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O'Toole v. Acosta

United States District Court, N.D. Illinois, Eastern Division

March 26, 2018

THOMAS O'TOOLE, Plaintiff,
R. ALEXANDER ACOSTA, Secretary of Labor, [1] Defendant.


          John Robert Blakey, United States District Judge

         Plaintiff Thomas O'Toole sued his former employer, the Department of Labor (DOL), for alleged violations of the Rehabilitation Act, 29 U.S.C. § 701 et seq., and for alleged spoliation of evidence under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. [33]. Defendant moved for summary judgment [95], and Plaintiff cross-filed for partial summary judgment, [104]. For the reasons explained below, this Court denies Plaintiff's motion and grants Defendant's motion.

         I. Background

         A. Local Rule 56.1 and Evidentiary Issues

         The facts in this discussion come from the parties' Local Rule 56.1 statements of material fact.[2] Defendant asks this Court to deem a number of its statements of fact admitted as a result of Plaintiff's inadequate responses. [111] at 2-3. This Court has broad discretion to enforce the local rules governing summary judgment motions. See, e.g., Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). Under those rules, simply denying a fact that has evidentiary support “does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment, ” and this Court may disregard improper denials. Roberts v. Advocate Health Care, 119 F.Supp.3d 852, 854 (N.D. Ill. 2015) (citation omitted); see also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Thus, purely argumentative denials, legal conclusions, and unsupported general denials do not belong in Local Rule 56.1 statements. See Phillips v. Quality Terminal Servs., LLC, 855 F.Supp.2d 764, 771 (N.D. Ill. 2012); Malec, 191 F.R.D. at 584; Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 (7th Cir. 2000) (applying Rule 56 under its prior designation as Rule 12). A proper denial must “cite specific evidentiary materials justifying the denial.” Malec, 191 F.R.D. at 584.

         Here, this Court takes into account Plaintiff's pro se status. Pro se plaintiffs normally receive “flexible treatment, ” but that courtesy does not extend to “pro se litigants who are attorneys.” See Cole v. C.I.R., 637 F.3d 767, 773 (7th Cir. 2011). Plaintiff admits that he is a licensed attorney in Ohio. R. DSOF ¶ 53. Moreover, even pro se litigants “must follow the rules of civil procedure, ” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)), and district courts may strictly enforce them, particularly where the litigant received an explanation of the relevant rule, see id.; Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011). Plaintiff received an explanation of the summary judgment procedures here. See [98].

         Accordingly, this Court disregards the following denials from Plaintiff's response to Defendant's statement of facts:

• Paragraphs 14, 17, 18, 20, 21, 25, 26, 28-30, 40, 43, 44, 46-48, 49, 52, 53, 56- 61, 67-71, 73, 74, and 76-80 for failing to cite to record evidence;
• Paragraphs 4, 5, 12, 33, 34, and 35, with respect to those portions of the denials that do not cite any record evidence;
• Paragraphs 3, 7, 8-11, 15, 16, 22-24, 31, 36, 37, 41, 42, 50, 54, 62, 64, 66, and 72 for failing to cite record evidence that actually or clearly rebuts the corresponding statement of fact, and which lack any clarifying explanation;
• The portions of paragraph 38 that speculate as to Autumn Nguyen's state of mind; and
• Paragraph 45 for failing to cite record evidence that supports the denial, except with respect to Nguyen's revisions of one of Plaintiff's performance appraisals in February 2013.

See Phillips, LLC, 855 F.Supp.2d at 771 (disregarding denials that lacked record support or were not based upon personal knowledge); Malec, 191 F.R.D. at 584 (If material cited to support a denial “does not clearly create a genuine dispute over the movant's allegedly undisputed fact, the nonmovant should provide an explanation.”). Defendant's corresponding statements of fact are deemed admitted. See Phillips, LLC, 855 F.Supp.2d at 771.

         As an exercise of discretion, this Court declines to strike Plaintiff's statement of additional facts wholesale for Plaintiff's failure to separate his additional facts from his response to Defendant's statement of facts, in accordance with this Court's local rules. See [106] at 60; Local R. 56.1(b)(3)(C). But those statements of fact must still contain “specific references to the record” and rest upon admissible evidence. Malec, 191 F.R.D. at 584, 585; see also Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (courts “consider only admissible evidence” at summary judgment). Accordingly, this Court strikes the following statements of additional facts: the second half of paragraph 81, which lacks citation to the record; paragraph 83, because the cited material does not support the statement; and paragraph 84 (misnumbered 85) for the same reason. See [106] at 60.

         B. Employment Expectations

         Plaintiff worked for DOL's Bureau of Labor Statistics (BLS) as a statistician from February 2012 to August 2014. DSOF ¶¶ 1, 75; R. DSOF ¶ 1; [33] ¶ 10. Plaintiff has Type 2 diabetes, which he disclosed on his first day of work. DSOF ¶ 2; [107] at 7. Plaintiff admits that he did not then request an accommodation for his disability, but states that within his first few days at BLS he discussed his need to take consistently timed meals with his supervisor, Autumn Nguyen. DSOF ¶ 1; [107] at 7. Given the circumstances, Plaintiff and Nguyen foresaw no reason that this would pose a problem, especially in light of Plaintiff's schedule and right to a lunch break. [107] at 7; [97-12] at 3.

         Plaintiff worked in BLS' Chicago Regional Office, starting at the GS-12 government pay grade. DSOF ¶ 1; [107] at 6. BLS assigned him to its Division of Price Programs, which collects data for the Producer Price Index (PPI). DSOF ¶ 1; [107] at 6. Plaintiff's job as a field statistician required him to visit private businesses, secure their agreement to provide data on their products for inclusion in the PPI, and obtain additional information on those products from buyers. DSOF ¶ 3; [107] at 6. After Plaintiff collected that information, he had to submit it to the BLS office in Washington, D.C., in the form of written “schedules” containing information on the businesses, goods, and pricing. DSOF ¶ 3. These schedules needed to meet BLS' internal deadlines and quality parameters. Id. Plaintiff's Performance Management Plan-which he signed on his first day-evaluated his work with respect to four “result elements”: collecting quality data, collecting data efficiently, timely collecting and submitting data, and supporting DOL's mission. See [97-7] at 2-6.[3]

         To meet with businesses and collect data, statisticians like Plaintiff were required to travel within their regions. DSOF ¶ 4; [97-5] at 17; [97-2] at 6, 8. The position description does not specify that the job involves interstate travel, but does state that travel is “extensive, ” frequent, and that the job requires the ability to drive. [97-2] at 8.

         The statistician position also incorporated a lengthy certification process. DSOF ¶ 5. New hires attended a course in Washington, D.C., and had to pass a written test. Id. ¶ 6; [107] at 8. Next, statisticians like Plaintiff participated in on-the-job training (OJT), which involved shadowing a mentor, conducting appointments under the mentor's observation, observing the mentor's data collection, and collecting “at least four productive schedules” under observation. DSOF ¶ 7; [107] at 8. If these schedules were completed successfully, a statistician could receive “interim certification, ” permitting them to collect data independently, though a more senior BLS employee would still fully review any work they produced (“100% review”). DSOF ¶ 7; [97-8] at 20. Once statisticians began independent data collection, they had to successfully complete additional schedules to receive final certification. See DSOF ¶ 8; [97-8] at 20-21. If five consecutive schedules met the quality parameters, the statistician could move from 100% review to 10% review. DSOF ¶ 8. This phase ordinarily took two to four months. [97-8] at 21. The final step before certification required statisticians to complete two interviews with businesses while observed by their mentor, and have the data for five schedules verified by a more senior BLS employee. See DSOF ¶ 9.

         All BLS employees had to record their hours worked in PeopleTime, DOL's timekeeping software, and submit reports itemizing how they spent those hours. Id. ¶ 10. BLS employees could work different schedules, including the “fixed” schedule-five, eight-hour days with a 30-minute unpaid lunch break-and the “flexible” or “variable” schedule, which permitted employees to vary their hours as long as they completed eighty hours each biweekly pay period. Id. ¶ 11; [107] at 46 (union agreement for DOL employees). Either schedule entitled employees to a 30-minute lunch break and two 15-minute breaks per day. See [97-12] at 3; [107] at 47. Employees on the variable schedule also needed to sign in and out of the office each day. DSOF ¶ 11; [107] at 51-52.

         Plaintiff states that when he started at BLS, Nguyen told him that he had to work a “fixed schedule.” [107] at 15. Plaintiff admits, however, that union rules show that employees could opt out of default schedules. See R. DSOF ¶ 11 The parties dispute the evidence as to Plaintiff's schedule, and compliance with these rules, as discussed below.

         C. Plaintiff's Initial Performance

         Plaintiff successfully completed the price certification training course and exam in March 2012. DSOF ¶ 13. At this point, Sharon Isaac, a senior economist based in BLS' Milwaukee office, became Plaintiff's OJT mentor. See id.; [97-9] at 2. Plaintiff also received observational mentoring from Mary Marcotte, a senior statistician in BLS' Minneapolis office. See DSOF ¶ 13; [97-21] at 4, 13-14.

         By late April 2012, Nguyen began sending emails to check on Plaintiff's progress collecting data. See DSOF ¶ 14. Plaintiff had successfully submitted three productive schedules in March but only two in April, of which only one was evaluated as “successfully completed.” Id. ¶¶ 17-18. As Nguyen reminded Plaintiff in May, statisticians like Plaintiff-who now collected data independently-were expected to collect three to four schedules a week, and to transmit twelve every month, of which ten had to be “productive.” See [97-10] at 37; [97-17] at 3.

         On May 1, Nguyen wrote to Isaac, Plaintiff's mentor, requesting an update on Plaintiff's schedules and asking “why has it taken so long?” [97-16] at 2. That particular inquiry appears to relate to four schedules for which Plaintiff and Isaac collected data in March, and in this case at least part of the delay resulted from a technical glitch that deleted data from some of Plaintiff's schedules. See id.; [107-2] at 79. Through May, however, Nguyen continued to follow up with Plaintiff on outstanding schedules and his progress securing appointments with businesses. See DSOF ¶¶ 15-17; [97-17]. She encouraged him to reach out to Isaac for help as often as he needed. [97-17] at 3. As of May 24, a number of Plaintiff's schedules remained incomplete “over a month” after he should have submitted them. Id. at 5. On May 31, Nguyen provided an in-office training session on securing appointments, since Plaintiff had so few lined up. See DSOF ¶ 17; [97-18] at 3.

         D. Plaintiff's Travel

         Plaintiff alleges that Defendant forced him to travel or work through meals, despite Nguyen knowing that he had to take consistent meal breaks to manage his diabetes. See DSOF ¶ 19; [33] at 7-10. For example, Plaintiff claims that he did not have time to stop for meal breaks when driving to appointments in Wisconsin because of Nguyen's requirement that he conduct multiple interviews while traveling, and schedule them early in the morning. [107] at 7, 8. Plaintiff also complains of the additional constraint of needing to return his government car before the garage closed at 6:00 p.m., but he admits that once he raised the issue, Nguyen secured him a pass to access the garage outside regular hours, apparently by or around the end of June 2012. See [97-6] at 7; DSOF ¶ 20.

         With respect to BLS' travel policy, general DOL guidelines indicate that, “when possible, ” business travel should take place during employees' normal hours. See [97-20] at 8. In April 2012, Nguyen also emailed Plaintiff and another statistician, Kent Rupp, a set of guidelines on efficiently scheduling appointments, which included different recommendations for local and overnight travel. [97-19]. For example, the guidelines recommend that statisticians schedule at least one appointment on travel days, and at least two on non-travel days during a multi-day trip. Id. at 8.

         Plaintiff points to a trip in June 2012 that he claims caused him to lose control of his diabetes by missing meals. See [107] at 12-13. From June 5-7, Plaintiff traveled to Minnesota to interview businesses under Marcotte's supervision. DSOF ¶ 21. Plaintiff testified that because of the time spent traveling and the number of appointments scheduled for that trip, he missed lunch on June 5, breakfast on June 6, and ate a late dinner on June 6. Id.; [97-10] at 5; [97-6] at 6-7. But Plaintiff also testified that he never told Marcotte about his diabetes for fear that she would “gossip.” DSOF ¶ 22; [97-6] at 7.

         On June 6, Marcotte told Plaintiff that they now had a second interview on June 7, in addition to the single interview already scheduled. DSOF ¶ 23. To accommodate the extra interview, Marcotte told Plaintiff to reschedule his early afternoon return flight. Id. Plaintiff believed that this schedule would force him to work through lunch and dinner, due to the extra appointment and travel time. Id. ¶ 24. He told Marcotte he could not take on the appointment, but did not explain why. Id. Marcotte did not know at this point that Plaintiff had diabetes or felt unwell. Id. According to Plaintiff, Nguyen intervened and told him he was “ordered to do it, and would be disciplined” if he did not. Id. ¶ 25. Plaintiff testified that he left Nguyen voicemail messages stating that he “couldn't do this, ” and that Nguyen would know what he meant. Id.

         Unable to reach Nguyen, Plaintiff tried to rebook his return flight for later in the day on June 7. Id. ¶ 26. Not finding any available government contract flights, Plaintiff booked a return flight on Friday, June 8. Id. Later that night, Nguyen texted Plaintiff to let him know that she had secured a non-contract return flight at 4:00 p.m. on June 7, and instructed him to cancel the June 8 flight. Id. On June 7, Plaintiff missed lunch and dinner, allegedly as a result of keeping the two interviews and then taking the 4:00 p.m. flight, which did not have meal service. Id. ¶ 27. In the following week, and for the next two months, Plaintiff experienced pain and numbness in his feet and blurred vision. Id.; [107] at 13. His doctor prescribed insulin and told him to maintain “a regular eating pattern.” DSOF ¶ 27. Currently, Plaintiff is insulin-dependent. [107] at 25.

         E. Request for Accommodation

         On June 18, 2012, Plaintiff submitted an accommodation request, specifying that he required three half-hour meal breaks: one between 6:00 and 7:00 a.m., one between 11:30 a.m. and 2:00 p.m., and one between 5:30 and 6:30 p.m. DSOF ¶ 28. Plaintiff also requested advance notice of any travel-and its duration-to enable him to bring appropriate medication. Id. On June 29, Nguyen denied Plaintiff's request. Id. ¶ 29. She pointed out that as a union employee, he already had the right to a 30-minute lunch break at the requested time, and two 15-minute rest breaks; further, Plaintiff made his own schedule and it was his responsibility to take lunch and plan for his own travel. Id.

         On July 6, Plaintiff filed a union grievance, alleging that Nguyen violated his right to a meal break and citing the second interview on June 7 as the basis for his grievance. Id. ¶ 30; [97-26] at 2. Plaintiff, Nguyen, and Plaintiff's union representative participated in an investigative meeting on August 3; on August 14, Nguyen denied the grievance, stating that Plaintiff had not requested a lunch break on June 7, and that, in any event, it was his own responsibility to take a lunch break. [97-27] at 2-4. Despite finding no violations of the union's agreement with DOL, Nguyen agreed to follow the recommendation of Plaintiff's union representative and “assist” him “in planning trips and appointments” around meal times. Id. at 4. Plaintiff does not allege that he missed any other meals following this accommodation request and grievance process. See DSOF ¶ 31; [107] 5-29.

         In August 2012, Plaintiff filed a complaint with DOL's Civil Rights Center (CRC), alleging disability discrimination because of Nguyen's denial of his accommodation request. DSOF ¶ 31. In November, Nguyen agreed to the following accommodations: (1) no supervisor or mentor would make an appointment during the 30-minute period that Plaintiff identified as his lunch break; (2) if management officials directly assigned or scheduled trips, they would notify Plaintiff of the estimated duration; (3) management would consider assigning more local work; and (4) Plaintiff would give supervisors or mentors advance notice of when he planned to take his lunch. [97-28] at 2. The accommodation agreement noted, however, that these accommodations only applied “in the rare instance” that a supervisor or mentor arranged Plaintiff's travel or appointments; at all other times, Plaintiff had “the ability and responsibility” to make his own schedule and take his own breaks. Id. at 3. Plaintiff signed this agreement in December 2012. Id.

         F. Plaintiff's Performance After his Request for Accommodation

         In June 2012-the same month that Plaintiff submitted his accommodation request-Plaintiff completed only one productive schedule, which was evaluated as unsuccessful. DSOF ¶ 33; see also [97-9] at 3-4. Plaintiff points out that he received this evaluation after he requested an accommodation and filed a union grievance; he also claims-without evidentiary support-that the record of his completed schedules in his Industrial Price Certification Form reflects only his OJT schedules, and not his independently collected schedules. See R. DSOF ¶ 33. In a July 2012 email, Nguyen noted that Plaintiff only submitted three schedules for review from data collected in May and June; she reminded him that he needed to submit at least 10 productive schedules per month, and that he had to schedule 10 appointments for July to keep the expected pace. [97-30] at 2.

         Around the same time, Nguyen came to believe that Plaintiff had misrepresented whether he had scheduled certain appointments in June. DSOF ¶ 34; [97-31] at 2. Nguyen had emailed Plaintiff just before his June trip to Minnesota instructing him to make certain appointments and later followed up to see if he had done so. DSOF ¶ 34; [97-31] at 2; [97-32] at 3-4. Plaintiff answered that he had scheduled two of the appointments they discussed and had “now left messages canceling them, ” claiming that they coincided with appointments scheduled with Marcotte. [97-32] at 2, 3. Nguyen responded that she spoke to Marcotte, who did not know that Plaintiff had any confirmed appointments, let alone any that conflicted with ones that she scheduled. Id. at 2. Marcotte followed up with the companies Plaintiff supposedly had appointments with, and learned that, in fact, he had merely left voicemails requesting meetings. DSOF ¶ 35. Plaintiff admitted the truth of this matter during the August 3 investigatory interview relating to his union grievance. Id. Plaintiff now disputes his deception and the meaning of his email, and claims that Nguyen knew he did not mean that he had confirmed appointments. See [97-39] at 2-3; R. DSOF ¶ 34. He also points out that this incident occurred after he filed his accommodation request and grievance. R. DSOF ¶ 34.

         In July 2012, Nguyen had repeated exchanges with Plaintiff about his recorded hours in PeopleTime. See DSOF ¶ 36. First, she instructed him to correct PeopleTime entries improperly claiming overtime, since he was exempt from the Fair Labor Standards Act (FLSA). Id. Instead, Plaintiff could claim compensatory time for certain extra travel or work hours. Id. ¶ 37. Despite these clear instructions, Plaintiff refused to amend his timesheet, so Nguyen was forced to make the changes herself and gave him 7.25 hours of “comp time.” Id. In one email, Nguyen also noted that Plaintiff was not entitled to compensation for normal commuting time. [97-34] at 3. The rules Nguyen conveyed to Plaintiff accord with the guidance she provided to other BLS employees and with federal regulations. DSOF ¶ 36; [97-35]; see also 5 CFR § 550.1404.

         In the course of these exchanges, Plaintiff indicated that he thought he had a flexible work schedule. DSOF ¶ 38. Nguyen believed he was on a fixed schedule, and testified that she understood that this was Plaintiff's preference when he began at BLS. Id. ¶¶ 12, 38. Plaintiff noted that his time sheets indicated a “variable workweek” schedule and Nguyen told him that this was an error from a recent software upgrade; as a result of the error, all BLS employees were mistakenly listed as working a variable workweek. Id. ¶ 38. Plaintiff claims that Nguyen told him he had to be on a fixed schedule when he started, and denied him the opportunity to have a variable workweek schedule. R. DSOF ¶ 38; [107] at 15.

         In any event, after these exchanges Nguyen moved Plaintiff to a variable schedule in August 2012.[4] See DSOF ¶ 39; [97-27] at 3; [97-11] at 8, 12; [97-37] at 2. She also sent him detailed instructions for recording his hours worked on the new schedule. DSOF ¶ 39. These instructions mirror those she provided to other BLS employees. Id. They included the fact that Plaintiff had to log his actual start and end times in PeopleTime to match the office sign-in and sign-out sheet. Id.; [97-37] at 2. Despite Nguyen's instructions, Plaintiff continued to falsely record a standard 8:00 a.m. to 4:30 p.m. schedule in PeopleTime, even though he really signed in and out at different times. DSOF ¶ 39.

         As a result of these events, Nguyen issued Plaintiff a notice of a proposed one-day suspension on August 31. DSOF ¶ 40; [97-31] at 2. The stated grounds included lack of candor (because Plaintiff misrepresented his June appointments) and failure to follow instructions (because Plaintiff filled out his time sheets improperly and failed to schedule any appointments in July). DSOF ¶ 40; [97-31] at 2-3. Plaintiff submitted a response claiming that Nguyen had misinterpreted his email about the June appointments, and that he had referred to “pushed interviews, ” in which BLS employees show up at businesses unannounced to try to secure impromptu meetings, rather than formally scheduled interviews. DSOF ¶ 41. Plaintiff also argued that the requirement that he make 10 appointments in July was not part of his performance plan but a goal for more “experienced field staff.” Id. ¶ 42. He claimed that he could not set appointments in July because he had to write up past data, justify his payroll records to Nguyen, and because he could not drive due to his diabetes. Id. He supplemented these claims with a doctor's note-stating only that he required regularly scheduled meals-and a June 2012 prescription for insulin. Id. As to the time sheets, Plaintiff addressed the inconsistencies by claiming that he had deducted commute time. Id. ¶ 43.

         On November 19, Bryan Droste, BLS' Assistant Regional Commissioner, issued a final decision affirming Plaintiff's suspension. Id. ¶ 44; [97-40]. Droste considered Plaintiff's response and exhibits; Droste found that Plaintiff's explanations were not credible, that Nguyen's instructions had been “abundantly clear, ” and that Plaintiff had never indicated-before this disciplinary action was taken-that he had any driving restrictions. DSOF ¶ 44. (Nor does Plaintiff offer such evidence now.)

         While the suspension decision remained pending, Plaintiff received his performance evaluation for fiscal year 2012. Id. ¶ 45. His overall rating was “minimally satisfactory” because his data was not high quality; he had transmitted few productive schedules; 80% of his submitted schedules contained errors; and he did not work efficiently, spending an average of 28.1 hours on each productive schedule, a rate 150% higher than BLS' regional standard of 14-19 hours per productive schedule (HPPS). Id. Finally, Plaintiff also failed to meet national and regional deadlines for transmitting his schedules. Id.

         Plaintiff filed written objections to his evaluation, which Nguyen considered but which did not result in any change to his rating. Id. ¶ 46. Specifically, Plaintiff contested the validity of the metrics used, asserting that they did not match what he had learned in his initial training course, and argued that he could not produce more schedules because he spent so much time traveling. Id. Plaintiff now also contests the validity of the performance evaluation itself: he says that Nguyen “changed the narrative.” R. DSOF ¶ 45. Nguyen admitted in her deposition that she adjusted some of her remarks, but stated that she only did so in response to Plaintiff's objections to the evaluation: following his complaint, she adjusted the number of appointments she had initially listed for him. [97-5] at 18. Plaintiff now agrees that these changes benefitted him, since he states that they removed “some of the misstatement [sic] of facts and omissions.” R. DSOF ¶ 45. Plaintiff's overall rating did not change. DSOF ¶ 46.

         Also in October 2012, Nguyen told Plaintiff that she had seen him breach BLS' confidentiality policy by leaving information relating to one business in plain view during an interview with a different company. Id. ¶ 64. Nguyen reported the incident to her superior, as required by BLS rules, but took no further action at that time. Id. No discipline resulted nor was the breach cited in any performance review. Id. Plaintiff denies that he breached the confidentiality policy. Id.

         In late October, Nguyen reviewed Plaintiff's time sheet from a recent trip to Minneapolis and noticed that his recorded start and end times in PeopleTime failed to match the times in his Outlook calendar. Id. ¶ 65; see also [97-61] at 6-8. In response to her request, Plaintiff provided his departure and arrival times for travel and appointments during the trip. [97-61] at 6-8. Upon reviewing these times, Nguyen told Plaintiff he should not have entered an 8:00 a.m. to 4:30 p.m. schedule in PeopleTime when he had actually worked varied hours. Id. at 6; DSOF ¶ 66. Moreover, Plaintiff could not claim “comp time for travel” for travel within the normal working hours of 6:00 a.m. to 7:00 p.m. while on a flexible schedule. See DSOF ¶ 66; [97-12] at 5; [107] at 52. Plaintiff first refused to correct his time sheets because it was “not worth the hassle.” [97-61] at 4. When Nguyen reminded him that the union contract required accurately reporting hours worked, Plaintiff contested Nguyen's interpretation of DOL's timekeeping rules and refused to amend his time sheet. DSOF ¶ 67. According to Plaintiff, Nguyen then amended it herself and also converted Plaintiff's claimed “comp time” and sick time to used “credit hours, ” but did not restore the now-unused comp time and sick time. Id.

         In December 2012, Nguyen called Plaintiff to her office to question him about his interviews with companies. Id. ¶ 68. She had concerns about inconsistencies in his written work and possible errors and unprofessional behavior. Id. Nguyen spoke with Plaintiff for about an hour, but did not seek any discipline and the interview was not listed in Plaintiff's subsequent performance review. Id.

         In February 2013, BLS denied Defendant a within-grade pay increase (WIGI) as a result of his poor 2012 performance evaluation. Id. ¶ 47; [97-42] at 3. Plaintiff exercised his right to contest the denial, arguing that the alleged errors in his work were based upon misinterpretations of BLS' data collection procedures and practices, that the practices of BLS' Chicago office did not match what he learned in his initial training course, that the performance metrics were invalid, and that the review process was being used to harass him. DSOF ¶ 47. Charlene Peiffer, ...

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