Newby v. Whitman, No. 1:02CV00841.

• Decision Date: 14 October 2004
• Docket Number: No. 1:02CV00841.
• Citation: 340 F.Supp.2d 637
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William A. NEWBY, Plaintiff, v. Christine Todd WHITMAN, Administrator, United States Environmental Protection Agency, Defendant.

340 F.Supp.2d 637

William A. NEWBY, Plaintiff, v. Christine Todd WHITMAN, Administrator, United States Environmental Protection Agency, Defendant.

No. 1:02CV00841.

United States District Court, M.D. North Carolina.

October 14, 2004.

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David G. Schiller, Cary, NC, for Plaintiff.

Lynne P. Klauer, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION

BEATY, District Judge.

This matter comes before this Court pursuant to Defendant's Motion to Dismiss and for Summary Judgment [Document # 15]. Plaintiff William A. Newby ("Plaintiff" or "Mr. Newby") filed suit in this case against Defendant Christine Todd Whitman as Administrator of the Environmental Protection Agency ("Defendant" or "EPA"), alleging discrimination in employment on the basis of a disability in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794, discrimination in employment on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the "ADEA"), and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act, and the ADEA. Specifically, Plaintiff claims that he suffers from a disability based on anxiety, depression, stress and hypertension, and that Defendant's failure to reassign him and failure to promote him constitute discrimination and retaliation in violation of the Rehabilitation Act, the ADEA, and Title VII. For the reasons stated below, Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. As to all of the claims that survive Defendant's Motion to Dismiss, Defendant's Motion for Summary Judgment is GRANTED.

I. FACTUAL HISTORY¹

Since 1985, Plaintiff has been employed as a Contract Specialist with the United States Environmental Protection Agency ("EPA") in Research Triangle Park ("RTP"), North Carolina. In 1988, Plaintiff was promoted from level GS-9 to level GS-11. Plaintiff's position would allow him to be promoted as high as level GS-12 noncompetitively, but he has not been promoted past the GS-11 level.

From 1991 to 1993, Plaintiff, acting as a "whistle-blower," reported certain contract irregularities and questionable practices to the EPA Office of Inspector General in RTP. During that time, Plaintiff was subjected to discipline and criticism by his supervisors, including a "minimally satisfactory" rating on his 1992 performance evaluation. This situation was investigated by the Office of Special Counsel, and in October 1994, the Office of Special Counsel concluded that there was significant evidence of abuse of authority and harassment by EPA managers against employees who criticized the managers or department policies. As a result, the Office of Special Counsel recommended that the poor performance evaluation that Mr. Newby received in 1992 be removed from his file.

During this period, on August 18, 1992, Mr. Newby had an encounter with Ralph Kirby, one of his supervisors. During that encounter, Mr. Kirby admonished Mr. Newby loudly and the admonishment was overheard by several other employees. Mr. Newby contends that as a result of this encounter, he suffered anxiety, stress and hypertension. Mr. Newby filed a claim with the Office of Worker's Compensation Programs ("OWCP"), which initially denied the claim. However, in January 1995, the OWCP reversed its decision and allowed the claim, finding that "an emotional reaction to an admonishment, that is witnessed, is considered in the performance of duty, and is covered under the Act." (Def.'s Mem. in Support of Mot. to Dismiss and for Sum. J. [Doc. # 18]Ex. N.)

In 1995 and 1996, Plaintiff filed additional claims with the Office of Special Counsel and Merit Systems Protection Board, alleging that he had been subjected to "intolerable working conditions" as a result of his whistle-blowing activities. These "intolerable working conditions" included EPA's refusal to reassign Plaintiff and EPA's failure to promote Plaintiff to the GS-12 level. On July 2, 1996, the Administrative Law Judge in that case determined that EPA's failure to promote Plaintiff was based on Plaintiff's work performance and inability to perform at the higher GS-12 level, and was not based on his whistle-blowing activities. On January 30, 1998, the United States Court of Appeals for the Federal Circuit affirmed this decision, noting that

[Mr. Newby's] administration actions were often not done in a timely manner, many actions were not conducted independently; modifications often contained "sloppy errors" and missing elements; [Mr. Newby] needed to work harder at researching policies prior to making decisions or recommendations on contractual issues; he needed to be more critical of the quality of some of his documents; and he often made "disparaging comments" about the policies and decisions of the agency and division when telling "outsiders" why specific documentation or revisions were needed. [It was] also noted that [Mr. Newby's] level of performance with respect to two of five rated performance objections would have been unacceptable were he at the [GS-12] level.

Newby v. EPA, 135 F.3d 777 (Fed.Cir.1998). In the proceedings before the Administrative Law Judge, Mr. James Kempf, who was Mr. Newby's supervisor, testified that he did not promote Mr. Newby in 1993 or 1994 because "he was not doing a great job doing his assigned GS-11 duties" and because "he was not working at the GS-12 level." This was significant given that Mr. Kempf was not involved in any of the alleged irregularities or management problems about which Mr. Newby complained. In addition, Mr. Newby's supervisor from 1985-1991, Mr. Honeycutt, testified that although Mr. Newby was "competent and hardworking," he had "never been an above-average employee." Based upon this evidence, the Federal Circuit affirmed the Board's decision.

Mr. Newby thus fully litigated his claim that EPA's failure to promote him was due to his "whistle-blowing" activity. Mr. Newby also fully litigated his Worker's Compensation claim, ultimately receiving benefits for his stress, anxiety, and hypertension. In the present civil action, Mr. Newby does not bring discrimination or retaliation claims based upon his "whistleblower" actions or the filing of his Worker's Compensation claim. Instead, Mr. Newby's present claims arise out of subsequent events in 1995 and 1996.

The first of these events occurred in March 1995, when Mr. Newby requested a "Reassignment for Health Concerns." In his request, Mr. Newby stated that his "current work environment has been and continues to be harmful to my health." (Def.'s Mem. in Support of Mot. to Dismiss and for Sum. J. [Doc. # 18]Ex. F.) Mr. Newby further stated that the reassignment "would eliminate the continuing stress that I suffer as a result of having to continue to work with individuals involved in the prior [whistle-blower] retaliation against me." (Def.'s Mem. in Support of Mot. to Dismiss and for Sum. J. [Doc. # 18]Ex. F.) Ms. Betty Bailey, Director of the Office of Acquisition Management, responded to that request and informed Mr. Newby that his division faced a large and important workload, and "it would not be in the best interests of the organization for me to increase the workload on other CMD-RTP employees in meeting your needs. However, if there is a vacant position at RTP for which you qualify, I will do everything I can to help you obtain that position." (Def.'s Mem. in Support of Mot. to Dismiss and for Sum. J. [Doc. # 18]Ex. F.) Ms. Bailey also noted that "[r]elative to your health concerns, I recommend that you contact Mr. Randy M. Brady at the RTP Human Resources Office for the range of options available. This is especially important if you feel you are unable to fully perform your duties." (Def.'s Mem. in Support of Mot. to Dismiss and for Sum. J. [Doc. # 18]Ex. F.)

The second incident involved Mr. Newby's subsequent meeting with Personnel Director Randy Brady on May 16, 1996. Plaintiff contends that during that meeting, Director Brady refused to consider Mr. Newby's request for a transfer and threatened to require him to undergo a "fitness for duty" evaluation. Plaintiff also contends that Director Brady wrote letters to the Office of Worker's Compensation Program to attempt to have Plaintiff's Worker's Compensation benefits denied or terminated. Although Director Brady did send letters contesting Plaintiff's eligibility for Worker's Compensation, those letters did not ultimately affect Plaintiff's benefits.

As a result of this May 16, 1996 meeting and Director Brady's actions, Plaintiff filed a formal EEO discrimination complaint on August 26, 1996 alleging that EPA had discriminated against him by failing to provide a "reasonable accommodation" (his request for a reassignment) and by retaliating against him for requesting accommodation (by threatening his job and by sending letters to attempt to terminate his Worker's Compensation benefits). A hearing on Plaintiff's complaint was held before an Administrative Law Judge on June 13, 2000. On November 9, 2000, the Administrative Law Judge ruled that Plaintiff had failed to establish that he was discriminated against on the basis of disability, age, or retaliation when Director Brady denied his request for a reassignment and allegedly threatened to terminate his employment.

Plaintiff filed this lawsuit on October 1, 2002, alleging that he was discriminated against on the basis of disability and age, and in retaliation for requesting a "reasonable accommodation." In his Complaint, Plaintiff brings claims for: (1) Disability discrimination based on Defendant's refusal to transfer him in 1995 and 1996; (2) Age discrimination based on Defendant's refusal to transfer him and refusal to promote him to the GS-12 level in 1995 and 1996, and (3) Retaliation based on the...