Miller v. Hersman

• Decision Date: 04 January 2010
• Docket Number: Civil Action No. 07–1832 (GK).
• Parties: Richard MILLER, Plaintiff,v.Deborah A.P. HERSMAN, Chairman, National Transportation Safety Board, Defendant.
• Court: U.S. District Court — District of Columbia

759 F.Supp.2d 1

Richard MILLER, Plaintiff,

v.Deborah A.P. HERSMAN, Chairman, National Transportation Safety Board, Defendant.

Civil Action No. 07–1832 (GK).

United States District Court, District of Columbia.

Jan. 4, 2010.

Carl S. Nadler, Arnold & Porter LLP, David A. Young, Cohen Milstein, Washington, DC, for Plaintiff.Mercedeh Momeni, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Richard Miller, a former employee of the National Transportation Safety Board (“NTSB” or “the Board”), brings suit against Defendant Deborah A.P. Hersman, Chairman of the NTSB. The Complaint, which was filed pro se, alleges that Defendant engaged in discrimination on the basis of Plaintiff's sex, age, and disability and in retaliation for Plaintiff's prior protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. This matter is presently before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 45] (“Def.'s Mot.”). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion for Summary Judgment is granted in part, and denied in part.

I. Background ¹

Plaintiff Richard Miller was employed by the NTSB from June 20, 1999 until his termination on June 30, 2006. His first position at NTSB was an excepted appointment in the Office of the Chief Financial Officer (“OCFO”) as an “Expert (TWA Management Coordinator).” On July 16, 2000, Plaintiff's position was converted to a career conditional appointment as a Financial Management Specialist, GS–501–14, in OCFO. Def.'s Stmt. of Material Facts as to Which There Is No Genuine Dispute (“Def.'s Stmt. of Facts”) ¶ 2; Pl.'s Stmt. of Genuine Issues ¶ 2. His responsibilities included assessing, improving, and managing the agency's credit card program, as well as other projects. Def.'s Stmt. of Facts ¶ 10. Miller was expected to perform these duties with a high degree of autonomy. Id. ¶ 9.

In each of the years between 2000 and 2003, Miller received both “excellent” performance evaluations and a $2,000 incentive award based on his performance. Plaintiff's Opposition to the Motion for Summary Judgment (“Pl.'s Opp'n”) at 3 [Dkt. No. 47]. Don Libera, who was the Board's Acting Chief Financial Officer (“CFO”) and Miller's first-line supervisor beginning in 2001,² personally praised Miller's good work, as did others.³ Id. However, starting in 2003, Miller's performance evaluations declined considerably: for the period from June 1, 2003 through May 31, 2004, he received a “Minimally Successful” performance rating based on his failure to complete several tasks and his lack of timeliness. Def.'s Stmt. of Facts ¶ 12; see 2004 NTSB Performance Appraisal Form for Richard Miller (Ex. D to Def.'s Mot.).

Miller contends that his declining performance was the result of his physical and psychological impairments, which were worsening at that time. In 2003, Miller began therapy for acute anxiety with Dr. John C. Parkhurst, Ph.D. See Pl.'s Stmt. of Genuine Issues ¶ 3; Parkhurst Dep. 25:9–11, 26:13–6, June 16, 2009 (Ex. OO to Def.'s Mot.). In January 2004, he was hospitalized for an anxiety attack. See Miller Dep. 136:16–25, June 24, 2009 (Ex. JJ to Def.'s Mot.). The evidence in the record indicates that Libera knew of Miller's hospitalization and discussed it with him shortly after his return to the NTSB, although it is not clear that Libera or any other supervisors knew that the diagnosis was an anxiety attack. Libera Dep. 139:3–140:2, Apr. 16, 2009 (Ex. QQ to Def.'s Mot.); Ex. JJ at 133:1–134:3. At some point in 2004, Miller also suffered a herniated disc and floating disc fragment in his back. See Pl.'s Stmt. of Genuine Issues ¶ 3; Expert Report of Dr. Lamb at 2 (Feb. 15, 2009) (Ex. 11 to Pl.'s Opp'n); Ex. JJ at 129:7–130:18.

According to Miller's doctors, his physical ailments exacerbated his anxiety, which in turn led to depression and an inability to concentrate at work. On May 22, 2004, Dr. Parkhurst wrote a letter recommending that Miller immediately cease working in order to improve his health. Letter from Dr. Parkhurst (May 22, 2004) (Ex. 13 to Pl.'s Opp'n) (recommending that Miller cease work “until such time that he has regained the behavioral health objectives set forth by his medical doctor and myself”); see also Ex. OO at 40:15–43:14. There is conflicting evidence on whether Miller's supervisors were given the letter before or after the PIP period. Defendant claims that Miller's supervisors were not informed of Dr. Parkhurst's letter until October 21, 2005, when Miller submitted it in response to his proposed removal. Def.'s Mot. at 14. Miller, however, claims that he discussed the letter with Libera in May of 2004 and left a copy of it “on his chair.” Ex. JJ at 169:25–170:20.

On May 30, 2004, Miller was reassigned to the Accounting Division as part of a reorganization of OCFO. The Director of the Accounting Division, William J. Mills, became Miller's first-line supervisor, eventually assuming all of Libera's supervisory duties. From June to November 2004, Libera retained supervisory responsibility for Miller's substantive assignments while Mills took on supervisory responsibility with respect to time, attendance, and leave. Beginning in November 2004, Mills gained full supervisory responsibility over Miller. Pl.'s Opp'n at 4 n. 3.

While preparing his office for a furniture move earlier that month, Miller injured his back, exacerbating both his physical and psychological symptoms. On May 27, 2004, while discussing his workload and a project plan with Libera over e-mail, Miller mentioned that he was coming into the office against medical advice. However, the record does not indicate that Miller ever provided a doctor's note to Libera or his other supervisors containing that advice. See E-mail from Richard Miller to Don Libera (May 27, 2004) (Ex. 15 to Pl.'s Opp'n). Libera suggested that Miller “[t]ake some time to relax” over the weekend, and that they could discuss his workload the following Tuesday. E-mail from Don Libera to Richard Miller (May 28, 2004) (Ex. 16 to Pl.'s Opp'n).

In July 2004, Miller again injured his back at work. As a result of his two back injuries, he took approximately 300 hours of sick leave between May and December 2004. Miller claims he was given no assistance in this period, and that he fell behind in his work as a result. Pl.'s Opp'n at 6.

Miller also sought to take annual leave in late 2004, but his requests were largely denied. On September 24, 2004, Plaintiff submitted a request for annual leave for the period from September 27, 2004 until October 8, 2004, nine days after the September 15, 2004, deadline for leave requests and with only three days' notice. Mills denied the request because “the entire period from September 1 to November 15 is a time of increased activity,” as financial statements were due on November 15, 2004. E-mail from Bill Mills to Richard Miller (Sept. 27, 2004) (Ex. I to Def.'s Mot.). However, Miller was given shorter periods of one or two days at a time through October and extended leave for two or more weeks in November and December. Miller's subsequent request on October 27, 2004, for nearly two months of leave was also denied because Mills believed that Miller would not be able to meet his work deadlines. See Letter from Bill Mills to Richard Miller (Nov. 1, 2004) (Ex. M to Def.'s Mot.).

Miller's performance ratings continued to decline throughout this period. On December 22, 2004, Libera and Mills met with Miller to formally issue his “Minimally Successful” performance rating for the period from June 1, 2003 to May 31, 2004. Def.'s Stmt. of Facts ¶ 21. On January 10, 2005, Mills also issued a written performance warning memorandum which described the improvements necessary to correct Miller's deficiencies. See Memorandum from Don Libera to Richard Miller on Performance Warning and Expectations (Jan. 10, 2005) (Ex. L to Def.'s Mot.). The memorandum warned Miller that his failure to correct the identified deficiencies and to maintain improvements could result in an “Unacceptable” performance rating and placement on a performance improvement plan (“PIP”). If his unacceptable performance persisted after being placed on a PIP, Miller was told he could be demoted or removed from his position.

Miller's anxiety and depression continued to worsen in this period. In a March 2005 letter, Dr. Parkhurst stated his opinion that Miller would not be able to adequately recover from his anxiety disorder or quit smoking if he continued to work, and indicated that his treatment would be “optimized” if he ceased working for six months to one year. Letter from Dr. John C. Parkhurst, Ph.D. (Mar. 5, 2005) (Ex. RR to Def.'s Mot.). Defendant contends again that Miller did not submit this letter to his supervisors, and that they first saw it in Miller's reply to his proposed removal. See Letter from Don Libera to Richard L. Miller (June 23, 2006) at 6 (Ex. T to Def.'s Mot.).

On May 16–27, 2005, Miller took two weeks of sick leave due to anxiety-related hives. He claims that Mills was informed of the reason for this leave. Ex. JJ at 134:19–35:2. Mills, however, does not recall ever discussing Miller's medical conditions with him, although he was aware of the sick leave. Mills Dep. 51:21–53:1, June 17, 2009 (Ex. PP to Def.'s Mot.).

On June 9, 2005, Miller received a memorandum from Mills notifying him that he had received an “Unacceptable” performance rating for the period from June 1, 2004 to May 31, 2005. Def.'s Stmt. of Facts ¶ 23; see NTSB Performance Appraisal Form (FINAL) for Richard Miller (Ex. LL to Def.'s Mot.). As a result, he was placed on a 60–day PIP pursuant to 5 C.F.R. 432.104. Def.'s Stmt. of F...