Alexander v. Tomlinson

• Decision Date: 15 August 2007
• Docket Number: No. CIV.A. 05-0767(ESH).,CIV.A. 05-0767(ESH).
• Citation: 507 F.Supp.2d 2
• Parties: Richard ALEXANDER, Plaintiff, v. Kenneth Y. TOMLINSON, Chairman, Broadcasting Board of Governors, Defendant.
• Court: U.S. District Court — District of Columbia

507 F.Supp.2d 2

Richard ALEXANDER, Plaintiff, v. Kenneth Y. TOMLINSON, Chairman, Broadcasting Board of Governors, Defendant.

No. CIV.A. 05-0767(ESH).

United States District Court, District of Columbia.

August 15, 2007.

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Jonathan T. Hoover, Law Offices of Hoover & Hoover, Washington, DC, for Plaintiff.

John C. Truong, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

HUVELLE, District Judge.

Plaintiff Richard Alexander has sued the Chairman of the Broadcasting Board of Governors ("BBG"), alleging that the BBG discriminated against him on the basis of race, age, and disability; retaliated against him for filing an EEO complaint; and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; 42 U.S.C. § 1981; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634; and Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. Defendant has filed a motion for summary judgment, which, for the reasons explained herein, will be granted.

BACKGROUND

Plaintiffs employment with BBG began in 1985, when he was hired as a GS-11 broadcast technician for Radio Marti in BBG's Office of Cuba Broadcasting ("OCB"). (Pl.'s Ex. 1 ["Pl.'s Dep."] at 13-15.) In 1992, plaintiff, who is African-American, was promoted to the position of supervisory broadcast technician at the GS-12 level. (Id. at 15.)

In April 1996, legislation was passed mandating that OCB be relocated from Washington, D.C. to Miami, Florida. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, 1343 (1996). (See also Def.'s Statement of Material Facts Not in Genuine Dispute ["Def.'s Statement"] ¶ 3.) Thereafter, the employees' union entered into negotiations with the BBG concerning the move, resulting in an agreement between the parties concerning the process to be followed for reassigning employees to Miami and filling vacancies in Washington. (Def.'s Ex. 2 ["Poggioli Decl."] ¶ 7.)¹ The agreement provided that priority consideration for vacancies (announced or unannounced) in other areas of the agency would be given to OCB employees who had indicated on their "canvass letters"² an interest in remaining in Washington. (Agreement ¶ 1.b. (attached to Def.'s Ex. 23); see also Poggioli Decl. ¶ 11.) It also provided that BBG would seek employees in Washington who were interested in reassignment to OCB in Miami to participate in "job swaps" with OCB employees who wished to remain in Washington. (See Agreement ¶ 2.a.)

The relocation of OCB to Miami occurred in phases between 1996 and 1998. (Poggioli Decl. ¶ 9.) In June 2006, OCB circulated a memorandum regarding the schedule for relocating managers and supervisors in OCB's Department of Technical Operations to Miami. (Pl.'s Ex. 3; see also Def.'s Statement ¶ 4.) The memorandum set transfer dates for three managers/supervisors in 1996 but listed plaintiffs transfer date, and that of most of the others on the list, as "to be determined." (Pl.'s Ex. 3.) According to Ms. Poggioli's declaration, under the reduction in force ("RIF") procedures, positions were placed in competitive levels by type and grade, and positions within a particular competitive level were relocated based on seniority with the least senior employees being relocated first, followed by the more senior employees. (See Poggioli Decl. ¶ 9.) Although all OCB employees were offered their identical positions in Miami, employees did not receive a Formal Offer of Position until they were to be relocated. (Id. ¶¶ 8-19.) Because plaintiff had the most seniority in his competitive level which included the other GS-12 supervisory broadcast technicians, he did not receive a Formal Offer of Position until April 1998. (Id. ¶ 9; Def.'s Ex. 5.)

In the meantime, plaintiff attempted to find other employment with the BBG so that he could remain in Washington, pursuing a job swap with a GS-12 radio production specialist for the Voice of America ("VOA") and applying for other permanent positions in the Washington area. (Pl.'s Ex. 4 ["Alexander Aff."] ¶¶ 7.A., 8.A.; Pl.'s Ex. 22 at 4-6 (plaintiff's Answers to Interrogatories No. 6 & 9); see also Am. Compl. ¶ 24.) These efforts, however, were unsuccessful. Thomas Warden, plaintiff's immediate supervisor, declined to approve the job swap (Alexander Aff. ¶ 7.A.; see also Def.'s Ex. 4 ["Warden Aff."] ¶ 7.A.), and plaintiff was not selected for any of the permanent positions for which he applied. (Pl.'s Ex. 22 at 4-6 (plaintiff's Answers to Interrogatories No. 6 & 9).) In May 1998, plaintiff was offered a term position as a radio broadcast technician with VOA; however, plaintiff declined the offer. (Poggioli Decl. ¶ 21; Alexander Aff. ¶ 8.A.)

On April 28, 1998, defendant issued to plaintiff a Formal Offer of Position, offering him a position in Miami "at the same title, series, grade, status and organizational unit" as his then-current position and providing for a small salary increase based on the locality pay for the Miami area. (Def.'s Ex. 5; Def.'s Statement ¶¶ 8-9.) The Offer included a reporting date of June 1, 1998, and indicated that plaintiff's relocation expenses would be paid. (Def.'s Ex. 5; Def.'s Statement ¶ 9.) Plaintiff accepted the offer on May 13, 1998, noting that his decision was "made under `Economic and Mental Duress!'" (Def.'s Ex. 5.) The following month, defendant notified plaintiff that he would be required to report to work in Miami on July 9, 1998, but that date, too, was later extended. (Def.'s Ex. 6; Def.'s Statement ¶ 10; Pl.'s Dep. at 102-03.)

On July 8, 1998, plaintiff, who was then 57 years old, contacted the United States Information Agency's ("USIA")³ Office of Civil Rights, and the following day, plaintiff had an initial counseling interview, at which time he complained that he had been discriminated against on the basis of race and age when two of his coworkers received permanent jobs with VOA in Washington, while he was only offered a term position. (Pl.'s Ex. 16; Pl.'s Ex. 5 at 2.)

Plaintiff thereafter reported to Miami on July 17, 1998. (Poggioli Decl. ¶ 22; see also Pl.'s Ex. 12.) Soon after his arrival, he requested and was given six weeks of annual leave to return to Washington to make preparations to move his family to Miami. (Id. at 1; Pl.'s Dep. at 103-04.) On October 5, 1998, the date that plaintiff was expected to return to work in Miami, he notified Warden that he was ill and indicated that his doctor would be providing documentation regarding his illness⁴ (Pl.'s Ex. 7 at 1; see also Pl.'s Ex. 5 at 7-8; Pl.'s Ex. 12 at 1.) Sometime the following week, Warden called plaintiff and advised him that he would be placed on AWOL status as of October 11, 1998, if he did not provide documentation of his illness. (Alexander Aff. ¶ 9.A.; Pl.'s Ex. 7 at 1; Pl.'s Ex. 5 at 8; see also Pl.'s Statement ¶ 5.) On October 14, 1998, plaintiffs psychologist, Dr. Nickole Scott Conerly, sent a letter to Warden indicating that plaintiff was suffering from severe anxiety and major depression disorder caused by the stress of learning that he would not have employment unless he relocated his family and recommending that plaintiff be granted a medical leave of absence to work on repairing his mental health. (Pl.'s Ex. 8; Def.'s Statement ¶ 14; Pl.'s Statement ¶ 6.) Based on Dr. Conerly's estimation that plaintiff's condition would require about six months of treatment, Warden approved six months of sick leave beginning October 5, 1998. (Pl.'s Ex. 9; Def.'s Statement ¶ 15.) In, addition, as Dr. Conerly had indicated that plaintiff would be seeing a physician to rule out any medical disorders and that he may need to see a psychiatrist about medication, Warden requested that plaintiff provide him with medical certificates concerning any additional treatments related to his condition and directed plaintiff to provide a new current medical certificate in the event that he needed additional sick leave after April 5, 1999. (Pl.'s Ex. 9.)

On December 23, 1998, plaintiff filed a formal EEO complaint, again alleging that he had been denied equal treatment when two of his coworkers were placed in comparable permanent positions at VOA while he was only offered a term position, despite having greater seniority. (Pl.'s Ex. 17.)

On March 5, 1999, Warden wrote to plaintiff advising him that his current leave of absence would expire on April 5, 1999, and that he was expected to return to duty on that date. (Pl.'s Ex. 20.) The letter reminded plaintiff that if he needed additional leave beyond April 5, he should provide a current medical certificate, as well as certificates from his physician and psychiatrist as previously requested. (Id.) The letter also indicated that plaintiffs continuing absence was causing a hardship on OCB and that the office could not grant him an indefinite leave of absence. (Id.) Plaintiff responded on March 22, 1999, notifying Warden that he had been advised by his doctor not to return to work in Miami at that time, requesting that he be permitted to remain on sick leave indefinitely, and indicating that current medical information would be forwarded and that he would provide Warden with "ample notification if and when I am able to return to work in Miami."⁵ (Pl.'s Ex. 7.). A few days later, Dr. Conerly sent another letter to Warden indicating that plaintiff was suffering from stress and a depressed mood and recommending that he be granted additional sick leave. (Pl.'s Ex. 10.) Warden thereafter approved plaintiffs request for additional sick leave but advised him that his absence could not go on indefinitely and that if he was unable to return to duty in the near future, Warden would "have no choice but to recommend that [his] employment be terminated."⁶ (Pl.'s Ex. 11.)

On October...