Scarborough v. Natsios

Decision Date20 March 2002
Docket NumberNo. Civ.A. 99-2454(ESH).,Civ.A. 99-2454(ESH).
Citation190 F.Supp.2d 5
PartiesWilbur E. SCARBOROUGH, Plaintiff, v. Andrew NATSIOS, Administrator, United States Agency for International Development, Defendant.
CourtU.S. District Court — District of Columbia

Raymond Charles Fay, Bell, Boyd & Lloyd, Washington, DC, Steven Jeffrey Silverberg, Washington, DC, for Plaintiff.

Paul Mussenden, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

HUVELLE, District Judge.

Plaintiff Wilbur Scarborough brings this action for discrimination and retaliation pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. Scarborough, an African-American male born on September 19, 1939, is a former employee of the United States Agency for International Development ("USAID"). Defendant has moved to dismiss four of the twelve counts of plaintiff's complaint and seeks summary judgment on all twelve counts. At oral argument on March 7 and 8, 2002, the Court granted defendant's motion for summary judgment with regard to Counts III-IV, VI-XI, and part of Count XII. Upon consideration of the pleadings and the entire record contained therein, as well as the issues raised at the hearing on March 7 and 8, the Court now denies defendant's motion to dismiss, but grants summary judgment with respect to plaintiff's remaining claims.

BACKGROUND
I. Plaintiff's Employment and Medical History

At all times relevant to this action, plaintiff worked for USAID as a Program Officer in the Foreign Service. His career with USAID began in 1974, and prior to becoming a Program Officer, plaintiff served, inter alia, as an Agricultural Rural Development Specialist in Tanzania, Kenya, Sierra Leone, and Niger. From April 1988 to June 1992, plaintiff worked in Jakarta, Indonesia. While there, as is the case with many USAID workers, he contracted a gastrointestinal parasite, which was subsequently diagnosed as amebiasis. (Pl.Ex. 2, ¶ 2; Pl.Ex. 4; Def.Ex. 2, at 22:23-5; Def.Ex. 9, at 125:14-126:15.) Plaintiff contracted the parasite in 1988 and was treated for diarrhea. Scarborough also experienced sinus and allergy trouble in Indonesia, and at one point was rushed to Singapore for emergency treatment of a recurrent acute staphylococcus aureus infection. (Pl.Ex. 1, at 3; Pl.Ex. 2, at 23:4-24:4.)

In 1990, plaintiff contacted the Equal Employment Opportunity ("EEO") office in Jakarta regarding a dispute with his supervisor, Robert Navin. This complaint was handled informally by plaintiff and Navin, and according to plaintiff, a "truce" was reached regarding the situation. (Def.Ex. 3, at 175:13-176:23.) In April 1991, plaintiff decided that he wished to retire and began exploring ways to receive disability retirement. (Def.Ex. 10, at 15.)

A typical overseas Foreign Service assignment lasts approximately four years, and Foreign Service officers are generally assigned to Washington D.C. after eight years abroad. (Def.Ex. 9, at 30:2-8, 31:9-18.) On June 27, 1991, plaintiff submitted a "Completion of Assignment Report," in which he provided information that he wished to be considered in connection with his next assignment after Indonesia. He requested that he not be transferred to Washington, D.C. because of his "chronic hay fever/sinus allergy." (Def.Ex. 12, at 2.) Instead, Scarborough sought a post in Uganda, Egypt, Gambia, or Bangladesh. (Id. at 1; Def.Ex. 2, at 152:19-24.)

Nonetheless, plaintiff was reassigned to Washington, D.C. as of August 1992. On October 6, 1992, plaintiff obtained an unlimited medical clearance for worldwide assignment after undergoing a physical examination conducted by the Department of State's Office of Medical Services. (Def.Ex. 8, at 1.) During the physical, amoebic parasites were identified in laboratory tests. (Def.Ex. 2, at 52:16-53:8.) Plaintiff filed a claim with the Office of Workers' Compensation ("OWCP") at the Department of Labor ("DOL") for this condition, and the claim was accepted for the specific condition of amebiasis on January 14, 1993. The date of the injury was identified as May 14, 1992. (Def.Ex.13.)

Plaintiff continued to experience health problems after returning to Washington, D.C. in August 1992. He contends that he could not sleep; had less energy, felt pain in his joints, feet, ankles, elbows, and knees; experienced gastrointestinal problems; suffered from flu-like symptoms; and had difficulty walking. (Amended Complaint ¶¶ 16-17; Pl.Ex. 1, at 3; Pl.Ex. 2, ¶ 3; Pl.Ex. 3, ¶ 3.) On January 25, 1993, Scarborough assumed the position of Assistant Country Development Officer in the Office of East Africa Affairs in the District of Columbia. This was functionally the equivalent of a Program Officer position. Plaintiff's first-level supervisor in that job was Gerald Cashion. Scarborough was absent from the office for a substantial amount of time during his first six months in the position. During that period, he used all of his annual and sick leave for the year, and was placed on Leave Without Pay ("LWOP") status for part of the time. Some of Scarborough's absences resulted from his attendance at the funerals of his father and brother in Chicago; the rest were due to rheumatism and bone soreness. (Def.Ex.15, ¶ 3.)

As plaintiff states, "[b]ecause of his illnesses, [Scarborough] was unable to steadily work full-time at his position from May 1, 1993 to the time of his retirement on September 29, 1994." (Pl.Opp. at 6.) Beginning in June 1993, plaintiff provided some documentation from physicians regarding his medical condition. During this period, plaintiff was treated for "HTN," "arthritis," and "anemia" (Def.Ex. 16, June 21, 1993 Doctor's Note), "arthritic pain" (Def.Ex. 17, July 20, 1993 Doctor's Note), "arthritic pain," "HTN," "recurrent diarrhea," and his "allergic condition" (Def.Ex. 18, at 2, Aug. 2, 1993 Doctor's Note), "reactive arthritis associated with the gastrointestinal infestation by amoeba and, possibly, giardia" (Def.Ex. 19, at 3, Aug. 23, 1993 Doctor's Note), a "gastrointestinal complaint" (Def.Ex. 20, Aug. 25, 1993 Doctor's Note), "reactive arthritis," (Def.Ex. 21, at 2, Oct. 8, 1993 Attending Physician's Report; Def.Ex. 22, Nov. 13, 1993 Doctor's Note), and the "flu." (Def.Ex. 23, Nov. 15, 1993 Doctor's Note.)

At the same time, USAID repeatedly advised plaintiff of the consequences of his frequent absences in light of the "inadequate medical documentation" that he had provided. (Def.Mem. at 12.) On July 15, 1993, Cashion issued a leave restriction letter notifying plaintiff that failure to follow specific procedures would result in his being classified as Absent Without Leave ("AWOL") for any more missed work. (Def.Ex. 25, at 3.) Just eight days later, Cashion wrote plaintiff to inform him that he was being charged as AWOL for July 19 and 20, because the medical documentation he had submitted for those two days "does not suggest that you were incapacitated and therefore unable to come to work...." (Def.Ex.26.) Cashion reiterated this policy in memos to plaintiff dated September 3 and October 5, 1993. (Def.Exs.27-28.) Plaintiff alleges that he made his first request that these missed workdays be classified as LWOP, rather than AWOL, in September 1993.1 (See Pl.Opp. at 6; Pl.Ex. 22.) This request was denied. At the end of the same month, plaintiff was turned down for another job within USAID for which he had applied, in the Office of Development, Bureau for Private Enterprise. (Def.Ex. 15, at 2.)

On November 16, 1993, plaintiff was notified that he had been selected out for mandatory retirement, which was to become effective April 30, 1994. (Def.Ex.33.) Plaintiff filed a grievance in response to this decision on April 20, 1994, arguing that 1) a relevant evaluation from 1993 was not reviewed by the boards that chose plaintiff for mandatory retirement, and 2) the boards committed a procedural error because members of the preliminary selection board also served on the Performance Standards Board that made the final determination of forced retirement. (Def.Ex.34.) Pursuant to USAID procedures, plaintiff was granted "prescriptive relief," and thus, his mandatory retirement was stayed until a decision was reached on his grievance. (Def.Ex. 30, at 157.)

Plaintiff's absences continued following his selection for mandatory retirement. Between October 1993 and June 1994, plaintiff missed work and was placed on AWOL for 976 hours over 19 pay periods. That is, plaintiff missed nearly two-thirds of the 1520 hours that comprised those pay periods, and was AWOL for at least part of each of the 19 periods. (Def.Ex. 46, at 3.) Scarborough visited several doctors during this timeframe. On December 15, 1993, Dr. Marc Hochberg, a professor of medicine at the University of Maryland, wrote that Scarborough "no longer ha[d] the arthritis-related disabilities in activities requiring mobility and exercise tolerance and he is able to fulfill his job requirements. There is no reason, medically, why he can no longer work at his chosen occupation." (Def.Ex.35.)2 This diagnosis was supported by another doctor, who wrote eight days later that plaintiff's "symptoms [were] under control, so he should be able to fulfill his requirements for his job." (Def.Ex. 36, Dec. 23, 1993 Note from Dr. Gaurang Thaker.) Less than three weeks later, however, a third doctor found that Scarborough had "not been able to attend work because of his severe fatigue [and that] possible chronic fatigue may hinder his ability to attend work in the future." (Def.Ex. 37, Jan. 10, 1994 Doctor's Note; see also Def.Ex. 38, at 4, Jan. 27, 1994 Doctor's Note ("[I]t is possible that the patient does have a chronic fatigue syndrome." ("CFS")).)

In March 1994, in response to his prolonged absence from...

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