Baloch v. Norton

• Decision Date: 25 September 2007
• Docket Number: Civil Action No. 03-1207 (RMU).
• Citation: 517 F.Supp.2d 345
• Parties: Mohammad BALOCH, Plaintiff, v. Gale NORTON, In Her Official Capacity as Secretary, U.S. Department of the Interior, Defendant.
• Court: U.S. District Court — District of Columbia

517 F.Supp.2d 345

Mohammad BALOCH, Plaintiff, v. Gale NORTON, In Her Official Capacity as Secretary, U.S. Department of the Interior, Defendant.

Civil Action No. 03-1207 (RMU).

United States District Court, District of Columbia.

September 25, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert C. Seldon, Molly E. Buie, Robert C. Seldon & Associates, PC, Washington, DC, for Plaintiff.

Fred Elmore Haynes, Rhonda C. Fields, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICARDO M. URBINA, District Judge.

GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING THE PLAINTIFF'S MOTION TO STRIKE THE DEFENDANT'S REPLY

I. INTRODUCTION

New law and new claims return this matter to the court. The plaintiff, Mohammad S. Baloch, brings suit against the defendant, Gale Norton, Secretary of the Department of the Interior, for age discrimination, hostile work environment and retaliation. Compl. ¶ 1. The court previously granted in part the defendant's first motion for summary judgment-dismissing the plaintiff's claims but permitting him to amend his complaint to raise a claim of retaliation based on hostile work environment. Jan. 13, 2005 Mem. Op. at 20-21. The plaintiff raised such a claim in Counts 13-15¹ of his third amended complaint. Third Am. Compl. ¶¶ 126-234. The plaintiff's complaint is now in its fourth iteration, alleging in Counts 16-18 that the instances of alleged retaliation constitute acts of retaliation that are independently and collectively actionable in themselves, as well as being constitutive of a hostile work environment. Fourth Am. Compl. ("Am.Compl.") ¶¶ 235-343. The defendant now moves for summary judgment on the new counts.² Def.'s Apr. 2 2007 Mot. for Summary J. ("Def.'s Mot. for Summ. J.") at 1-3. Because the court concludes that the plaintiff has not provided evidence on his claims sufficient for a reasonable juror to make a finding of guilt, the court grants the defendant's motion for summary judgment.

II. BACKGROUND

A. Factual History³

1. The Early Years (1991-2000)

The plaintiff is a "brown-skinned" Muslim from Pakistan and over seventy years old. Def.'s June 28, 2004 Statement of Undisputed Material Facts ("Def.'s Statement") ¶ 1; Pl.'s July 28, 2004 Statement of Genuine Issues ("Pl.'s Statement") ¶ 1. He has several medical conditions that do not interfere with his job performance and are not disabling, including blindness in his left eye. Def.'s Statement ¶ 2. The Bureau of Indian Affairs ("BIA") hired the plaintiff in 1991 as a "GS-14 Water Rights Specialist/Engineer" in its Natural Resources Division ("NRD"). Id. ¶ 3. Although the parties disagree on the precise scope of the plaintiff's responsibilities at the BIA, the plaintiff generally performed tasks such as preparing the Office of Trust Responsibilities' ("OTR") budgets for water resources programs and working on water rights issues. Id. ¶ 12.⁴

In 1996, Terrance Virden, Director of the OTR, designated the plaintiff Acting Branch Chief. Id. ¶ 9. Until 2000, the plaintiff worked directly under Virden. Id. ¶ 13. When Jeffrey Loman became Chief of the NRD in Spring 2000, he displaced Virden as the plaintiff's first-line supervisor. Id.

The plaintiff received performance awards from the BIA in 1999, 2000 and 2001. Am. Compl. ¶ 13. Furthermore, in his performance reviews from 1991 to 1995, the plaintiff received "outstanding" or "highly satisfactory" evaluations. Id. ¶ 14. Beginning in 1995, when the BIA switched to a "pass/fail" evaluation system, the plaintiff received "pass" ratings. Id.

2. Problems at Work: the Plaintiff and Jeffrey Loman (2000-2004)

The plaintiff alleges that, beginning in December 2000, Loman "repeatedly subjected [the plaintiff] to verbal abuse without cause." Am. Compl. ¶ 16. For example, when the plaintiff was at a meeting in New Mexico, Loman called the plaintiff and "exploded" about why funding for a historical study was not distributed, "shouted" that he did not approve of the plaintiff's extended stay in New Mexico, "ordered" the plaintiff to get his "fucking ass" back to Washington and reminded the plaintiff who his "fucking" supervisor was. Def.'s Statement ¶ 15; Baloch Dep. at 45-48.

In March 2001, Loman and the plaintiff had a disagreement about why a report on the Zuni Salt Lake was not finalized. Def.'s Statement ¶ 17. As the plaintiff puts it, "Mr. Loman yelled and was abusive toward Mr. Baloch without cause." Pl.'s Statement ¶ 17. On March 13, 2001, Loman sent the plaintiff "fact finding" questions about the report. Def.'s Statement ¶ 18. The plaintiff characterizes this "fact finding" as "disciplinary" and states that Loman threatened further disciplinary action. Pl.'s Statement ¶ 18. Three days later, Loman expressed dissatisfaction with the plaintiff's budget calculation process. Def.'s Statement ¶ 19. Loman again "screamed and shouted" at the plaintiff on March 26, 2001 regarding the Zuni Salt Lake report. Pl.'s Statement ¶¶ II.L, N-P. In May 2001, Loman and the plaintiff had a disagreement about whether the plaintiff would travel for an assignment or conduct the work by phone. Def.'s Statement ¶ 26. And in December 2001, Loman issued a letter of reprimand to the plaintiff. Pl.'s Statement ¶ II.D.

After the plaintiff filed an "informal" Equal Employment Opportunity Commission ("EEOC") complaint in June 2001 and "refused the agency's demand to withdraw his complaint," Loman threatened a criminal investigation of the plaintiff, review of his personnel file and scrutiny of all the plaintiff's travel vouchers. Am. Compl. ¶¶ 20-21. When he filed a formal EEOC complaint in August 2001, "Mr. Loman's harassment of and hostility towards [the] plaintiff increased sharply." Id. ¶ 23. Loman issued the plaintiff a "letter of counseling" on January 4, 2002, a second "letter of counseling" on March 3, 2003 and a "letter of reprimand" on April 8, 2003 concerning the plaintiff's "failure to perform assigned duties as directed, failure to follow a supervisor's directive and unprofessional and discourteous conduct." Def.'s Statement ¶¶ 29-32. Loman also subjected the plaintiff to "fact finding" disciplinary meetings "in which [the plaintiff] was interrogated, intimidated, and verbally abused," Am. Compl. ¶ 24, and did not give the plaintiff a cash award for his performance in 2001, despite the plaintiff's extensive work on the Zuni Salt Lake Report, id. ¶ 25.

On February 5, 2003, Loman gave the plaintiff a notice of leave restriction. Def.'s Statement ¶ 30. A week later, Loman questioned the plaintiff "in a hostile and accusatory tone" about a doctor's appointment the plaintiff had on February 10, 2003 and asked the plaintiff "extremely personal and invasive questions, including whether [the plaintiff] was being treated for diseases such as AIDS." Baloch Decl. ¶ 90. On March 13, 2003, Loman yelled at the plaintiff regarding a request for advanced sick leave the plaintiff had submitted on March 3, 2003. Id. ¶ 91. On this occasion, Loman told the plaintiff that he could not understand why the plaintiff had received performance awards and questioned the plaintiff's writing abilities. Id.

In August 2003, Loman re-issued restrictions on the plaintiff's use of sick leave. Def.'s Statement ¶ 33. That month, Loman escorted the plaintiff to a vacant office, slammed the door shut and shouted at the plaintiff that Loman was "fed up" with the plaintiff's "bullshit" complaints. Pl.'s Statement ¶ II.P. On September 25, 2003, Loman issued a memorandum of proposed suspension for two days. Def.'s Statement ¶ 36. In October 2003, Loman refused to sign the plaintiff's travel requests to prepare for a conference and threatened to have the plaintiff "arrested, led out of the main Interior building in handcuffs, and jailed." Pl.'s Statement ¶ II.Q. The same month, Loman gave the plaintiff a performance report that rated the plaintiff's performance results as "not achieved." Def.'s Statement ¶ 38. Finally, in January 2004, Loman issued a proposal to suspend the plaintiff for thirty days. Pl.'s Statement 6 II.A.

3. Daniel Picard Arrives (2001)

In May 2001, Loman hired Daniel Picard as a "GS-14 Water Rights Specialist." Def.'s Statement ¶ 21. Picard is a forty-five year old Native American with experience in water law, Indian water rights, gaming and events and information services. Id. ¶¶ 21-23. The defendant characterizes Picard's responsibilities as water rights adjudications, distribution of funds pertaining to water rights adjudication and management of water resources. Id. ¶ 24-25. The plaintiff maintains that Picard "took over all or virtually all the water resources and water resources management duties." Pl.'s Statement ¶ 24. As a result, the plaintiff received no further assignments in water rights adjudication, and by December 2002, the plaintiff's "remaining substantive programmatic duties in water resources management planning were withdrawn and either transferred [] to Mr. Picard or performed by Jeffery Loman." Id. ¶¶ I.E-G. Thus, the plaintiff could only perform duties that, as the plaintiff puts it, were "not considered substantial enough to be reflected in [the plaintiff's] position description." Id. ¶ I.H.

B. Procedural History

On June 21, 2001, the plaintiff requested EEOC counseling based on race/national origin, age and disability discrimination. Am. Compl. ¶ 20. The plaintiff filed a formal EEOC complaint on August 30, 2001. Id. ¶ 22; Def.'s Statement ¶ 28. On December 11, 2001, the Director of Interior's Office for Equal Opportunity wrote to advise the plaintiff that his additional allegations were encompassed by his original formal complaint, and that no additional action was required. Pl.'s July 28, 2004 Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s First Opp'n") at 22. Between August and November 2003, the plaintiff filed four administrative complaints regarding leave restrictions, hostile work environment, verbal harassment, refusal to authorize...