Bonds v. Michael Leavitt
| Citation | 647 F.Supp.2d 541 |
| Decision Date | 13 August 2009 |
| Docket Number | Civil No. RWT 07-2426. |
| Parties | Duane R. BONDS, M.D., Plaintiff v. Michael LEAVITT, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Jay L. Cohen, Jay L. Cohen PC, Chevy Chase, MD, Michael David Kohn, Kohn Kohn and Colapinto, Richard R. Renner, Kohn Kohn and Colapinto, Washington, DC, for Plaintiff.
Allen F. Loucks, Office of the United States Attorney, Baltimore, MD, Jennifer Wright Schick, Ansa Assuncao LLP, Ellicott City, MD, for Defendants.
Congress enacted Title VII of the Civil Rights Act of 1964 to ensure that employees are treated fairly in the workplace without regard to their age, sex, race, and physical characteristics, among others. These vital protections are designed to ensure that employees are evaluated on the basis of their merit as opposed as to their immutable characteristics. The Civil Service Reform Act provides that a number of factors are to be considered in conjunction with a decision to discipline or terminate a federal employee in order to ensure that (1) the action is proportional to the employee's conduct; (2) employees are subject to consistent criteria and decisionmaking processes; and (3) there is transparency for what may be a life-altering decision. Last, but not least, the Whistleblower Protection Act seeks to provide protection to those employees who go above and beyond the call of duty to report abuses and, in doing so, risk their livelihood.
Congress sought to create a broad shield of protection in these three statutes that would immunize employees from any discrimination, retaliation, or arbitrary decisionmaking. The substantial protections offered by these statutes are subject to important standards regarding the inferences and burdens applicable to the assertion of a claim. In its wisdom, Congress recognized that not every decision or action that affects an employee or with which an employee disagrees is actionable. Thus, courts interpreting and applying theses statutes and the cases that interpret them must draw a distinction between personality clashes and discriminatory or retaliatory animus, between honestly-held beliefs and reasons for actions taken and pretext, and between asserting one's beliefs and true whistleblowing.
Plaintiff Duane R. Bonds, M.D. has filed a Complaint alleging that Defendants violated the provisions of Title VII, the Whistleblower Protection Act, and the Civil Service Reform Act in removing her as the Project Officer from two medical studies and then removing her from federal service. The Court will address each one of her contentions below.
Dr. Bonds is an African-American, female doctor, who has dedicated her career to combating sickle cell disease1 and other medical disorders that severely impact fetal and maternal health. (Pl.'s Ex. 1 ¶¶ 1, 5). She has achieved recognition in the research and understanding of sickle cell disease. (Pl.'s Ex. 2 OSC Report Summary 2). In 1990, she left private practice and academia to become the Deputy Chief of the Sickle Cell Disease Branch of the Division of Blood Diseases and Resources ("DBDR"), a division of the National Heart, Lung, and Blood Institute ("NHLBI") of the National Institutes of Health ("NIH"). (Pl.'s Ex. 148 at 1). From 1990 until October 24, 2006, Dr. Bonds was employed as a medical officer in DBDR. Id. She was the Project Officer ("PO") for two clinical trials called "SWiTCH" and "BABY HUG." (Def's Ex. 1 at 1). Her first-line supervisor was Dr Blaine Moore2 and her second-line supervisor was Dr. Charles Peterson. Id. at 2-3. From 1997 to 2004, Dr. Bonds received positive performance reviews, within-pay-grade increases, and awards for her merit and service. (Pl.'s Ex. 3 at 1-54; Pl.'s Ex. 15 at 2).
In October of 1999, Dr. Bonds filed an EEO complaint against Dr. Peterson (later resolved through the NIH Ombudsman office) in which she alleged that he sexually harassed her by requesting that she share a hotel room with him during an overnight business trip and that her refusal to do so resulted in his "interfer[ence] with [her] professional duties." (Pl.'s Ex. 1 ¶ 57).
Dr. Peterson later removed Dr. Bonds from her position as NHLBI's Sickle Cell Disease Group Leader, and Dr. Bonds filed a second EEO complaint in March, 2003. See EEOC No. 120-2004-00176X; Agency No. NHLBI_2003-0002. The NHLBI resolved the complaint by creating a new position called the Division of Blood Diseases and Resources Sickle Cell Coordinator, and allowing Dr. Bonds to take that position. (Pl.'s Ex. 1 ¶ 50).
As noted above, Dr. Bonds was the Project Officer during this time for two clinical trials called "SWiTCH" and "BABY HUG." (Pl.'s Ex. 1 ¶ 11). The SWiTCH clinical trial studied the effect of the drug Hydroxyurea on infants who have suffered a stroke. (Def. Ex. 1 at 6). The BABY HUG clinical trial studied the use of Hydroxyurea in infants to ascertain if this drug could prevent the onset of end-organ damage, a major source of morbidity and mortality in sickle cell disease patients. (Def. Ex. 1 at 6).
Dr. Bonds alleges that, in September 2005, she discovered that Dr. Russell Ware, who was a principal investigator in the BABY HUG clinical trial, had obtained genetic material from the blood samples of the BABY HUG infant participants and used them to clone immortalized cell lines3 without the consent or knowledge of the infants' parents or guardians. (Def. Ex. 1 at 1-10). Dr. Bonds alleges that the test subjects were all African Americans, and that Dr. Ware was harvesting the genetic material without the consent of the subjects. (Pl.'s Ex. 14 at 14-15). On September 6, 2005, Dr. Bonds wrote in an e-mail to Dr. Ware that she was "very dismayed" over his creation of the immortalized cell lines because "NHLBI did not authorize this work, it is not in the protocol, and the work is not specifically mentioned in the consent forms" and she instructed that he "destroy these cell lines immediately." (Pl.'s Ex. 6). Dr. Bonds then brought her concerns before the Data and Safety Monitoring Board ("DSMB"). (Pl.'s Ex. 4 at A-18). The DSMB, which is charged with safeguarding the interests of study participants, ordered on October 5, 2005 that the cell lines be destroyed. (Pl.'s Ex. 9; Pl.'s Ex. 4 at A-18). On October 18, 2005, Dr. Bonds and Dr. Peterson met with Dr. Elizabeth Nabel, the Director of NHLBI, to discuss the cell lines. (Pl.'s Ex. 1 ¶ 21). Initially, Dr. Nabel supported the position of Dr. Bonds, and a decision was made to support the destruction of the immortalized cell lines Dr. Ware had created. (Pl.'s Ex. 4 at A-3).
The decision to destroy the cell lines, however, was left to the individual Internal Review Boards ("IRBs") at BABY HUG clinical sites at each medical center and/or research hospital that was involved in the study. (Pl.'s Ex. 4 at 8, 14-16). Some IRBs chose to seek consent from the study participants for the creation of these lines, while others chose to interpret the existing consent forms as sufficient to permit the creation of these cell lines. Id.
Dr. Ware contends that Dr. Bonds was fully aware that the cell lines were being created and that she "readily agreed" to their creation. (Pl.'s Ex. 4 at A-12). He states that he discussed the cell lines at length with Dr. Bonds before creating them, and that he was used as a scapegoat when it was determined that the consent form signed by participants in the study did not cover the creation of the cell lines. Id.
On December 27, 2005, Dr. Bonds contacted the Office of Special Counsel ("OSC") concerning the cell lines and an investigation ensued. (Pl.'s Ex. 4 at 1).
Dr. Ware subsequently wrote to Dr. Moore and requested that Dr. Bonds be removed as the PO for the SWiTCH trial because of his "ongoing negative experiences with [Dr. Bonds] in other NHLBI-sponsored studies." (Def.'s Ex. 3 at 2). In his affidavit, Dr. Ware states that his prior experiences with Dr. Bonds
had been decidedly negative [and] the relationship had recently deteriorated further-certain issues relating to the creation of [immortalized cell lines] in BABY HUG had come up in early September 2005, and Dr. Bonds's accusatory, abrasive manner, implying disingenuous motive on my part, had further damaged our working relationship. Id.
Dr. Ware also cited her "abrasive, controlling style of managing the study" and "confrontational" attitude, and he alleged that she had a history of misrepresenting statements by the DSMB and the Chair of the Steering Committee. Id. at 3. Dr. Winifred Wang also complained to Dr. Moore about the problematic performance of Dr. Bonds as the PO of BABY HUG, which included, among other things: (1) her lack of communication; (2) her misrepresentation of information about the study; and (3) her refusal to comply with the approval process of each study center's Institutional Review Board when she wanted to make changes to the study. (Def.'s Ex. 4 at 2). Her alleged mismanagement of the BABY HUG study and her penchant for misleading communications was corroborated by Dr. Susan Shurin, chair of the DSMB. (Def.'s Ex. 5 at 2-3). Dr. Shurin stated that the Principal Investigators in several studies had reported that Dr. Bonds made "informal and misleading communication of DSMB recommendations [which] undermined the formal systems within the Institute for ensuring the safety of participants and the integrity of the study." Id. at 3.
On October 11, 2005, Dr. Moore informed Dr. Bonds that she was being removed as the Program Officer for the SWiTCH clinical trial. (Def.'s Ex. 7 at 3). On October 28, 2005, Dr. Bonds filed an EEO complaint regarding her removal. (Pl.'s Ex. 19 at 1). In her EEO complaint, she alleged discrimination and retaliation by...
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