Thorn v. Sebelius

• Decision Date: 01 February 2011
• Docket Number: Civil Action No. DKC 10–0299.
• Parties: Dwight W. THORNv.Kathleen SEBELIUS.
• Court: U.S. District Court — District of Massachusetts

766 F.Supp.2d 585

Dwight W. THORN

v.Kathleen SEBELIUS.

Civil Action No. DKC 10–0299.

United States District Court, D. Maryland.

Feb. 1, 2011.

Donna Beasley, Law Office of Donna Beasley, Washington, DC, for Plaintiff.Neil R. White, Office of the United States Attorney, Greenbelt, MD, for Defendant.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this Title VII employment action is a motion to dismiss or for summary judgment (ECF No. 13) filed by Defendant Kathleen Sebelius.¹ 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, the Secretary's motion, construed as a motion for summary judgment, will be granted.

I. BackgroundA. Factual Background

The following facts are uncontroverted.

During the time relevant to this case, the National Institutes of Health (“NIH”) employed Plaintiff Dwight Thorn as a Patient Appointment System Manager & Information Technology Specialist. (ECF Nos. 13–1; 13–2). Thorn worked in the Computerized Appointment System (“CAS”) Office, which was part of the Ambulatory Care Services Department (“ACS”) of the NIH's Clinical Center (“CC”). (ECF Nos. 13–1; 13–3; 25–1). Thorn assumed his position in 1996, after he approached then-department chief Steven Groban about a job opening. (ECF No. 13–2). In his new position, Thorn was charged with broad responsibility over the CAS. (ECF No. 13–10). In particular, Thorn was responsible for maintaining and evaluating the CAS system, its security, its hardware and software, and its files. (ECF No. 13–10). Thorn was required to evaluate user needs, assist CC personnel in using clinic data within the CAS, provide trouble-shooting assistance, and perform several other functions. (ECF Nos. 13–10; 25–1). He also supervised junior staff and—at least initially—administered the ACS's voicemail system. (ECF No. 13–10).

Although Thorn was appointed at the GS–11 pay grade, Thorn contends that Groban promised him a promotion to the GS–12 pay grade within 3 years. (ECF No. 13–2). In 1999, however, Thorn's promotion to GS–12 was denied. (ECF Nos. 13–2; 25–1). In 2002, Thorn again approached management and requested a promotion. (ECF No. 13–2). Alternatively, Thorn asked that his position be audited to ensure that it was “properly classified.” (ECF No. 13–2). That request was also denied. (ECF No. 13–2).

During his first few years in his new position, Thorn was often recognized for good job performance. (ECF Nos. 13–2; 25–1; 25–8 through 25–12). He also received “acceptable” evaluations in 1999 (ECF No. 25–13), 2000 (ECF Nos. 25–14; 25–15), 2001 (ECF No. 25–16), and 2002 (ECF Nos. 25–17; 25–18).

1. 2003

On the morning of June 16, 2003, Thorn's first-line supervisor, Gene Hulen, asked Thorn to help him in reviewing and approving travel vouchers. (ECF Nos. 13–2; 13–10). Hulen explained that he needed help because an employee in the Voucher Office was absent. (ECF Nos. 13–2; 13–10). Thorn agreed to help and signed one voucher. (ECF Nos. 13–2; 13–10). But when more vouchers were brought to Thorn for review and approval, Thorn refused—he did not wish to be involved in approving vouchers and felt that responsibility was interfering with his normal responsibilities. (ECF Nos. 13–2; 13–10). Thorn believed that three reasons justified his refusal: (1) he was being asked to sign documents without knowing whether the information contained in them was true; (2) “expectations” concerning the vouchers were “unclear”; and (3) he had not received formal training. (ECF Nos. 13–2; 13–11; 25–1). Hulen insisted that Thorn was authorized to sign the vouchers and had been trained on how to do so, but Thorn still refused to help. (ECF Nos. 13–2; 13–10). Later that day, Hulen sent Thorn an email summarizing the incident and asking him to confirm what happened. (ECF Nos. 13–2; 13–10). Hulen explained that he needed Thorn to respond “[b]ecause before [he] may be forced to take other action” he wanted it to be “clear” in Thorn's mind that he had refused to perform the requested task. (ECF Nos. 13–2; 13–10; 25–19). Hulen's email told Thorn: “You need to understand that there may be repercussions. If you don't understand that, then maybe seeing it in writing makes it a bit clearer.” (ECF Nos. 13–2; 13–10; 25–1; 25–19). Thorn, who felt this email was “retaliatory” (ECF Nos. 13–2; 13–10), apparently did not respond to Hulen's email.

Two weeks later, on July 31, 2003, Hulen changed Thorn's 6:00 am to 2:30 pm “tour of duty” ( i.e., shift) to 7:30 am to 4:00 pm. (ECF Nos. 13–2; 13–13; 25–11; 25–21).² Thorn felt this change resulted from his refusal to sign the travel vouchers, as he says his supervisors had never before voiced concerns about his work schedule. (ECF Nos. 13–2; 13–11). The letter changing Thorn's hours, on the other hand, noted concerns about coverage during standard office hours, 7:30 am to 5:00 pm, Monday through Friday. (ECF Nos. 13–11; 13–13; 25–21).

Thorn wrote to Hulen on August 6, 2003 and argued that the tour of duty change would “place a hardship” on him and his family. (ECF Nos. 13–11; 13–13; 25–21). He accused Hulen of giving “little consideration to the personal impact,” namely on Thorn's ability to pick his children up from school in the afternoon. (ECF Nos. 13–11; 13–13; 25–21). He requested that his work hours not be changed. (ECF Nos. 13–11; 13–13; 25–21). In response, Hulen offered to allow Thorn more time to “arrange personal issues.” (ECF Nos. 13–11; 13–13; 25–21). He nevertheless felt that the hours change was needed because (1) the old reasons for Thorn's early shift were no longer present and (2) it would provide better coverage for CAS services. (ECF Nos. 13–11; 13–13; 13–14; 25–21). Thorn asked for a 90–day extension of his then-existing hours. (ECF No. 13–11; 13–13).

In 2003, the CC converted from a Lucent telephone system to a new phone system managed by NIH's Center of Information Technology (“CIT”). Thorn led that project. (ECF No. 13–14). On August 27, 2003, Karen Kaczorowski, Thorn's second-line supervisor, asked a contractor working on the conversion project “leading questions” concerning Thorn's job performance. (ECF Nos. 13–2; 25–1). In particular, Kaczorowski asked the contractor to let her know if an “oversight in the need for extra [network hardware] is due to something that was not provided by [Thorn].” (ECF Nos. 13–2; 25–22). Notably, because of the consolidation of telephone services, Thorn and his office were subsequently removed from managing the telephones. (ECF No. 13–15).

In September 2003, Thorn requested a transfer to another department. (ECF Nos. 13–2; 25–1). According to him, he was “able to convince the Chief of the Information Technology Department to allow [him] to work on a special project in his department resulting in a permanent transfer to a new higher paying position.” (ECF No. 13–2). Kaczorowski denied the request (ECF No. 13–2), as she believed there were no vacancies in Thorn's requested department (ECF No. 13–14).

The telephone system conversion caused additional problems for Thorn in October 2003. Initially, the new telephone system did not have any paging feature, resulting in numerous complaints. (ECF No. 13– 14). On October 15, Kaczorowski became frustrated with the lack of response from Thorn or Hulen concerning why the paging features had not been restored. (ECF No. 13–14). “Therefore, as department head,” she made the decision to reach out to CIT herself and resolve the problem as the “main point of contact.” (ECF No. 13–14). She instructed a CIT employee, Cheryl Moxley, to speak directly with her on the paging issues rather than working with Thorn. (ECF Nos. 13–14; 25–1; 25–23). Kaczorowski indicated that she preferred to work directly with Moxley because she would “have to explain to the physicians and senior leadership at the CC the status [of getting the paging feature restored].” (ECF No. 25–23).

Thorn received an acceptable performance rating in 2003. (ECF No. 13–16).

2. 2004

The problems with the telephone system were later reflected in Thorn's evaluation. In an evaluation on February 27, 2004, Hulen stated that “problems and communications with Verizon ... [resulted in] important areas and needs ... not [being] identified until direct installation began, which caused delays and inefficiencies.” (ECF Nos. 13–2; 13–22; 25–24). Thorn says this evaluation was “incorrect.” (ECF No. 25–1).

Thorn also received three emails from his superiors in 2004 that he characterizes as “unwarranted reprimands ... based on the fact that my supervisors failed to get all the facts before making judgment.” (ECF Nos. 13–2; 13–11). First, on January 21, 2004, Kaczorowski informed Hulen and Thorn that the CAS would no longer distribute reports. (ECF Nos. 13–11; 13–17; 25–25). Thorn forwarded the email on to another individual, who in turn forwarded it to others. (ECF Nos. 13–11; 13–17; 25–25). When Kaczorowski learned of the emails, she wrote Thorn and asked: “Why are you doing this? You are creating confusion.” (ECF Nos. 13–11; 13–17; 25–25). He responded that he merely wanted to “provide smooth transition from CAS providing reports.” (ECF Nos. 13–11; 13–17; 25–25). He adds that his emails “provided clarity not confusion.” (ECF No. 25–20).

Second, on July 29, 2004, Hulen forwarded Thorn an email from a nurse complaining of long wait times to make appointments with CAS. (ECF Nos. 13–11; 13–17; 25–25). He asked that Thorn “keep [his] visits to [other employees'] office[s] as short as possible and only for business purposes.” (ECF Nos. 13–11; 13–17; 25–25). Hulen told Thorn that he had received “another comment about you visiting when you could be answering phones.” (ECF Nos. 13–11; 13–17; 25–25). Thorn responded by defending his actions and telling Hulen that “it would be appreciated” if Hulen “would make some effort to find out what [Thorn] was doing before [Hulen] ma...