Nurriddin v. Bolden

• Decision Date: 04 December 2009
• Docket Number: Civil Action No. 04-2052 (JDB).
• Citation: 674 F.Supp.2d 64
• Court: U.S. District Court — District of Columbia
• Parties: Ahmad B. NURRIDDIN, Plaintiff, v. Charles F. BOLDEN, Jr.,<SMALL><SUP>1</SUP></SMALL> Administrator, National Aeronautics and Space Administration, et al., Defendants.

674 F.Supp.2d 64

Ahmad B. NURRIDDIN, Plaintiff, v. Charles F. BOLDEN, Jr.,¹ Administrator, National Aeronautics and Space Administration, et al., Defendants.

Civil Action No. 04-2052 (JDB).

United States District Court, District of Columbia.

December 4, 2009.

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Ahmad B. Nurriddin, Washington, DC, pro se.

Andrea McBarnette, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiff Ahmad Nurriddin was employed by the National Aeronautics and Space Administration ("NASA") from May 1991 through February 2004 in the Educational Affairs Division. His time there was beset by a years-long series of conflicts with his supervisors and other NASA employees, which has resulted in two employment discrimination lawsuits against the agency. His first lawsuit, Civil Action No. 99-3401, covering a series of events from 1991 through August 1996, was brought pro se under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq, and alleged discrimination on the basis of race (African-American), gender (male), and religion (Muslim), hostile work environment, and retaliation. The Court entered summary judgment for defendant on all claims on August 17, 2005. See Nurriddin v. Goldin, 382 F.Supp.2d 79, 92-109 (D.D.C.2005) ("Nurriddin I"). The D.C. Circuit affirmed in all respects. Nurriddin v. Griffin, 222 Fed.Appx. 5 (D.C.Cir.2007).

The second lawsuit—this action—picks up where the first one left off, and covers a series of events from late 1996 through Nurriddin's termination on February 6, 2004. See Second Am. Compl. ¶¶ 51-140 (filed Sept. 14, 2009). As before, proceeding pro se, he brings claims against NASA under Title VII for allegedly discriminating against him on the basis of race, gender, and religion, hostile work environment, and retaliation. Id. ¶¶ 2-3, 141-61, 185-93. In this round of litigation, he has added claims of disability discrimination in violation of the Rehabilitation Act, as amended, 29 U.S.C. §§ 701 et seq., based largely on depression, anxiety, and back pain allegedly caused by the events underlying the first case.² Id. ¶¶ 2, 162-84, 189-93. He also has added four NASA employees as individual defendants—Vicki Novak, Alfred Castillo, Mark Batkin, and Malcolm Phelps—on the ground that they have been involved in a conspiracy to violate his constitutional rights, citing 42 U.S.C. § 1983. Id. ¶¶ 6-7, 180-84.

Defendants have responded to the lawsuit with a motion to dismiss or, in the alternative, for summary judgment, prior to the taking of discovery. Plaintiff has filed an opposition on the merits, and also moves for an order denying summary judgment pursuant to Fed.R.Civ.P. 56(f) on the ground that discovery is necessary before the motion can be resolved.³ Additionally, he has filed a motion seeking a preliminary injunction to prevent NASA from soliciting personal information about him from the Department of Labor Office of Workers Compensation Programs ("OWCP"). Upon consideration of the voluminous record, the Court concludes that only the Title VII claims concerning discrete adverse actions may proceed; the remainder of Nurriddin's claims will be dismissed for the reasons set forth below.

BACKGROUND

The events underlying the current claims occurred from late 1996 through 2004, but for context, the Court, like the second amended complaint, will recount the most salient events of Nurriddin I to set the stage for evaluating the present claims. In May 1991, plaintiff, initially a contract employee working for NASA, was converted to a full-time civil servant as a Publications Specialist in NASA's Educational Affairs Division (also referred to as "Code FE"), at the GS-12 level. 382 F.Supp.2d at 86. Shortly thereafter, he alleged that he had been hired at two grade-levels below others performing similar duties because of his race, and sought a noncompetitive promotion to the GS-13 and GS-14 levels, based on his level of duties and responsibilities. Id. at 86-87, 95-101; Second Am. Compl. ¶¶ 44-50.

Following his informal complaints about the discriminatory GS grade levels, plaintiff experienced what he perceived to be further discriminatory and retaliatory actions, including (1) a letter of reprimand citing him for a negative attitude, failure to follow instructions, failure to complete assignments on time, and failure to keep supervisors abreast of his location, (2) a failure by management to investigate offensive icons located on a co-worker's computer; (3) reassignment of duties; (4) denial of authorization to travel to a minority conference; and (5) further admonishments and reprimands by email. 382 F.Supp.2d at 86-88. He made his first contact with an EEO counselor in December 1994, which was followed by an administrative complaint; he again contacted an EEO counselor on November 5, 1996, and filed a second administrative complaint on April 3, 1997. Id. at 88. He then filed his first Title VII lawsuit on December 21, 1999, alleging that the foregoing employment actions were motivated by discrimination on the basis of race, gender, and religion, by retaliation for engaging in EEO activity, and constituted a hostile work environment. Id. at 85-88.

This Court concluded that plaintiff had failed to exhaust his administrative remedies on some of the claims, including the initial decision in 1991 to hire him two grade levels below certain other employees; hence, summary judgment was entered for defendant on those claims. Id. at 92-93 (citing 29 C.F.R. § 1614.105(a)). The Court then examined the remaining claims on the merits to determine whether plaintiff had presented evidence sufficient to support an inference of discrimination or retaliation behind any of the actions, focusing on the letter of reprimand, the decisions to deny him a noncompetitive promotion to GS-13 or GS-14 (once in the 1991 to 1994 time frame, and again in the 1994 to 1996 time frame), a refusal to fund travel to a minority conference, and an "ultimatum" issued to him concerning reassignment or a change in duties. 382 F.Supp.2d at 93-106. In each instance, the Court found that there was insufficient evidence—in some instances, no evidence at all—from which a reasonable jury could find that discrimination or retaliation played a role in the challenged actions. Id. The Court also rejected plaintiff's claim of hostile work environment in toto, explaining that "[f]irst and foremost, many of the incidents ... are not related to race or religion," and furthermore, that the alleged harassment was not "severe," "pervasive," or "abusive." Id. at 108-09. The Court then entered summary judgment for defendant on all claims. Id. at 92-109. That decision was subsequently affirmed.

Although the events underlying Nurriddin I closed in late 1996, plaintiff's troubles at NASA continued. Here begins the story of Nurriddin II—the current action—as recounted in the second amended complaint. Because the Court is reviewing the sufficiency of that complaint against defendants' motion to dismiss, the Court will presume the factual allegations are true.

By the time of the events under review, plaintiff had been assigned to manage the Graduate Student Research Program ("GSRP") and the National Physical Sciences Consortium ("NPSC") training grant, where he had been placed since October 1995, still at the GS-12 level. Id. ¶ 52; see also 382 F.Supp.2d at 102-04, 106 (rejecting plaintiff's claim that placement at the GS-12 level from 1994 to 1996 was discriminatory or retaliatory). On August 14, 1996, plaintiff received a performance rating of "Outstanding"—the highest rating possible—and was cited as an exemplary member of the Education Division. Second Am. Compl. ¶ 54. Subsequently, he received an $800 performance award for that rating, although workers outside of his protected classes received substantially higher amounts. Id. ¶ 55.

In June 1997, he filed a formal EEO complaint alleging continued disparate treatment based upon his race, gender and religion, and in reprisal for prior EEO activity. Id. ¶ 56. The next month, he was issued a lower performance evaluation—"Fully Successful"—which was based on the comments of Malcolm Phelps and Sherri McGee, his first-level supervisors; Franklin Owens, his second-level supervisor; and a "Dr. Dasch," who is described as an "informal supervisor."⁴ Id. ¶¶ 57, 61. Phelps, McGee, Owens, and Dasch are each white; McGee is a woman. Id. ¶¶ 7, 10, 11. This evaluation came ten days after plaintiff had a verbal altercation with Dr. Phelps over his plans concerning an NAACP Youth Convention.⁵ Id. ¶ 58. Plaintiff then initiated contact with an EEO Counselor on September 16, 1997 and filed another formal complaint on December 11, 1997. Id. ¶ 24. This and the June 1997 complaint were among the first of at least nine EEO complaints in the years to come.

In or around November 1997, plaintiff received a long-sought noncompetitive promotion to GS-13.⁶ Id. ¶¶ 8, 49. That same month, however, plaintiff received another "lowered" performance evaluation. Id. ¶ 59. He heard, through Dr. Dasch, that this was due to Dr. Phelps' comment that plaintiff had attended "too many minority conferences." Id. As a result of the lowered rating, plaintiff received a diminished performance award. Id. ¶ 60. Plaintiff believes the lowered evaluation was inconsistent with the positive comments he received from others within and outside of the agency, including notes of appreciation from the NAACP and the American Indian Science and Engineering Society and a note stating "GSRP Success" from Dr Gerald Soffen at the NASA Goddard Space Flight Center. Id. ¶ 62.

At some unspecified points in 1997, plaintiff also was pursuing reclassification of his position into the "1701 series"— which the record implies would grant him improved promotion potential. Id. ¶ 63. He...