United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Robert Blakey, United States District Judge
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. .
Defendant moved for summary judgment , and Plaintiff
cross-filed for partial summary judgment, . For the
reasons explained below, this Court denies Plaintiff's
motion and grants Defendant's motion.
Local Rule 56.1 and Evidentiary Issues
facts in this discussion come from the parties' Local
Rule 56.1 statements of material fact. Defendant asks
this Court to deem a number of its statements of fact
admitted as a result of Plaintiff's inadequate responses.
 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.
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 .
this Court disregards the following denials from
Plaintiff's response to Defendant's statement of
• 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
• 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
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.
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
 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  at 60.
worked for DOL's Bureau of Labor Statistics (BLS) as a
statistician from February 2012 to August 2014. DSOF
¶¶ 1, 75; R. DSOF ¶ 1;  ¶ 10.
Plaintiff has Type 2 diabetes, which he disclosed on his
first day of work. DSOF ¶ 2;  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;  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.  at
7; [97-12] at 3.
worked in BLS' Chicago Regional Office, starting at the
GS-12 government pay grade. DSOF ¶ 1;  at 6. BLS
assigned him to its Division of Price Programs, which
collects data for the Producer Price Index (PPI). DSOF ¶
1;  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;  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.
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.
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;  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;  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.
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;  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;  at 47. Employees on
the variable schedule also needed to sign in and out of the
office each day. DSOF ¶ 11;  at 51-52.
states that when he started at BLS, Nguyen told him that he
had to work a “fixed schedule.”  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
Plaintiff's Initial Performance
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
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.
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
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;  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.  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.
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.
points to a trip in June 2012 that he claims caused him to
lose control of his diabetes by missing meals. See
 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.
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.
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.;  at 13. His
doctor prescribed insulin and told him to maintain “a
regular eating pattern.” DSOF ¶ 27. Currently,
Plaintiff is insulin-dependent.  at 25.
Request for Accommodation
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.
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;  5-29.
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.
Plaintiff's Performance After his Request for
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.
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.
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
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;  at 15.
event, after these exchanges Nguyen moved Plaintiff to a
variable schedule in August 2012. 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.
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.
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.)
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
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.
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.
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;
 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.
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.
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