United States District Court, D. Columbia.
ZAFAR H. KHAN, Plaintiff
ERIC HOLDER, as United States Attorney General, Defendant
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For ZAFAR H. KHAN, Plaintiff: Michael W. Beasley, LEAD ATTORNEY, LAW OFFICES OF MICHAEL W. BEASLEY, ESQ., Falls Church, VA.
For ALBERTO R. GONZALES, In his official capacity as United States Attorney General, Defendant: Rhonda Lisa Campbell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
Thomas F. Hogan, UNITED STATES DISTRICT JUDGE.
Plaintiff Zafar H. Khan filed this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (" Title VII" ); the Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981, et seq., the Civil Rights Attorney's Award Act, as amended, 42 U.S.C. § 1988, et seq., and 29 C.F.R. § 1614 et seq., alleging discrimination based upon race, color, religion, national origin, and retaliation. Pending before the Court is defendant's Motion for Summary Judgment. The Court has carefully reviewed the defendant's motion, plaintiff's opposition thereto, defendant's reply, and the entire record of this case. The plaintiff has not produced sufficient evidence for a reasonable jury to find that defendant's asserted legitimate explanation was not the real reason for the adverse employment actions it took against plaintiff and that defendant had actually discriminated against plaintiff on the basis of his race, color, religion, or national origin or that defendant retaliated against for engaging in a protected activity. Therefore, the Court will grant defendant's motion for summary judgment.
Plaintiff, Zafar A. Khan, was employed by the Bureau of Alcohol, Tobacco, and Firearms (" ATF" or " defendant" ) as a Telecommunications Specialist, PD-391-2 in the Radio Communications Branch of the Technical Services Division, Office of Science and Technology from July 1998 until April 2004. Plaintiff was responsible for providing technical support and assistance to ATF Field Divisions. Pl. Ex. 2, Khan Aff., at 2. Plaintiff alleges that he was systematically discriminated against based on his race (South Asian), nationality (Indian/Pakistani) his religion (Muslim), and retaliated against for complaining about the discrimination to the ATF's Equal Employment Office (" EEO" ). According to plaintiff, the discrimination and retaliation culminated in a Decision to Remove for Unsatisfactory Performance issued on April 7, 2004.
From July of 1998 to November of 1999, plaintiff's immediate supervisor was Telecommunications
Manager Brad Caldwell. In November of 1999, Caldwell was promoted to Telecommunications Branch Chief and became plaintiff's second line supervisor. Def. Facts ¶ 9. Caldwell was Plaintiff's second-line supervisor for the rest of plaintiff's employment at ATF. James Bowks, who had formerly been plaintiff's coworker, was promoted to Telecommunications Manager. Bowks was plaintiff's immediate supervisor until October 2001, when Sam Ford was promoted and became plaintiff's supervisor. Def. Facts ¶ 9. Plaintiff's third line supervisor for the entirety of his employment was Chief of ATF's Technical Services Division Timothy McGinnis.
At the beginning of plaintiff's employment at ATF, plaintiff and other employees in his position were reviewed on five critical elements: Technical Proficiency; Technical Responsibilities; Interpersonal Skills; Professionalism; and Effective Communication. See Pl. Ex. 3, Nov. 5, 1998 Performance Appraisal; Pl. Ex. 4, Feb. 25, 2000 Performance Appraisal. Each element is graded O (Outstanding); EFS (exceeds fully satisfactory); FS (fully satisfactory); LFS (Less than fully satisfactory); or U (unsatisfactory). See Pl. Ex. 3 at 1. Employees also received an overall rating based on the average of the grade for each of the elements. However, if an employee receives an LFS or U rating in any element, he or she will automatically receive either an LFS or U rating overall. Id.
In Khan's first evaluation, covering the period of July 5, 1998 to October 31 1998, Plaintiff's then-supervisor Brad Caldwell gave plaintiff FS ratings for each critical element and an overall FS rating. Pl. Ex. 3 at 1. However, plaintiff could not be evaluated on all the listed criteria for each element because he was still in training. Id. In his second evaluation, covering the period from November 1, 1998 to October 31, 1999 and signed by Caldwell on February 25, 2000, Khan received a grade of EFS on Interpersonal Skills and Effective Communication, and an FS on Technical Proficiency, Technical Responsibilities, and Professionalism. Def. Ex. 4 at 1. His overall grade was FS. Id. Though the comments in the review were generally positive, Caldwell did note that Khan " requires repetition and reinforcement of the training he has received to gain the level of technical expertise required to become self-sufficient as a telecommunications specialist," id. at 2, and noted that Caldwell had conducted " [s]everal discussions" with plaintiff regarding plaintiff's responsibility to " achiev[e] the knowledge required to become a fully qualified and self-sufficient communications specialist." Id. at 5.
The ATF changed its rating system in 2000. For each critical element, employees were rated E (Performance Exceeds Expectations); A (Performance Achieves Expectations); or B (Performance Below Expectations). Based on their performance in each critical element, employees received an overall rating of Outstanding (all elements rated E), Exceeds Objectives (majority of elements rated E and others rated A), or Meets Expectations (less than half of elements rated E, the rest A). See Pl. Ex. 5, Oct. 27, 2000 Performance Appraisal, at 7. However, if an employee is rated Below Expectations in any critical element, the " supervisor must decide and explain" whether the performance should be rated " Needs Improvement" or " Unsatisfactory." Id.
For the review periods June through September 2000 and June through September 2001, Bowks gave plaintiff an overall " Meets Expectations" review with favorable comments. Pl. Ex. 5; Pl. Ex. 6, Dec. 26, 2001 Performance Appraisal. However, in 2001, plaintiff alleges that individuals
at the agency, particularly Bowks, were discriminating against him based on his race and religion. Plaintiff alleges that he was given menial tasks that were more suitable for a shipping clerk than for someone with his technical expertise. In early 2001, Bowks took away plaintiff's responsibilities to service the Houston Field Division and put him in remedial training, allegedly without justification. Following the attacks of September 11, 2001, plaintiff alleges that Bowks told plaintiff that he could not provide technical support at the Pentagon or in New York City because Bowks considered Plaintiff to be a " security risk" due to the fact that plaintiff was a Muslim. See Pl. Opp. at 30; Pl. Ex. 10, Dep. of Z. Khan, 42:8-21, Plaintiff also alleges that Bowks stated that American Muslims should be " put in quarantine like Japanese Americans and their civil liberties should be terminated." Id. at 43:6-12. Plaintiff also alleges that others at ATF sent him and each other emails portraying Muslims as terrorists.
In October of 2001, Sam Ford became plaintiff's supervisor. Plaintiff stated that he continued to feel that he was being passed up for promotions and was being assigned menial tasks because of his race and religion. Def. Ex. 1, Khan Aff., at 8. In March of 2002, plaintiff complained to the ATF's EEO that he was being denied training and promotion opportunities as a result of his race and religion. Id. at 5. Ford was told of plaintiff's complaint and discussed the issue with plaintiff and an EEO counselor. Def. Ex. 20, Ford Aff., at 3. Plaintiff states that Ford discouraged him from filing a formal complaint. Def. Ex. 2 at 5. Plaintiff states that this is where his trouble with Ford began, asserting that following the informal complaint, " Supervisor Ford then commenced a relentless and vicious attack against Plaintiff Khan in an ongoing program of unlawful discrimination based upon Plaintiff's race, national origin and religion, and as unlawful retaliation for Plaintiff Khan's protected EEO activities which began in March 2002." Pl. Opp. 19-20.
For the review period October 2001 to November 2002, Ford gave plaintiff an overall rating of " Meets Expectations" and gave him a grade of A (" Performance Achieves Expectations" ) in each of the critical elements. Pl. Ex. 7. These grades were comparable to plaintiff's previous evaluation. However, while the comments were generally positive, Ford did identify some areas of improvement, noting that Khan " required supervisory intervention" and that he needed " occasional prompting to complete assignments" on several occasions. Id. at 5, 7. On October 1, 2002, plaintiff was assigned to provide support to the Baltimore Field Division. Ford and Brad Caldwell, plaintiff's second line supervisor, both stated that they received complaints from individuals in the Baltimore Division about plaintiff's ability to perform the technical services that were required of him. See Def. Ex. 12, S. Ford. Dep., at 161:16; Def. Ex. 14, B. Caldwell Dep., at 101:14-102:18. According to Ford, plaintiff's performance continued to deteriorate between October 2002 and January 2003 and he " failed to complete several assignments given to [plaintiff] by [plaintiff's] supervisor." Def. Ex. 13, Memorandum re: Opportunity to Improve Performance, at 2.
In March of 2003, Ford informed Plaintiff that he was giving a plaintiff a mid-year review with an overall grade of " Unsatisfactory." Def. Ex. 22, Dec. 10, 2003 Performance Appraisal. In December of 2003, plaintiff's " Unsatisfactory" grade became official for the November 2002 to October 2003 reporting period. Id. The review stated that plaintiff was performing below expectations in four out of the five
critical elements, and cited specific examples of plaintiff's failure to meet expectations. Id. For noted that Khan continued to require a great deal of supervision, and had " difficulty identifying and resolving problems with the equipment without requiring a great deal of outside technical assistance." Id. at 3. Ford noted that plaintiff was unable to complete tasks without supervision and help, though other employees of plaintiff's grade and experience were able to do so independently. Id. Ford noted that plaintiff " rarely submitted required trip reports and/or technical reports on time and the reports that were submitted lacked content." Id. at 10.
On June 20, 2003, Ford put plaintiff on an Performance Improvement Plan (" PIP" ). In a memorandum explaining the decision, Ford told plaintiff that the PIP was a " 90-day opportunity period to improve your performance." Def. Ex. 13 at 2. Ford observed that plaintiff was consistently unable to complete projects that required troubleshooting techniques and technical skills, that he frequently required assistance from other technicians to do his job, and that, despite receiving formal and informal training, he lacked the technical knowledge of equipment and procedures required by his position. Id. at 2. Ford found Khan's technical expertise to be below expectations, noting that plaintiff's deficient performance jeopardized the effectiveness of agency missions, exposed agency equipment to possible damage or destruction, and risked the safety and well-being of agency personnel. Id. at 3. According to the performance improvement memorandum, plaintiff was unable to independently complete routine equipment installations, even when the agency provided plaintiff with step-by-step, written instructions. Id. In October 2002, plaintiff was tasked with preparing a repeater site for the agency's Baltimore Field Division. Plaintiff could not complete the assignment and required " constant supervision." Id. Even with supervision, it took plaintiff over two months to finally begin the project, and once he did, he was unable to perform the required technical work without assistance from others. Id. at 3-4.
According to Ford, plaintiff also failed to project the professional demeanor and positive attitude required by his position. Id. at 7. Plaintiff's performance in this critical element was so deficient that the supervisor deemed Plaintiff " neither reliable nor dependable," and observed that Plaintiff failed " to adequately manage time, funds, or other resources." Id. As part of his job responsibilities, Plaintiff was required to prepare written reports summarizing the activities he performed while working in the field; he usually failed to file these reports. Id. at 8. Moreover, even when Plaintiff did submit them, he often failed to include all required information. Id. Compounding Plaintiff's struggles with this critical element, his supervisor observed that Plaintiff lacked the ability to describe and define projects in technical terms and using technical references. Id.
On June 18, 2003, plaintiff's second line supervisor, Timothy McGinnis, issued a plaintiff a " Notice of Proposal to Suspend for Seven (7) Calendar Days" because McGinnis had determined that plaintiff had provided false statements to a law enforcement officer and failed to report an incident involving a government furnished automobile (" GOV" ). Def. Ex. 15 at 1. An ATF Office of Inspection investigation found that on June 26, 2002, plaintiff had been ticketed for driving alone in the GOV in a High Occupancy Vehicle (" HOV" ) lane on the Dulles Access Road. Id. According to the officer who pulled Khan over, plaintiff told the officer that plaintiff was on official business for ATF at the time of the incident. Id. at 18. However, Khan
told ATF investigators that he was actually on his way home. Id.
Plaintiff objected to the Notice of Proposal, citing several purportedly mitigating factors that he believed merited a less severe penalty than suspension. Id. at 12-14. Khan denied that he ever told the officer he was on the official business. Id. at 11. Khan also stated that he was on the Dulles Access Road because the " heavy rain, poor visibility, and bumper-to-bumper traffic" made him " afraid" that the he and the GOV were in danger. Id. at 12. Plaintiff stated that he did not know that " minor traffic citations warranted an immediate report to his first line supervisor." Id. at 13. In addition, plaintiff stated that because the vehicle's tag was improperly identified on the citation, plaintiff " expected to challenge the validity of the ticket based on technical merits and was hoping that the ticket dropped." Id. at 13. Because the ticket was on appeal, plaintiff " did not consider the ticket as evidence of guilt and did not report it to [his] supervisor." Id. Plaintiff also alleges that the officer was " irritated" that plaintiff appealed the ticket and " exerted undue pressure by calling [plaintiff] at home and asking [him] to have [his] appeal withdrawn." Id.
On September 4, 2003, McGinnis issued his final Decision to Suspend for Seven Days. Based upon the Office of Inspection's Report of Investigation, the notice of proposed suspension, plaintiff's written reply dated July 17, 2003 and his oral reply on July 18, 2003, McGinnis concluded that Plaintiff violated ATF Order 2130.1, Conduct and Accountability, section 17(a), by " lying to a law enforcement officer in the course of an official inquiry." Id. at 19. McGinnis found that plaintiff further violated the ATF Order by failing to report the traffic violation to his supervisor. Id. McGinnis found that as an ATF employee with access to a GOV, plaintiff should have known that ATF policy requires an employee who operates a GOV to immediately report all incidents, tickets, and citations involving their assigned vehicle to a person in their supervisory chain of command, whether on or off duty. Id. at 1. The investigation resulted in plaintiff's suspension from work without pay from September 15-22, 2003.
On June 20, 2003, following his placement on the PIP, plaintiff contacted the EEO complaining that his allegedly menial work requirements, lack of promotions, and placement on the PIP were all a result of discrimination on the basis of race, religion, and national origin or retaliation for plaintiff's prior EEO complaint. See Def. Ex. 2. The complaint became final on September 17, 2003. Id. Plaintiff claims that his negative reviews were unfair because some of the reviews were based tasks that it was impossible for him to perform. Specifically, plaintiff alleges that Ford gave him a negative review because plaintiff did not evaluate a radio that was broken when plaintiff received it. Id. at 3-4. When the radio was replaced, " it came malfunctioning and without any literature." Id. at 4. Nevertheless, plaintiff alleges, Ford held Khan " responsible for not being able to evaluate the radio and write a report." Id.
Ford took copious notes regarding plaintiff's progress in the PIP, which were presented to plaintiff as part of the September 22, 2003 Memorandum Regarding the PIP Extension. Def. Ex. 17. These notes reflect a number of incidents where plaintiff behaved unprofessionally or failed to perform technical responsibilities that would be required of someone in his position. See id. While plaintiff was on the PIP, he was relieved of his duties to service the ...