Chang Lim v. Azar

• Citation: 310 F.Supp.3d 588
• Decision Date: 19 April 2018
• Docket Number: Civil Action No. TDC–17–0438
• Parties: CHANG LIM, Plaintiff, v. Alex M. AZAR II, Secretary, U.S. Department of Health and Human Services, U.S. Department of Health and Human Services, Scott Gottlieb, Commissioner, Luciana Borio, Chief Scientist, James M. Sigg, Chief Operating Officer, and U.S. Food and Drug Administration, Defendants.
• Court: U.S. District Court — District of Maryland

310 F.Supp.3d 588

CHANG LIM, Plaintiff,

v.Alex M. AZAR II,¹ Secretary, U.S. Department of Health and Human Services, U.S. Department of Health and Human Services, Scott Gottlieb, Commissioner, Luciana Borio, Chief Scientist, James M. Sigg, Chief Operating Officer, and U.S. Food and Drug Administration, Defendants.

Civil Action No. TDC–17–0438

United States District Court, D. Maryland.

Signed April 19, 2018

Chang Lim, Riner, VA, pro se

Kelly M Marzullo, United States Attorney's Office, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiff Dr. Chang Lim, a former Commissioner's Fellow with the United States Food and Drug Administration ("FDA"), has filed this action against the Secretary of Health and Human Services ("the Secretary" or "HHS"), the United States Department of Health and Human Services, the FDA, and three FDA officials (collectively, "Defendants"), alleging that he was subjected to a hostile work environment and discrimination on the basis of race, color, and national origin, as well as unlawful retaliation for filing complaints with the FDA and the United States Equal Employment Opportunity Commission ("EEOC"), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17 (2012). Presently pending before the Court are Defendants' Motion to Dismiss and Lim's Motion for Leave to File a Second Amended Complaint ("Motion to Amend"). Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion to Amend is GRANTED, and the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Factual History

In October 2008, Dr. Chang Lim, an Asian American of South Korean descent, was selected as one of 50 FDA Commissioner's Fellows ("Fellows"), a program that allowed scientists such as Lim to work on specific research projects under the guidance of a senior FDA scientist, known as a "preceptor." Second Am. Compl. ("SAC") ¶¶ 14, 16, ECF No. 68–2. In the following months, Lim's relationship with his colleagues in the program deteriorated. Another Fellow, Juandria Williams, asserted that Lim had sent a condescending email to the other Fellows as part of a proposal to start a study group with membership conditioned on a certain level of commitment. On March 5, 2009, Lim received a memorandum from L'Tonya Davis, the Executive Officer in the FDA Office of the Commissioner, which set forth expectations for appropriate interactions with other FDA employees. In response, on March 16, 2009, Lim submitted a 29–page "Internal Memorandum" accusing Williams and other Fellows of intentional infliction of emotional distress, negligence, fraudulent misrepresentation, professional misbehavior, extortion, and conspiracy based on emails sent during the discussions about the proposed study group and the selection of a representative to communicate information from Fellows to the management of the Commissioner's Fellows Program. SAC ¶ 27; Internal Memo., J.R. 1205–33.² The FDA took no formal action in response to Lim's memo.

Beginning in December 2008, Lim's preceptor, Dr. Jonathan Sackner–Bernstein, required Lim to develop a research project independently. Between December 2008 and March 2009, Sackner–Bernstein provided various positive comments on Lim's research proposal, but none of his proposals were accepted. According to Lim, Sackner–Bernstein also prevented him from attending various mandatory classes.

Lim further alleges that, on March 15, 2009, Sackner–Bernstein learned from Kelly Wilkicki, the coordinator of the Commissioner's Fellows Program, that Lim is of Korean origin. By April 1, 2009, Sackner–Bernstein was expressing serious concerns about Lim. Dissatisfied with one of Lim's research proposals, Sackner–Bernstein wrote to Wilkicki and Nathan Dickey, an FDA Human Resources Specialist, "I don't think he sees the big picture that we need to craft a project and its proposal quickly." SAC ¶ 35. Sackner–Bernstein stated in a separate email to Wilkicki and Dickey that "I must conclude that [Lim] is unlikely to make great progress as a member of the Agency" and that Lim "doesn't understand scientific methods nor possess the interpersonal skills to work effectively/productively in a large or intense organizational structure." Sackner–Bernstein Email at 2, J.R. 1235. On April 2, 2009, Sackner–Bernstein wrote to Wilkicki and Dickey that, "If you were to decide it best for [Lim] to leave, I would not disagree." SAC ¶ 37. He added that Lim "does not appear to know what he does not know and does not understand where the limits should be for him in a group setting." SAC ¶ 31. On April 13,2009, Sackner–Bernstein told Lim "[s]orry, I can't work with Korean like you." SAC ¶ 44.

On April 15, 2009, Lim submitted a "Petition for Waiver" to Wilkicki requesting permission to begin his proposed research project without Sackner–Bernstein's approval. Wilkicki never responded to this request. From December 2008 to May 2009, Lim made repeated, unsuccessful requests that FDA allow him to change his preceptor. FDA, however, allowed at least four white Fellows to change their preceptors during the same time period. During the same time frame, according to Lim, FDA management concealed his findings from a study relating to "patient safety risk signals." SAC ¶ 66.

On May 20, 2009, Lim applied for a "Flexible Workplace Arrangement Plan," a temporary accommodation that allows an employee to work from home, in order to allow his wife to travel to Korea to be with Lim's terminally ill father. Id. ¶ 48. The FDA denied this request but granted FWAP requests by two white employees with unspecified circumstances.

On June 5, 2009, the FDA terminated Lim's employment based on both his conduct and his performance. Specifically, FDA cited the March 16, 2009 "Internal Memorandum" as "unprofessional, disrespectful," and a waste of "valuable agency resources." Termination Memo. at 2, J.R. 1252. Lim refused to sign the termination memorandum. Instead, Lim wrote a statement below the signature line stating that he intended to file a lawsuit alleging "[d]iscrimination based on national origin," "retaliation," and "negligence." SAC ¶ 52; see also Termination Mem. at 3, J.R. 1253.

Following Lim's termination, he was not paid for 124 hours of unused vacation time and was instead charged for 68.63 hours of "negative work hours." SAC ¶ 54. According to Lim, the FDA altered his leave and earnings statement, created various false financial accounts showing that he owed more than $20,000, and over the next four years referred these accounts to debt collection agencies and the Internal Revenue Service ("IRS").

The FDA also falsely characterized Lim's departure as voluntary, thus preventing him from obtaining unemployment benefits. In September 2009, however, the Maryland Department of Labor, Licensing and Regulation ("DLLR") found that Lim was entitled to unemployment benefits.

According to Lim, between 2009 and 2015, FDA implemented various programs based on his previously rejected research proposals.

II. Procedural History

On September 16, 2009, Lim filed a formal complaint with the FDA Office of Equal Employment Opportunity and Diversity Management ("EEO Office"). On the complaint form, Lim asserted claims of race, color, and national origin discrimination and retaliation. The issues he identified were non-sexual harassment, termination, performance evaluations, assignment of duties, duty hours, reassignment, reinstatement, time and attendance, and terms and conditions of employment. On September 22,2009 and October 16,2009, Lim amended his complaint to add two retaliation claims, specifically that both FDA's characterization of his departure as voluntary, and its claims at a DLLR hearing that he had sent condescending emails, lacked an understanding of scientific language, and had showed no signs of improvement, were forms of retaliation for filing complaints.

On January 29,2010, the EEO Office informed Lim that it had accepted for investigation six discrete claims from his complaint and amendments, consisting of Lim's claims that (1) he was not allowed to change his preceptor; (2) his research proposals were rejected; (3) FDA did not consider his FWAP application; (4) he was inappropriately terminated; (5) his supervisors inappropriately criticized his scientific knowledge; and (6) FDA management concealed his findings related to patient safety information.

The EEO Office conducted an investigation into these claims and issued a report on May 4, 2010. Lim elected to proceed to a hearing before an EEOC Administrative Judge ("AJ"), which was held May 4–5, 2011. On April 8, 2013, the AJ issued a decision denying each of Lim's claims. HHS issued its final decision dismissing Lim's complaint on April 29, 2013, which Lim appealed to the EEOC Office of Federal Operations. That office affirmed HHS's decision on August 6, 2015. On November 9, 2015, Lim filed the instant case in the United States District Court for the Western District of Virginia. On October 6, 2016, following a successful Motion to Transfer Venue filed by Defendants, the case was transferred to this Court.

On September 27, 2010, during the processing of his first EEO complaint, Lim filed a second formal complaint with the EEO Office alleging post-termination retaliation. Specifically, Lim alleged that on August 2, 2010, the Chief of the HHS Debt Services Section referred Lim to a debt collection agency, which resulted in Lim receiving a collection letter in retaliation for his prior complaints. The EEO Office dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(3) on the grounds that the AJ had not accepted these claims for consideration in the proceedings on the first complaint.

On July 7, 2011, Lim filed a third formal complaint with the EEO Office, alleging that he was retaliated against for his prior complaints when he was...