Morgan v. McAleenan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN P. MORGAN, No. 2:12-cv-01287-TLN-DB 12 Plaintiff, 13 v. ORDER 14 ALEJANDRO MAYORKAS, Secretary of U.S. Department of Homeland Security, 15 Defendant. 16 17 18 This matter is before the Court on Plaintiff John P. Morgan’s (“Plaintiff”) Motion for 19 Judicial Review of Administrative Decision. (ECF No. 204.) Defendant Alejandro Mayorkas 20 (“Defendant”) filed an opposition. (ECF No. 205.) Plaintiff filed a reply. (ECF No. 206.) For 21 the reasons set forth below, the Court AFFIRMS the administrative decision. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff formerly worked in Sacramento for Federal Protective Service (“FPS”) as a 3 Criminal Investigator. (Administrative Record (“AR”) at 1.) In October 2006, the Joint Intake 4 Center received an anonymous report that Plaintiff had been running queries in a law enforcement 5 database for purposes unrelated to his work. (Id. at 649–51, 658.) The Office of Professional 6 Responsibility (“OPR”) began an investigation the next month. (Id. at 649–51.) Agents first 7 interviewed Bill Mason. (Id. at 650–51.) Mason told the agents that he was responsible for 8 conducting background checks for job applicants at a private security company. (Id. at 660.) He 9 also told the agents he had asked Plaintiff on two or three occasions to run checks on job 10 applicants of Middle Eastern descent. (Id.) Mason told the agents that he recalled asking 11 Plaintiff eight years earlier to run a check on an applicant named Walid Mustafa. (Id.) 12 In December 2007, agents interviewed Plaintiff. (Id. at 651, 676.) Prior to the interview, 13 the agents told Plaintiff he could not discuss the nature of the interview with anyone other than 14 his legal counsel. (Id. at 366.) Plaintiff signed a document titled “WARNING TO NOT 15 DISCLOSE INVESTIGATIVE INFORMATION,” which warned Plaintiff that failure to comply 16 could subject him to disciplinary and/or criminal action. (Id. at 690–91.) At the conclusion of the 17 interview, Plaintiff signed an affidavit indicating he had asked Immigration and Customs 18 Enforcement (“ICE”) Agent Luz Dunn to run a query on Mustafa after Mason asked Plaintiff to 19 run a check on Mustafa as having possible terrorist ties. (Id. at 676–83.) 20 Four days after the OPR interview, Plaintiff invited Dunn out to lunch. (Id. at 503–04.) 21 Prior to Dunn’s arrival at his office, Plaintiff placed the OPR affidavit in a law enforcement 22 magazine. (Id. at 391, 505.) When Dunn arrived, Plaintiff gave her a carrot cake and directed her 23 attention to the law enforcement magazine on his desk, telling her to read an article of interest. 24 (Id. at 391, 697, 710.) Although Dunn told Plaintiff she had already read that issue, Plaintiff 25 insisted that Dunn read the article. (Id.) When Dunn opened the magazine, she found Plaintiff’s 26 affidavit and realized he wanted her to read it. (Id.) She saw her name in the affidavit, along with 27 a name of Arabic descent. (Id. at 697.) After seeing Plaintiff’s affidavit, Dunn felt the carrot 28 cake was an attempted bribe and felt uneasy. (Id. at 391–95, 697, 710.) On the way to lunch, 1 Dunn made an excuse to cancel and asked Plaintiff to drop her off at the mall instead. (Id.) 2 Plaintiff drove Dunn to a truck delivery entrance in an alley behind the mall. (Id.) When Dunn 3 got out of the car, Plaintiff said to her, “I would not let anything happen to you,” “I don’t know 4 Mustafa,” and “Tell the truth.” (Id.) Dunn felt intimidated. (Id.) OPR agents interviewed Dunn 5 a few weeks later, and she told the agents about Plaintiff’s statements and his previous request 6 that she run a query on Mustafa for non-law enforcement reasons. (Id. at 395, 696.) 7 FPS provided an investigation report to Region 1 Deputy Regional Director Suzanne 8 MacMullin. (Id. at 647.) On November 3, 2008, MacMullin proposed the agency remove 9 Plaintiff from federal service for seven reasons, including Plaintiff’s unauthorized disclosure of 10 his affidavit and improper attempt to influence a witness. (Id. at 591–96.) Region 1 Regional 11 Director Tim Bane reviewed MacMullin’s proposal and held a hearing on the matter. (Id. at 599– 12 638.) On December 31, 2009, Bane decided there was insufficient evidence to sustain the 13 proposal as to three of the seven reasons. (Id. at 639–45.) However, Bane sustained the proposal 14 based on the remaining four reasons: Plaintiff’s unauthorized disclosure; Plaintiff’s improper 15 attempt to influence a witness; and two more minor offenses relating to Plaintiff’s failure to 16 attend a second OPR interview in 2008. (Id.) Bane found that the unauthorized disclosure and 17 attempt to influence a witness charges were extremely serious because they reflected negatively 18 on Plaintiff’s integrity as a law enforcement officer. (Id.) Bane considered mitigating factors, 19 such as Plaintiff’s nearly 30 years of federal service, and concluded that the charges justified 20 removal. (Id. at 741–49.) 21 Plaintiff subsequently challenged his removal in a union arbitration. (Id. at 345–589.) 22 The arbitrator held a hearing at which Plaintiff, Bane, and Dunn testified. (Id.) On August 9, 23 2010, the arbitrator sustained all four charges and concluded that removal was a reasonable 24 penalty due to the seriousness of the charges. (Id. at 249–72.) 25 Next, Plaintiff appealed the arbitrator’s decision to the Merit Systems Protection Board 26 (“MSPB”). (Id. at 751.) On April 13, 2012, the MSPB reversed the arbitrator’s finding as to the 27 two less serious charges, but it affirmed the arbitrator’s finding that Plaintiff improperly disclosed 28 /// 1 his affidavit and attempted to influence a witness. (Id. at 751–65.) The MSPB also affirmed 2 removal as a reasonable penalty for the two sustained charges. (Id. at 761.) 3 On May 12, 2012, Plaintiff filed a civil action in this Court, asserting various employment 4 discrimination claims and seeking judicial review of the MSPB decision to remove him from 5 federal service. (ECF No. 1.) After a jury trial, the Court ruled in Defendant’s favor as to 6 Plaintiff’s employment discrimination claims. (See ECF No. 195 (granting Defendant’s Rule 50 7 motion); ECF No. 199 (dismissing Plaintiff’s age discrimination claims).) The only remaining 8 claim is Plaintiff’s instant request for judicial review. (See ECF No. 58 at 42–43 (“Plaintiff’s 9 cause of action for judicial review of the [MSPB] order . . . shall be tried to the Court separately 10 following trial on all other causes of action.”).) 11 II. STANDARD OF LAW 12 The Civil Service Reform Act permits “mixed cases” where “an employee complains of a 13 personnel action serious enough to appeal to the MSPB and alleges that the action was based on 14 discrimination.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012) (emphasis in original); see 5 U.S.C. § 15 7703(b)(2). On the discrimination portion of the case, the plaintiff is entitled to trial de novo by 16 the Court. 5 U.S.C. § 7703(c). The non-discrimination portion is reviewed on the administrative 17 record and may be set aside only if found to be “(1) arbitrary, capricious, an abuse of discretion, 18 or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or 19 regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. §§ 20 7703(c)(1)–(3). 21 III. ANALYSIS 22 Plaintiff argues (1) the attempting to influence a witness charge is not supported by the 23 evidence and (2) the penalty of removal is too severe. (ECF No. 204 at 6–13.) Notably, Plaintiff 24 does not dispute the unauthorized disclosure of investigative information charge.1 (Id. at 1.) 25 Because the Court finds removal was a reasonable penalty for the unauthorized disclosure charge 26 standing alone, the Court need not and does not address Plaintiff’s first argument. 27 1 As the MSPB pointed out, Plaintiff “conceded at the hearing before the arbitrator that he 28 was guilty of this charge.” (AR at 505, 756.) 1 In his second argument, Plaintiff contends neither the arbitrator nor the MSPB gave due 2 consideration to the Douglas factors. (Id. at 9 (referencing Douglas v. Veterans Admin., 5 3 M.S.P.B. 313 (1981).) “In Douglas the [MSPB] articulated twelve factors that may be considered 4 in determining the appropriate sanction for a particular offense.” McClaskey v. U.S. Dep’t of 5 Energy, 720 F.2d 583, 587–88 (9th Cir. 1983) (citing Douglas, 5 M.S.P.B. at 332). “The [MSPB] 6 is not required to consider all twelve factors in every case; it need only consider those relevant to 7 the individual case.” Id. 8 In Bane’s decision, he stated he had considered the Douglas factors and primarily focused 9 his attention on the nature and seriousness of the sustained misconduct in relation to Plaintiff’s 10 duties as a Criminal Investigator. (AR at 642.) Bane found the offenses reflected negatively on 11 Plaintiff’s integrity as a law enforcement officer, especially considering Plaintiff’s “calculated 12 efforts” to improperly disclose his affidavit. (Id.) Bane emphasized that Plaintiff’s conduct 13 called into question his credibility as a government witness and such information would have to 14 be disclosed as potential impeachment information if he was called to testify. (Id.) In addition, 15 Bane explained Plaintiff’s conduct called into question how he would handle situations in the 16 future. (Id. at 643.) Bane stated, “In a law enforcement organization where our responsibility is 17 to arrest and prosecute people who break the law and take away their freedom, the agency must 18 have total confidence that a Criminal Investigator is acting properly at all times.” (Id.) Bane 19 concluded he had no confidence that Plaintiff would conduct a criminal investigation in a proper 20 and ethical manner. (Id.) Bane also summarized other aggravating and mitigating factors and 21 found that on balance all the relevant factors weighed in favor of removing Plaintiff from federal 22 service. (Id.) Bane opined that either charge, standing alone, warranted Plaintiff’s removal from 23 federal service. (Id. at 642.) 24 During the subsequent arbitration, the arbitrator reviewed Bane’s decision and the 25 Douglas factors. (Id. at 268–70.) The arbitrator concluded that “despite a lack of disciplinary 26 record and his 27 years of service, the nature and seriousness of [Plaintiff’s] offenses alone 27 establish by a preponderance of the evidence that the penalty of removal was well within the 28 limits of reasonableness.” (Id. at 271.) 1 On appeal, the MSPB acknowledged that Plaintiff made “numerous arguments with 2 respect to the reasonableness of the penalty,” but it stated that “a detailed discussion of those 3 arguments is not warranted.” (Id. at 760.) The MSPB concluded, 4 Even though two of the four charges sustained by the arbitrator are being reversed, the two remaining charges — unauthorized disclosure of investigative information 5 and attempting to influence another employee in an official investigation — are 6 clearly the most serious charges, and both charges go to the heart of the appellant’s job duties as a Criminal Investigator. As noted by the arbitrator, the agency’s 7 deciding official stated that either of these sustained charges, standing alone, would warrant the appellant’s removal. We therefore conclude that the removal 8 penalty is within the bounds of reasonableness for the sustained charge. 9 (Id. at 760–61.) 10 Plaintiff raises three main arguments as to the Douglas factors. First, he argues that his 11 mental state was not evaluated as a mitigating factor. (ECF No. 204 at 9–11.) Second, Plaintiff 12 argues that Bane improperly relied on past suspensions, which tainted the arbitrator and the 13 MSPB’s subsequent evaluations. (Id. at 12.) Third, Plaintiff argues the record demonstrates that 14 other employees who engaged in similar offenses were not disciplined. (Id. at 12–13.) For all 15 these reasons, Plaintiff requests the Court remand the matter to the MSPB. (Id. at 13.) The Court 16 will address Plaintiff’s arguments in turn. 17 i. Mental Condition 18 In a Douglas factors review form, Bane indicated Plaintiff’s medical condition was 19 irrelevant because Plaintiff failed to provide evidence connecting his medical condition to his 20 improper disclosure of the affidavit. (AR at 748.) Plaintiff argues “[e]vidence that he was 21 receiving psychiatric treatment during the relevant period was part of the evidence before the 22 arbitrator and the MSPB.” (ECF No. 204 at 10 (emphasis added).) Plaintiff points to a letter 23 from his psychiatrist dated June 2, 2008, which states Plaintiff was being treated for a depressive 24 condition since August 28, 2007. (Id.) The letter asserts, “[t]he principal features of [Plaintiff’s] 25 condition include anxiety generated by the perception that his work environment is a hostile one, 26 a mild degree of depressive ideation, and understandable apprehension about his future.” (AR at 27 153.) The letter further notes Plaintiff “has had insomnia [sic] some ruminations.” (Id.) 28 1 However, as Defendant correctly points out, the letter does not address Plaintiff’s condition as it 2 relates to his improper disclosure. Rather, the apparent purpose of the letter is to persuade the 3 OPR to defer holding a second interview with Plaintiff “until such time as [Plaintiff] feels ready 4 to respond fully, completely, and in a relaxed and open way.” (Id.) 5 Plaintiff also cites to his testimony from his arbitration hearing. (ECF No. 204 at 10 6 (citing AR at 511, 536).) When asked about his state of mind at the time he placed the affidavit 7 in the magazine, Plaintiff testified he was confused “because of everything that had happened to 8 [him].” (AR at 511.) Later, when asked how he would respond to Bane’s opinion that Plaintiff’s 9 integrity had been impaired, Plaintiff testified he “made a mistake” that he could not justify 10 because he “was in a different place then” and he was “lonely and desperate.” (Id. at 536.) Not 11 only do these excerpts lack clarity, but Plaintiff also fails to cite to any part of his testimony 12 explicitly connecting his improper disclosure to his mental condition. 13 While Plaintiff’s evidence vaguely indicates he was receiving mental health treatment for 14 a depressive condition at the time he disclosed the affidavit to Dunn, neither the letter nor 15 Plaintiff’s testimony establish that Plaintiff’s medical condition was a significant factor in his 16 conduct. To the extent Plaintiff also argues his condition is relevant to other Douglas factors 17 (ECF No. 204 at 11), the Court finds there is insufficient evidence in the record to make such a 18 leap. As such, Bane did not err in finding Plaintiff’s medical condition to be irrelevant, and the 19 arbitrator and MSPB did not err by omitting Plaintiff’s mental state as a mitigating factor. 20 ii. Past Suspensions 21 Plaintiff next argues Bane improperly relied on past suspensions, which in turn tainted the 22 arbitrator and MSPB’s evaluations. (Id. at 12.) The Court disagrees. 23 Bane listed Plaintiff’s prior disciplinary record as an aggravating factor, with the caveat 24 that he would have imposed the penalty of removal even if Plaintiff did not have previous 25 suspensions. (AR at 744.) However, there is no evidence that Bane’s limited consideration of 26 Plaintiff’s suspensions affected any future decisions. To the contrary, the arbitrator concluded it 27 was improper to consider Plaintiff’s past suspensions and found that removal was a reasonable 28 penalty based on the other Douglas factors. (Id. at 271.) Similarly, the MSPB did not address 1 Plaintiff’s past suspensions as an aggravating factor. (Id. at 760–61.) Therefore, Plaintiff fails to 2 persuade the Court that the MSPB committed any error related to his past suspensions. 3 iii. Agency Inconsistency 4 Lastly, Plaintiff asserts Defendant did not discipline other employees for similar offenses. 5 (ECF No. 204 at 12–13.) Plaintiff cites an arbitration decision overturning a 14-day suspension 6 he received for surreptitiously recording employee meetings. (Id.) As Defendant correctly points 7 out, nothing in the cited decision addresses discipline of an employee for improperly disclosing 8 investigative information. As such, the prior decision appears to be wholly irrelevant to the issue 9 of whether Defendant treated similar misconduct differently. 10 Plaintiff also argues Region 9 Director Mario Canton violated the terms of a non- 11 disclosure warning “yet received no discipline whatsoever.” (Id. at 13.) Plaintiff states if the 12 Court remands this matter to the MSPB, he “will request that this additional information be made 13 part of the record.” (Id.) However, Plaintiff fails to cite any authority that would allow this Court 14 to consider evidence beyond the existing administrative record, and the Court declines to do so. 15 Based on the record before the Court, there is no evidence that the agency has been inconsistent 16 in its discipline regarding a law enforcement officer’s unauthorized disclosure of investigative 17 information. Therefore, neither the arbitrator nor the MSPB erred by omitting alleged agency 18 inconsistency as a mitigating factor. 19 In sum, Plaintiff fails to present any basis for disturbing the MSPB’s decision to remove 20 him from federal service. Moreover, under 5 U.S.C. § 7703(c), judicial review of the MSPB’s 21 choice of sanctions is “extremely limited.” McClaskey, 720 F.2d at 586. Courts “defer to the 22 [MSPB’s] judgment unless the penalty is so harsh or disproportionate to the offense as to 23 constitute an abuse of discretion.” Id. Further, courts “have found the penalty of dismissal to be 24 excessively harsh only when the offense committed was extremely minor.” See id. at 585–89 25 (affirming the MSPB’s removal of an agency electrician with fourteen years of service and no 26 disciplinary record who had purchased replacement wire valued at $418 to “cover-up” a theft 27 committed by his co-workers). In the instant case, the Court agrees with the MSPB that the 28 charge of unauthorized disclosure of investigative information is a serious offense that goes “to 1 | the heart of [Plaintiff's] job duties as a Criminal Investigator.” (AR at 761.) Accordingly, the 2 | Court concludes the penalty imposed by the MSPB was not so disproportionate to the offense as 3 | to amount to an abuse of discretion. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court hereby AFFIRMS the MSPB’s decision and DENIES 6 | Plaintiff's motion. (ECF No. 204.) As there are no remaining claims, the Clerk of Court is 7 | directed to enter final judgment and close the case. 8 IT IS SO ORDERED. 9 | DATE: July 7, 2021 /) 10 (| jf / 11 Sp □□ 12 Troy L. Nunley 3 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28