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Liu v. Bushnell

United States District Court, D. Maryland

June 22, 2018

XUNXIAN LIU, Plaintiff,
v.
MARY CATHERINE BUSHNELL, WENDY LIFFERS and DAVID SHURTLEFF, Defendants.

          MEMORANDUM OPINION

          THEODORE P. CHUANG, UNITED STATES DISTRICT JUDGE

         Self-represented Plaintiff Dr. Xunxian Liu, a molecular biologist formerly employed by the National Institutes of Health ("NIH") has filed suit against Defendants Dr. Mary Catherine Bushnell, Wendy Liffers, and Dr. David Shurtleff, alleging race, color, national origin, and sex discrimination, and retaliation, under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17 (2012); age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (2012); and perjury under federal and state law. Defendants have moved for dismissal of, or summary judgment on, Dr. Liu's claims. Dr. Liu has moved to have defense counsel recused for an alleged conflict of interest. Having reviewed the briefs and submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Liu's Motion to Recuse is DENIED, and Defendants' Motion for Summary Judgment is GRANTED.

         BACKGROUND

         Dr. Liu, a man of Chinese origin who was 60 years old at the time of the relevant events, is trained as a molecular biologist. In October 2005, he was hired by NIH for a position as a Biologist, at the pay grade of GS-11. Dr. Bushnell is the Scientific Director of the National Center for Complementary and Integrative Health ("NCCIH"), a division of NIH. In 2012, Dr. Liu interviewed with Dr. Bushnell for a position in the newly opened pain-research lab in NCCIH, but was not hired because, at that point, Dr. Bushnell had no need for a molecular biologist.

         In December 2014, Dr. Liu's temporary assignment in another division of NIH was coming to an end, so Dr. Shurtleff, the Deputy Director of NCCIH and Dr. Bushnell's supervisor, contacted Dr. Bushnell to see if she now had a need for a molecular biologist. On December 17, 2014, Dr. Liu met with Dr. Bushnell and two of Dr. Bushnell's Principal Investigators, including Dr. Yarimar Carrasquillo. During that meeting, Dr. Bushnell explained that Dr. Liu would be assisting two Principal Investigators on their experiments, and that Dr. Bushnell would be his supervisor. The meeting went well, so Dr. Liu was scheduled to meet with Dr. Shurtleff on January 5, 2015 to discuss his transfer, and to start in NCCIH on January 12. Dr. Liu, however, reported to NCCIH on December 22, 2014, when Dr. Bushnell was on vacation.

         I. Purchase Card

         When Dr. Liu arrived, Dr. Carrasquillo had not yet left for her vacation. Dr. Liu asked her if he could purchase some supplies. Dr. Carrasquillo authorized him to purchase a notebook and a lab coat with her purchase card and explained that the purchase card had to be signed out and then returned after use, together with purchase receipts. Dr. Liu used Dr. Carrasquillo's purchase card on December 22, 23, 29, and 30 for a total of $3, 274.01 in purchases. He did not sign out the purchase card or provide his purchase receipts, as required. When Dr. Carrasquillo eventually learned of Dr. Liu's purchases, she asked him to provide all of his receipts and to return all of the purchased items. According to Dr. Liu, he returned all the items, with the exception of pipettes that he had already unwrapped. According to Dr. Carrasquillo and Dr. Bushnell, Dr. Liu refused to return some of the items he purchased, valued at over $1, 000. As a result of his refusal, Dr. Bushnell recommended that Dr. Liu be suspended for two days. Dr. Shurtleff mitigated that recommendation to an official reprimand.

         When Dr. Carrasquillo discussed Dr. Liu's unauthorized purchases with him, it became clear that he had ordered supplies so he could conduct his own experiments. Dr. Liu also began questioning Dr. Carrasquillo's experiment design and refusing to follow her instructions. Dr. Bushnell reminded Dr. Liu that his job was to assist the Principal Investigators in conducting their experiments, which involved adhering to the protocols they had devised, and that he was not permitted to conduct independent research. In response, Dr. Liu complained about having to work with two different Principal Investigators and asked to be promoted to GS-12 if he was to continue with that structure. He also extensively criticized Dr. Carrasquillo's experiments, asserting to Dr. Bushnell that, if he had designed the experiment, he would "know [the] answers in five days" and stating that he should be allowed to perform the required experiments "with my own protocols" and "explain the reason later." Joint Record ("J.R.") 970. As a result of this friction, Dr. Liu's role in the lab was changed. Dr. Bushnell informed him that, moving forward, he would be working only on her projects. She also informed him that she could not promote him to GS-12. Dr. Liu's position did not have promotion potential to GS-12, and for him to achieve that level, he would have had to apply and be selected for an open GS-12 position.

         II. Job Performance

         On January 13, 2015, Liu signed an Employee Performance Plan for his NCCIH position that outlined the critical elements of his position. At around the same time, Dr. Bushnell informed Dr. Liu that he would be assisting her to develop an experiment studying the effects of capsaicin and histamines on the spinal cord. According to Dr. Bushnell, Dr. Liu had difficulty with various aspects of the experiment development. Dr. Liu was first asked to conduct a literature review and provide summaries of relevant scientific literature, but he provided articles that did not address the requested topics and failed to provide adequate written summaries of the articles. When Dr. Bushnell asked him to create a table of past capsaicin and histamine studies, correlated with experimental techniques and outcomes, Dr. Liu again had difficulty. The chart he produced was difficult for other scientists to decipher. On February 10, 2015, Dr. Bushnell redirected Dr. Liu to drafting an outline of the capsaicin/histamine study, including laboratory protocols. As part of that process, he was to make a list of any supplies that would be needed but which were not already in the laboratory. Although Dr. Bushnell instructed him not to place any orders before discussing the study proposal with her, Dr. Liu attempted to order supplies for the experiment on February 11, before drafting the study proposal or speaking with Dr. Bushnell. Dr. Liu then approached another researcher in the laboratory seeking help on writing the protocol. The experimental protocol he eventually submitted to Dr. Bushnell consisted of material copied from a protocol created by another researcher and new procedures that, in Dr. Bushnell's estimation, did not make sense and contemplated sample sizes too small to produce statistically reliable results. Dr. Bushnell concluded that Dr. Liu either did not understand or refused to follow her directions.

         As a result, Dr. Bushnell determined that Dr. Liu did not have the necessary skills to be a main investigator on a study. She assigned him instead to the task of rating rat and mouse pain behavior from videos. Dr. Bushnell informed Liffers, the NCCIH Executive Officer, of her decision and of her conclusion that Dr. Liu should be placed on a Performance Improvement Plan ("PIP"). During this time period, Dr. Liu berated Dr. Bushnell and criticized other staff members' work on several occasions during weekly staff meetings.

         Dr. Liu began his new pain rating assignment in March. Despite receiving a model for recording his observation data, Dr. Liu initially failed to provide his data in the same format and did not conform his observation records to the laboratory template despite additional explanation. His ratings were also inconsistent with those of the other raters and with the scientific literature, and he had used incorrect statistical tools to analyze his data. As a result, Dr. Liu's ratings could not be used as part of the experiment data set, and other investigators involved in the experiment requested that he not be assigned as a rater in the future.

         Meanwhile, in February 2015, Dr. Liu submitted a request for funding to attend a conference. In response, Dr. Bushnell explained in an email her general policy that she would approve funding only if the person was presenting a paper at the conference or attending a conference to learn a specialized research technique. More specifically, she told Dr. Liu that all of her 2015 conference funds had already been allocated and encouraged him to instead consider conference opportunities in 2016. Beyond this email response, Dr. Bushnell did not provide a formal response to his request.

         III. Performance Evaluation

         On April 9, 2015, Dr. Bushnell wrote up Dr. Liu's performance review. Employees are evaluated on the critical elements in their Employee Performance Plan and are given one of five ratings for each element: "AO" for Outstanding, "AM" for Achieved More than Expected Results, "AE" for Achieved Expected Results, "PA" for Partially Achieved Expected Results, and "UR" for Achieved Unsatisfactory Results. Dr. Bushnell gave Dr. Liu a "UR" rating in a number of critical elements, including three elements in the category of Individual Performance Outcomes. First, on the element of "Laboratory Management," Dr. Bushnell asserted that Dr. Liu was "grossly negligent in maintaining laboratory inventory," based on his unauthorized purchases, and stated that he was unable to organize his observation data into a usable spreadsheet. J.R. 1282.

         Second, on the element of "Research and Technical Knowledge," Dr. Bushnell rated Dr. Liu's performance inadequate in a number of subcategories, including, (a) "Has superior understanding of the pain research area," noting his failure to demonstrate the necessary basic understanding of the laboratory's field of research; (b) "Independently keeps abreast of new approaches and is knowledgeable about scientific resources," citing his difficulties in finding and summarizing relevant pain research articles; (c) "Participates in the writing of laboratory experiments and protocols," citing his failure to develop a viable protocol for the capsaicin/histamine experiment; (d) "Selects the appropriate methodology and procedures to meet the experimental objectives," again citing his failure to develop a viable protocol for the capsaicin/histamine experiment; (e) "Conducts day-to-day operations of relevant protocols," explaining that Dr. Liu's inability to develop a workable protocol made him unable to move on to putting a protocol to use in experiments; and (f) "Evaluates research data using appropriate analytical tools and programs," noting the inconsistency of his ratings of the rat and mouse pain videos.

         Third, on the element of "Training/Supporting Staff/Organization Skills/Team Work," Dr. Bushnell found Dr. Liu's performance inadequate in the subcategories of (a) "Acts as a resource for others in the lab," (b) "Assists peers," (c) "Organizes, plans, and prioritizes work," (d) "Adheres to time lines provided by supervisor," (e) "Establishes short- and long-term work related goals and priorities, and discusses these regularly with supervisor," and (f) "Interacts with colleagues and supervisor in a professional and respectful manner." J.R. 1283-84. As a basis for her rating, she cited, among other things, Dr. Liu's disrespectful comments during staff meetings and noted that he took "substantially" longer than other laboratory members to complete his assigned tasks. J.R. 1284.

         IV. Performance Improvement Plan

         According to Dr. Bushnell, she told Dr. Liu of his unacceptable performance ratings on May 8, 2015, an assertion that Dr. Liu disputes. On May 21, 2015, she provided Dr. Liu formal notice, in the form of a letter, that she was placing him on a 60-day Performance Improvement Plan ("PIP"). The PIP set out seven assignments for Dr. Liu to complete. For the critical element of Laboratory Management, Dr. Liu was given one week to provide all of his data and explanatory notes for the projects he had so far completed. For the critical element of Research and Technical Knowledge, he was given three assignments: (1) within one week he was to write summaries of scientific studies, properly referenced and accompanied by a reference list, addressing restraint stress and pain in rats; (2) within one month he was required to analyze data from previous experiments conducted by the lab, in consultation with Dr. Mark Pitcher, a postdoctoral fellow in the lab; and (3) within one month, he was required to conduct a literature review of studies of pain and its relationship to heart rate and to compare the data he had compiled to the data in the literature. For the critical element of Training/Mentoring, he was also given three assignments, all to be completed within one week. Two of the assignments were to upload the data required for the Laboratory Management assignment to the laboratory's shared drives and provide written summaries of how the data were organized; the third was to meet with Dr. Pitcher to learn the proper data analysis technique needed to complete his Research and Technical Knowledge assignment. The PIP required that Dr. Liu raise his performance level to "Partially Achieved Expected Results," the rating one step above his Unsatisfactory rating, on each of the identified critical elements. If he failed to do so, Dr. Bushnell would initiate termination proceedings.

         Throughout the PIP period, Dr. Bushnell met with Dr. Liu nearly every week to discuss his assignments and progress. Dr. Bushnell also provided him with written feedback on his work, and he was given three opportunities to submit satisfactory assignments. Dr. Liu did not satisfactorily complete all his assignments. As to the assignments related to organizing, uploading, and analyzing data, Dr. Liu was unable to properly format his data, despite being given examples from other researchers in the lab. On the literature review assignments, Dr. Liu plagiarized portions of his literature summaries not only in his initial submission, but also in his revised submissions. Dr. Liu has acknowledged that the work he submitted was plagiarized, but he has explained his conduct by noting that the literature reviews were not being submitted and asserting that the literature review assignments were beyond his skill level.

         V. Suspension

         Meanwhile, on May 7, 2015, Dr. Bushnell observed Dr. Liu working on what appeared to be a journal article manuscript. When she reminded him that he should not be using laboratory time to work on outside projects, Dr. Liu responded that the manuscript had been approved by a previous NIH center, so it was related to his work. After additional discussions with Dr. Liu, Dr. Bushnell asked him to provide her a copy of the manuscript. Dr. Liu refused, asserting that the information in the manuscript was confidential and that his co-authors would not consent to its disclosure. Dr. Bushnell informed Dr. Liu that, per NIH policy, she had to review and approve any manuscript sent, and that all data used in the manuscript should be available for her review. Dr. Liu again refused to ...


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