially declined to rate Mr. Saba as outstanding, he did so after being confronted with instances of Mr. Saba's leadership initiative and significant contributions to resolving loan applications and contracts. Id. Despite the outstanding rating, Mr. Riggs declined to award Mr. Saba a Quality Step Increase (" QSI" ) in 2008 and 2009. Id.
On November 4, 2008, a co-worker informed Mr. Saba that Mr. Riggs improperly shared confidential information learned from a previous employer of Mr. Saba. Id. ¶ 23. Mr. Riggs admitted that he shared
this information with upper management officials on December 5, 2008. Id. ¶ 25.
Still suffering from allergies, Mr. Saba, who already worked from home two days each week, requested an additional telecommute day to reduce his exposure to dust in the office. Id. ¶ 26. His request was denied. Id. Shortly thereafter, on February 5, 2009, Mr. Riggs instructed Mr. Saba to document the amount of work he completed on his telecommute days. Id. ¶ 27. At least two other telecommuting employees were not required to provide such documentation. Id.
On February 20, 2009, Mr. Riggs again assigned Mr. Saba to work in the basement. Id. ¶ 28. When Mr. Saba complained about his allergies, Mr. Riggs requested a report from Mr. Saba's physician, which Mr. Saba provided on February 24. Id. On February 26, Mr. Saba reiterated his request for an additional telecommute day, which was denied during a meeting on March 3, 2009. Id. ¶ 30.
On June 26, 2009, Mr. Saba contacted an EEO counselor and alleged discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act.
A. Administrative Process for Title VII and Rehabilitation Act Complaints
Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act prohibit discrimination against federal employees on the basis of national origin and disability, respectively. Employees alleging discrimination in violation of either statute " must initiate contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). After the EEO investigator completes her investigation of the allegations, the employee may demand either an immediate final decision or a hearing before an EEOC administrative judge. 29 C.F.R. § 1614.106(e)(2); 29 C.F.R. § 1614.108(f). Alternatively, if no final decision has been issued within 180 days of the initial complaint, the employee may file a ...