Ali v. McCarthy, Civil Action No. 14-cv-1674 (TSC)

• Citation: 179 F.Supp.3d 54
• Decision Date: 12 April 2016
• Docket Number: Civil Action No. 14-cv-1674 (TSC)
• Parties: Ghulam Ali, Plaintiff, v. Gina McCarthy, Administrator, EPA, Defendant.
• Court: U.S. District Court — District of Columbia

179 F.Supp.3d 54

Ghulam Ali, Plaintiff,

v.Gina McCarthy, Administrator, EPA, Defendant.

Civil Action No. 14-cv-1674 (TSC)

United States District Court, District of Columbia.

Signed April 12, 2016

Ghulam Ali, Silver Spring, MD, pro se.

Caitlin O'Leary Trujillo, Eric Joseph Young, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

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.¹ 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.²

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548

(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, 106 S.Ct. 2548 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 92 S.Ct. 594, 30 L.Ed.2d 652 (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 Fed.Appx. 1 (D.C.Cir.2011) (citing Fed. R. Civ. P. 56(e) ; Celotex Corp. , 477 U.S. at 324, 106 S.Ct. 2548 ). 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

A. Background

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”).³ 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).⁴ 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.

B. Analysis

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...