The opinion of the court was delivered by: O'neill, J.
Plaintiff Philip Burg worked as a senior auditor in the Philadelphia Office of Inspector General, U.S. Department of Health and Human Services until taking disability retirement in February 2004. On July 20, 2007, Burg and Ellen Burg filed this action against defendants HHS, the Secretary of HHS and four other HHS employees, the U.S. Department of Labor and its Secretary, the office of Personnel Management and its Director, and the Equal Employment Opportunity Commission and its Director alleging that Burg was subjected to several types of mistreatment while working at OIG, including workplace harassment and a denial of work accommodations granted to employees with similar health conditions. Defendants moved to dismiss all counts of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56 on November 30, 2007. I granted defendant's motion to dismiss Burg's breach of contract claim pursuant to Rule 12(b)(6) and dismissed his other claims for lack of subject matter jurisdiction. Plaintiff appealed my decision.
On July 21, 2010, the Court of Appeals affirmed my dismissal of Burg's claims for breach of contract, violation of the Family Medical Leave Act, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Court vacated my dismissal of Burg's claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.*fn1, and the Rehabilitation Act, 29 U.S.C. § 791*fn2 , finding that "exhaustion is not a jurisdictional bar" and noting that for purposes of Rule 12(b)(6) Burg's exhaustion allegations were "minimally sufficient . . . ." Burg v. U.S. Dep't. of Health and Human Servs., No. 08-3170, 2010 WL 2842858, at *3 (3d Cir. July 21, 2010). On remand defendants moved to substitute Kathleen Sebelius as defendant and seek summary judgment with respect to plaintiffs' remaining Title VII and/or Rehabilitation Act claims for harassment, hostile work environment and discrimination. Defendants reiterate their argument that Burg failed to exhaust his administrative remedies prior to raising his claims of discrimination in this action.
Defendants assert that Burg telephoned the Equal Employment Opportunity Office, Office of the Secretary on February 6, 2004 to file an informal EEO complaint alleging disability discrimination. Def's. Stmt. of Undisp. Mat. Facts, at ¶ 2 (Doc. No. 18). Defendants cite the sworn declaration of Christine H. Smith, an EEO Equal Employment Specialist, in which she details the available record of Burg's contacts with the EEO and states that Burg "did not ever file a formal complaint with [her] office." Smith Decl. at ¶¶ 3-4, 7 (Doc. No. 18). Smith declares that after Burg's initial telephone call an assigned "EEO counselor scheduled the Initial Interview meeting(s) with Mr. Burg and his attorney. [Thereafter] Mr. Burg or his attorney cancel[ed] the scheduled meeting(s). No interview meeting ever took place because of the numerous canceled scheduled meetings which were canceled by Mr. Burg or his attorney." Id. at ¶ 4. Smith's declaration does not name the assigned EEO counselor or detail the source of her understanding that Burg or his attorney cancelled scheduled meetings. Burg's EEO claim was closed "on July 12, 2004, for failure by Mr. Burg to pursue it." Id. at ¶ 3.
Plaintiffs' amended complaint alleges only that Burg "filed a discrimination complaint" with the EEO on February 6, 2004. Am. Compl. at ¶ 51 (Doc. No. 6). It does not specify whether his claims were made in an informal or formal complaint. The only additional reference to Burg's EEO complaint in the amended complaint notes that "he was in contact with the [EEO] office for HHS before the July 12, 2004 date and was still in contact with them after the July 12, 2004 date. However the EEO office never responded to Plaintiff or the Plaintiff's counsel phone contacts to their office." Id. at ¶ 113. In his response to defendants' statement of undisputed material facts, Burg now asserts that he "filed an informal and formal complaint" and that "the meetings [with the EEO] did not take place for numerous reasons, however the EEO was fully aware of [Burg's] claim for disability discrimination. Mr. Burg did pursue his claim." Pl.'s Resp. to Def.'s Stmt. of Undisp. Mat. Facts at ¶ 3 (Doc. No. 19) (emphasis added). Burg does not elaborate as to the details of his filing of a formal complaint or as to the "numerous reasons" why he did not meet with an EEO counselor and provides no additional evidence to establish the EEO's responsibility for any failure of communication with respect to his complaint or an unwarranted dismissal of Burg's claims. In their response to defendants' reply memorandum, plaintiffs submit for the first time that "on July 12, 2004, [Burg] sent a letter to EEO in Philadelphia, as an appeal of the decision to close the case." Pl.'s Resp. to Reply Mem. of Def.'s at 2-3 (Doc. No. 22). However, plaintiffs have not produced a copy or other evidence of this letter.
For the reasons that follow, I will grant defendants' motions to substitute Kathleen Sebelius as defendant and will grant defendants' motion for summary judgment.
MOTION FOR SUBSTITUTION OF KATHLEEN SEBELIUS Defendants correctly contend that the only proper defendant in a Title VII or Rehabilitation Act action brought by a federal employee is the head of the employing department.
42 U.S.C. § 2000e-16(c) ("the head of the department, agency, or unit, as appropriate, shall be the defendant"); see also Arizmendi v. Lawson, 914 F. Supp. 1157, 1159 (E.D. Pa. 1996) ("The only proper party in a discrimination suit by a federal employee is the head of the agency in which the plaintiff was employed."); Thaxton v. Runyon, No. 94-3834, 1995 WL 128031, at *1 n.1 (E.D. Pa. Mar. 24, 1995) ("the only proper defendant in a Title VII or Rehabilitation Act action involving the federal government is the head of the employing department or agency"). Here, that would be Kathleen Sebelius, Secretary of the Department of Health and Human Services. Accordingly, I will grant Defendants' motion to substitute Kathleen Sebelius as defendant and will dismiss plaintiffs' claims against the United States Department of Health and Human Services, James J. Maiorano, Eugene G. Berti Jr., the United States Department of Labor and the United States Office of Personnel Management.
MOTION FOR SUMMARY JUDGMENT
The party moving for summary judgment has the burden of demonstrating that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the movant sustains its burden, the non-movant must set forth facts demonstrating the existence of a genuine dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 255. A fact is "material" if it might affect the outcome of the case under governing law. Id.
To establish "that a fact cannot be or is genuinely disputed," a party must:
(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) show[ ] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the movant. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted). Summary judgment will be granted "against a party who fails to make a showing ...