Rock v. McHugh

• Decision Date: 26 May 2011
• Docket Number: Civil Action No. DKC 10–0829.
• Citation: 43 NDLR P 87,819 F.Supp.2d 456
• Parties: Steven H. ROCK v. Secretary John McHUGH.
• Court: U.S. District Court — District of Massachusetts

43 NDLR P 87

819 F.Supp.2d 456

Steven H. ROCK

v.Secretary John McHUGH.

Civil Action No. DKC 10–0829.

United States District Court, D. Maryland.

May 26, 2011.

Donna Williams Rucker, Gebhardt and Associates LLP, Washington, DC, for Plaintiff.

Jason Daniel Medinger, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this disability discrimination action is a motion to dismiss, or alternatively, for summary judgment filed by Defendant John McHugh.¹ (ECF No. 8). Also pending is a motion to seal filed by Plaintiff Steven H. Rock (ECF No. 15), and a motion to seal filed by Defendant (ECF No. 20). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant's motion for summary judgment will be granted, but the motions to seal will be granted in part and denied in part.

I. Background

This case arises from the termination of Plaintiff, Steven H. Rock, from the Division of Plans, Training, Mobilization, and Security at the United States Army Research Laboratory (“ARL”) in Adelphi, Maryland. From 1989 to 2006, Plaintiff worked as an industrial hygienist at ARL, where he managed the occupational health program. (ECF No. 14–40, Ex. 36, at 1). In addition to investigating potential occupational health and industrial hygiene hazards, Plaintiff inspected and evaluated ARL laboratories and the Blossom Point Research Facility (“BPRF”) to ensure that employees handled toxic and hazardous chemicals safely. (ECF No. 8–1, at 5). Plaintiff believes that he was a good employee who was terminated because he suffered from alcoholism. (ECF No. 14, at 3). Defendant, however, maintains that Plaintiff was discharged for his unsatisfactory performance, frequent unscheduled and unauthorized leave since 2001, and lack of cooperation. (ECF No. 8–1, at 5).

During his tenure at ARL, Plaintiff worked under the management of several supervisors, the first of whom was Cynthia L. Tootle. In June 2001, Tootle required Plaintiff to follow a special leave procedure ² because his “frequent and unscheduled use of sick leave is unacceptable” and “has hampered and continues to hamper” the performance and efficiency of his office. (ECF No. 8–5 ¶¶ 2–3). Tootle cautioned that failure to follow these procedures “may serve as a basis for disciplinary action.” ( Id. ¶ 3c). In addition, she advised Plaintiff that “[i]f some personal situation or problem is contributing to your frequent unscheduled absences from work, the Wellness Center is available to assist you.” ( Id. ¶ 4).

Tootle rated Plaintiff's performance from October 1, 2000, to September 1, 2001, as “unsatisfactory,” ³ indicating that his work was inadequate and untimely, and that he had strained working relationships with other ARL employees.⁴ (ECF No. 8–6). Furthermore, Plaintiff “did not take responsibility” and required more supervision “than would be expected of someone of his position.” ( Id.) Tootle also placed Plaintiff under an informal performance improvement plan (“PIP”), but Plaintiff still failed to meet deadlines. ( Id.)

Plaintiff's next supervisor, Robert E. Chase, placed him on formal PIP on March 21, 2002. ( See ECF No. 8–7). Chase found Plaintiff's performance “unacceptable” ⁵ and gave him 120 days to improve. ( Id. ¶ 2). In addition, he counseled Plaintiff to seek help at the ARL Wellness Center if his poor performance was caused by personal or health problems. ( Id. ¶ 8). Subsequently, Plaintiff's performance improved and he successfully completed PIP on August 22, 2002. (ECF No. 8–8; ECF No. 14–12, Ex. 8). Chase rated Plaintiff's performance from October 1, 2001, to September 30, 2002, as “successful.” ⁶ (ECF No. 8–10; ECF No. 14–33, Ex. 29). On September 19, 2002, however, Chase questioned Plaintiff's use of leave, and reminded him, “[i]f you continue with the alternate leave schedule I will have to scrutinize your leave usage more closely.” (ECF No. 8–9).

In 2003, Michael P. Stebbing became Plaintiff's supervisor. ( See ECF No. 8–1, at 6). Stebbing rated Plaintiff's performance from January 21, 2003, to September 30, 2003, as “successful,” ⁷ (ECF No. 8–11; ECF No. 14–34, Ex. 30), and gave him a rating of “excellence” for his performance from February 8, 2004, to June 30, 2004.⁸ (ECF No. 8–13; ECF No. 14–35, Ex. 31).

Plaintiff's duties changed in July 2004. Prior to that time, Plaintiff was solely responsible for managing the industrial hygiene programs at ARL and BPRF. (ECF No. 8–13). In July 2004, however, Plaintiff's duties increased and he began to work under the supervision of the Director of Emergency Services. (ECF No. 8–14). Plaintiff received a performance plan on August 10, 2004, that detailed six objectives for July 1, 2004 to June 30, 2005. (ECF No. 8–14; ECF No. 14–10, Ex. 6). In addition to serving as the industrial hygienist at ARL and BPRF, Plaintiff also worked on “force protection” issues, such as developing policies and procedures to deal with emergencies caused by potential terrorist attacks. (ECF No. 8–14; ECF No. 14–10, Ex. 6).

On July 12, 2004, Stebbing placed Plaintiff on leave restriction. (ECF No. 8–12 ¶ 2). Stebbing informed Plaintiff that he had “not been dependable” and that his “excessive and irregular absences have had an adverse impact to the organization.” ⁹ ( Id. ¶ 1). Stebbing then required Plaintiff to obtain prior approval before taking leave and to notify him by email before leaving for and after returning from lunch. ( Id. ¶¶ 2–3).

According to Plaintiff, he attempted to detoxify himself from January to June 2005. (ECF No. 8–3, at 8). During this period, he suffered from depression and had trouble getting out of bed. ( Id. at 8–9). Plaintiff alleges in his complaint that he informed Stebbing in January that he “began receiving medical treatment for his alcoholism from the Agency's physician, Dr. Doina Zuba,” and of his attempt to “detoxify himself.” (ECF No. 1 ¶ 12). He offered contradictory testimony during a fact-finding investigation, however, stating that “[d]uring my times that I called in sick I explained to Mr. Stebbing not that I had alcoholism, but that I was going through the depression.” (ECF No 8–3, at 10). Plaintiff believes that his alcoholism began to affect his work performance in February 2005. (ECF No. 8–3, at 11).

By February 2005, Plaintiff had stopped working on force protection issues and resumed working exclusively as the industrial hygienist at ARL and BPRF. (ECF No. 8–3, at 188–89). Stebbing issued Plaintiff a performance plan containing fourteen detailed objectives relating to his role as the industrial hygienist. (ECF No. 8–15; ECF No. 14–11, Ex. 7).

On April 15, 2005, Stebbing again placed Plaintiff on leave restriction. ( See ECF No. 8–16). Among the reasons cited for Stebbing's decision were Plaintiff's exhaustion of sick and annual leave, poor time management skills, and taking excessively long lunch breaks outside of normal lunch hours. ¹⁰ ( Id. ¶ 3). Stebbing required Plaintiff to seek prior approval before taking leave and to present certification from appropriate medical practitioners upon his return. ( Id. ¶ 4). In addition, Plaintiff was to notify Stebbing whenever he left his office for more than twenty-minute periods. ( Id. ¶ 5). Plaintiff was again advised that the ARL Wellness Center was available to provide assistance. ( Id. ¶ 6). On April 26, 2005, Stebbing emailed Plaintiff, informing him that he was not performing well, that he must follow the leave restriction requirements, and that he failed to complete his performance objectives for March 2005. (ECF No. 8–17).

On May 19, 2005, Stebbing wrote Plaintiff a memorandum detailing his poor performance, which included failing to complete reports in a timely manner, submitting incomplete reports, failing to conduct requisite samples, and failing to submit attendance and absence records. (ECF No. 8–18 ¶¶ 1–3). Stebbing cautioned Plaintiff, “[w]ithout a substantial change in your work performance, you will likely be placed in a [PIP] after this rating period ends” on June 30, 2005, and concluded, “[this memorandum] serves to document that your overall performance to date continues to be unsuccessful.” ( Id. ¶ 4).

Plaintiff's performance did not improve, and on June 24, 2005, he received a written reprimand from Stebbing for his “continued frequent and unscheduled leave ... and insubordination.” (ECF No. 8–19 ¶ 2; ECF No. 14–16, Ex. 12). Stebbing again advised Plaintiff that the ARL Wellness Center was available to assist him and warned him that any deviation from leave procedures “may result in further disciplinary action such as suspension from Federal Service.” (ECF No. 8–10 ¶¶ 9– 10). According to Plaintiff, he was ill on June 14, 2005, on June 28, 2005, and on July 19, 2005, but it is unclear whether Stebbing was aware of his illness. ( See ECF No. 14, Exs. 48, 50, 51). At Plaintiff's behest, Dr. Doina Zuba, a doctor at ARL who worked with Plaintiff but was not his treating physician, wrote an email to Stebbing on July 29, 2005, in which she discussed Plaintiff's health:

He is still not out of all the consequences of his addiction, but miraculously his lab results are better, and he claims he feels much better. He asked me on [Tuesday] to email you something regarding his absences due to many appointments he had with the doctors, and not being able to get every time a note for you.

(ECF No. 8–28; ECF No. 14–26, Ex. 22).

In September 2005, Plaintiff was moved from a three-window office to a cubicle that he shared with a secretary. ( See ECF No. 14–8, at 4). From January 2 to January 20, 2006, Plaintiff was hospitalized for alcohol-related illnesses. (ECF Nos. 8–1, at 9; ECF No. 14–57, Ex. 52). Stebbing attempted to determine the cause of Plaintiff's illness by contacting his wife, but she refused to disclose his...