United States District Court, D. Columbia.
ANDREW H. LOWE, Plaintiff,
LISA P. JACKSON, Administrator, U.S. Environmental Protection Agency, Defendant
For ANDREW H. LOWE, Plaintiff: Ellen K. Renaud, Richard L. Swick, LEAD ATTORNEYS, SWICK & SHAPIRO, P.C., Washington, DC.
For LISA P. JACKSON, Administrator, Environmental Protection Agency, Defendant: Rhonda C. Fields, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
Andrew H. Lowe, a deaf Chinese-American male, sues the Environmental Protection Agency (EPA), for alleged employment discrimination on the basis of race, national origin, and disability, retaliation for his participation in protected activities, and a hostile work environment. Lisa Jackson, Administrator of EPA, responds that any adverse actions suffered by Mr. Lowe were legitimate and precipitated by his unwillingness to take direction from his supervisors and untimely completion of assignments. EPA moves for summary judgment. The Court will grant the motion in part and deny it in part. Mr. Lowe has offered direct evidence of discrimination based on his disability and evidence of retaliation that must be evaluated by a jury.
Andrew H. Lowe is a sixty-two-year-old Asian American male of Chinese descent. At the age of thirteen, Mr. Lowe's hearing was destroyed by ototoxicity and he now relies on sign language and written communication to interact with co-workers and supervisors. See Pl. Ex. 1 (Lowe Decl.) [Dkt. 32-1] ¶ 1; Opp'n [Dkt. 33] at 8. He began his career with EPA in 1987 as a GS-9 Computer Specialist in the Office of Air and Radiation. Lowe Decl. ¶ 3. During his tenure with EPA, Mr. Lowe earned a Master's Degree in Information Assurance from the University of Maryland. Id. ¶ 2. He continued his federal employment with EPA until his termination in May 2010.
In January 2001, Mr. Lowe transferred to EPA's Office of Environmental Information (OEI) as a GS-13 Information Technology Specialist. Opp'n at 5. During that time, OEI was headed by Director Mark Luttner and Deputy Director Andrew Battin. Def. Facts [Dkt. 27-1] ¶ 4. OEI has several component divisions, including the Information Exchange and Services Division, which was supervised by Director Doreen Sterling. Id. ¶ ¶ 3-4. The Information Exchange and Services Division is, in turn, supported by multiple branches, including the Information Services and Support Branch (ISSB). Id. ¶ 3. Mr. Lowe was assigned to ISSB and was directly supervised by Connie Dwyer. Opp'n at 5.
In June 2005, Steve Vineski, a Caucasian male GS-14 Information Security Officer in ISSB, moved to another office and recommended that Mr. Lowe assume his information security position. Id.; Am. Compl. [Dkt. 17] ¶ 11. Mr. Lowe accepted, and EPA amended his Performance Appraisal and Recognition System (PARS) to reflect Mr. Lowe's duties as the Information
Security Officer, as well as " the branch technical lead/project manager on information security, and [on] various branch projects." Def. Facts ¶ 7; Def. Ex. ROI 1  Tab F, Ex. 48 (Lowe PARS Plan) [Dkt. 29-15] at 16. Although the information security position was located within ISSB, it appears to have served the entire Information Exchange and Services Division. See Lowe PARS Plan at 16. Mr. Lowe contends that when he became the Information Security Officer, " rebuilding the office's information security infrastructure demanded 100% of his government duty time, as reflected in his weekly check-in summaries presented to his supervisors." Am. Compl. ¶ 10; see Lowe Decl. ¶ 5 (" Mr. Vineski told me that it would be a full time job to fully satisfy the [information security] requirements." ). EPA contends that information security was never meant to consume all of Mr. Lowe's time, and that he also was responsible for completing other tasks in support of ISSB. See Def. Facts ¶ 6. In contrast, Mr. Lowe contends that EPA managers failed to appreciate the time required to perform information security tasks for sixteen systems. See Opp'n at 7-9.
A. Mr. Lowe's GS-14 Promotion and Transfer to the Front Office Requests
Mr. Lowe worked as a GS-13 Information Security Officer for several years, during which he " became aware that other [Information Security Officers] were working at the Grade 14 level." Id. at 1; Lowe Decl. ¶ 5 (" I found out that other [security officers] who shared the same responsibilities and [were] on the same organizational level . . . were either GS-14's or GS-15's." ). In February 2007, Mr. Lowe asked Mr. Leopard for a promotion to a GS-14 Information Security Officer position, requested that his position description be revised to reflect that he was exclusively devoted to information security duties, and asked that he be moved to the front office of EPA's Office of Environmental Information. Def. Facts ¶ ¶ 8-9, 11.
Mr. Lowe's request for a GS-14 promotion was governed, in part, by a collective bargaining agreement between EPA and the American Federation of Government Employees (AFGE). That contract provided two methods for promotion: (1) an employee could compete for a vacant position, or (2) an employee's current position could be reclassified at a higher grade level due to an accretion of duties. Id. ¶ 25. It is undisputed that there were no GS-14 vacancies in the ISSB branch at the relevant time. Instead, Mr. Lowe requested that Mr. Leopard upgrade his position due to the predominance of his information security work, which he perceived to be at the GS-14 level.
Mr. Leopard responded in April 2007 and denied each of Mr. Lowe's requests. Id. ¶ ¶ 12-14. Mr. Lowe then submitted his request to Division Director Doreen Sterling in July 2007, but she, too, denied
all three proposals on July 23, 2007. Id. ¶ ¶ 15, 17.
On October 22, 2007, Mr. Lowe met with Office Director Mark Luttner, again requesting a promotion, a revised position description, and relocation to the front office. Mr. Luttner responded by email on November 9, 2007, stating: " I believe that [your] position is appropriately graded. However, EPA employees may request desk audits if they have concerns about their positions. You may contact the Office of Human Resources to begin that process." Id. ¶ 20.
EPA contends that Mr. Lowe sent an email requesting a desk audit, but never submitted the necessary paperwork. Id. ¶ 21. To the contrary, Mr. Lowe avers that he submitted the desk audit paperwork, but Mr. Leopard failed to forward his request to the Office of Human Resources. Pl. Facts at 8-9. According to Mr. Lowe, he did not become aware that Mr. Leopard had failed to forward his paperwork until he already had filed an equal employment opportunity (EEO) complaint, and his managers had " made it clear that they would not support him." Id. at 9. There was never a desk audit of Mr. Lowe's job and he remained at the GS-13 level.
B. Mr. Kyle's Assignment of Branch-Related Tasks
By February 2009, there had been several changes in EPA's mid-level management. Mr. Leopard, former chief of ISSB, had been replaced by Lee Kyle; Division Director Sterling had retired; and Lisa Schlosser had succeeded Mark Luttner as Director of OEI. Def. Facts ¶ 22. On February 19, 2009, Mr. Kyle, Ms. Schlosser, and Mr. Battin met with Mr. Lowe, and Mr. Lowe informed them that eighty percent of his time was focused on information security duties. Mr. Lowe also requested again to be relocated to the front office as a GS-14 Information Security Officer. Id. ¶ 23. Ms. Schlosser denied Mr. Lowe's requests and reversed his priorities, directing him to reassess his workload with a goal of eighty percent project work, i.e., duties in support of the branch, and no more than twenty percent information security work, id. ¶ 24. She also directed Mr. Kyle to help Mr. Lowe determine how best to divide his time between branch and information security assignments. Id.
In furtherance of this new priority scheme, on March 11, 2009, Mr. Kyle sent Mr. Lowe an assignment to support ISSB. By email, Mr. Kyle directed Mr. Lowe to " evaluate opportunities for adding geospatial capabilities to mobile devices." Id. ¶ 30. Mr. Kyle explained:
We've been tasked to evaluate the potential benefits of adding geospatial capabilities to mobile devices, in order to flow EPA data on regulated data, permits and inspections. Toward this end, I'd like you to look at needs for this technology across the Agency. I'd also like you to search for specific programs and existing applications/tools where this technology could be implemented . . . . Your goal is to research these needs generically, identify specific examples of potential application, and  report your findings in a vision paper that includes recommendations for moving forward . . . . After we agree on a project plan, my initial thinking is that I'd like to see your report within [eight] weeks.
Id. While EPA states that, " over a two month period[,] [Mr. Lowe] had emailed only one Region about their use of mobile devices, and that . . . email had only been sent on May 20, 2009," id. ¶ 33, Mr. Lowe avers that he " reviewed application software and EPA policies for regulatory data
access, talked to colleagues in the Office of Information Access and Analysis . . .., researched online," and met with several field inspectors regarding mobile application technology in that time period, Pl. Facts at 10-11.
Mr. Lowe submitted a paper titled " Response to Project Request on Potential Uses of Mobile Devices (UMD), Location-Based Services and Applications" on May 26, 2009. In his response, Mr. Lowe wrote:
After going through a substantial amount of investigation and deep thinking through the last eight weeks, I have to respectfully decline the request. In the meantime, I . . . propose a modified project that I have the expertise, confidence, interest and motivation to execute. Rationale:
A. Inadequate understanding of mobile device usage [with seven explanatory paragraphs].
B. Inadequate understanding of rapid changes of technology and survey effectiveness [with one explanatory paragraph].
Pl. Ex. 16 (Lowe Response to Mobile Devices Project) [Dkt. 32-16] at 3-4.
In essence, Mr. Lowe was concerned that EPA employees would not await a detailed study before obtaining electronics that could improve their work efficiency. Id. at 4. From his observations and attendance at an EPA Information Technology Conference, he concluded that, " [o]utside the agency, it is seriously doubtful that one would resort to consumer-grade mobile devices to perform geospatial data analysis or management. First, the screen, the [central processing unit] and the keyboard[,] etc., are simply too small to support the functionality; second, no serious users would endorse the security safeguards." Id. Mr. Lowe submitted a revised response to the mobile devices project on June 16, 2009. Def. Facts ¶ 35. The parties dispute whether Mr. Kyle told Mr. Lowe that his submissions were inadequate or whether he failed to review the submissions and provide Mr. Lowe with feedback. However, at a July 23, 2009 meeting, Mr. Lowe said that he could not devote more time to the project because his information security duties required eighty percent of his time, and he did not think that he was the right person for the task. Id. ¶ 36.
Mr. Kyle " insist[ed]" that Mr. Lowe complete the mobile devices assignment. Am. Compl. ¶ 15. Mr. Kyle also consulted with an EPA labor relations specialist, who informed him that EPA needed to update Mr. Lowe's performance standards to specify that his information security duties should take only twenty percent of his time. Def. Facts ¶ 38. Thereafter, on August 8, 2009, Mr. Kyle amended Mr. Lowe's performance standards. Id. ¶ 39. On Critical Element Four, Information Security, he deleted the statement that approximately fifty percent of Mr. Lowe's time would be allocated to information security duties. See Pl. Ex. 9 (2009 Revised Performance Plan) [Dkt. 32-9] at 7. He also inserted a new criterion that transformed the mobile devices project into a critical element for purposes of evaluating Mr. Lowe's job performance. Id. at 8; Def. Facts ¶ 39.
Tensions continued to escalate between Messrs. Lowe and Kyle with respect to the mobile devices project. While Mr. Kyle initially seemed to approve the use of an email survey to ascertain Global Positioning System (GPS) uses by EPA employees, see Pl. Ex. 17 (July 1, 2009 Kyle Email) [Dkt. 32-17] at 1, he later refused to follow that course, see Pl. Facts at 13. Mr. Lowe argues that, in August 2009, he was " forced to use a focus group . . . because [Mr.] Kyle would not allow him to
send an email or conduct a written survey to solicit such information from potential users." Id. Mr. Kyle's alleged insistence on a focus group was especially problematic for Mr. Lowe because, as a deaf employee, he needed to watch a sign language translator and therefore could not take notes or watch the participants as they spoke. The focus group ultimately proved to be an ineffective method, as the second meeting was significantly hampered by a failed teleconference arrangement.
On November 20, 2009, Pat Garvey, the manager of EPA's Facility Registries System (FRS) database, sent Mr. Kyle an email requesting staff assistance to review and clear duplicate records from the database. Mr. Kyle forwarded this request to Mr. Lowe, stating, " Andy, this could be a very useful project. I'm roughly estimating it should take [ten percent] of your time. Let's discuss, thanks." Def. Ex. MSPB 4KKK (Nov. 20, 2009 FRS Assignment Email) [Dkt. 28-10] at 1. Mr. Lowe responded that " [s]uch low-level coding work must be done by [a] contractor. I will be happy to examine the issues . . . . If you want me to do the micro-coding, no way. No other [Information Security Officer] would do that kind of work." Id. Mr. Lowe alleges that Mr. Kyle asked Mr. Garvey to send the email so that he could assign Mr. Lowe to a menial task. See Pl. Facts at 15.
C. Mr. Lowe's Unsatisfactory Rating and Performance Improvement Plan
On November 12, 2009, three months and four days after he changed Mr. Lowe's Critical Elements, Mr. Kyle rated Mr. Lowe " Unsatisfactory" under Critical Element One, Work Products, and Critical Element Five, Support ISSB Geospatial Services. Pl. Ex. 28 (2009 PARS Interim Rating) [Dkt. 32-28] at 1. As a result of these two ratings, on December 4, 2009, Mr. Kyle informed Mr. Lowe that his overall PARS rating was unsatisfactory, and he placed Mr. Lowe on a Performance Improvement Plan (PIP), which gave Mr. Lowe seventy-five calendar days to bring his performance to the " Fully Satisfactory" level. Def. Facts ¶ ¶ 51-54. During the seventy-five-day period, the PIP required Mr. Lowe to complete: (1) the Geospatial Applications Project, i.e., the mobile devices project; (2) the review and correction of data in EPA's FRS database; and (3) the preparation of two calendars to identify the information security deadlines that Mr. Lowe faced in the upcoming ...