United States District Court, District of Columbia
TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE
Plaintiff Ghulam Ali alleges that the Environmental Protection Agency (the “Agency”) discriminated against him due to his race, gender, national origin, age and disability. He also alleges that the Agency retaliated against him. Specifically, Ali claims that the Agency acted with discriminatory and/or retaliatory motive when it: (1) failed to promote him to pay grade GS-14; (2) transferred him throughout the Agency; and (3) refused to allow him to continue working in a private office as an accommodation for his environmental allergies. Finally, Ali asserts the Agency created a hostile work environment.
Plaintiff, who is proceeding pro se, brings claims under Title VII, 42 U.S.C. § 2000e, the Rehabilitation Act, 29 U.S.C. §§ 701 et seq, and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. The Defendant has moved for summary judgment on all counts. Having reviewed the submissions of the parties and the record herein, and for the reasons set forth below, the court will GRANT the Defendant’s motion.
I. LEGAL STANDARD
A. Motions for Summary Judgment
Summary judgment is appropriate where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted). The nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
B. Pro Se Litigants
It is well established that “[c]ourts must construe pro se filings liberally.” Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999); Haines v. Kerner, 404 U.S. 519, 520 (1972) (pro se pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers”). Despite this less stringent standard, “a pro se plaintiff’s opposition to a motion for summary judgment, like any other, must consist of more than mere unsupported allegations and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.” Prunte v. Universal Music Grp., Inc., 699 F.Supp.2d 15, 21-22 (D.D.C. 2010) aff'd, 425 F. App’x 1 (D.C. Cir. 2011) (citing Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324). As the non-moving party, the pro se plaintiff “is required to provide evidence that would permit a reasonable jury to find in his favor.” Prunte, 699 F.Supp.2d at 22 (internal quotations omitted) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987)).
II. PROMOTION AND TRANSFER CLAIMS
Ali is a male economist, who is over forty years old, Asian, and of Pakistani national origin. He began working at the Agency in 1990. In the late 1990s, he filed a lawsuit against the Agency alleging discrimination in promotions, but the complaint was dismissed as untimely. Since 1999 he has been employed at the GS-13 pay level.
During the relevant portions of his tenure, Ali was employed in the EPA’s Office of Water (hereinafter “Water Section”). During most of his tenure in the Water Section, Ali had a private office because of his allergies to environmental irritants. Around 2000, he worked in the Office of Wastewater Management. The Director of that office, Michael B. Cook, wanted to promote Ali, but Ali admits that he did not meet the time-in-grade requirement for promotion to a GS-14 pay level. Around this same time, the Agency transferred him to a different office within the Water Section, the Office of Science and Technology (“OST”), where he remained throughout the relevant portions of his employment.
Without consulting Ali, the Agency placed him in the OST’s Engineering and Analysis Division (“EA Division”) so that he could work on a task force that was developing regulations about cooling water intake structures. Ali claims that as part of the transfer, Cook and the Director of Ali’s new office agreed to promote Ali to a GS-14. Ali also claims that his transfer to the task force was conditioned upon his ability to transfer out of the EA Division when the project ended.
Somewhere between 2003 and 2005, the EA Division began reorganizing and downsizing. As a result of the reorganization, the Agency asked EA Division employees to identify the positions they would like to hold within the division, as well as identify any positions outside of the division they desired, post-downsizing. Ali’s first choice was to stay in the EA Division. His second choice was to transfer to the Standards and Health Protection Division (“SHP Division”), on the condition that he obtain a promotion to a GS-14. (Plaintiff’s Ex. A3; Pls. SOF ¶ 5).
In 2005, as a result of the downsizing, the Agency transferred Ali to the SHP Division, but did not promote him. (See Pls. Br. p. 10). He claims that his transfer was discriminatory, because there were other economists who could have been selected, but were not. At some point, Ali objected to the transfer and claims the Agency agreed that he could return to the EA Division if he did not like the new assignment. Once transferred, Ali worked in at least two branches within the SHP Division.
Two years later, on April 18, 2007, Ali contacted an EEO counselor about purported discrimination associated with the alleged promotion and transfer promises, as well as his failed attempts to retain a private office for health reasons. (Compl. p. 9). He complained that the Agency had retaliated against him for filing the lawsuit in the 1990s and that it had discriminated against him on the basis of race, gender, national origin, age and disability. The crux of the disability claim, which the court will analyze in the second portion of this opinion, is that he needs a private office as an accommodation for his environmental allergies. After a building renovation and space reallocation among various divisions, the Agency relocated Ali to a cubicle. He contends that the Agency should have allowed him to stay in the private office but, as discussed below, he refused to submit specific medical information requested by the Agency and, therefore, abandoned the process for seeking an accommodation.
With respect to his promotion and transfer claims, Ali asserts that the Agency has continuously discriminated against him by intentionally reassigning him to different offices and divisions, so that he never was able to establish himself. He claims the involuntary transfers contributed to his inability to obtain a promotion and asserts that, with each transfer, he was disadvantaged because he had to learn new program requirements and prove himself to new supervisors, who generally favor existing staff when making promotions.
Ali also contends that his current assignment in the SHP Division has been particularly detrimental, since he is the only economist in his division and, therefore, in a dead-end job. He claims that the lack of other economists in his division negatively impacts his promotion potential, apparently because the absence of other economists means there is no need for team leader positions. He further claims that, after the reorganization, the EA Division hired new economists-apparently younger than Ali-one of whom is a GS-14. This, he argues, is evidence that his prior division needed economists and his inability to return to that division has derailed his attempts to move up to a GS-14.
Ali alleges that the Agency’s actions in transferring him were discriminatory because the Agency allegedly did not involuntarily transfer economists who are outside of his protected classes. Moreover, he claims the Agency discriminated against him when it (1) failed to honor its alleged promises with respect to transfers and refused to allow him to transfer to a position of his choosing after the task force completed its project, and (2) failed to allow him to return to the EA Division upon deciding he was dissatisfied with the SHP Division. Finally, Ali alleges that the Agency reneged on its promise to promote him and, instead, the Agency has awarded promotions in a discriminatory fashion.
Federal law prohibits discrimination in employment based on age, 29 U.S.C. § 623, race, color, religion, sex, national origin, 42 U.S.C. § 2000e-2, and disability, 29 U.S.C. §§ 701. Federal law also prohibits employers from retaliating against employees who engage in protected activity, such as contacting an EEO counselor or filing a discrimination lawsuit. See 29 U.S.C. § 623(d); 42 U.S.C. § 2000e-3(a). In order to bring federal employment discrimination and retaliation claims, a federal employee generally must “initiate contact” with an EEO counselor “within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” Noisette v. Geithner, 693 F.Supp.2d 60, 66 (D.D.C. 2010) (citing 29 C.F.R. § 1614.105(a)(1)). Failure to meet the 45-day deadline constitutes a failure to exhaust, and “will ordinarily bar a plaintiff from pursuing a judicial remedy.” Foster v. Gonzales, 516 F.Supp.2d 17, 22 (D.D.C. 2007). “The initial burden of establishing a plaintiff's failure to exhaust administrative remedies rests with the defendant.” Id.
The Agency argues that Ali’s promotion and transfer claims are barred because the conduct that he challenges occurred years before his contact with an EEO counselor. The Agency contends that Ali was aware of his non-promotion around 2000, shortly after his transfer to the task force. Because he did not contact an EEO counselor until April 2007, the Agency argues Ali failed to exhaust his promotion claim in a timely fashion. It argues that Ali’s transfer claims are likewise untimely because they arose in 2000 and 2005, years before Ali’s contact with an EEO counselor in April 2007.
Ali advances two arguments in response to the Agency’s timeliness challenge. First, he argues that his claims are viable under the continuing violation doctrine. Specifically, Ali alleges that his timely filing of the disability discrimination claim in 2007 makes his promotion and transfer claims actionable because the discrimination has been ongoing and continuous. He makes the same argument with respect to his claim for a hostile work environment.
Second, he argues that his claims were timely because there was no discrete act that would have trigged his awareness of any possible discrimination during those many years, and he only became aware of the discrimination with respect to promotions and transfers around the time the Agency withdrew approval for his private office in 2007.
1. Continuing Violation
Under the continuing violation doctrine, “if the alleged acts constitute one similar pattern or practice and at least one illegal act took place within the filing period, then the complaint of discrimination is not time-barred and acts outside the statutory period may be considered for purposes of liability.” Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d 364, 368 (D.C. Cir. 2007) (citation and internal quotations omitted).
The doctrine does not save Ali’s promotion and transfer claims, however. In Railway Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the Supreme Court “foreclosed the use of the ‘continuing violation’ doctrine to restore an untimely claim involving a separate act of discrimination ‘such as termination, failure to promote, denial of transfer, or refusal to hire.’” Shea v. Rice, 409 F.3d 448, 451 (D.C. Cir. 2005), abrogated on other grounds by Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) (emphasis added). The Court explained that a termination or failure to promote constitutes a discrete retaliatory or discriminatory act which “occur[s] on the day that it happened.” Morgan, 536 U.S. at 110 (citations and internal quotations omitted) (emphasis added). Consequently, a party must file a charge within 45 days thereafter, “or lose the ability to recover for it.” Id. In other words, if a party does not file a charge within 45 days after a “discrete” act, the party cannot recover for that act, even if it is “related to” challenged conduct alleged in a timely charge. See Id . at 113. Thus, Ali cannot avail himself of the continuing violation doctrine under the facts alleged here in order to salvage his failure to promote or transfer claims.
Unlike claims involving discrete acts, “[h]ostile environment claims . . . cannot be said to occur on any particular day.” Id. at 115 (citations and internal quotations omitted). Rather, hostile environment claims are
comprised of a series of separate acts that collectively constitute one unlawful employment practice, and accordingly are subject to a different limitations rule. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.
Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011) (citing Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003) (internal quotations and some citations omitted).
However, while a hostile work environment claim is not invalid simply because it consists of some discrete acts of discrimination, a claimant “may not combine discrete acts to form a hostile work environment claim without meeting the required hostile work environment standard.” Brooks v. Grundmann, 748 F.3d 1273, 1278 (D.C. Cir. 2014) (citations, alterations and internal quotations omitted). In order to show a hostile work environment, a plaintiff must present evidence that his “workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Morgan, 536 U.S. at 116 (citations and internal quotations omitted).
Ali fails to meet this standard. He argues that the Agency created a hostile environment by repeatedly promoting others, transferring him, and failing to honor promises that he could transfer on his own terms. He also alleges he was “subjected to ridicule because [he] was forced to work from home (i.e., colleagues said that [he] was ‘touring a foreign country’ or that [he] was ‘on vacation.’”). (Compl. p. 8). Nothing about these allegations even suggests that his workplace was “permeated with discriminatory intimidation, ridicule, and insult” that was of such a degree that it altered his working conditions and created an abusive work environment. See Morgan, 536 U.S. at 116.
The court therefore finds that there is no genuine, disputed issue of material fact that would permit a jury to find that Ali was or is a victim of a hostile work environment, and he cannot rely on the continuing violation doctrine to save his untimely promotion and transfer claims.
2. Discovery of the Alleged Discrimination
Ali’s second response to the Agency’s timeliness argument is that he was unaware of the discrimination until the Agency relocated him from a private office to a cubicle. Without providing any specific factual support, Ali asserts that
[t]he health issue convinced me that I have been continuously victimized by discrimination based on age, race, sex, national origin, and retaliation and my physical handicapping condition, and that my personal and professional welfare does not matter to management at all.
I was not in a position to know about the underlying discrimination motives/tactics beforehand. The advent of the health issue was the first time I realized that I am being victimized by unlawful discrimination.
I believe that management was using tactics to keep me from filing the complaint earlier.
(Compl. pp. 8, 12). Ali does not explain how his “health issue” revealed to him that he had been discriminated against on the basis of “age, race, sex, national origin, and retaliation, ” nor what “tactics” he believes the Agency used to “keep” him from filing a complaint. But, under the most generous reading of his Complaint, the court presumes that he claims that the Agency never intended to promote or transfer him and it was only when he was relocated to a cubicle in 2007 did he realize the Agency’s promises had been a ruse.
Despite the 45-day filing restriction for federal employment discrimination claimants, federal regulations provide that the agency shall extend the 45-day time limit if a plaintiff can show:
(1) she was “not notified of the time limits and was not otherwise aware of them”;
(2) she “did not know and reasonably should not have . . . known that the discriminatory matter or personnel action occurred”;
(3) “despite due diligence [she was] prevented by circumstances beyond [her] control from contacting the counselor within the time limits; or
(4) “other reasons considered sufficient by the agency or the Commission.”
29 C.F.R. § 1614.105 (a)(2).
Although he did not specifically cite to the federal regulations, Ali’s argument appears to rely on criterion number two. Courts in this jurisdiction have explained when a plaintiff’s obligation to report discrimination begins:
“The plaintiff's time for contacting an EEO counselor starts to run when the plaintiff has a reasonable suspicion that she has been the victim of discrimination.” Johnson v. Gonzales, 479 F.Supp.2d 55, 59 (D.D.C. 2007) (citing McCants v. Glickman, 180 F.Supp.2d 35, 40 (D.D.C. 2001)). A plaintiff is not allowed to “wait until she has direct proof of the allegedly discriminatory actions; rather, a plaintiff must contact an EEO counselor even if she is not in possession of the ‘supportive facts’ necessary to prosecute a discrimination charge.” Id. (quoting Paredes v. Nagle, Civil Action No. 81-1374 (TAF), 1982 WL 319, at *4 (D.D.C. 1982)).
Hines v. Bair, 594 F.Supp.2d 17, 22-23 (D.D.C. 2009) (alterations omitted). “The determination of when a claim accrues is an objective inquiry turning on “not what the plaintiff actually knew but what a reasonable person should have known.” Mitchell v. MG Indus., Inc., 822 F.Supp.2d 490, 495 (E.D. Pa. 2011) (citation omitted).
a) Promotion claim
The court need not reach the issue of whether Ali’s claim was timely. In response to the Agency’s timeliness argument, Ali asserts in his brief that he “had not applied for a position of higher grade for promotion for which [he] was denied an opportunity. Nor . . .was [he] a candidate for within grade promotion for which there is always a date.” (Pls. Br. p. 2).
Given this admission, Ali cannot establish a prima facie case for discrimination. In order to make out a claim for discriminatory non-promotion, Ali must show that: “(1) he is a member of a protected class; (2) he applied for and was qualified for an available position; (3) despite his qualifications he was rejected; and (4) either someone filled the position or the position remained vacant and the employer continued to seek applicants.” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. ...