Miller v. Rosenker

• Court: District Court, District of Columbia
• Decided: January 4, 2011
• Docket: Civil Action No. 2007-1832
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ RICHARD MILLER, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1832 (GK) ) DEBORAH A.P. HERSMAN, ) Chairman, National ) Transportation Safety Board, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff Richard Miller, a former employee of the National

Transportation Safety Board (“NTSB” or “the Board”), brings suit

against Defendant Deborah A. P. Hersman, Chairman of the NTSB. The

Complaint, which was filed pro se, alleges that Defendant engaged

in discrimination on the basis of Plaintiff’s sex, age, and

disability and in retaliation for Plaintiff’s prior protected

activity in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. This matter is

presently before the Court on Defendant’s Motion for Summary

Judgment [Dkt. No. 45] (“Def.’s Mot.”). Upon consideration of the

Motion, Opposition, Reply, and the entire record herein, and for

the reasons set forth below, the Motion for Summary Judgment is

granted in part, and denied in part. I. Background1

Plaintiff Richard Miller was employed by the NTSB from June

20, 1999 until his termination on June 30, 2006. His first position

at NTSB was an excepted appointment in the Office of the Chief

Financial Officer (“OCFO”) as an “Expert (TWA Management

Coordinator).” On July 16, 2000, Plaintiff’s position was converted

to a career conditional appointment as a Financial Management

Specialist, GS-501-14, in OCFO. Def.’s Stmt. of Material Facts as

to Which There Is No Genuine Dispute (“Def.’s Stmt. of Facts”) ¶ 2;

Pl.’s Stmt. of Genuine Issues ¶ 2. His responsibilities included

assessing, improving, and managing the agency’s credit card

program, as well as other projects. Def.’s Stmt. of Facts ¶ 10.

Miller was expected to perform these duties with a high degree of

autonomy. Id. ¶ 9.

In each of the years between 2000 and 2003, Miller received

both “excellent” performance evaluations and a $2,000 incentive

award based on his performance. Plaintiff’s Opposition to the

Motion for Summary Judgment (“Pl.’s Opp’n”) at 3 [Dkt. No. 47]. Don

Libera, who was the Board’s Acting Chief Financial Officer (“CFO”)

and Miller’s first-line supervisor beginning in 2001,2 personally

1 The facts set forth herein are drawn from the parties’ Statements of Material Facts Not in Dispute submitted pursuant to Local Rule 7(h), the briefs, and the evidence in the record. 2 Craig Keller was the CFO when Plaintiff began his employment at NTSB in June 1999. He was replaced by Mitch Levine in or about January 2000, who was replaced in turn by Libera. Def.’s

-2- praised Miller’s good work, as did others.3 Id. However, starting

in 2003, Miller’s performance evaluations declined considerably:

for the period from June 1, 2003 through May 31, 2004, he received

a “Minimally Successful” performance rating based on his failure to

complete several tasks and his lack of timeliness. Def.’s Stmt. of

Facts ¶ 12; see 2004 NTSB Performance Appraisal Form for Richard

Miller (Ex. D to Def.’s Mot.).

Miller contends that his declining performance was the result

of his physical and psychological impairments, which were worsening

at that time. In 2003, Miller began therapy for acute anxiety with

Dr. John C. Parkhurst, Ph.D. See Pl.’s Stmt. of Genuine Issues ¶ 3;

Parkhurst Dep. 25:9-11, 26:13-6, June 16, 2009 (Ex. OO to Def.’s

Mot.). In January 2004, he was hospitalized for an anxiety attack.

See Miller Dep. 136:16-25, June 24, 2009 (Ex. JJ to Def.’s Mot.).

The evidence in the record indicates that Libera knew of Miller’s

hospitalization and discussed it with him shortly after his return

to the NTSB, although it is not clear that Libera or any other

supervisors knew that the diagnosis was an anxiety attack. Libera

Dep. 139:3-140:2, Apr. 16, 2009 (Ex. QQ to Def.’s Mot.); Ex. JJ at

133:1-134:3. At some point in 2004, Miller also suffered a

herniated disc and floating disc fragment in his back. See Pl.’s

Stmt. of Facts ¶¶ 4-6; Pl.’s Stmt. of Genuine Issues ¶ 6. 3 The parties dispute whether Miller was aware that Libera was his first-line supervisor from December 2000 to March 2001. See Pl.’s Stmt. of Genuine Facts ¶ 8.

-3- Stmt. of Genuine Issues ¶ 3; Expert Report of Dr. Lamb at 2 (Feb.

15, 2009) (Ex. 11 to Pl.’s Opp’n); Ex. JJ at 129:7-130:18.

According to Miller’s doctors, his physical ailments

exacerbated his anxiety, which in turn led to depression and an

inability to concentrate at work. On May 22, 2004, Dr. Parkhurst

wrote a letter recommending that Miller immediately cease working

in order to improve his health. Letter from Dr. Parkhurst (May 22,

2004) (Ex. 13 to Pl.’s Opp’n) (recommending that Miller cease work

“until such time that he has regained the behavioral health

objectives set forth by his medical doctor and myself”); see also

Ex. OO at 40:15-43:14. There is conflicting evidence on whether

Miller’s supervisors were given the letter before or after the PIP

period. Defendant claims that Miller’s supervisors were not

informed of Dr. Parkhurst’s letter until October 21, 2005, when

Miller submitted it in response to his proposed removal. Def.’s

Mot. at 14. Miller, however, claims that he discussed the letter

with Libera in May of 2004 and left a copy of it “on his chair.”

Ex. JJ at 169:25-170:20.

On May 30, 2004, Miller was reassigned to the Accounting

Division as part of a reorganization of OCFO. The Director of the

Accounting Division, William J. Mills, became Miller’s first-line

supervisor, eventually assuming all of Libera’s supervisory duties.

From June to November 2004, Libera retained supervisory

responsibility for Miller’s substantive assignments while Mills

-4- took on supervisory responsibility with respect to time,

attendance, and leave. Beginning in November 2004, Mills gained

full supervisory responsibility over Miller. Pl.’s Opp’n at 4 n.3.

While preparing his office for a furniture move earlier that

month, Miller injured his back, exacerbating both his physical and

psychological symptoms. On May 27, 2004, while discussing his

workload and a project plan with Libera over e-mail, Miller

mentioned that he was coming into the office against medical

advice. However, the record does not indicate that Miller ever

provided a doctor’s note to Libera or his other supervisors

containing that advice. See E-mail from Richard Miller to Don

Libera (May 27, 2004) (Ex. 15 to Pl.’s Opp’n). Libera suggested

that Miller “[t]ake some time to relax” over the weekend, and that

they could discuss his workload the following Tuesday. E-mail from

Don Libera to Richard Miller (May 28, 2004) (Ex. 16 to Pl.’s

Opp’n).

In July 2004, Miller again injured his back at work. As a

result of his two back injuries, he took approximately 300 hours of

sick leave between May and December 2004. Miller claims he was

given no assistance in this period, and that he fell behind in his

work as a result. Pl.’s Opp’n at 6.

Miller also sought to take annual leave in late 2004, but his

requests were largely denied. On September 24, 2004, Plaintiff

submitted a request for annual leave for the period from September

-5- 27, 2004 until October 8, 2004, nine days after the September 15,

2004, deadline for leave requests and with only three days’ notice.

Mills denied the request because “the entire period from September

1 to November 15 is a time of increased activity,” as financial

statements were due on November 15, 2004. E-mail from Bill Mills to

Richard Miller (Sept. 27, 2004) (Ex. I to Def.’s Mot.). However,

Miller was given shorter periods of one or two days at a time

through October and extended leave for two or more weeks in

November and December. Miller’s subsequent request on October 27,

2004, for nearly two months of leave was also denied because Mills

believed that Miller would not be able to meet his work deadlines.

See Letter from Bill Mills to Richard Miller (Nov. 1, 2004) (Ex. M

to Def.’s Mot.).

Miller’s performance ratings continued to decline throughout

this period. On December 22, 2004, Libera and Mills met with Miller

to formally issue his “Minimally Successful” performance rating for

the period from June 1, 2003 to May 31, 2004. Def.’s Stmt. of Facts

¶ 21. On January 10, 2005, Mills also issued a written performance

warning memorandum which described the improvements necessary to

correct Miller’s deficiencies. See Memorandum from Don Libera to

Richard Miller on Performance Warning and Expectations (Jan. 10,

2005) (Ex. L to Def.’s Mot.). The memorandum warned Miller that his

failure to correct the identified deficiencies and to maintain

improvements could result in an “Unacceptable” performance rating

-6- and placement on a performance improvement plan (“PIP”). If his

unacceptable performance persisted after being placed on a PIP,

Miller was told he could be demoted or removed from his position.

Miller’s anxiety and depression continued to worsen in this

period. In a March 2005 letter, Dr. Parkhurst stated his opinion

that Miller would not be able to adequately recover from his

anxiety disorder or quit smoking if he continued to work, and

indicated that his treatment would be “optimized” if he ceased

working for six months to one year. Letter from Dr. John C.

Parkhurst, Ph.D. (Mar. 5, 2005) (Ex. RR to Def.’s Mot.). Defendant

contends again that Miller did not submit this letter to his

supervisors, and that they first saw it in Miller’s reply to his

proposed removal. See Letter from Don Libera to Richard L. Miller

(June 23, 2006) at 6 (Ex. T to Def.’s Mot.).

On May 16-27, 2005, Miller took two weeks of sick leave due to

anxiety-related hives. He claims that Mills was informed of the

reason for this leave. Ex. JJ at 134:19-35:2. Mills, however, does

not recall ever discussing Miller’s medical conditions with him,

although he was aware of the sick leave. Mills Dep. 51:21-53:1,

June 17, 2009 (Ex. PP to Def.’s Mot.).

On June 9, 2005, Miller received a memorandum from Mills

notifying him that he had received an “Unacceptable” performance

rating for the period from June 1, 2004 to May 31, 2005. Def.’s

Stmt. of Facts ¶ 23; see NTSB Performance Appraisal Form (FINAL)

-7- for Richard Miller (Ex. LL to Def.’s Mot.). As a result, he was

placed on a 60-day PIP pursuant to 5 C.F.R. 432.104. Def.’s Stmt.

of Facts ¶ 24; see Memorandum from William J. Mills to Richard L.

Miller, Notification of Unacceptable Performance and Implementation

of a Performance Improvement Plan (June 9, 2005) (Ex. Q to Def.’s

Mot.). The PIP required Miller to continue his duties to oversee

the agency’s credit card program, as well as to perform other

specific tasks and to attend weekly status meetings with Mills.

On June 13, 2005, Miller submitted a hand-written letter from

his physician, Dr. Joseph Lamb, requesting a part-time schedule of

“4 hours per day” for a “week” on account of his “physical and

psychological complaints.” Letter from Dr. Joseph J. Lamb (June 13,

2005) (Ex. R to Def.’s Mot.). Mills tentatively approved the leave,

but informed Miller that he was requesting further medical

documentation to support it. Def.’s Stmt. of Facts ¶ 27; E-mail

from William Mills to Richard Miller (June 15, 2005) (Ex. 20 to

Pl.’s Opp’n). Miller did not take all of the leave approved for

that week because Mills’s approval was provisional and because his

workload had not been reduced. Ex. JJ at 173:6-19.

After some delay, Dr. Lamb received Mills’s request for

medical documentation and provided his response on July 31, 2005.

The NTSB’s medical consultant, Dr. Neal L. Presant, reviewed all of

the evidence, including Dr. Lamb’s letter, and found that the

recommendation for the part-time schedule was “medically

-8- reasonable” given the circumstances. Letter from Dr. Neal L.

Presant to Cindy Lepson, Human Resources, NTSB (Sept. 14, 2005)

(Ex. 21 to Pl.’s Opp’n).

By August 3, 2005, which was the date of the final weekly

progress meeting with Mills, Miller had failed to complete any of

the PIP tasks due under Critical Elements No. 1 (“Credit Card

Program Oversight) and No. 4 (“Special Projects”). The PIP was

extended to August 19, 2009, while Mills was out of the office, but

Miller did not complete any of the tasks due in that period,

either. Def.’s Stmt. of Facts ¶¶ 39-40.

On September 12, 2005, Mills informed Miller that he was

proposing his removal from the NTSB based on unacceptable

performance under the PIP. Miller was placed immediately on

administrative leave with pay. Id. ¶¶ 44-45.

On October 4, 2005, Dr. Lamb faxed a letter to the Board

stating that the proposed removal action had traumatized Miller and

that he should “refrain from working (take sick leave) for the

foreseeable future.” Id. ¶ 46; Letter from Joseph J. Lamb, M.D.

(Oct. 4, 2005) (Ex. N to Def.’s Mot.). Mills converted Miller’s

administrative leave to sick leave, although the parties dispute

whether he did this in response to Dr. Lamb’s recommendation or

after consultation with the Board’s human resources director, Cindy

Lepson. Miller contends that he never requested to be placed on

sick leave, as demonstrated by the fact that he received his normal

-9- pay without losing sick leave while on administrative leave. Pl.’s

Stmt. of Genuine Issues ¶ 47.

On October 21, 2005, Miller submitted through an attorney a

written and oral reply to his proposed removal. The oral reply was

delivered to Libera, who was the deciding official. See Ex. T at 2.

Miller argued in his oral and written replies, with supporting

medical documentation, that his medical and psychological

conditions had rendered him unable to perform his duties since July

2004. He also argued that he should not have been placed on a PIP

because the Board was on notice of his condition, but instead

should have been placed on twelve weeks of leave under the Family

and Medical Leave Act, 29 USC § 2601 et seq. Finally, he requested

an accommodation in the form of a leave of absence for six months

in order to recover. Id. at 3-4.

Libera requested more information about Miller’s medical

condition for Dr. Presant’s review of Miller’s accommodation claim.

Miller provided Reasonable Accommodation Inquiry material from

three of his doctors, as well as a release permitting Dr. Presant

to speak with Dr. Adrienne Smith, Miller’s neurologist. Letter from

Dr. Presant to Cindy Lepson, Human Resources Division, NTSB (Feb.

21, 2006) (Ex. HH to Def.’s Mot.). The parties dispute whether

Miller provided a medical release for Dr. Parkhurst and Dr. Lamb to

speak with Dr. Presant. Pl.’s Stmt. of Genuine Issues ¶¶ 41-53.

-10- On February 21, 2006, Dr. Presant presented his conclusion to

the Board that Miller’s performance could have been impaired by his

physical and psychological conditions during the PIP period.

However, Dr. Presant also concluded that there was little medical

accommodation the Board could provide because Miller’s

psychological issues resulted from his perceptions of harassment

and threats at NTSB. Ex. HH. Finally, Dr. Presant stated that since

there was no indication that Plaintiff’s medical condition would

change in the foreseeable future, he did not believe that a six-

month leave of absence would accomplish anything. Id.

Libera requested that Dr. Lamb provide status updates every

two weeks on Miller’s condition while his accommodation request and

the decision on his proposed removal were pending. Dr. Lamb’s

submissions reported that Miller’s stress level, though still

elevated, had abated slightly by February 2006. On June 1, 2006,

Dr. Lamb recommended that Miller return to work on July 3, 2006.

Despite Dr. Lamb’s June 1, 2006, recommendation, on June 23,

2006, Libera rejected Miller’s written and oral replies and removed

him from his position effective June 30, 2006. Ex. T at 8-9. Libera

concluded that Miller’s medical and psychological conditions did

not qualify him as an individual with a disability under the law

because he was not substantially limited in his ability to work.

In support of his decision, Libera cited evidence that

Miller’s medical providers believed he could perform his job duties

-11- if he were moved to another environment where he did not feel

harassed and stressed. Libera also found that Miller actually had

been given accommodations in the form of extra attention and

additional help to help him complete his work. Finally, Libera

noted that Dr. Lamb’s July 31, 2005, letter simply requested a

part-time schedule, not a leave of absence, and that Miller

actually did complete some work in the PIP period, although he

failed to complete many of the designated PIP tasks. Id.

On July 25, 2006, Miller appealed his removal to the Merit

Systems Protection Board. A removal appeal hearing was held on

November 27, 2006. On December 15, 2006, the MSPB Administrative

Judge denied Miller’s appeal, concluding that the agency’s

performance standards, as established in the PIP, were valid, that

Miller’s performance was deficient, and that he was given a

reasonable opportunity to improve. Richard L. Miller v. Nat’l

Transp. Safety Bd., No. DC-0432-06-0724-I-1, 3-10 (M.S.P.B. Dec.

15, 2006) (Ex. TT to Def.’s Mot.). The Administrative Judge also

found that Miller had failed to provide evidence of age

discrimination, that he was not a disabled person under the

Rehabilitation Act during the PIP, that he had not articulated a

reasonable accommodation, and that there was insufficient evidence

to support Miller’s retaliation claim. On February 19, 2007, Miller

filed a Petition for Review with the MSPB, which was denied on June

20, 2007.

-12- On July 19, 2007, Plaintiff filed a Petition for Review with

the EEOC. See Richard Miller v. Ellen Engleman Conners, Chairman,

NTSB, Petition No. 0320070099 (E.E.O.C. Aug. 21, 2007) (Ex. 35 to

Pl.’s Opp’n). On August 21, 2007, the EEOC concurred with the

MSPB’s conclusion of no discrimination.

Finally, on October 11, 2007, Miller filed the present

Complaint pro se,4 bringing claims of age, sex, and disability

discrimination and retaliation. On September 11, 2009, Defendant

filed a Motion for Summary Judgment, arguing that Miller was

justifiably removed from his position for legitimate,

nondiscriminatory reasons. On November 2, 2009, Plaintiff filed an

Opposition to Defendant’s Motion, contending that NTSB’s conduct

violated Title VII and the ADEA, as well as its obligations under

the Rehabilitation Act to “‘mak[e] reasonable accommodations to the

known physical or mental limitations of an otherwise qualified

individual with a disability.’” Pl.’s Opp’n at 2 (quoting 42 U.S.C.

§ 12112(b)(5)(A)(2009)) [Dkt. No. 47]. Defendant submitted a Reply

on December 10, 2009.

II. Standard of Review

Summary judgment may be granted “only if” the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

4 As stated, Plaintiff filed his Complaint pro se. On November 15, 2007, he retained counsel in this case, well before Defendant’s Motion for Summary Judgment was filed.

-13- moving party is entitled to judgment as a matter of law. See

Fed.R.Civ.P. 56(c), as amended December 1, 2007; Arrington v.

United States, 473 F.3d 329, 333 (D.C. Cir. 2006). In other words,

the moving party must satisfy two requirements: first, demonstrate

that there is no “genuine” factual dispute and, second, that if

there is, that it is “material” to the case. “A dispute over a

material fact is ‘genuine’ if ‘the evidence is such that a

reasonable jury could return a verdict for the non-moving party.’”

Arrington, 473 F.3d at 333 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A

fact is “material” if it might affect the outcome of the case under

the substantive governing law. Liberty Lobby, 477 U.S. at 248.

In Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167

L.Ed.2d 686 (2007), the Supreme Court said,

[a]s we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 ... (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Liberty Lobby, 477 U.S. at 247-48 (emphasis in original).

-14- However, the Supreme Court has also consistently emphasized

that “at the summary judgment stage, the judge’s function is

not . . . to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine issue for

trial.” Liberty Lobby, 477 U.S. at 248, 249. In both Liberty Lobby

and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150,

120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court cautioned

that “[c]redibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts, are jury

functions, not those of a judge” deciding a motion for summary

judgment. Liberty Lobby, 477 U.S. at 255.

In assessing a motion for summary judgment and reviewing the

evidence the parties claim they will present, “[t]he non-moving

party’s evidence ‘is to be believed, and all justifiable inferences

are to be drawn in [that party’s] favor.’” Hunt v. Cromartie, 526

U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting

Liberty Lobby, 477 U.S. at 255). “To survive a motion for summary

judgment, the party bearing the burden of proof at trial ... must

provide evidence showing that there is a triable issue as to an

element essential to that party’s claim.” Arrington, 473 F.3d at

335; see Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). “[I]f the evidence presented on a

dispositive issue is subject to conflicting interpretations, or

reasonable persons might differ as to its significance, summary

-15- judgment is improper.” United States v. Philip Morris, 316

F.Supp.2d 13, 16 (D.D.C. 2004) (quoting Greenberg v. FDA, 803 F.2d

1213, 1216 (D.C. Cir. 1986)).

III. Analysis

In the Complaint, Miller alleges that Defendant’s failure to

accommodate his disability constitutes discrimination under the

Rehabilitation Act. The Complaint further alleges that Defendant

discriminated against Miller on the basis of age, sex, and

disability by deciding to terminate his employment. Finally, the

Complaint alleges that the Board took these actions in reprisal for

Miller’s protected activity. Defendant moves for summary judgment

on all of these claims.

A. Rehabilitation Act Claims: Discrimination on the Basis of Disability

First, Miller alleges that Defendant discriminated against him

on the basis of his disability by (1) failing to grant him his

proposed accommodation of a leave of absence for six months, and

(2) removing him from his position at the NTSB. The Rehabilitation

Act provides that “[n]o otherwise qualified individual with a

disability”5 may be discriminated against by a federal agency

5 The Rehabilitation Act adopts the standards and definitions used in the Americans with Disabilities Act (“ADA”). 29 U.S.C. 794(a). Effective January 1, 2009, the ADA was amended to alter the definition of “disability.” See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). Specifically, the amendments rejected the limitations imposed by the Supreme Court in Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and Sutton v. United Air Lines,

-16- “solely by reason of her or his disability.” 29 U.S.C. § 794(a). To

recover under the Act, which adopts the ADA’s definition of

disability and discrimination, Miller must show that he “(1) ‘has

a physical or mental impairment which substantially limits one or

more . . . major life activities,’ (2) ‘has a record of such an

impairment,’ or (3) ‘is regarded as having such an impairment.’”

Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir. 2008) (quoting 29

U.S.C. § 705(20)(B)).

To be considered “qualified” under the Act, Miller must show

that he could have performed the essential functions of the

position with a reasonable accommodation. Carr v. Reno, 23 F.3d

525, 529 (D.C. Cir. 1994). The employee has the burden of proving

that he is qualified. Dorchy v. Washington Metro. Area Transit

Authority, 45 F.Supp.2d 5, 11 (D.D.C. 1999).

1. Whether Miller Is Disabled Presents a Genuine Issue of Material Fact in Dispute

Miller contends that his psychological and physical

impairments constituted a disability under the Rehabilitation Act

because they substantially limited his ability to think and to

527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Defendant contends that the pre-2008 definition of “disability” should apply because the ADA Amendments Act is not to be applied retroactively. Def.’s Mot. at 18 n.15; see Lytes v. DC Water and Sewer Authority, 572 F.3d 936, 940 (D.C. Cir. 2009) (“Congress clearly indicated the statute would apply only from January 1, 2009 forward.”); Marshall v. Potter, 634 F.Supp.2d 66, 70 n.4 (D.D.C. 2009). Plaintiff did not oppose Defendant’s argument. Thus, the Court will look to the definition of “disability” which was in effect at the time of the alleged discrimination.

-17- concentrate and, therefore, to perform his work responsibilities at

NTSB. Defendant does not dispute that Miller suffered from anxiety,

depression, back injuries, and pulmonary disease during the PIP

period, but contends that these impairments do not qualify as

disabilities under the law because (1) thinking and concentrating

are not major life activities under the Rehabilitation Act; and (2)

the impairments did not substantially limit Miller’s ability to

work.

a. Thinking and Working Are Major Life Activities

First, Defendant argues that Miller is not disabled under the

law because the activities which Miller alleges were substantially

limited by his impairments are not “major life activities” under

the law. A “major life activity” is a “basic activity that the

average person in the general population can perform with little or

no difficulty.” Pack v. Kmart Corp., 166 F.3d 1300, 1305 (10th Cir.

1999). Only those activities that are “of central importance to

daily life” are major life activities. Toyota Motor Mfg., 534 U.S.

at 196-97.

Miller alleges that his ability to think and to concentrate

and, subsequently, to perform his work at NTSB were substantially

limited by his impairments. Defendant contends that the ability to

think and to concentrate are not major life activities, relying

chiefly on a Tenth Circuit opinion which reaches that conclusion.

See Def.’s Mot. at 25-26 (discussing Pack v. Kmart Corp., 166 F.3d

-18- 1300, 1305 (10th Cir. 1999)). Although this Circuit has not yet

decided the issue, the Third, Fifth, Eighth, and Ninth Circuits

have all held that thinking is a major life activity. See Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999); EEOC v.

Chevron Phillips Chem. Co., LP, 570 F.3d 606, 616 (5th Cir. 2009);

Moysis v. DTG Datanet, 278 F.3d 819, 825 (8th Cir. 2002); Linder v.

Potter, 304 F. App’x 570, 571 (9th Cir. 2008). In addition, the

EEOC’s ADA Compliance Manual lists thinking as a major life

activity. EEOC Compliance Manual, § 902.3(b) (2008), available at

http://www.eeoc.gov/policy/docs/902cm.html. Given the strength of

this precedent, the Court is satisfied that thinking6 is a major

life activity.

Because Miller’s position at NTSB was a “desk job,” his main

responsibilities could not be performed without thinking.7 Thus,

6 There is less agreement on whether concentrating is a major life activity. See, e.g., Goodman-Robinson v. United States Postal Svc., No. 03-cv-1414, 2005 WL 3416433, at *3 n.9 (D.D.C. Dec. 13, 2005) (unpublished decision) (noting conflicting authority on whether the ability to concentrate is a major life activity). The Court need not decide at this stage of the litigation whether concentrating is a major life activity because it concludes that Plaintiff has identified at least two other major life activities, thinking and working, which he believes were substantially limited by his impairments. 7 These responsibilities required Miller to “identify a variety of policy issues, questions, and problems related to the Agency’s credit card programs, including designing or maintaining the system of checks and balances to provide reasonable assurance that employees adhered to policies and procedures in order to protect from waste, fraud, abuse or mismanagement, provide programmatic guidance and assistance to the CFO; independently review and interpret reports and other data from a variety of

-19- Miller alleges that his inability to think resulted in his

inability to work, which he contends is another major life

activity. Defendant does not dispute that working is a major life

activity under the pre-2008 Rehabilitation Act.8 The Court

therefore assumes that it is a major life activity for the purposes

of deciding this Motion.

b. Whether Miller’s Major Life Activities Were Substantially Limited by His Impairments Presents a Genuine Issue of Material Fact in Dispute

Next, Defendant argues that Miller could not have been

substantially limited in the major life activities of thinking and

working because his doctors stated that he could have performed

these activities in a different environment, one where he did not

feel harassed or threatened. Def.’s Mot. at 27-31. In other words,

Defendant argues that Miller’s alleged disability was temporary in

sources, identify program areas and provide analyses and recommendations for improvement; conduct special projects as assigned, involving independent planning, collection of data, organization and assessment of information, formulation of findings, conclusions and recommendations, and present clear and supportable results.” Def.’s Mot. at 3 n.3. Clearly, the range of these responsibilities indicates that Miller should operate with substantial autonomy and independence. 8 The ADA Amendments Act of 2008 amended the definition of disability to explicitly include working as a major life activity. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). However, as explained above, supra note 3, the pre-2008 definition of disability--which does not specifically address whether working is a major life activity--applies here.

-20- nature, not permanent or long-term, because it was situationally

related.

An impairment substantially limits a major life activity when

it “prevents or severely restricts the individual from doing

activities that are of central importance to most people’s daily

lives. The impairment’s impact must also be permanent or long-

term.” Toyota Motor Mfg., 534 U.S. at 195; see also 29 C.F.R. §

1630.2(j)(2). “If the impact of an impairment can be eliminated by

changing the address at which an individual works, that impairment

is neither permanent nor long term.” Haynes v. Williams, 392 F.3d

478, 483 (D.C. Cir. 2004).

In response to the agency’s Reasonable Accommodation Inquiry,

Dr. Parkhurst wrote that “[Miller] could perform job duties in

another environment, free from harassment and threats.” Dr. John C.

Parkhurst, Ph.D., Response to NTSB Reasonable Accommodation Inquiry

(Jan. 10, 2006) at 6 (Ex. Y to Def.’s Mot.). In addition, Dr. Lamb

indicated that Miller’s work environment exacerbated his depression

and anxiety, and that Miller’s condition could not improve unless

his working conditions first improved. See Letter from Dr. Joseph

J. Lamb, M.D. (Jan. 29, 2007) at 3 (Ex. V to Def.’s Mot.); Letter

from Dr. Joseph J. Lamb, M.D. (Jul. 31, 2005) at 2 (Ex. U to Def.’s

Mot.) (Dr. Lamb concluded that “[Miller’s] medical problems provide

certain roadblocks to adequate completion of his work; however,

this has been greatly magnified by the hostile environment . . . .

-21- I strongly believe that resolution of this issue will lead to

significant incremental improvements in Mr. Miller’s performance

. . . .”). Thus, Defendant argues, Miller was not disabled under

the Rehabilitation Act because his impairments could have been

accommodated through a transfer to a different workplace.

First, it should be noted that Defendant’s argument--that an

impairment which can be accommodated through a transfer or

relocation can only be a temporary disability--somewhat

oversimplifies the caselaw.

For example, in EEOC v. United Parcel Service, Inc., 249 F.3d

557, 563 (6th Cir. 2001), the court concluded that “a reasonable

jury could find that [plaintiff] was properly ‘disabled’ under the

[ADA] due to the substantial limitations his allergy placed on his

ability to perform his job while in Texas, the place where he

sought the accommodation of a relocation.” In Desmond v. Mukasey,

530 F.3d 944, 955-61 (D.C. Cir. 2008), this Circuit held that a

reasonable jury could find a disability, even when the plaintiff

argued that a transfer to a different geographic location would

resolve his condition, where the evidence showed that the plaintiff

suffered from longstanding sleeplessness due to post-traumatic

stress disorder and where the problem became progressively worse

over time.9 Thus, impairments which may be accommodated through a

9 The court in Desmond distinguished Haynes because (1) the Desmond plaintiff’s mental problems persisted even when he was on leave in his preferred location; and (2) the ultimate source of the

-22- transfer or relocation can, under certain circumstances, qualify as

disabilities under the Rehabilitation Act.

Second, Miller never actually asked for a transfer in order to

accommodate his physical and mental impairments, but rather

requested six months’ leave in order to recover. The case upon

which Defendant primarily relies, Osika v. Bd. of Ed. for Bremen

Community High Schools, 1999 WL 1044838 (N.D. Ill. Nov. 16, 1999),

is therefore distinguishable. The plaintiff in Osika was a high

school teacher who requested a transfer because, she argued, the

stress inherent in her particular school contributed to her

depression. See also Rand v. Geithner, 609 F.Supp.2d 97, 103-04

(D.D.C. 2009) (where plaintiff requested transfer because

depression resulted from micro-management and harassment). The

court in Osika concluded that the plaintiff had failed to allege

sufficient evidence of a disability, since “[b]y Plaintiff’s own

admission as well as that of her treating psychiatrist, she would

have been able to fully perform her job functions, if only she were

transferred to another school.” Osika, 1999 WL 1044838, at *5.

In this case, Miller has taken a somewhat opaque position on

whether a transfer was necessary to enable him to fully perform his

job functions. Although his doctors indicated that the stress and

perceived harassment at NTSB contributed to and exacerbated his

Desmond plaintiff’s mental problems was not the particular building in which he worked, but originated from a traumatic burglary which occurred outside of the workplace. 530 F.3d 960-61.

-23- conditions, Miller has always sought to retain his position there.

In fact, the only accommodation he requested in reply to his

proposed removal was six months’ leave to recuperate. It could be

inferred from Miller’s failure to request a transfer that he

believed it was not essential in order to accommodate his

disability.

Critically, the record in this case also includes evidence

from Miller’s doctors that conflicts with Dr. Parkhurst’s statement

that Miller could have performed his duties in a different

environment. For example, Dr. Lamb gave a sworn statement that his

medical recommendation for Miller to cease work was based on his

conclusion that Miller was unable to perform any “white collar”

work at all, not just the duties required in his position at NTSB.

Aff. of Dr. Lamb at ¶ 6 (Ex. 12 to Pl.’s Opp’n). And Dr. Parkhurst

himself indicated in an October 11, 2005, letter to the Board that

Miller was fully disabled “from all work.” Letter from Dr.

Parkhurst (Oct. 11, 2005) (Ex. X to Def.’s Mot.); see also Letter

from Dr. Parkhurst (May 22, 2004) (Ex. 13 to Pl.’s Opp’n). Thus,

whether Miller’s impairments could have been accommodated through

a transfer, even if he had requested one, or six months’ leave,

presents a genuine issue of material fact.

Next, Defendant argues that Miller has failed to show that his

psychological impairments substantially limited his ability to work

because he has not shown that he is unable to work in a broad class

-24- of jobs. “[S]ubstantially limits” means “significantly restricted

in the ability to perform either a class of jobs or a broad range

of jobs in various classes as compared to the average person having

comparable training, skills and abilities. The inability to perform

a single, particular job does not constitute a substantial

limitation in the major life activity of working.” 29 C.F.R. §

1630.2(j)(3)(i).

First, as Plaintiff points out, the requirement that a

plaintiff employee be disqualified from a class or broad range of

jobs only applies when the major life activity claimed to be

substantially limited is that of working. See Pl.’s Opp’n at 20;

Toyota Motor Mfg., 534 U.S. at 199-200 (“Nothing in the text of the

Act, our previous opinions, or the regulations suggests that a

class-based framework should apply outside the context of the major

life activity of working.”). Although Miller does claim that his

impairments substantially limited his ability to work, he also

claims that they limited his ability to think, which this Court has

concluded constitutes a major life activity. Thus, even if this

Court were to agree that a reasonable jury could not find from the

evidence that Miller was disabled from a general class of jobs, his

claim that his disability substantially limited his ability to

think would remain.

More importantly, as stated above, the record includes

evidence from Miller’s own doctors that he was unable to perform

-25- any white collar work. Thus, whether Miller’s impairments

disqualified him from a broad category of jobs or only his specific

position at the NTSB also presents a genuine issue of material fact

in dispute.

For these reasons, Defendant is not entitled to summary

judgment on the question of whether Miller was disabled.

2. Whether Miller Is a Qualified Employee Presents a Genuine Issue of Material Fact in Dispute

Next, Defendant argues that Miller is not a “qualified”

employee under the Rehabilitation Act. As stated above, an employee

is “qualified” under the Rehabilitation Act when he is able to

perform the essential functions of his job with or without

reasonable accommodation. 29 C.F.R. § 1614.203(a)(6); see also

Carr, 23 F.3d at 530 (interpreting “with or without reasonable

accommodation” to mean either with or without; an individual with

handicaps is qualified if he can perform the essential functions of

his position with reasonable accommodation).

“[A]n essential function of any government job is an ability

to appear for work (whether in the workplace or, in the unusual

case, at home) and to complete assigned tasks within a reasonable

period of time.” Carr, 23 F.3d at 530. Defendant argues that Miller

would have been unable to perform the essential functions of his

position at the NTSB if his requested accommodation--a leave of

absence for six months--had been granted. See Def.’s Mot. at 36

(“Plaintiff’s request for leave of absence for a continuous period

-26- . . . was not reasonable because it would not allow Plaintiff to

perform the essential functions of his job.”).

Defendant’s argument is based on an erroneous interpretation

of the inquiry. The question is whether Miller’s proposed leave of

absence--the accommodation he explicitly requested--could have

sufficiently improved his physical and mental conditions such that

he would have been capable of returning to his position and

completing the work expected of him. If so, Miller was a qualified

employee.10 The question is not whether, as Defendant poses it,

Miller would have been able to complete assigned tasks during his

leave of absence, but rather whether he would have been able to

complete assigned tasks after completing his leave of absence.

Under Defendant’s interpretation, an employee seeking a medical

leave of absence would rarely be deemed a qualified employee under

the Rehabilitation Act. As the caselaw upholding leaves of absence

as reasonable accommodations makes clear, this is not the law. See,

e.g., Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.

1999); Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th

Cir. 1996).

10 The fact that Miller’s proposed accommodation was intended to sufficiently improve his condition so that he could maintain a normal attendance record and complete assigned tasks on schedule also distinguishes Miller from the plaintiffs in Carr v. Reno, 23 F.3d 525, 528 (D.C. Cir. 1994) and Meadows v. Mukasey, 555 F.Supp.2d 205 (D.D.C. 2008). In Carr and Meadows, the plaintiffs were not qualified employees under the Rehabilitation Act because they were unable to work even with an accommodation.

-27- Defendant also argues that Plaintiff has failed to show how a

leave of absence would improve his physical and psychological

impairments. Id. at 37. However, Miller’s doctors justified the

recommendation of leave on the basis that it would enable him to

recover and to return to work. See, e.g., Letter from John C.

Parkhurst, Ph.D. (recommending six months to one year of leave and

stating he “would re-evaluate [Miller’s] ability to return to work

periodically, as symptoms abate”) (Ex. RR to Def.’s Mot.); Affid.

of Dr. Lamb ¶ 7 (Ex. 12 to Pl.’s Opp’n) (explaining that

recommendation that Miller could return to work in July of 2006 was

based on finding that he had regained his ability to work

successfully, though impairments persisted). In fact, Miller was

placed on sick leave for over six months--from September 12, 2005,

until June 23, 2006--and Dr. Lamb concluded that his condition had

sufficiently improved for him to return to work.

Consequently, there is a genuine dispute as to whether the

proposed accommodation would have enabled Miller to perform the

essential functions of his job once he returned to work. The Court

thus concludes that Defendant is not entitled to summary judgment

on the issue of whether Miller was a qualified employee under the

Rehabilitation Act.

3. Defendant Offers No Evidence That Miller’s Proposed Accommodation Was Unreasonable

Having rejected Defendant’s arguments for summary judgment on

whether Miller is a qualified employee with a disability under the

-28- Rehabilitation Act, the Court now turns to Defendant’s challenges

to Miller’s specific discrimination claims. First, Defendant argues

that summary judgment is appropriate for Miller’s discrimination

claim based on the Board’s refusal to accommodate his disability

because the proposed accommodation--six months of leave--was

unreasonable.

“‘An employer is not required to provide an employee that

accommodation he requests or prefers, the employer need only

provide some reasonable accommodation.’” Aka v. Washington Hosp.

Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998) (quoting Gile v. United

Airlines, Inc., 95 F.3d 492, 496-98 (7th Cir.1996)). A leave of

absence for an indefinite period or an accommodation that creates

an undue hardship on the employer is unreasonable. Id.; see also

Hudson, 87 F.3d at 1169 (where plaintiff failed to present any

evidence of the expected duration of her impairment as of the date

of her termination).

However, in this case, Miller requested leave for a specific

period of time: six months.11 Defendant has offered no evidence that

11 Defendant asserts in his Motion for Summary Judgment that Plaintiff’s requested accommodation was for “six to twelve months or indefinitely.” See Def.’s Mot. at 36. However, this assertion is not supported by Defendant’s own evidence, or any other evidence in the record. In his letter setting forth the agency’s removal decision, Libera makes clear that, while Miller’s doctors recommended six to twelve months of leave, Miller was requesting a six-month leave of absence. See Letter from Don Libera to Richard L. Miller (June 23, 2006) (Ex. T to Def.’s Mot.) at 2-3 (“[Miller] provided medical documentation . . . recommending a leave of absence for six months to one year in order to stabilize [his]

-29- such an extended period of leave would have created an undue

hardship on the Board. In fact, Libera decided to remove Miller on

June 23, 2006, after having been informed by Dr. Lamb that Miller

would be able to return to work in just a few weeks. Defendant’s

argument is therefore rejected, and the Motion for Summary Judgment

on Miller’s Rehabilitation Act claim based on the agency’s failure

to accommodate his disability is denied.

4. Whether the Board Discriminated Against Miller by Removing Him Presents a Genuine Issue of Material Fact in Dispute

Finally, Defendant moves for summary judgment on Miller’s

Rehabilitation Act claim based on his removal from NTSB. In order

to make out a prima facie case of discrimination under the

Rehabilitation Act, Plaintiff must show that he is disabled, that

he is an “otherwise qualified” federal employee, and that he was

terminated from employment because of his disability. Baloch v.

Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).

condition. . . . [Miller] concluded that the PIP and proposed removal should be rescinded and [he] should be allowed to take six months leave for recovery . . . .”) (emphasis added). Likewise, the agency’s Reasonable Accommodation Inquiry to Dr. Parkhurst states, in the agency’s words, that Miller “has requested an accommodation of six months leave . . . .” Response to Reasonable Accommodation Inquiry of Dr. John C. Parkhurst, Ph.D. at 721 (Jan. 10, 2006) (Ex. W to Def.’s Mot.). Defendant provides no support for the statement that Miller’s actual request was for up to twelve months of leave, let alone indefinite leave.

-30- However, where a defendant has offered a legitimate, non-

discriminatory purpose for its adverse actions, consideration of

the adequacy of a plaintiff’s prima facie case is unnecessary:

Once the employer has [produced a legitimate, non-discriminatory purpose], the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer intentional discrimination or retaliation from all the evidence, including ‘(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).’

Carter v. George Washington University, 387 F.3d 872, 878 (D.C.

Cir. 2004) (quoting Waterhouse v. District of Columbia, 298 F.3d

989, 992-93 (D.C.Cir. 2002)). Defendant’s burden is only one of

production, and it need not persuade the court that it was actually

motivated by the proffered reasons. Smith v. Jackson, 539 F.Supp.2d

116, 133 (D.D.C. 2008).

“[I]f [plaintiff] is unable to adduce evidence that could

allow a reasonable trier of fact to conclude that [defendant’s]

proffered reason was a pretext for discrimination, summary judgment

must be entered against [plaintiff].” Paquin v. Fed. Nat’l Mortgage

Ass’n, 119 F.3d 23, 27-28 (D.C. Cir. 1997). However, “[t]he

strength of the plaintiff’s prima facie case, especially the

existence of a causal connection, can be a significant factor in

-31- his attempt to rebut the defendant’s legitimate non-retaliatory

reason for the adverse action.” Holmes-Martin v. Sebelius, 693

F.Supp.2d 141, 152 (D.D.C. 2010).

Here, Defendant has proffered a legitimate, non-discriminatory

reason for terminating Miller from his position: his unsatisfactory

performance during the PIP period. In response, Miller points out

that Dr. Presant advised Libera before his removal decision that

Miller’s performance during the PIP period could have been impaired

by his physical and psychological conditions. Miller argues that

there is thus a genuine dispute as to whether the Board knowingly

terminated him because of his disability.

The Court agrees. Libera’s written removal decision makes

clear that he decided to terminate Miller despite knowing that his

impairments affected his ability to perform work during the PIP

period. See Ex. T at 6. Although Libera states that he nevertheless

concluded that Miller was not a disabled person under the ADA, a

reasonable jury might find that this was pretext. Defendant’s

Motion for Summary Judgment on Plaintiff’s Rehabilitation Act

claims is therefore denied.

To summarize, Defendant is not entitled to summary judgment on

either of Plaintiff’s Rehabilitation Act claims. Although

Defendant’s arguments against these claims are strong, they are

more appropriately delivered to a jury in closing argument because

they fail to address the key standard for granting summary

-32- judgment: whether there are no genuine issues of material fact

which are in dispute. See Solomon v. Vilsack, No. 09-5319, 2010 WL

5155581, at *11 (D.C. Cir. Dec. 21, 2010) (noting that, while a

jury “might well be skeptical” of plaintiff’s claims, they will

survive summary judgment if a reasonable jury could find the

evidence “not inconsistent with the elements of [a] claim”).

B. Title VII and ADEA Claims: Age and Sex Discrimination

Defendant also moves for summary judgment on Miller’s Title

VII sex discrimination claim and his ADEA age discrimination claim.

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),

burden-shifting framework applies to Title VII and ADEA claims.

Thus, as stated above, where a defendant has offered a legitimate,

non-discriminatory purpose for its adverse actions, the court

should proceed to consider only whether the plaintiff has offered

sufficient evidence from which a jury could find that defendant’s

proffered reason was a pretext for discrimination or that it was

more likely than not that the employer was motivated by

discrimination. Paquin, 119 F.3d at 27-28; Ford v. Mabus, No. 09-

5041 (D.C. Cir. Dec. 10, 2010) (slip opinion).

As stated above, Defendant contends that Plaintiff was removed

because he failed to demonstrate successful performance or complete

any assignments on two critical elements of his position in the PIP

period. Miller therefore must offer sufficient evidence from which

a jury could conclude by a preponderance that this stated reason

-33- for his removal was a pretext for age and/or sex discrimination in

order for these claims to survive summary judgment.

1. ADEA Age Discrimination Claim

Miller can satisfy his burden to prove discriminatory animus

either by offering evidence that the defendant did not honestly

believe in the reason it offered or by showing that a similarly

situated employee was treated differently. Smith v. Jackson, 539

F.Supp.2d at 136. Miller offers no evidence that his supervisors

did not honestly believe that his performance had reached

unsatisfactory levels. Indeed, Miller does not dispute that he did

not complete many of the tasks assigned to him during the PIP

period.

Thus, Miller must show that a similarly situated employee at

NTSB was treated differently in order for his age discrimination

claim to survive summary judgment. Miller cites to his October 20,

2006, deposition, in which he stated that the Board routinely

removes older employees through a PIP process. Ex. 29 to Pl.’s

Opp’n at 84:21-86:23, 113:15-18 (Oct. 20, 2006) (Ex. II to Def.’s

Mot.). In his deposition, he described how another NTSB employee

over the age of 57, Donna Dennis, and he were placed on a PIP in

2005. He alleges this was done to create open positions for younger

employees.

However, Miller offers no evidence that Donna Dennis was a

similarly situated employee in that her performance declined both

-34- before and during the PIP period. More importantly, Miller offers

no evidence that younger employees who were similarly situated--

meaning their performance declined both before and during the PIP

period--were treated differently by not being removed from their

positions. See Smith v. Jackson, 539 F.Supp.2d at 135 (explaining

that all relevant aspects of comparator’s employment situation must

be “nearly identical” to plaintiff’s, and that plaintiff’s own

disciplinary history with defendant may be a relevant,

distinguishing factor).

Thus, the Court concludes that Miller has failed to offer

sufficient evidence that Defendant’s proffered legitimate reason

for his removal is a pretext for age discrimination. Consequently,

Defendant’s Motion for Summary Judgment on Miller’s age

discrimination claim is granted.

2. Title VII Sex Discrimination Claim

Similarly, Miller must show that the agency’s given reason for

his removal was a pretext for discrimination on the basis of

gender. Miller failed to cite any evidence in his Opposition that

would support such a finding. See Pl.’s Opp’n at 33. What evidence

of sex discrimination there is in the record concerns the agency’s

decision to hire women for various positions for which Miller had

applied, not his removal. See, e.g., Ex. 29 to Pl.’s Opp’n at

81:23-84:16.

-35- Thus, the Court concludes that Miller has failed to rebut the

agency’s proffered legitimate reason for removing him from his

position. Defendant’s Motion for Summary Judgment on Plaintiff’s

sex discrimination claim is granted.

C. Retaliation Claim

retaliation claim. Miller alleges that the Board chose to remove

him from his position in retaliation for his participation in

protected activity--specifically, “EEO filings, Workman’s

Compensation filings and [] contacting Congress, the General

Accounting Office and the Washington Post.” Compl. ¶ 25.

Defendant’s argument in support of summary judgment on Miller’s

retaliation claim is that “Plaintiff can establish neither a causal

connection between any protected activity he may have engaged in

nor a retaliatory motive on the part of NTSB.” Def.’s Mot. at 39.

For his retaliation claim, Miller must show that “(1) [he]

engaged in statutorily protected activity; (2) [he] suffered an

adverse employment action;12 and (3) there is a causal connection

between the two.” Taylor v. Small, 350 F.3d 1286, 1292 (D.C. Cir.

12 An adverse employment action is challengeable under Title VII when it “would have been material to a reasonable employee, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006).

-36- 2003). The standard for summary judgment on retaliation claims is

identical to the standard for discrimination claims:

[W]here a defendant ‘has asserted a legitimate, non-discriminatory reason for [its action], the district court need not--and should not--decide whether the plaintiff actually made out a prima facie case . . . .’ Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, at that point, ‘the burden-shifting framework disappears, and a court reviewing summary judgment looks to whether a reasonable jury could infer . . . retaliation from all the evidence.’ Jones [v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)] (quoting Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)).

Beckford v. Geithner, 661 F.Supp.2d 17, 22-23 (D.D.C. 2009).

Since Defendant has offered a legitimate, non-discriminatory

reason for its action, the only question remaining for summary

judgment, is “whether a reasonable jury could infer that the

proffered legitimate reason was false and that defendant’s actions

were intended as retaliation.” Meadows v. Mukasey, 555 F.Supp.2d

205, 210 (D.D.C. 2008) (emphasis added); see Weber v. Battista, 494

F.3d 179, 186 (D.C. Cir. 2007) (explaining that both questions must

be answered).

Miller’s only argument that Defendant’s proffered legitimate

reason--unsatisfactory performance--was a pretext for unlawful

retaliation is that he has offered sworn testimony that he made

protected complaints and suffered adverse personnel action shortly

after participating in his allegedly protected activity. Pl.’s

-37- Opp’n at 32; see Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that close

temporal proximity between an adverse action and protected activity

is evidence of a causal connection, although a three- or four-month

period is insufficient). Curiously, however, he does not set forth

the actual dates of the alleged protected activities in his

Complaint or in his Opposition to Defendant’s Motion.

The record--which is far from clear--indicates that Miller’s

EEO complaints were filed in 2001, that Workmen’s Compensation

claims were filed in 2004 and on October 24, 2005 (after his

removal was proposed), and that he contacted Congress and other

agencies with “whistleblower complaints” in 2004 and around April

of 2005, with further contact occurring on unspecified dates. See

Richard L. Miller v. Nat’l Transp. Safety Bd., No. DC-0432-06-0724-

I-1 (M.S.P.B. Dec. 15, 2006) at 20 (Ex. TT to Def.’s Mot.) (EEO

complaints filed in 2001); Lepson Dep. 82:5-7, May 6, 2009 (Ex. MM

to Def.’s Mot.) (Workmen’s Compensation claim submitted on October

24, 2005); Compl. ¶ 6 (Board knew of 2004 contact with Congress);

Miller Dep. 61:20-71:25, Oct. 20, 2006 (Ex. 29 to Pl.’s Opp’n)

(Whistleblower Claim dated April 1, 2005). Even assuming that these

activities were protected, they all occurred well before his June

23, 2006, removal. Consequently, the temporal proximity of Miller’s

protected activities and removal is not sufficiently close to give

rise to an inference of causation.

-38- Thus, in the absence of other evidence of causation, the

evidence does not support a reasonable inference that the agency’s

proffered reason is false and that the decision to remove him was

intended as retaliation. See O’Neal v. Ferguson Const. Co., 237

F.3d 1248, 1253 (10th Cir. 2001). This is especially true given the

abundant evidence, which Miller does not dispute, that his

performance declined considerably over the period in question.

Thus, the Court concludes that a reasonable jury could not

infer from the evidence that Defendant’s proffered legitimate

reason was false and that Defendant’s actions were intended as

retaliation for Miller’s protected activity. Defendant’s Motion for

Summary Judgment on Miller’s retaliation claim is therefore

granted.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for

Summary Judgment under Rule 56 is granted in part and denied in

part. Summary judgment is denied on Miller’s claims of disability

discrimination under the Rehabilitation Act, and is granted on

Plaintiff’s ADEA age discrimination claim, his Title VII sex

discrimination claim, and his retaliation claim. An Order will

accompany this Memorandum Opinion.

/s/ January 4, 2010 Gladys Kessler United States District Judge

-39-