Nurriddin v. Bolden

• Decision Date: 05 April 2016
• Docket Number: No. 14–5156.,14–5156.
• Citation: 818 F.3d 751
• Parties: Ahmad B. NURRIDDIN, Appellant v. Charles F. BOLDEN, Administrator, National Aeronautics and Space Administration, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

818 F.3d 751

Ahmad B. NURRIDDIN, Appellant

v.Charles F. BOLDEN, Administrator, National Aeronautics and Space Administration, Appellee.

No. 14–5156.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 2015.

Decided April 5, 2016.

Joshua David Rogaczewski argued the cause for appellant. With him on the briefs were Paul M. Thompson and Jeffrey W. Mikoni.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Vincent H. Cohen, Acting U.S. Attorney, and Andrea McBarnette, Assistant U.S. Attorney.

Before: BROWN and WILKINS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Opinion dissenting in part filed by Circuit Judge WILKINS

.

PER CURIAM:

This is the second time Ahmad Nurriddin has brought suit against his former employer, the National Aeronautics and Space Administration ("NASA"), claiming unlawful discrimination. In his first appeal to us, we affirmed grant of summary judgment to NASA on Nurriddin's various claims of discrimination and retaliation over a six-year period. Nurriddin v. Griffin (Nurriddin II), 222 Fed.Appx. 5 (D.C.Cir.2007)

. Now focusing on a series of events occurring between 1996–2004, Nurriddin once more claims discrimination and retaliation under the Rehabilitation Act and Title VII. We affirm the District Court's Rule 12(b)(6) dismissal of the former claims, and grant of summary judgment to the agency on the latter.

I.

To provide some necessary context, we begin at the beginning. Nurriddin is an African–American, Muslim male. He worked in NASA's Educational Affairs Division, first as a Publication Specialist, and eventually as an Education Programs Specialist. For more than a decade Nurriddin has accused NASA management of discrimination. Beginning in 1991, Nurriddin believed he should have been converted to a full-time civil servant position at a grade higher than his GS–12 level. Nurriddin v. Goldin (Nurriddin I), 382 F.Supp.2d 79, 86 (D.D.C.2005)

. Thereafter, he sought for years to obtain a promotion. Id. at 95, 102. He eventually brought suit pro se under Title VII on the basis of this denied promotion, as well as additional incidents of alleged discrimination. Id. at 90. These incidents included, among others, being denied funds to travel to a Conference of Engineering Deans of Historically Black Colleges and Universities, id. at 101, and being exposed to his then coworker, later first-level supervisor's computer desktop, which contained empty folders titled, "racist jokes and stories" and "W/American Heritage," id. at 87, 108. We summarily affirmed the District Court's grant of summary judgment to NASA. Nurriddin II, 222 Fed.Appx. at 6.

This suit concerns the time period from 1996 until Nurriddin's termination in 2004. By 1996, Nurriddin was still employed within the Education Division at a GS–12 level. His "first-level" supervisor was Malcolm Phelps, and his "alternate first-level supervisor" was Sherri McGee. His "second-level supervisor" was Frank Owens. These three and several other human resources directors and employees were to become the subject of nine EEO complaints by Nurriddin between June 1997 and June 2004.

In 1996, Nurriddin received a performance evaluation of "Outstanding" for the time period 1995–1996, which was the highest possible rating on the five-level scale used by the agency at the time. He received a non-competitive promotion to the GS–13 level in November 1997. Still, Nurriddin believed NASA was discriminating against him for previously filing EEO complaints. He filed two complaints in 1997 naming Owens, McGee, and Phelps as the responsible management officials.

Nurriddin filed two more EEO complaints in 1998 that also named these three supervisors. The first, filed in April of 1998, was predicated in part on a coworker's comment to Nurriddin that Phelps said his performance evaluation would be lowered because he attended "too many minority conferences." Nurriddin filed the second complaint in September 1998, after he received his performance review for the 1997–1998 period. That year, NASA switched to a pass-fail system. Nurriddin received a "pass" and an $800 performance award. Phelps, however, noted on the evaluation form a "pattern of missed deadlines and unresponsiveness to his management that must be addressed and improved during the next year for [his] work to continue to be judged satisfactory." In his evaluation meeting, Nurriddin contends that Phelps "lashed out," calling his EEO complaints "a bunch of bull and a crock of s-h-i-t."

As the administrative investigation into his complaints proceeded, Nurriddin's white coworker received a grade increase from GS–13 to GS–14. Nurriddin did not. Around this same time, Nurriddin's health began to decline on account of depression, anxiety, and back pain, all allegedly related to his job and confrontations with his supervisors. He and Phelps exchanged numerous correspondence on the proper medical documentation necessary for approval of his sick leave. In October of 1998, his doctor recommended to NASA that it transfer him to another department to alleviate his job-related stress. In November and December of 1998, Nurriddin also requested permission to travel to two "minority conferences," which NASA denied.

NASA eventually approved a detail for Nurriddin. Though, when first exploring the possibility, a human resources official wrote that one particular office might only agree to the arrangement "subject to some conditions such as resolution of the EEO complaints." Nurriddin filed another EEO complaint thereafter in January of 1999. In February 1999, Nurriddin began a one-year long detail with the National Science Foundation ("NSF"). His NSF supervisor described his performance as "superb" and praised his "excellent skills in adapting to the rigors of a new office." In August 1999, Nurriddin filed an EEO complaint naming his NASA supervisors, which for the first time included a claim of disability discrimination.

Nurriddin returned to NASA in the spring of 2000. He requested transfer to a different office as a reasonable accommodation and soon took medical leave. He did not return again except for a few days in May and September. He and management attempted to reach agreement on the proper medical documentation for his periods of absence.

By this point, Nurriddin had joined NASA's Voluntary Leave Transfer Program, which allows eligible employees to receive annual leave donated by other federal employees. Yet, his status was changed to "AWOL," or away without leave. In a June 19, 2000 email, a human resources official reminded that Nurriddin had been accepted into the leave transfer program. In response, human resources director Al Castillo wrote: "Yegads! Will we ever finish with this guy? ... For the time being, I'm going to let the AWOL stand as charged. If we need to correct it as a result of our discussion, I don't have a problem stating so in writing." Nurriddin remained on AWOL status from September 12, 2000 through December 1, 2000. Eventually, 737.5 hours of donated leave were credited to him.

In September of 2000, Phelps denied Nurriddin a "WGI," or Within Grade Increase. These increases are automatically awarded to federal employees after satisfactorily completing a certain number of calendar weeks in service.

5 U.S.C. § 5335

. Phelps justified the denial on the basis that Nurriddin had not worked in the office long enough in the past year for his performance to be rated acceptable. Around December 2000, Nurriddin began receiving workers' compensation benefits. Nurriddin filed another EEO complaint that same month naming as responsible management officials, among others, Owens, Phelps, and Al Castillo and Vicki Novak from Human Resources.

In 2001, NASA commenced a job search to find Nurriddin another position. In October 2001, it offered him a "new" job in his same position, this time under the supervision of McGee and Owens. NASA arrived at this decision after discussing various options over email throughout September 2001. In a message with the subject line, "Favorite Subject," Vicki Novak wrote: "I really do not want to offer him another job in F. He's not qualified and he'll just create major problems if he should accept." Castillo responded:

[L]egal counsel, below Bob's level, asked if CP could find him a job and make an offer to close off the [Office of Workers' Compensation Program ("OWCP") ] claim (expecting that he won't take it and therefore lose his case at OWCP). That claim, backed by his doc and supported by the OWCP doc's, is that he CANNOT work in FE because that's the source of his "medical" problem. The offer of a job is a tactical ploy to chip away at all his complaints.

The Office of Workers' Compensation Program originally found the job offer suitable and gave Nurriddin 30 days either to accept the offer or to provide an explanation for refusal. In January 2002, Nurriddin filed another EEO complaint, this time naming Mark Batkin from the General Counsel's Office, Dorothy Egbert from Human Resources, as well as Castillo, Novak, and Owens. OWCP reevaluated the job offer and found it unsuitable since his supervisors would remain Owens and McGee, who were named in the original complaint. In the meantime, Nurriddin received his WGI to a GS–13 level step 5.

Also in 2002, NASA underwent a reorganization. Clifford Houston replaced Phelps as Nurriddin's first-level supervisor. With Nurriddin still out of the office, in October 2003, Houston ordered another job search be conducted, but the search revealed no vacant positions suitable for Nurriddin. Houston subsequently proposed that Nurriddin be terminated; he needed someone to fill the position and help ease the office's workload. In 2004, Nurriddin's new third-level supervisor, Angela Phillips Diaz, terminated his position effective February 6, 2004. The termination letter's stated rationale was that Nurriddin was "medically unable to perform [hi...