Adair v. Chao ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
PAUL C. ADAIR, )
)
Plaintiff, )
) Civil Action No. 04-1469(EGS)
v. )
)
HILDA SOLIS, Secretary of the )
Department of Labor, )
)
Defendant.1 )
)
MEMORANDUM OPINION
Plaintiff Paul Adair, pro se, was employed as a Trial
Attorney by the United States Department of Labor, Office of the
Solicitor, Division of Plan Benefits Security from 1995 to 2003.
Plaintiff claims that defendant unlawfully discriminated against
him on the basis of his race (African-American) and disability
(depression) in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
Plaintiff also seeks review of the decision of the Merit System
Protection Board (“MSPB”) affirming his termination by defendant
for (i) failure to complete certain assignments,
(ii) insubordination, and (iii) making statements to supervisors
1
Pursuant to Federal Rule of Civil Procedure 25(d),
Hilda Solis, in her official capacity as Secretary of the
Department of Labor, is automatically substituted as the named
defendant.
and co-workers that resulted in anxiety and disruption in the
workplace. Plaintiff argues that the MSPB’s decision is
unsupported by substantial evidence, does not promote the
efficiency of the federal service, and was rendered in violation
of his due process rights. Defendant has moved for summary
judgment on all of plaintiff’s claims, and plaintiff has filed
cross-motions for summary judgment as to his non-discrimination
claims. Upon consideration of the motions, the responses and
replies thereto, the applicable law, the entire record, and for
the reasons set forth below the Court GRANTS defendant’s motion
for summary judgment and DENIES plaintiff’s cross-motions for
partial summary judgment.
I. BACKGROUND
Plaintiff, an African-American male, was employed as a trial
attorney for the Plan Benefits Security Division (“PBSD”) of the
Office of the Solicitor of Labor from April 1995 through March
29, 2003. Def.’s Statement of Material Facts (“Def.’s SMF”)
¶¶ 1-2. His principal responsibility at PBSD was conducting
litigation under the Employees Retirement Income Security Act
(“ERISA”) on behalf of the Secretary of Labor. Def.’s SMF ¶ 2.
During his tenure at PBSD, one of the cases that Mr. Adair was
assigned to was known as the “Employers Mutual” case. Def.’s SMF
¶ 3. Senior trial attorney William Scott was the supervising
attorney assigned to the Employers Mutual case. Def.’s SMF ¶ 3.
2
In 2002, certain issues began to arise between Mr. Adair and
Mr. Scott regarding Mr. Adair’s work on the Employers Mutual
case. Specifically, on April 24, 2002, Mr. Scott sent Mr. Adair
a detailed email directing plaintiff to make certain changes to a
contempt motion that was to be filed in the case. See AR [Docket
Entry 7-10 at 20], Email from Scott to Adair dated April 24,
2002; AR [Docket Entry 7-8 at 5-12], Declaration of G. William
Scott dated July 3, 2003 (“2003 Scott Decl.”) ¶ 4. By email
dated April 29, 2002, Mr. Adair responded to Mr. Scott stating
that he thought the motion was “fine.” AR [Docket Entry 7-8 at
13-14], Ex. A to 2003 Scott Decl., Email from Adair to Scott
dated April 29, 2002. Mr. Scott responded by renewing his
request for Mr. Adair to make the suggested changes, explaining
that without revision it was unclear what actions constituted
contempt. AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott
Decl., Email from Scott to Adair dated May 1, 2002; 2003 Scott
Decl. ¶ 6. Mr. Scott also indicated that the motion should
propose a remedy. By email dated May 2, 2002, Mr. Adair
responded by stating that “[t]he proof is obvious” and “I would
live [sic] the relief to the court.” AR [Docket Entry 7-8 at 13-
14], Ex. A to 2003 Scott Decl., Email from Adair to Scott dated
May 2, 2002. Mr. Scott then, once again, explained his concerns
with plaintiff’s approach, and asked Mr. Adair to “finalize the
motion papers today and give a copy to me[.]” AR [Docket Entry
3
7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Scott to
Adair dated May 2, 2002. Mr. Adair failed to revise the motion
on May 2, 2002 as requested. 2003 Scott Decl. ¶ 8.2
In June 2002, Mr. Adair submitted a request for extended
Annual Leave to Karen Handorf, Deputy Associate Solicitor for
PBSD. See AR Tab 4gg(2), Ex. A to Declaration of Karen Handorf,
Letter from Handorf to Adair dated July 5, 2002 (“Handorf
Letter”). Ms. Handorf denied Mr. Adair’s leave request, citing
Mr. Adair’s heavy workload and unfinished assignments for the
Employers Mutual case. See Handorf Letter (“On June 17, 2002,
you requested annual leave and this leave was denied because of
your heavy workload. Specifically, for the Employers’ Mutual
Case, you had not sent the contempt letter, had not revised and
filed the default motions and had not submitted a discovery plan,
2
It is plaintiff’s position that he “gave Scott a final
draft” of the contempt motion. See Pl.’s Response to Def.’s SMF
¶ 5. Plaintiff does not, however, address whether he made the
suggestions requested by Mr. Scott. Instead, plaintiff states:
“On September 30, 2002, Scott sent an email to Perlman that
states in relevant part: ‘Also attached is [Plaintiff’s] draft of
the contempt motion which he prepared . . . It is OK.’” Pl.’s
Response to Def.’s SMF ¶ 5 (quoting AR Tab 13, Ex. W, p. 1).
Upon review of the exhibit cited by plaintiff, however, this
email states: “Also attached is [plaintiff’s] draft of the
contempt motion which he prepared over his strenuous objection.
It is OK, except that is [sic] does not state what remedy we want
(and supporting authority) because [plaintiff] thinks it is
inappropriate.” AR Tab 13, Ex. W, p. 1. As plaintiff does not
dispute the accuracy of this email - and, indeed, relies upon it
- plaintiff has not created a genuine issue of material fact
regarding whether he made the changes to the contempt motion that
Mr. Scott requested.
4
as requested by your supervisor on that case.”). Mr. Adair then
requested extended medical leave and was told that the request
would be considered after medical documentation was provided.
See Handorf Letter. On June 28, 2002, Mr. Adair left a
prescription paper from his doctor on Ms. Handorf’s chair, which
states: “Paul Adair was seen and a treatment plan is provided for
therapy.” See AR [Docket Entry 7-15 at 8], Prescription from Dr.
William D. Lawson, M.D., Department of Psychiatry, Howard
University Hospital; see also Handorf Letter. Ms. Handorf then
informed Mr. Adair that the prescription paper was “inadequate to
justify extended sick leave because it does not state that you
will be unable to come to work because of medical treatment nor
does it state that you are incapable of performing the duties of
your job.” Handorf Letter. Ms. Handorf further advised Mr.
Adair that “if your doctor is unwilling to provide a statement
that you are not able to perform the duties of your job, we will
consider a letter detailing the symptoms of your condition which
we will then evaluate to determine whether to grant you extended
sick leave.” Handorf Letter. Mr. Adair failed to produce any
additional documentation from any health care professionals and
returned to work. See AR Tab 4gg at 1, Declaration of Karen
Handorf (“Handorf Decl.”) ¶ 3.
5
On July 17, 2002, Mr. Scott sent an email to Mr. Adair (the
“July 17th Email”), which instructed him to complete five
assignments related to the Employers Mutual case with a deadline
of July 23, 2002. See AR Tab 4cc2, Ex. A to Declaration of G.
William Scott dated Nov. 13, 2002 (“2002 Scott Decl.”), Email
from Scott to Adair dated July 17, 2002. On July 23, 2002, Mr.
Scott sent Mr. Adair an email, which stated: “Paul: I asked you
to see me before you left today, but I see you have gone without
doing so. Please tell me whether you have completed these tasks;
today is the due date. There is a lot to do in this case.” AR
[Docket Entry 7-15 at 11], Email from Scott to Adair dated July
23, 2002. After receiving no response, Mr. Scott sent another
follow-up email on July 26, 2002, which stated: “Paul: Please
tell me whether you have done the assignments listed below. I
have not reassigned these tasks. As you know, Peter, Ben and I
are doing some of the work that was previously assigned to you,
but we can’t do it all at this point given our other
responsibilities. No one has informed me that you are on sick
leave or annual leave. If you are simply refusing to do these
tasks, please inform me. If you don’t respond to this e-mail, I
will have no choice but to assume that you refuse to do this
work. Please communicate with me!!” AR [Docket Entry 7-15 at
12], Email from Scott to Adair dated July 26, 2002. By emails
dated August 1, 2002, August 2, 2002, and August 7, 2002, Mr.
6
Scott extended the due date for the assignments contained in the
July 17th Email to August 19, 2010, and indicated that Mr. Adair
no longer needed to complete two of the five assignments. See AR
Tab 4cc2, Emails from Scott to Adair dated Aug. 1, 2002, Aug. 2,
2002, and Aug. 7, 2002.
On August 8, 2002, Mr. Adair met with his supervisor Leslie
Perlman. They discussed, among other things, the assignments
that Mr. Scott had given Mr. Adair on July 17, 2002. On August
9, 2002, Ms. Perlman sent Mr. Adair an email with the assignments
contained in the July 17th Email, and stated: “Paul: As I told
you yesterday, I am sending you the following assignments for the
[Employers Mutual] case even though you told me yesterday that
you would not do the assignments and would accept your punishment
(short of a trip to the employment office). I urge you to
reconsider your position. You must complete the assignments
below on the schedule Bill proposed which has a [revised]
deadline of August 19.” AR Tab 4cc3, Ex. B to 2002 Scott Decl.,
Email from Perlman to Adair dated Aug. 9, 2002. By email dated
August 28, 2002, Mr. Scott sent an email to Mr. Adair asking if
had performed any of the tasks assigned on July 17, 2002. AR Tab
4cc3, Ex. B to 2002 Scott Decl., Email from Scott to Adair dated
Aug. 28, 2002.3
3
There is a factual dispute regarding whether Mr. Adair
completed the assignments. While Mr. Adair contends that he
either completed or attempted to complete the assignments, he
7
On October 17, 2002, Elizabeth Hopkins, a supervisor at
PBSD, asked Mr. Adair to attend a mid-year performance review
(hereinafter, the “October 17th Meeting”). AR Tab 4ee,
Declaration of Elizabeth Hopkins (“Hopkins Decl.”). In
attendance at the October 17th Meeting were plaintiff, Ms.
Hopkins, Mr. Scott, Ms. Perlman, and another supervisor, Risa
Sandler. Def.’s SMF ¶ 11. During the meeting, after Ms. Perlman
and Ms. Hopkins praised Mr. Adair for his performance on the
cases that they were supervising, Mr. Scott raised his
dissatisfaction with Mr. Adair’s performance on the Employers
Mutual case. AR Tab 4dd, Declaration of Risa Sandler (“Sandler
Decl.”) ¶¶ 4, 5. While the details of the meeting are disputed,
it is undisputed that at some point during the meeting Mr. Adair
stated that he had been disrespected by Mr. Scott, and that he
“would rather see everyone dead and the whole world destroyed”
than suffer disrespect. See AR Tab 4aa, Declaration of Paul
Adair dated Dec. 6, 2002 (“2002 Adair Decl.”) ¶ 32 (“As the
provides no evidence in support of this contention. The agency,
by contrast, takes the position that the assignments remained
incomplete as of the October 17th Meeting. See 2002 Scott Decl.
¶ 8 (explaining that as of the October 17th Meeting plaintiff
“still ha[d] not done the work or offered [him] a valid excuse
for his failure and refusal to do the work”). This factual
dispute was closely analyzed by the MSPB. See AR [Docket Entry
7-1 at 4-23, 7-2 at 1-25], MSPB Decision at 17-24 (weighing the
evidence and concluding that the agency established that
plaintiff failed to complete 3 out of the 5 tasks as directed by
Mr. Scott within the deadlines provided). This factual dispute,
however, is immaterial to the Court’s resolution of this case.
8
meeting drew to a close I said I felt strongly about dignity and
respect and that my ‘philosophy’ was that I ‘would rather see
everyone dead and the whole world destroyed’ than suffer
indignity and disrespect. I then said ‘that’s it.’”); see also
AR Tab 4ff, Declaration of Leslie Perlman (“Perlman Decl.”) ¶ 6;
Sandler Decl. ¶ 8; Hopkins Decl. ¶ 2; 2002 Scott Decl. ¶ 13. Mr.
Adair also stated that he had been “feeling violent,” and had
sought counseling as a result. Sandler Decl. ¶ 8; Perlman Decl.
¶ 10; Hopkins Decl. ¶ 2; see also 2002 Adair Decl. ¶ 30.4 When
asked if he could continue to work with Mr. Scott, Mr. Adair
likened it to finding a peaceful solution in the Middle East.
Sandler Decl. ¶ 10; Hopkins Decl. ¶ 2; 2002 Adair Decl. ¶ 31.
After the meeting, each of plaintiff’s supervisors reported
feeling shocked and upset. See Sandler Decl. ¶¶ 12-14 (“I was
very alarmed by Mr. Adair’s demeanor and his comments. I was
concerned that he might pose a danger to Mr. Scott or to others.
4
While plaintiff later explained that he had been
feeling violent towards himself, see 2002 Adair Decl. ¶ 30
(explaining that during the October 17th Meeting he did not
indicate “toward whom [he] felt violent because [he] did not wish
to disclose that [he] was at one point suicidal”), the sworn
declarations of his supervisors at the meeting indicate that they
thought plaintiff’s feelings of violence were directed at Mr.
Scott. Indeed, during the October 17th Meeting Mr. Scott asked
plaintiff if he was threatening him, to which plaintiff responded
“No.” See 2002 Adair Decl. ¶ 30 (acknowledging that his ambiguous
statement that he had “taken time off because [he] had felt
violent . . . caused Scott to ask ‘is that a threat?’”;
explaining that he “quickly dispelled that idea by stating that
[he] was talking about how [he] felt before [his] time off”).
9
. . . I was particularly alarmed by Mr. Adair’s comments
mentioning killing and death. Although it appeared that his
anger was directed primarily towards Mr. Scott, his comments
mentioning killing and death were directed towards people in
general. . . . Based on Mr. Adair’s conduct and remarks at the
meeting, I am concerned that anyone in this office (or, for that
matter, anyone in this building) could be a target of Mr. Adair’s
anger.”); Perlman Decl. ¶ 11 (“I was and continue to be seriously
concerned about the safety of our employees where a coworker has
said that he would rather see everyone dead than be disrespected.
That statement upset me and made me feel that Mr. Adair might
present a serious threat to Mr. Scott and others in this
office.”).5 Indeed, each of the supervisors sent an email to
Timothy Hauser, Associate Solicitor at PBSD, expressing their
concerns regarding plaintiff’s behavior.6 Mr. Scott also
5
See also Hopkins Decl. ¶ 4 (“I was very upset and
depressed by this encounter and literally had a splitting
headache all afternoon. . . . Paul’s angry comments and violent
imagery were alarming. I am new to this office and have come
close to thinking I made a mistake coming here, in large part
because of the stress of this situation.”); 2002 Scott Decl.
¶¶ 21-22 (“After the October 17 meeting, I told Mr. Hauser that,
based on Mr. Adair’s statements and behavior at the meeting, I
did not feel comfortable or safe supervising Mr. Adair in any
direct or indirect manner in the future. I was unable to
concentrate on my work for the remainder of Thursday October 17
due to Mr. Adair’s statements and conduct at the meeting.”).
6
See AR Tab 4jj, Email from Perlman to Hauser dated Oct.
17, 2002 (“I am very concerned about [plaintiff’s] statements and
believe that they must be taken seriously. [Mr. Scott] now agrees
that it would be fruitless for him to continue to try to work
10
contacted security at the Department of Labor. See AR Tab 4cc4,
Ex. C. to 2002 Scott Decl., Email from Scott to Robert Rouse
dated Oct. 18, 2002 (discussing the October 17th Meeting, and
concluding: “Mr. Adair’s statements made me uncomfortable and
afraid of what he might do, and I believe he intended to make me
feel that way. Please do what you can to preserve the safety of
the DOL employees around Mr. Adair.”). On October 18, 2002 –
after interviewing Mr. Scott, Ms. Perlman, Ms. Hopkins, and Ms.
Sandler – Mr. Hauser contacted Mr. Adair at his home,7 and
informed Mr. Adair that he was being placed on administrative
leave and was barred from the PBSD building. See AR Tab 4kk,
Email from Hauser to Adair dated Oct. 18, 2002 (“I am writing to
confirm our conversation. As I indicated, you are on
administrative leave and will not be allowed into the building.
I am concerned about the statements you made at the October 17
with [plaintiff].”); AR Tab 4ii, Email from Sandler to Hauser
dated Oct. 17, 2002 (“All in all, [plaintiff’s] tone and attitude
were very threatening. There is a possibility that he was
putting on an act, but I don’t think so, and I don’t think we
should take any chances. I recommend consulting with the
appropriate human resources people concerning the possibility of
removing [plaintiff] from the premises immediately and revoking
his building pass on the ground that he is dangerous.”); AR Tab
4hh, Email from Scott to Hauser dated Oct. 17, 2002 (“I feel very
uncomfortable even if I don’t work with [plaintiff] again.”);
Email from Hopkins to Hauser dated October 18, 2002 (describing
plaintiff’s comments at the October 17th Meeting).
7
Plaintiff worked at home on Friday, October 18, 2002,
“pursuant to his regular flextime schedule.” Pl.’s Supp. Mot.
for Partial Summ. J. at 13.
11
meeting, and about the fear and disruption caused by those
statements.”).
Soon thereafter, on November 14, 2002, Ms. Perlman sent Mr.
Adair a notice of a proposal to remove him from his position as a
trial attorney at PBSD (the “Notice of Proposed Removal”). See
AR Tab 4bb, Notice of Proposed Removal. This seven-page notice
informed Mr. Adair, among other things, that his proposed removal
was based on the following charges: (1) “[m]aking statements to
supervisors and co-workers that resulted in anxiety and
disruption in the workplace”; (2) “[f]ailure to follow
instructions”; and (3) “[i]nsubordination.” See generally Notice
of Proposed Removal; Def.’s SMF ¶ 19. The notice also contained
detailed specifications setting forth the specific conduct that
each charge was based upon. As is relevant to this case, the
anxiety and disruption charge is based upon the statements that
plaintiff made during the October 17th Meeting, including that he
“had been feeling violent” and “would rather see everyone dead
and the whole world destroyed” than be disrespected; the failure
to follow instructions charge is based upon plaintiff’s alleged
failure to revise the contempt motion as requested and to
complete the assignments contained in the July 17th Email; and
the insubordination charge is based upon plaintiff’s alleged
statement to Ms. Perlman that he refused to work on the Employers
Mutual case during their meeting on August 9, 2010, as well as a
12
similar statement that he allegedly made during the October 17th
Meeting.8 See Notice of Proposed Removal. Mr. Adair submitted a
32-page response to the agency’s notice, in which he argued,
among other things, that “the Notice fails to provide a just
basis for the proposed action, it does not promote efficient
operation of the Federal Service, and is disproportional to the
8
It is Mr. Adair’s position that he “never flatly
refused to do any work” on the Employers Mutual case. AR Tab 4d
at 6 n.1, Plaintiff’s Response to Notice of Proposed Removal. He
avers that: “He asked to be removed from the [Employers Mutual]
case, but he only refused to do those assignments he was
incapable of doing for lack of information or because he was
being asked to do an assignment that he considered to be a
violation of the rules of practice or professional
responsibility. As Perlman’s August 9th e-mail notes, Adair also
added a significant caveat. Adair stated his refusal would
succumb to any risk of employment. . . . Thus, the presumption
that he would not have done any future assignment is inaccurate.”
AR Tab 4d at 6 n.1. Plaintiff also denies stating that he
refused to do any future work on the Employers Mutual case at the
October 17th Meeting; it is his position that during the meeting
he simply “reiterated [his] problems working on the case and also
wondered how useful [he] would be [on the case].” 2002 Adair
Decl. ¶ 32. The sworn declarations of his supervisors in
attendance at the meeting, however, dispute Mr. Adair’s account.
See, e.g., Perlman Decl. ¶ 6 (“I told Mr. Adair that he had not
been taken off the Employers Mutual case. . . . Mr. Adair became
incensed and said that he was not going to work on the case. Mr.
Adair angrily told Mr. Scott that he was incompetent and that he
wasn’t going to be taken down with Mr. Scott.”); Sandler Decl.
¶ 6 (“Mr. Adair stated that he would not work on the case because
Mr. Scott is disrespectful. He said that Mr. Scott called him
names, wrote disrespectful notes, sent him disrespectful emails
and made disrespectful comments in front of others. He said that
Mr. Scott is incompetent and he would not work for someone who is
incompetent. He said something like ‘I don’t want to go down
with him.’”). Given the issues before the Court, and the
procedural posture of the case, the Court finds this factual
dispute immaterial to the Court’s resolution of the case.
13
reasons alleged[.]” AR Tab 4d at 1.9
On March 26, 2003, Mr. Hauser issued a memorandum upholding
the Notice of Proposed Removal (the “Agency Decision”). Def.’s
SMF ¶ 20; see AR Tab 4a, Agency Decision at 1 (“This memorandum
constitutes my decision on the proposal to remove you from your
position for making statements that resulted in anxiety and
disruption in the workplace, insubordination, and failure to
follow supervisors’ instructions.”). In his decision, Mr. Hauser
found that the reasons set forth in the Notice of Proposed
Removal were supported by a preponderance of the evidence, and
that the severity of plaintiff’s conduct warranted removal. See
Agency Decision at 1; see also Agency Decision at 6 (“After
consideration of all of the evidence, I conclude that it is
appropriate to terminate your employment as proposed,
particularly in light of the seriousness of the offenses and the
sensitivity of your position. . . . PBSD cannot effectively
discharge its responsibilities if employees refuse to follow the
directions of their supervisors, and supervisors cannot do their
9
Plaintiff declined Mr. Hauser’s request to meet with
him to discuss his written response or to provide an oral reply.
See Agency Decision at 7 (“You have . . . withdrawn your request
to give an oral reply, and have declined my repeated requests
that you provide such a reply . . . . Although you certainly
have no obligation to meet with me personally to discuss your
case, your decision means that I have been unable to question you
about your responses to the Notice of Proposed Action or about
any circumstances that you believe may be mitigating.”).
14
jobs if they have to worry about the potential for unwarranted,
provocative, and possibly dangerous responses when they issue
proper directions to an employee.”). Accordingly, plaintiff was
removed from federal service effective March 29, 2003. Def.’s
SMF ¶ 21.
Plaintiff then appealed the Agency Decision to the MSPB on
April 14, 2003, and the matter was referred to Administrative
Judge Sherry Armstrong (the “ALJ”). Def.’s SMF ¶ 22. On August
11, 2003, Judge Armstrong issued a 48-page opinion (the “MSPB
Decision”) upholding the Agency Decision and concluding that the
agency-imposed penalty of termination “supports the efficiency of
the service and was reasonable.” AR [Docket Entry 7-1 at 4-23,
7-2 at 1-25], MSPB Decision at 26; Def.’s SMF ¶ 24.
Specifically, with regard to the agency’s charges, the ALJ found
that: (1) “[t]he agency established its charge of making
statements to supervisors and co-workers that resulted in anxiety
and disruption in the workplace by preponderant evidence”;
(2) “[t]he agency established its charge of failure to follow
instructions by preponderant evidence”; and (3) “[t]he agency
established its charge of insubordination by preponderant
evidence.” MSPB Decision at 8-31. The ALJ also found that:
(i) plaintiff failed to establish an entitlement to sick leave or
leave under the FMLA due to his refusal to submit documentation
to the agency in support of his request; (ii) plaintiff failed to
15
establish race or gender discrimination as the agency had
proffered a legitimate, non-discriminatory reason for plaintiff’s
termination and there were no similarly-situated individuals that
were treated differently; (iii) plaintiff failed to establish
disability discrimination as he did not present any evidence to
establish that he had a physical or mental impairment that
substantially limited one or more major life activities; and
(iv) plaintiff failed to establish a harmful procedural error.
MSPB Decision at 3-8, 31-43.
Plaintiff subsequently appealed Judge Armstrong’s opinion to
the full MSPB. Def.’s SMF ¶ 25. This appeal was denied on May
13, 2004. See Adair v. Dep’t of Labor, 97 M.S.P.R. 605 (2004)
(concluding that the “administrative judge made no error in law
or regulation that affects the outcome,” and holding that “[t]he
initial decision of the administrative judge is final”).
Plaintiff then sought review of the MSPB Decision to the Equal
Employment Opportunity Commission (the “EEOC”). Def.’s SMF ¶ 26.
The EEOC also denied plaintiff’s appeal, finding that “the MSPB’s
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported
by the evidence in the record as a whole.” Def.’s SMF ¶ 26.
Accordingly, on August 30, 2004, plaintiff filed suit in
this Court alleging (i) race discrimination, (ii) sex
discrimination, (iii) interference with and denial of family and
16
medical leave, (iv) disability discrimination, and (v) violations
of due process. He also sought review of the MSPB Decision.
Thereafter, plaintiff voluntarily dismissed his claims for sex
discrimination and interference with and denial of family and
medical leave. See Pl.’s Opp’n Br. at 3 n.2 (“Plaintiff is no
longer pursuing a claim of gender discrimination.”); Order Dated
March 16, 2006 (“[A]t plaintiff’s request, it is FURTHER ORDERED
that plaintiff’s claim under the Family and Medical Leave Act is
DISMISSED.”). Pending before the Court, therefore, are
plaintiff’s remaining discrimination claims, his allegation of
due process violations, and his petition for review of the MSPB
Decision.10 Defendant has moved for summary judgment on all
10
It is unclear to the Court whether plaintiff now seeks
to assert a retaliation claim. While plaintiff never pled a
retaliation claim, see generally Compl., and indeed specifically
stated during the course of this litigation that he was not
asserting a retaliation claim, see Pl.’s Mot. for Partial Summ.
J. at 26 n.9 (“Plaintiff’s purpose is not to perfect a
retaliation claim, but rather to show that he would have had a
colorable claim . . . .”), plaintiff now states that his
“[c]omplaint encompasses two retaliation claims that would be
pled specifically but for Defendant’s withholding of evidence.”
Pl.’s Mot. for Partial Summ. J. at 44. Because plaintiff never
sought leave of the Court to assert a retaliation claim during
the more than five years of active litigation in this case, the
Court declines to entertain such a claim now. Accordingly, to
the extent that plaintiff seeks leave to assert a retaliation
claim in this case, his request is DENIED. See also Def.’s Reply
Br. at 13 n.17 (setting forth compelling reasons that “[s]hould
the Court entertain [plaintiff’s] purported retaliation claim,
Defendant is entitled to judgment as a matter of law”). The
Court will also note that plaintiff attempted to assert a
17
claims, and plaintiff has filed a cross-motion as to his non-
discrimination claims. These motions are now ripe for
determination by the Court.
II. STANDARD OF REVIEW
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). “A fact is material if it ‘might affect the
outcome of the suit under the governing law,’ and a dispute about
a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The
party seeking summary judgment bears the initial burden of
demonstrating an absence of genuine issues of material fact.
Celotex, 477 U.S. at 322. In determining whether a genuine issue
of material facts exists, the Court must view all facts in the
retaliation claim, for the first time, in his closing submissions
to the MSPB. The MSPB also declined to allow plaintiff to assert
a retaliation claim, see MSPB Decision at 41 (“[I]t is my
determination that the appellant’s allegation of retaliation was
untimely raised and it should not be considered further.”), but
found that “even if the appellant’s untimely allegation regarding
retaliation was permitted, it would still fail.” Id.18
light most favorable to the non-moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986);
Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).
Likewise, in ruling on cross-motions for summary judgment, the
court shall grant summary judgment only if one of the moving
parties is entitled to judgment as a matter of law upon material
facts that are not genuinely disputed. St. Michael’s Med. Ctr.
v. Sebelius, 648 F. Supp. 2d 18, 25 (D.D.C. 2009) (citing Rhoads
v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)).
The non-moving party’s opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting forth
specific facts showing that there is a genuine issue for trial.
See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. If the
evidence favoring the non-moving party is “merely colorable, or
is not significantly probative, summary judgment may be granted.”
Anderson, 477 U.S. at 250. Moreover, “although summary judgment
‘must be approached with special caution in discrimination cases,
a plaintiff is not relieved of [his] obligation to support [his]
allegations by affidavits or other competent evidence showing
that there is a genuine issue for trial.’” Bolden v. Winter, 602
F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home
Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)).
19
Summary judgment will be granted, therefore, if the plaintiff
fails to submit evidence that creates a genuine factual dispute
or entitlement to judgment as a matter of law. Wada v.
Tomlinson, 517 F. Supp. 2d 148, 181 (D.D.C. 2007); see also
Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special
caution “does not eliminate the use of summary judgment in
discrimination cases” (citing cases)).
III. ANALYSIS
As noted above, defendant has moved for summary judgment as
to plaintiff’s race and disability discrimination claims on the
grounds that it had legitimate, non-discriminatory reasons for
Mr. Adair’s claims for removal, and that Mr. Adair failed to
produce evidence that a discriminatory reason motivated
defendant’s decision or that defendant’s proffered reasons are a
pretext for discrimination. Defendant also seeks summary
judgment as to plaintiff’s alleged “due process violations,” and
argues that the MSPB Decision upholding plaintiff’s removal was
not arbitrary, capricious, or otherwise in derogation of the law
and therefore should be upheld. Plaintiff filed a cross-motion
for partial summary judgment as to his non-discrimination claims.
The Court will begin by addressing defendant’s motion for summary
judgment as to plaintiff’s discrimination claims.
20
A. Plaintiff’s Discrimination Claims
1. Race Discrimination
i. Legal Framework
Discrimination claims under Title VII have traditionally
been analyzed under the McDonnell Douglas burden shifting
framework. The D.C. Circuit recently held, however, that when
considering a motion for summary judgment in an employment
discrimination case, a district court need not consider whether a
plaintiff has actually satisfied the elements of a prima facie
case if the defendant has offered a legitimate,
non-discriminatory reason for its actions. Brady v. Office of
the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
Instead, “the district court must resolve one central question:
Has the employee produced sufficient evidence for a reasonable
jury to find that the employer’s asserted non-discriminatory
reason was not the actual reason and that the employer
intentionally discriminated against the employee on the basis of
race, color, religion, sex, or national origin?” Id. In other
words, a court must determine whether “all the evidence, taken
together, [is] insufficient to support a reasonable inference of
discrimination.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir.
2009) (citing Brady, 520 F.3d at 494-95); see also Holcomb v.
Powell, 433 F.3d 889, 896-97 (D.C. Cir. 2006) (“‘[T]he plaintiff
must show that a reasonable jury could conclude from all of the
21
evidence that the adverse employment decision was made for a
discriminatory reason.’” (quoting Lathram v. Snow, 336 F.3d 1085,
1088 (D.C. Cir. 2003))). “[A]ll of the evidence,” in turn, means
“any combination of (1) evidence establishing the plaintiff’s
prima facie case; (2) evidence the plaintiff presents to attack
the employer’s proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the
plaintiff, such as independent evidence of discriminatory
statements or attitudes on the part of the employer.” Holcomb,
433 F.3d at 897; see also Washington v. Chao, 577 F. Supp. 2d 27,
39 (D.D.C. 2008) (“[I]n all instances where a defendant has
asserted a legitimate, non-discriminatory reason for its conduct,
the Court shall evaluate all of the evidence in the record,
including that which would be used to establish a prima facie
case (but not for the purpose of evaluating whether a prima facie
case has been established), to address the ultimate question of
discrimination vel non.”).
“A plaintiff may show discrimination either directly or
indirectly.” Evans v. Holder, 618 F. Supp. 2d 1, 8 (D.D.C.
2009). Evidence is direct if it shows that a “‘discriminatory
reason more likely motivated the employer.’” Id. (quoting George
v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). Evidence is
indirect if it shows that “‘the employer’s proffered explanation
is unworthy of credence.’” Id. (quoting George, 407 F.3d at 413).
22
There are at least two ways to demonstrate that a
nondiscriminatory explanation is false. First, a plaintiff may
show that “the employer is making up or lying about the
underlying facts that formed the predicate for the employment
decision.” Brady, 520 F.3d at 495. Second, a plaintiff may show
that a similarly situated employee outside plaintiff’s protected
class was treated more favorably. Id.ii. Analysis
In this case, defendant has proffered a legitimate, non-
discriminatory reason for plaintiff’s termination. Specifically,
defendant asserts that “[p]laintiff’s own conduct is the
legitimate, non-discriminatory reason for Plaintiff’s removal
from federal service.” Def.’s Mot. for Summ. J. at 9. Citing
the agency’s determination that plaintiff had (1) made statements
to supervisors and co-workers that resulted in anxiety and
disruption in the workplace; (2) failed to complete certain
assignments; and (3) acted insubordinately, defendant argues that
“[e]ach of these [reasons] alone is a legitimate, non-
discriminatory reason for Plaintiff’s removal that is not
pretextual and entitles Defendant to judgment as a matter of
law[.]” Def.’s Mot. for Summ. J. at 9-10. The issue before the
Court, therefore, is whether plaintiff has produced sufficient
evidence for a reasonable jury to find that defendant’s asserted
non-discriminatory reasons were not the actual reasons for the
23
adverse employment action, and that the employer’s actions were
discriminatory.
For the reasons discussed below, the Court finds that
plaintiff has failed to meet this burden. Although plaintiff
purports to provide the Court with both direct and indirect
evidence of defendant’s alleged discriminatory intent and animus,
plaintiff’s “evidence” is provided in the form of either
conclusory allegations or mischaracterizations of the record.
Because “[s]elf-serving testimony does not create genuine issues
of material fact,” Fields v. Office of Johnson, 520 F. Supp. 2d
101, 105 (D.D.C. 2007), the Court finds that defendant is
entitled to summary judgment on plaintiff’s race discrimination
claim.
a. Plaintiff’s “Direct Evidence”
As “direct evidence” of defendant’s alleged discrimination,
plaintiff argues that he “was treated differently because of his
race on the Employers Mutual case than two white male attorneys.”
Pl.’s Opp’n Br. at 4 (explaining that “‘[a]n employer’s policy
amounts to disparate treatment if it treats [blacks and whites]
differently on its face’” (quoting Frank v. United Airlines,
Inc., 216 F.3d 845, 853 (9th Cir. 2000)) (alternations in
plaintiff’s brief)). Specifically, plaintiff contends that “[i]n
July 2002, supervisor William Scott gave Plaintiff and two
similarly white male attorneys, Benjamin Apt and Peter Dolan, the
24
same exact assignments[,]” however, “Scott treated Plaintiff
differently in the time given to complete the tasks, in the
amount of information and other support provided, and ultimately
in the investigation of the work performed on the tasks.” Pl.’s
Opp’n Br. at 4-5. As a result, plaintiff argues that
“[d]efendant blatantly used race to determine how much time to
allot to the attorneys to complete the Employers Mutual tasks.”
Pl.’s Opp’n Br. at 5. The Court finds that plaintiff’s
conclusory assertions are unsupported by the record.
While it is undoubtedly true that Mr. Scott gave Mr. Apt and
Mr. Dolan the same assignments that he had previously assigned to
plaintiff with different deadlines and conditions, what plaintiff
fails to acknowledge is that Mr. Scott assigned the tasks to Mr.
Apt and Mr. Dolan after plaintiff failed to complete the
assignments within the time requested. Indeed, by email dated
July 17, 2002, Mr. Scott gave Mr. Adair several assignments on
the Employers Mutual case to be completed by July 23, 2002. See
AR Tab 4cc2. After plaintiff failed to notify Mr. Scott
regarding the status of the assignments, Mr. Scott sent plaintiff
the following email on July 26, 2002:
Paul: Please tell me whether you have done the
assignments listed below. I have not reassigned
these tasks. As you know, Peter [Dolan], Ben [Apt]
and I are doing some of the work that was
previously assigned to you, but we can’t do it all
at this point given our other responsibilities. No
one has informed me that you are on sick leave or
annual leave. If you are simply refusing to do
25
these tasks, please inform me. If you don’t
respond to this e-mail, I will have no choice but
to assume that you refuse to do this work. Please
communicate with me!!
AR [Docket Entry 7-15 at 12]. It was not until July 29, 2002 -
after plaintiff failed to respond to Mr. Scott’s July 26th email
- that Mr. Scott asked Mr. Apt and Mr. Dolan to work on the
assignments that he had originally given to plaintiff. See Ex. A
to Pl.’s Mot. for Partial Summ. J., Email from Scott to Dolan and
Apt dated July 29, 2002 (“This is modified version of an
assignment to [plaintiff]. Peter: please do 1 and 4. Ben:
please do 2 and 3.”).11
Given the circumstances under which Mr. Scott gave the
assignments to Mr. Dolan and Mr. Apt, the Court finds that no
reasonable jury could find that Mr. Scott “used race to determine
how much time to allot to the attorneys to complete the Employers
Mutual tasks.” Pl.’s Opp’n Br. at 5. Nor is the Court
persuaded, based on the evidence before the Court, that any
reasonable jury could find that Mr. Adair’s race was the reason
that Mr. Scott assigned different case responsibilities to
plaintiff than he assigned to Mr. Apt and Mr. Dolan. See, e.g.,
Pl.’s Opp’n Br. at 7-8 (arguing that from July-October 2002 he
was deprived of “the desired assignments of depositions, meetings
11
While the substance of the assignments was the same,
Mr. Scott did not assign a specific deadline in his July 29, 2002
email to Mr. Dolan and Mr. Apt. Compare AR Tab 4cc2 with Ex. A
to Pl.’s Mot. for Partial Summ. J.
26
that required travel, [and] court appearances on Employers
Mutual” because Mr. Scott “segregated the attorneys by race . . .
[thereby] depriv[ing] him of the privileges and opportunities
enjoyed by the white attorneys”).12 Plaintiff, therefore, has
failed to provide the Court with “direct evidence” of race
discrimination. Cf. Hawkins v. Holder, 597 F. Supp. 2d 4, 17 n.7
(D.D.C. 2009) (“[Plaintiff] asserts in her Opposition that [i]n
this case, [she] has direct evidence of discrimination.
[Plaintiff], however, is wrong as a legal matter. Direct
evidence ‘is evidence that, if believed by the fact finder,
proves the particular fact in question without any need for
inference.’” (internal citations omitted) (quoting Brown v.
Small, 437 F. Supp. 2d 125, 130 n.7 (D.D.C. 2006))). Accordingly,
the Court will address plaintiff’s indirect evidence of
12
Moreover, to the extent that Mr. Adair is attempting to
argue that he was “similarly situated” to Mr. Apt and Mr. Dolan,
this argument must fail. “To show that another individual is
similarly situated, Plaintiff must ‘demonstrate that all of the
relevant aspects of their employment situation are nearly
identical.’” Smith v. Jackson, 539 F. Supp. 2d 116, 135 (D.D.C.
2008). Therefore, when, as here, an employer states that it took
an adverse employment action due to the plaintiff’s misconduct,
the plaintiff’s comparator must have been charged with a
comparable offense and then treated less harshly than the
plaintiff. See Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
1999); Hanna v. Herman, 121 F. Supp. 2d 113, 120-21 (D.D.C.
2000). In this case, as neither Mr. Apt nor Mr. Nolan “failed to
complete assignments, refused to follow instructions, or made
statements that caused severe anxiety and disruption in the
workplace[,]” Def.’s Reply Br. at 9, neither individual can
serve as a similarly-situated comparator.
27
discrimination: that the employer’s asserted reason for
terminating him was pretextual.
b. Plaintiff’s Evidence of Pretext
Plaintiff attempts to offer several reasons that defendant’s
asserted nondiscriminatory reason for his removal is unworthy of
credence. Plaintiff begins by arguing that “[t]he facts and
circumstances surrounding the October 17, 2002 meeting
demonstrate that Defendant’s explanation for Plaintiff’s
termination is not credible.” Pl.’s Opp’n Br. at 11. In support
of this assertion, plaintiff argues that the October 17th Meeting
was not really a mid-year review, rather it was an “investigative
meeting” where “Defendant intended to take some form of
disciplinary action [on plaintiff].” Pl.’s Opp’n Br. at 11-13.
Next, plaintiff argues that “[d]efendant’s actions after the
[October 17th] meeting are also suspect and could give a jury
reason to doubt Defendant’s motives and action.” Pl.’s Opp’n Br.
at 13. Towards this end, plaintiff argues that Mr. Hauser’s
termination decision was rendered in violation of the agency
manual, explaining that Mr. Hauser (i) did not interview
plaintiff about the October 17th Meeting; (ii) imposed a penalty
of removal rather than progressive discipline; and (iii) ignored
plaintiff’s harassment complaint against Scott. Pl.’s Opp’n Br.
at 18. Third, plaintiff argues that the Court can infer pretext
due to the lack of objective evidence of “anxiety and disruption”
28
at PBSD following the October 17th Meeting. Pl.’s Opp’n Br. at
19. The Court will explore these arguments in turn.
First, plaintiff’s characterization of the October 17th
Meeting as an investigatory meeting rather than a mid-year
evaluation lacks evidentiary support. See, e.g., Hopkins Decl.
¶ 1 (“On Thursday, October 17, 2002, I attended a mid-year review
for Paul Adair with Risa Sandler, Leslie Perlman and Bill Scott.
I had told Paul earlier that day that the supervisors in our
office wanted to do a review with him.”); Perlman Decl. ¶¶ 3,4
(providing an overview of the performance review process at PBSD
and explaining that “[o]n October 17, 2002, Risa Sandler, Liz
Hopkins, William Scott and I met with Mr. Paul Adair to conduct
his midyear review”).13 Indeed, plaintiff himself concedes that
13
Plaintiff’s argument appears to be based on an email
that Mr. Scott sent Mr. Hauser on September 30, 2002 - two weeks
before the October 17th Meeting. See Pl.’s Opp’n Br. at 11
(discussing Mr. Scott’s email dated September 30, 2002). In this
email, Mr. Scott stated: “Since there was no mid-term meeting
with [plaintiff], I am submitting my comments this way.
[Plaintiff] did very little substantial work since
February. . . .” AR Tab 13, Ex. W, p. 1, Email from Scott to
Hauser dated Sept. 30, 2002. While this email is evidence that a
mid-year review had not occurred as of September 30, 2002, it
does not allow a reasonable jury to infer that a mid-year review
was not subsequently held. To the contrary, the evidence in the
administrative record demonstrates that such a meeting occurred
on October 17, 2002. See, e.g., Hopkins Decl. at 1; Perlman
Decl. ¶¶ 3,4; see also AR Tab 4cc4, Ex. C. to 2002 Scott Decl.,
Email from Scott to Rouse dated October 18, 2002 (“On October 17,
2002, from about 11 am to about 12 pm, we conducted a mid-year
performance appraisal of Trial Attorney Paul Adair. . . . The
purpose of the meeting was for Mr. Adair’s supervisors to discuss
his performance in the past six months with him and to suggest
improvements he might make between now and the end of the
29
his cases were reviewed at the meeting. See Pl.’s Opp’n Br. at
13 (arguing that defendant improperly combined a “planned
interrogation with an actual review of other cases”). Second,
and more importantly, plaintiff fails to explain how the October
17th Meeting gives rise to an inference of pretext.14
The Court also finds that plaintiff’s complaints regarding
Mr. Hauser fail to establish pretext. While plaintiff complains
that Mr. Hauser did not contact him until 30 hours after the
October 17th Meeting and argues that “neither Hauser nor any
other agency representative interviewed Plaintiff between when he
was suspended on October 18, 2002 and when he was terminated on
March 26, 2003[,]” Pl.’s Opp’n Br. at 13-14, the record evidence
demonstrates that Mr. Hauser made “repeated requests” to meet
with plaintiff prior to rendering the Agency Decision. Agency
Decision at 7; see supra n.9. In addition, although plaintiff
performance period.”).
14
Rather than demonstrating pretext, the purpose of this
argument appears to be aimed at having the Court disregard the
statements that plaintiff made at the meeting. See Pl.’s Opp’n
Br. at 11-13 (explaining that if he knew that defendant was
planning to “accuse[] [him] of refusing to do certain tasks,” he
would have sought to have a union representative attend the
meeting; concluding that “[u]nder these unique circumstances and
in light of the interests at stake, Defendant should be precluded
from using the illegal meeting as a basis for her adverse
action”). For the reasons discussed infra the Court finds that
this argument lacks merit. See Section III.B.5 (concluding that
the agency did not deprive plaintiff of his right to union
representation because plaintiff did not request the presence of
a union representative at any point before or during the October
17th Meeting).
30
complains that Mr. Hauser “deviated from the agency’s policy of
progressive discipline” and imposed a penalty that “exceeds the
bounds of reasonableness and proportionality,” Pl.’s Opp’n Br. at
16-17, plaintiff fails to provide any evidence in support of this
assertion. For example, plaintiff does not identify a similarly-
situated employee of a different race upon whom the agency
imposed a lesser penalty. Defendant, by contrast, submits the
declaration of Mr. Hauser who explains: “The Department does not
have a table of penalties and Mr. Adair’s termination is not
inconsistent with any agency rules or policies for dealing with
misconduct. I know of no conduct by any member of PBSD’s staff
that is comparable to Mr. Adair’s statements at the October 17
meeting or to his flat refusal to continue work on Employers
Mutual. . . In my experience, Mr. Adair’s conduct at the October
17 meeting and its impact were unprecedented at PBSD.” AR
[Docket Entry 7-8 at 22], Declaration of Timothy D. Hauser
(“Hauser Decl.”) ¶ 9. Finally, plaintiff argues that Mr. Hauser
“completely ignored Plaintiff’s harassment complaint against
Scott.” Pl.’s Opp’n Br. at 18. Despite this bold assertion,
plaintiff has failed to provide the Court with any evidence
supporting the existence of such a harassment complaint, other
than his own self-serving declaration. As the agency contends
31
that no such claim was filed, see Agency Decision at 6,15 the
Court finds that plaintiff has failed to present a genuine issue
of material fact regarding the existence of this complaint. See
Fields, 520 F. Supp. 2d at 105 (finding that the plaintiff had
failed to create a genuine issue of material fact that defendant
“made derogatory statements about black employees” where
plaintiff “offer[ed] no evidence to support these charges except
her own testimony”); see also Holcomb, 433 F.3d at 899 (finding
that summary judgment was properly granted where, although
plaintiff “recite[d] a litany of allegations purporting to show
unlawful animus on the part of [defendants],” the allegations
were either “conclusory” or “without evidentiary support”).
Lastly, plaintiff argues that the Court can infer pretext
due to the lack of objective evidence of “anxiety and disruption”
following the October 17th Meeting. Pl.’s Opp’n Br. at 19-24.
The Court finds this argument unavailing. Despite plaintiff’s
15
In the Agency Decision, Mr. Hauser acknowledged
plaintiff’s “frequent demands to be taken off the [Employers
Mutual] case and [his] flippant statement to me that [he]
need[ed] to get a restraining order against Mr. Scott.” Agency
Decision at 6. Mr. Hauser further explained: “Although you now
portray your statement as an expression of alarm about physical
intimidation, in fact you made the comment in the context of
complaining about Mr. Scott’s repeated requests and efforts to
get you to do your work. You were not expressing concern about
your safety, but rather making a flamboyant statement of your
right to be free from supervision on the Employers Mutual case.
Mr. Scott has never threatened you physically, and you did not
make any such complaint when you sought to be removed from the
case.” Agency Decision at 6.
32
assertion that his supervisors’ actions “after the October
meeting show that they uniformly acted in ways that belie the
charge that Plaintiff caused anxiety and disruption in the
office,” Pl.’s Opp’n Br. at 20, the administrative record in this
case demonstrates that his supervisors were clearly disturbed by
the events that occurred at the October 17th Meeting. See
Sandler Decl. ¶¶ 12-14; Perlman Decl. ¶ 11; Hopkins Decl. ¶ 4;
2002 Scott Decl. ¶¶ 21-22; see also Hauser Decl. ¶ 4 (“Shortly
after the October 17 meeting, I spoke separately with each of the
supervisors, listened to their descriptions of the meeting and
observed their reactions. . . . Based on my observations, the
supervisors were genuinely and profoundly disturbed by Mr.
Adair’s words and demeanor, his use of violent imagery, and his
unsolicited statement that he had harbored violent feelings
towards Mr. Scott. Immediately after the meeting, one of the
supervisors, Risa Sandler, specifically requested that Mr. Adair
be banned from the building, expressing concern for her own
safety and the safety of others . . . . Even after Mr. Adair had
been banned from the building, the supervisors continued to be
upset and express their apprehension about the events on October
17.”). While plaintiff submitted the declarations of two co-
workers, Diane Clinton and Delores Durham, in support of his
assertion that “[n]either Durham nor Clinton discerned any
evidence of anxiety or disruption in the office,” Pl.’s Opp’n Br.
33
at 21, the Court finds that these declarations fail to create a
genuine issue of material fact. First, neither Ms. Durham nor
Ms. Clinton attended that portion of the October 17th Meeting
where plaintiff made the statements that led to his supervisors’
anxiety and disruption.16 Second, neither of the declarants
directly addressed whether there was any “anxiety or disruption
in the office” following the October 17th Meeting. See AR, Tab
31, Supp. Index of Exhibits, Exs. KK, MM.17
In sum, having closely reviewed the parties’ arguments as
well as the administrative record in this case, the Court finds
that plaintiff has failed to put forth competent evidence that
would allow a reasonable jury to conclude that he was terminated
16
Ms. Durham and Ms. Clinton were briefly summoned by
plaintiff to serve as “witnesses” during the October 17th
Meeting. See AR Tab 31, Supp. Index of Exhibits, Ex. MM,
Declaration of Delores E. Durham (“Durham Decl.”) ¶¶ 7-10 (“On
October 17, 2002, when Mr. Paul Adair was having his mid-year
review, he asked me and another co-worker, Diane Clinton, to come
into that meeting. I was asked to acknowledge whether I recalled
seeing a handwritten notation written by Mr. Bill Scott (‘once
again’) on a document that Mr. Paul Adair had prepared. I
indicated that I recalled seeing the notation on the document and
stated that Mr. Scott’s requested changes were minor. Shortly
after acknowledging the notation on the document, I left the
room.”); AR Tab 31, Supp. Index of Exhibits, Ex. KK, Declaration
of Diane Clinton (“Clinton Decl.”) ¶ 5 (“Paul Adair asked Delores
Durham and I if we recalled him showing each of us a document
with the words, ‘once again’ handwritten on it. I told him that
I did. . . Delores Durham also answered in the affirmative. . . .
Paul Adair thanked us and apologized for having to involve us,
and Delores Durham and I both left the Conference Room.”).
17
Ms. Durham did, however, aver that “[s]ince
[plaintiff’s] departure, I have not noticed any significant
changes in the office.” Durham Decl. ¶ 15.
34
on account of his race. To the contrary, there is substantial
evidence in the record that plaintiff was terminated for, among
other reasons, causing anxiety and disruption in the workplace as
a result of his comments to his supervisors during the October
17th Meeting. Accordingly, the Court hereby GRANTS defendant’s
motion for summary judgment as to plaintiff’s race discrimination
claim. See, e.g., Evans, 618 F. Supp. 2d at 14 (granting summary
judgment where there was “substantial evidence in the record that
Plaintiff performed poorly, compromised FBI security, and was
insubordinate”); see generally Brady, 520 F.3d at 495 (“If the
employer’s stated belief about the underlying facts is reasonable
in light of the evidence . . . there ordinarily is no basis for
permitting a jury to conclude that the employer is lying about
the underlying facts.”).
2. Disability Discrimination
i. Legal Framework
To bring a claim for disability discrimination under the
Rehabilitation Act a plaintiff must demonstrate that he is
disabled within the meaning of the Act. See Adams v. Rice, 531
F.3d 936, 943 (D.C. Cir. 2008).18 A person is disabled under the
18
Significant changes to the American with Disabilities
Act (“ADA”) and Rehabilitation Act took effect on January 1,
2009, after the events in this action took place. See ADA
Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553(2008). Because the D.C. Circuit has held that “the Amendments
do not apply retroactively,” Lytes v. D.C. Water & Sewer Auth.,
572 F.3d 936, 938 (D.C. Cir. 2009), this Court will apply the
35
Rehabilitation Act if he “has a physical or mental impairment
which substantially limits one or more of [his] major life
activities; has a record of such an impairment; or is regarded as
having such an impairment.” 29 U.S.C. § 705(20)(B). As discussed
below, because plaintiff has proffered no evidence to demonstrate
that he is disabled within the meaning of the Act, the Court
finds that plaintiff cannot bring a disability claim.19
ii. Analysis
Defendant argues that “[p]laintiff’s claims of clinical
depression do not rise to the level of limitation of a major life
activity and are unsubstantiated by the record.” Def.’s Mot. for
pre-amendment law to determine whether plaintiff is an
“individual with a disability.” Id. at 942.
19
As a general matter, claims under the Rehabilitation
Act are governed by the McDonnell Douglas burden-shifting
framework. McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000).
Therefore, when - as here - the defendant has proffered a
legitimate, non-discriminatory explanation for the plaintiff’s
termination, the Court generally applies Brady’s simplification
of the McDonnell Douglas framework. Franklin, 600 F. Supp. 2d at
74; see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d
13, 17 n.2 (D.C. Cir. 2009)(finding that the district court
correctly applied Brady’s summary judgment analysis to a
Rehabilitation Act claim). “But the question whether [plaintiff]
is disabled is a predicate to bringing a claim of
discrimination.” Ellis v. Georgetown Univ. Hosp., No. 08-1174,
2010 U.S. Dist. LEXIS 69028, at *10 n.4 (D.D.C. July 12, 2010)
(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 488-89,
494 (1999)); see also Mitchell v. Yates, 402 F. Supp. 2d 222, 228
(D.D.C. 2005) (“[P]laintiff’s complaint must adequately allege
facts sufficient to support the claim that he has a ‘disability’
within the meaning of the ADA, or else be subject to
dismissal.”). Accordingly, the Court must grant defendant’s
motion for summary judgment if Mr. Adair is not disabled. See
Ellis, 2010 U.S. Dist. LEXIS 69028, at *10 n.4.
36
Summ. J. at 18. This Court agrees. When plaintiff was asked by
defendant to provide medical evidence of his purported
disability, plaintiff provided only a prescription note from a
doctor indicating that plaintiff was seen and a treatment plan
was provided. AR [Docket Entry 7-15 at 8]. After plaintiff was
notified by defendant that the prescription was “inadequate to
justify extended sick leave because it does not state that you
will be unable to come to work because of medical treatment nor
does it state that you are incapable of performing the duties of
your job,” Handorf Letter, plaintiff provided no additional
medical documentation. Handorf Decl. ¶ 3. While plaintiff now
avers that during 2001-2002 he “was having difficulty seeing and
reading” as well as “difficulty caring for his person and
[working],” Pl.’s Opp’n Br. at 25-26, plaintiff’s self-serving
statements are “simply too vague and conclusory” for a reasonable
jury to conclude that he was substantially limited in a major
life activity. Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 199
(D.D.C. 2008); see, e.g., Alexander v. Tomlinson, 507 F. Supp. 2d
2, 21-22 (D.D.C. 2007) (finding plaintiff’s affidavit which
described difficulties “eating, sleeping, and concentrating,” but
provided “no detail whatsoever regarding the nature or extent of
these difficulties,” as “plainly insufficient” to survive the
defendant’s motion for summary judgment); Thompson v. Rice, 422
F. Supp. 2d 158, 174 (D.D.C. 2006) (plaintiff’s assertion that
37
she was substantially limited in caring for herself and
performing certain tasks, such as basic household tasks, driving
long distances, and getting up in the morning, was insufficient
to survive summary judgment where plaintiff “provided little
evidence to substantiate this claim, or otherwise describe the
degree to which she is limited with any reasonable specificity”).
Accordingly, the Court hereby GRANTS defendant’s motion for
summary judgment as to plaintiff’s disability discrimination
claim.
B. Non-Discrimination Claims
Because the Court has disposed of plaintiff’s discrimination
claims, see supra Section III.A, the Court must now review the
non-discrimination components of plaintiff’s mixed case before
the MSPB. In a so-called “mixed case” — that is, one in which
“an adverse personnel action subject to appeal to the MSPB [is]
coupled with a claim that the action was motivated by
discrimination,” Butler v. West, 164 F.3d 634, 638 (D.C. Cir.
1999) (citations omitted) — the Court conducts a de novo review
of the plaintiff’s discrimination claims but must review the
non-discrimination claims exclusively on the administrative
record. 5 U.S.C. § 7703(c).
“The non-discrimination findings of the MSPB
Administrative Judge are reversible only if they were arbitrary
or capricious, obtained without lawful procedures, or were
38
unsupported by substantial evidence.” Willingham v. Gonzales,
391 F. Supp. 2d 52, 63 (D.D.C. 2005) (citing 5 U.S.C. § 7703(c));
see also Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001)
(“[W]e review the MSPB’s assessment deferentially, upsetting it
only if it was arbitrary and capricious or an abuse of
discretion, or if it was unsupported by substantial evidence.”).
“To show that the MSPB’s decision is not arbitrary and
capricious, defendant needs only to show that the decision has a
rational basis in the law.” Hanna, 121 F. Supp. 2d at 117(internal citations omitted). “[I]n assessing whether the MSPB’s
ruling was supported by substantial evidence, a court is limited
to determining ‘whether the agency . . . could fairly and
reasonably find the facts that it did,’ and ‘an agency conclusion
may be supported by substantial evidence even though a plausible
alternative interpretation of the evidence would support a
contrary view.’” Willingham, 391 F. Supp. 2d at 63-64 (quoting
Robinson v. NTSB, 28 F.3d 210, 215 (D.C. Cir. 1994)).
Ultimately, “[t]he role of the courts in this area of federal
employment relations is strictly limited, and the MSPB’s decision
cannot be overturned if it is supported by such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Hanna, 121 F. Supp. 2d at 121 (internal citations
and quotation marks omitted).
39
Plaintiff argues that the MSPB Decision must be reversed for
several reasons. Specifically, plaintiff contends that:
(i) “[t]he MSPB’s findings that the tasks [contained in Reason 2,
Specification 1 of the Agency Decision] were valid and
outstanding as to Adair after July 29, 2002 must be set aside as
clearly erroneous,” Pl.’s Mot. for Partial Summ. J. at 2;
(ii) the MSPB’s finding that the failure to follow instructions
charge and the insubordination charge were two separate charges
was clearly erroneous, Pl.’s Mot. for Partial Summ. J. at 29;
(iii) “[d]efendant’s stated reasons for terminating Plaintiff’s
employment are unsupported by substantial evidence,” Compl. ¶ 96;
(iv) “[d]efendant’s first charge fails because it accused
Plaintiff of making threatening comments, but neither the
deciding official nor the MSPB analyzed the charge under threat
analysis as required by law,” Compl. ¶ 98; (v) “[p]laintiff’s
termination was achieved without procedures required by law,
rule, or regulation having been followed,” Compl. ¶ 99; (vi)
“[d]efendant and the MSPB acted arbitrarily and capriciously and
abused their discretion in denying Plaintiff relevant discovery,
witnesses, and other evidence necessary to exercise his
constitutional and statutory rights to defend against the
charges,” Compl. ¶ 100; (vii) “[d]efendant and the MSPB acted
arbitrarily and capriciously and abused their discretion in
denying Plaintiff information relevant and necessary to examine
40
and, if possible, prove his discrimination claims,” Compl. ¶
101; (viii) “[d]efendant and the MSPB acted arbitrarily and
capriciously and abused their discretion in denying Plaintiff the
legal basis for requiring him to waive all of his privacy rights
over his medical records and submit to a medical examination,”
Compl. ¶ 102; (ix) “[t]he penalty of termination was grossly
excessive, not in accordance with Agency standards, procedures,
or history, and was imposed without consideration of all relevant
factors,” Compl. ¶ 103; and (x) “[p]laintiff’s termination did
not promote the efficiency of the service,” Compl. ¶ 93.
Defendant, by contrast, argues that the MSPB Decision upholding
plaintiff’s removal was not arbitrary, capricious, or otherwise
in derogation of the law and therefore should be upheld. The
Court will explore these arguments in turn.
1. Reassignment of Tasks
A large portion of plaintiff’s motion for partial summary
judgment and supplemental motion for partial summary judgment are
spent addressing his contention that the MSPB Decision is
“clearly erroneous” because the assignments given to him by Mr.
Scott on July 17, 2002 were – “[u]nbeknownst” to plaintiff –
“reassigned” to two of his colleagues, Mr. Apt and Mr. Dolan, on
July 29, 2002. Pl.’s Mot. for Partial Summ. J. at 24. It is
plaintiff’s position that “[t]he reassignment of July 29 ended
[his] responsibility,” Pl.’s Mot. for Partial Summ. J. at 20, and
41
that “[t]he MSPB’s findings that the tasks were valid and
outstanding as to [him] after July 29, 2002 must be set aside as
clearly erroneous.” Pl.’s Mot. for Partial Summ. J. at 2; see,
e.g., Pl.’s Mot. for Partial Summ. J. at 20 (“This then is not a
case of Adair refusing to work, but rather a case of Defendant
taking work from Adair. The reassignment of July 29 ended
Adair’s responsibility.”); Pl.’s Supp. Mot. for Partial Summ. J.
at 3-4 (“There is no genuine dispute that Scott reassigned the
work on July 29. . . . The Notice claims Plaintiff did not follow
instructions and was insubordinate for failing to obey deadlines
between August 1 and October 17, 2002, which cannot be true by
virtue of Scott’s email.”); Pl.’s Mot. for Partial Summ. J. at 2
(“To use a football analogy, Defendant claimed Adair fumbled, but
the July 29 email was a change of possession. Adair cannot be
charged with a fumble when he did not have possession. The
MSPB’s findings that the tasks were valid and outstanding as to
Adair after July 29, 2002 must be set aside as clearly
erroneous.”). The Court finds this argument baseless.
There is no evidence to indicate that plaintiff was in any
way absolved of his responsibility to complete the assignments
given to him on July 17, 2002, simply because Mr. Scott reached
out to additional attorneys to work on the same assignments.
Indeed, to the contrary, evidence in the administrative record
indicates that defendant repeatedly affirmed to plaintiff after
42
July 29, 2002 that he was still responsible for the assignments
contained in the July 17th Email. See, e.g., AR Tab 4cc2, Email
from Scott to Adair dated Aug. 7, 2002 (“[P]lease do items 1, 2,
and 4 of the July 17 assignment (attached below) by August 19.”);
AR Tab 4cc3, Email from Perlman to Adair dated Aug. 9, 2002 (“I
am sending you the following assignment for the EM case even
though you told me yesterday that you would not do the
assignments and would accept your punishment . . . I urge you to
reconsider your position. You must complete the assignments
below on the schedule [Mr. Scott] proposed which has a deadline
of August 19.”).20 The Court therefore declines to set aside the
MSPB’s finding that Mr. Adair’s tasks were valid and outstanding
after July 29, 2002.
2. Merger of Tasks
Plaintiff also argues that the MSPB Decision upholding the
agency’s determination that plaintiff both failed to follow
instructions and acted insubordinately was legally erroneous.
Plaintiff asserts that the failure to follow instructions charge
and the insubordination charge “aris[e] out of the same nucleus
20
See also AR Tab 7-10 at 22, Email from Scott to Adair
dated July 30, 2002 (“Paul: As I have informed you several times
before, you have not been taken off the Employers Mutual case.
Your declared belief to the contrary has no basis in reality.
Peter and Ben were brought in to help when you stopped working on
the case and things had to be done in the case. You cannot
unilaterally take yourself off a case, and no one has informed
you that you were removed. . . . I ask that you please do the
work I assigned to you and let us move on.”).
43
of facts,” and must therefore be “merged into one [charge].”
Pl.’s Mot. for Partial Summ. J. at 29. It is plaintiff’s
position that “[d]efendant created a second offense by merely
repeating an order it claimed was not initially obeyed, which it
cannot legally do.” Pl.’s Supp. Mot. for Partial Summ. J. at 7.
The Court disagrees.
Despite plaintiff’s protestations to the contrary, see Pl.’s
Mot. for Partial Summ. J. at 27, 29, this is not a case in which
defendant is seeking to discipline plaintiff “multiple times for
the same claimed infraction.” Pl.’s Mot. for Partial Summ. J. at
4; cf. Southers v. Veterans Admin., 813 F.2d 1223 (Fed. Cir.
1987) (finding that the agency committed legal error in charging
the plaintiff with 19 charges of false testimony, when the
charges were based on a single interview in which “the agency
asked a total of 19 questions relating to whether [the plaintiff]
had attended the 9 a.m. class”). As evidenced by both the Agency
Decision and the MSPB Decision, defendant’s insubordination
charge is based on plaintiff’s purported statements that he
refused to continue working on the Employers Mutual case at the
October 17th Meeting and during a meeting with his supervisor on
August 8, 2002, while the failure to follow instructions charge
is based on plaintiff’s failure to complete certain tasks in the
Employers Mutual case - i.e., his failure to revise a contempt
motion in Spring 2002 and his failure to complete the specific
44
tasks contained in the July 17th Email prior to the October 17th
Meeting. See also Def.’s Response to Pl.’s Supp. SMF ¶ 35
(“[T]he charge of insubordination is not based upon Plaintiff’s
actual failure to perform work assignments, but rather, the
charge of insubordination is predicated on Plaintiff’s refusal to
perform the work assignments referenced in Scott’s July 17, 2002
and August 7, 2002 emails when directed to do so by both Scott
and Perlman.”). Given the different facts and evidence that
underlie the two charges, the Court finds that the MSPB’s
determination that the agency established both a failure to
follow instructions charge and an insubordination charge is not
legally erroneous. See also, e.g., Pedeleose v. Dep’t of Def.,
343 Fed. Appx. 605 (Fed. Cir. 2009) (finding substantial evidence
to support the agency’s charges of insubordination and failure to
follow instructions).
3. Substantial Evidence
More generally, plaintiff argues that defendant’s stated
reasons for terminating his employment are unsupported by
substantial evidence. See Compl. ¶¶ 96, 97. As noted above, in
assessing whether the MSPB’s ruling was supported by substantial
evidence, the Court is limited to determining “whether the agency
. . . could fairly and reasonably find the facts that it did[.]”
Willingham, 391 F. Supp. 2d at 63 (internal quotation marks
omitted). Moreover, “an agency conclusion may be supported by
45
substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary view.”
Id. Having carefully reviewed the Agency Decision and the 48-
page MSPB Decision, the Court finds plaintiff’s argument
unavailing. The MSPB considered a great deal of evidence -
carefully analyzing each party’s declarations and exhibits – in
reaching its conclusions on each charge. Indeed, the MSPB, in
reaching its decision, discarded a specification that it found to
be procedurally defective. See MSPB Decision at 26-27
(concluding that specification 4 of charge 2 was “procedurally
defective and may not be sustained”). While plaintiff may be
displeased with how the MSPB weighed the evidence, he does not
identify any pertinent evidence that the MSPB wholly failed to
consider nor does he otherwise meet his burden to show that the
agency could not fairly and reasonably find the facts that it
did. Accordingly, the Court concludes that the MSPB’s affirmance
of the three charges was supported by substantial evidence.
4. Threat Analysis
Plaintiff also contends that “[d]efendant’s first charge
fails because it accused Plaintiff of making threatening
comments, but neither the deciding official nor the MSPB analyzed
the charge under threat analysis as required by law.” Compl. ¶
98. The Court disagrees. A review of the Notice of Proposed
Removal indicates that plaintiff is charged with “[m]aking
46
statements to supervisors and co-workers that resulted in anxiety
and disruption in the workplace,” not making threatening
comments. Notice of Proposed Removal at 1. Indeed, in rejecting
this argument, the MSPB persuasively explained:
[Plaintiff] argued that the agency failed to
establish the factors utilized by the Board in
evaluating an alleged threatening comment. . . . In
this case, however, the appellant was not charged
with making a threat. Rather, he was charged with
making statements that resulted in anxiety and
disruption in the office. Although witnesses
presented sworn or affirmed testimony that they
perceived the appellant’s comments to be
threatening against Mr. Scott or other agency
employees, the agency did not charge the appellant
with making a threat.
See MSPB Decision at 15 (internal citations omitted). Because
plaintiff was not charged with making threatening comments, the
Court finds that the MSPB did not err in declining to analyze
whether plaintiff satisfied the 5-part test set forth in Metz v.
Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), as
those factors need only be considered “in deciding whether an
employee threatened his supervisors or co-workers.” Id. at 1002;
see also, e.g., McCarty v. Dep’t of the Navy, 67 M.S.P.R. 177,
182-83 (1995) (finding that the administrative judge did not err
in failing to consider whether the appellant intended to make a
threatening statement under Metz because “so long as the agency
proves its charge of making statements that caused anxiety and
disruption in the workplace, and further proves that discipline
47
promotes the efficiency of the service and that the penalty of
removal is reasonable, its charge may be sustained”).
5. Termination Achieved Without Procedures Required
by Law
In his complaint, plaintiff also asserts that “[his]
termination was achieved without procedures required by law,
rule, or regulation having been followed.” Compl. ¶ 99. “To
prove harmful procedural error, the [plaintiff] must prove that
the agency committed an error in the application of its
procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the
absence or cure of the error.” MSPB Decision at 34 (citing 5
C.F.R. § 1201.56(c)(3)). “The burden is upon the [plaintiff] to
show that the agency committed an error and that the error was
harmful, i.e., that it caused substantial prejudice to his
rights.” MSPB Decision at 34. Although plaintiff’s complaint
fails to set forth specific procedural errors, in his motions for
partial summary judgment plaintiff alleges the following:
(i) “[d]efendant’s denial of Plaintiff’s right to union
representation was a harmful procedural error,” Pl.’s Supp. Mot.
for Partial Summ. J. at 8; (ii) “the presence of Scott at the
meeting was an intentional provocation inasmuch as Adair had
recently made a formal complaint against him for harassment,”
Pl.’s Mot. for Partial Summ. J. at 5; and (iii) “[d]efendant also
violated due process by allowing Hauser, who had shown a bias, to
48
remain as the deciding official,” Pl.’s Mot. for Partial Summ. J.
at 33. For the reasons discussed below, the Court finds that
plaintiff has failed to establish that any of these purported
“errors” constitute a harmful procedural error.
First, the Court finds that plaintiff has failed to
establish that the agency committed any “error” with regards to
plaintiff’s alleged denial of his right to have a union
representative at the October 17th Meeting. It is undisputed
that plaintiff did not request a union representative at any
point during the October 17th Meeting. The agency, therefore,
cannot be found to have denied plaintiff his right to have a
union representative present when none was requested. Cf. Nat’l
Labor Relations Bd. v. Weingarten, Inc., 420 U.S. 251, 256-57
(1975) (discussing how the Board’s recognition that “§ 7 [of the
National Labor Relations Act] creates a statutory right in an
employee to refuse to submit without union representation to an
interview which he reasonably fears may result in his
discipline,” but explaining that the Board “shaped the contours
and limits of this statutory right” by finding that the right
arises “only in situations where the employee requests
representation”; “In other words, the employee may forgo his
guaranteed right and, if he prefers, participate in an interview
unaccompanied by his union representative.”).
49
Second, the Court finds no evidence in the record to support
plaintiff’s assertion that Mr. Scott’s attendance at the October
17th Meeting was intended as “an intentional provocation” in
response to plaintiff’s purported “formal complaint against him
for harassment[.]” Pl.’s Mot. for Partial Summ. J. at 5.
Instead, as explained in the declaration of plaintiff’s former
supervisor, Leslie Perlman, “[w]hen [the agency] conduct[s]
midyear and end of year performance reviews, it is [the agency’s]
practice to have each counsel present, as well as each Senior
Trial Attorney present who has worked with an attorney to give
input.” Perlman Decl. ¶ 3. As Mr. Scott had supervised
plaintiff’s work during the rating period, it was consistent with
agency policy for Mr. Scott to attend the October 17th Meeting,
Perlman Decl. ¶ 2; plaintiff has produced no evidence to the
contrary. Nor has plaintiff adduced any evidence - other than
his own self-serving declaration – to support the existence of a
harassment claim against Mr. Scott. The agency, as discussed
above, vigorously disputes that any such complaint was ever
filed. See supra n.15. Moreover, even assuming that the agency
committed error in allowing Mr. Scott to attend the October 17th
Meeting, plaintiff has failed to demonstrate how his attendance
substantially prejudiced plaintiff’s procedural rights. This
assertion of harmful error must therefore also fail.
50
Finally, plaintiff asserts that defendant erred “by allowing
Hauser, who had shown a bias, to remain as the deciding
official.” Pl.’s Mot. for Partial Summ. J. at 33. While it is
“violative of due process to allow an individual’s basic rights
to be determined by . . . a biased decisionmaker,” Svejda v.
Dep’t of Interior, 7 M.S.P.R. 108, 111 (1981) (citing Withrow v.
Lawkins, 421 U.S. 35, 58 (1975)), “there is no general
proscription of the appointment as a deciding official of a
person who is familiar with the facts of the case and has
expressed a predisposition contrary to the appellant’s
interests.” Id.; see also MSPB Decision at 40-41 (rejecting
plaintiff’s assertion that Mr. Hauser was improperly named as the
deciding official because “appellant has cited no authority for
his assertion that a deciding official must be completely removed
from the appellant’s situation”). In this case, after carefully
reviewing plaintiff’s litany of complaints regarding Mr. Hauser,
see, e.g., Pl.’s Opp’n Br. at 38-40, the Court finds no evidence
in the administrative record to support plaintiff’s assertions of
bias, other than his own self-serving declarations.21 Moreover,
21
For instance, in support of his claim that Mr. Hauser
was a “biased” decisionmaker, plaintiff asserts that “[i]t was
also Hauser’s personal decision not to take any action on Adair’s
harassment complaint, calling the idea of a white harassing a
black ‘flamboyant.’” Pl.’s Mot. for Partial Summ. J. at 7-8
(citing AR, Tab 4a, Decision Regarding Proposed Removal, p. 6)
(emphasis added); see also Pl.’s SMF ¶ 43 (“Hauser now describes
the report of a white employee harassing a black employee
‘flamboyant.’”). A review of the page cited by plaintiff in the
51
“the evidence of record establishes that the deciding official
properly considered the relevant factors in determining that the
appellant’s removal was warranted by the evidence and supported
by the efficiency of the service.” MSPB Decision at 41.
Accordingly, the Court finds that the MSPB did not err in
upholding the selection of Mr. Hauser as deciding official in
this case, and finds no violation of plaintiff’s right to due
process in that respect.
6. MSPB’s Decisions Regarding Discovery, Witnesses,
and Other Evidence
Plaintiff also alleges that the MSPB acted arbitrarily and
capriciously and abused its discretion in denying him “relevant
discovery, witnesses, and other evidence necessary to exercise
his constitutional and statutory rights to defend against the
charges[.]” Compl. ¶ 100. In his motions, plaintiff primarily
focuses on the ALJ’s denial of his request to compel the
administrative record, however, reveals the following statement
by Mr. Hauser: “Other examples [that you overreact too easily]
include your frequent demands to be taken off the [Employers
Mutual] case and your flippant statement to me that you needed to
get a restraining order against Mr. Scott. Although you now
portray your statement as an expression of alarm about physical
intimidation, in fact you made the comment in the context of
complaining about Mr. Scott’s repeated requests and efforts to
get you to do your work. You were not expressing concern about
your safety, but rather making a flamboyant statement of your
right to be free from supervision on the Employers Mutual case.
Mr. Scott has never threatened you physically, and you did not
make any such complaint when you sought to be removed from the
case.” Agency Decision at 6 (emphasis added). The Court has
found plaintiff’s motions to be replete with such
misrepresentations of the record. See, e.g., supra n.2.
52
appearance of Elizabeth Hopkins – one of plaintiff’s former
supervisors who attended the October 17th Meeting – at the
administrative hearing. See, e.g., Pl.’s Supp. Mot. for Partial
Summ. J. at 10-11. As a threshold matter, it is undisputed that
the ALJ declined to compel the appearance of Ms. Hopkins because
Ms. Hopkins was on vacation. See Pl.’s SMF ¶ 50. It is also
undisputed that neither Ms. Hopkins nor any other witness
testified at the administrative hearing because plaintiff
withdrew his request for an administrative hearing after the ALJ
issued her prehearing rulings. See AR Tab 26, Notice and Close
of Record Order (“On June 20, 2003, the appellant notified this
office in writing that he would not be participating in the
hearing scheduled in this appeal for June 24, 2003. As grounds
for his assertion, the appellant stated that he disagreed with
witness rulings and the order of presentation regarding his
affirmative defenses. . . . As the hearing in this matter was
scheduled at the appellant’s request, his decision not to
participate in the hearing effectively withdraws his hearing
request.”). Although plaintiff argues that the MSPB “committed a
harmful error and abused its discretion in refusing to compel
[Ms. Hopkins’] testimony,” the Court finds that plaintiff waived
his right to appeal the ALJ’s prehearing rulings by withdrawing
his request for an administrative ruling.
53
Even assuming, however, that plaintiff did not waive his
right to appeal the ALJ’s prehearing rulings, the Court is not
persuaded that the MSPB abused its discretion in failing to
compel Ms. Hopkins, who was on vacation, to attend the
administrative hearing. See Ayres v. Dep’t of Homeland Sec., 280
Fed. Appx. 991, 995 (Fed. Cir. 2008) (explaining that discovery
and evidentiary rulings “fall within the discretion of the Board
and its officials, and will not be overturned absent a clear and
harmful abuse of discretion”). While plaintiff proffers that he
wanted to question Ms. Hopkins regarding certain statements in
her declaration, see generally Hopkins Decl., as well as her
“comments to Scott during the [October 17th] meeting that he was
angry and should calm down,” Pl.’s Supp. Mot. for Partial Summ.
J. at 10-11, the Court finds that plaintiff has failed to
demonstrate how his inability to elicit testimony on those issues
imposed substantial harm or prejudice. See Johnson v. SSA, 276
Fed. Appx. 1014, 1018 (Fed. Cir. 2008) (“[Appellant’s] conclusory
allegations in his brief detailing various allegedly improper
decisions of the AJ regarding the scope of discovery fall far
short of demonstrating an abuse of discretion.”); Williams v.
McCausland, No. 90-7563, 1995 U.S. Dist. LEXIS 13341, at *56-67
(S.D.N.Y. Sept. 15, 1995) (rejecting the claim that the ALJ
abused her discretion by refusing to compel certain responses
requested by the plaintiff and allowing the plaintiff to subpoena
54
adverse witnesses where the plaintiff “fail[ed] to identify any
information that he was unable to obtain that would have affected
the outcome of the proceedings”).
In sum, upon close review of the administrative record in
this case, the Court finds nothing to suggest that the ALJ abused
her discretion with regards to discovery.
7. Information Relevant to Discrimination Claims
Plaintiff further alleges that “[d]efendant and the MSPB
acted arbitrarily and capriciously and abused their discretion in
denying Plaintiff information relevant and necessary to examine
and, if possible, prove his discrimination claims.” Compl.
¶ 101. This argument appears to be aimed at defendant’s failure
to disclose the fact that Mr. Scott asked two other trial
attorneys, Mr. Apt and Mr. Dolan, to work on the assignments
contained in the July 17th Email. See Pl.’s Mot. for Partial
Summ. J. at 31-32 (“Defendant had an affirmative duty to disclose
evidence that [plaintiff]’s work had been reassigned because [the
ALJ] had to consider the evidence in determining whether
[plaintiff] had failed to follow instructions or was
insubordinate with respect to those assignments.”). For the
reasons discussed above, see supra Section III.B.1, the Court
finds that disclosure of this information would not have affected
the outcome of the administrative proceedings. The Court,
therefore, declines plaintiff’s request to reverse the MSPB
55
Decision based on defendant’s purported failure to timely
disclose this evidence.
8. Medical Records and Medical Examination
Plaintiff further asserts that “[d]efendant and the MSPB
acted arbitrarily and capriciously and abused their discretion in
denying Plaintiff the legal basis for requiring him to waive all
of his privacy rights over his medical records and submit to a
medical examination.” Compl. ¶ 101. This contention lacks
merit. The MSPB properly recognized that:
[T]he appellant was not removed for failing to
consent to a medical examination nor did the agency
require such an examination. Rather, the agency
simply offered the examination in response to the
appellant’s claim of a mental condition affecting
his ability to perform his duties. The appellant
had been previously advised of his right to submit
medical documentation in conjunction with his leave
requests. He failed to do so. . . . The appellant
exercised his right to decline the examination. In
rendering its final decision to remove the
appellant, the agency did not penalize the
appellant for his denial of the examination but did
note that, absent the examination or other medical
documentation from the appellant, the appellant
failed to establish a mitigating factor based on a
mental or physical condition.
MSPB Decision at 38-39. As the administrative record contains no
evidence that the agency required plaintiff to “waive all of his
privacy rights over his medical records and submit to a medical
examination,” Compl. ¶ 101, the Court finds that the MSPB
properly rejected plaintiff’s claim of harmful error on this
issue.
56
9. Reasonableness of the Penalty
Plaintiff also challenges the agency’s decision to terminate
him, arguing that “[t]he penalty of termination was grossly
excessive, not in accordance with Agency standards, procedures,
or history, and was imposed without consideration of all relevant
factors.” Compl. ¶ 103. The Court finds this argument
unpersuasive. The Court “must defer to the agency’s
determination of disciplinary action unless the penalty is so
harsh and unconscionably disproportionate to the offense that it
amounts to an abuse of discretion.” Allen v. United States
Postal Serv., 466 F.3d 1065, 1071 (Fed. Cir. 2006). Here, that
is not the case. The agency considered the relevant Douglas
factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06
(1981), and provided a thorough explanation of why the penalty of
removal was appropriate. See Agency Decision at 6-7. The agency
also expressly considered plaintiff’s “eight years of service”
and “past highly effective performance ratings” in determining
the proper penalty to be imposed. Agency Decision at 6.
Nevertheless, despite plaintiff’s past highly effective
performance, the agency found, among other things, that:
“[Plaintiff’s] express refusal to work on Employers Mutual,
coupled with [plaintiff’s] alarming statements, would effectively
make it difficult for any PBSD attorney to supervise [him], not
just on Employers Mutual, but on any case in which disagreements
57
might arise. PBSD cannot effectively discharge its
responsibilities if employees refuse to follow the directions of
their supervisors, and supervisors cannot do their jobs if they
have to worry about the potential for unwarranted, provocative,
and possibly dangerous responses when they issue proper
directions to an employee.” Agency Decision at 6. After finding
that “the deciding official, Timothy Hauser, fully considered the
Douglas factors,” the MSPB upheld the agency’s penalty explaining
that “[t]he charges in this case are serious and clearly affected
the agency’s ability to accomplish its mission.” MSPB Decision
at 43-44. This Court agrees. Given the substantial evidence
supporting the agency’s charges in this case - and in particular,
evidence of the anxiety and disruption that resulted from the
October 17th Meeting – the MSPB’s determination that the
punishment was reasonable will not be disturbed.
10. Efficiency of the Service
Plaintiff also argues that his termination did not promote
the efficiency of the service. Compl. ¶ 93. He argues that he
“was an honored, respected, and productive employee . . . [whose]
annual performance standards and ratings over the course of his
Agency career never fell below the second highest rating of
highly efficient.” Compl. ¶ 93. Defendant, in response, argues
that “[d]efendant’s removal of [plaintiff] based on the three
58
(3) independent charges of misconduct promotes the efficiency of
the service.” Def.’s Reply Br. at 17.
An agency may take an adverse action against an employee
“only for such cause as will promote the efficiency of the
service.” 5 U.S.C. § 7513(a). “As the case law has developed,
courts have framed the ‘efficiency of the service’ issue in terms
of requiring a ‘nexus’ between . . . ‘the articulated grounds for
an adverse personnel action and either the employee’s ability to
accomplish his or her duties satisfactorily or some other
legitimate governmental interest promoting the ‘efficiency of the
service.’” Hanna, 121 F. Supp. 2d at 124 (quoting Yacovone v.
Bolger, 645 F.2d 1028, 1031 (D.C. Cir. 1981)). This requirement
has been translated into a three-part test in which the agency
must prove by a preponderance of the evidence that (1) the
charged conduct occurred; (2) there is a nexus between the
conduct and the efficiency of the service; and (3) the penalty
imposed is reasonable. Pope v. U.S. Postal Service, 114 F.3d
1144, 1147 (Fed. Cir. 1997). The Court finds that the agency
satisfied this test.
First, there is substantial evidence to support the MSPB’s
finding that the charged conduct occurred in this case. Indeed,
with regards to the anxiety and disruption charge, plaintiff does
not deny having made the statements in the October 17th Meeting
that underlie that charge. The Court also finds that the
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insubordination charge and failure to follow instructions charge
are supported by substantial evidence, as defendant submitted
sworn declarations of agency officials in support of those
charges as well as corroborating documentary evidence. Moreover,
given the serious nature of the charges involved and its negative
impact on PBSD as reflected in the sworn affidavits of
plaintiff’s former supervisors, the MSPB properly found that
there was a sufficient nexus between that misconduct and the
efficiency of the service. See Agency Decision at 6 (explaining
how defendant’s conduct impeded PBSD’s ability to “effectively
discharge its responsibilities”). Finally, as discussed above,
see supra Section III.B.9, the ALJ’s finding that removal was a
reasonable punishment is supported by substantial evidence. The
Court, therefore, finds that the agency had ample justification
for its finding that the efficiency of the agency would be
improved by removing plaintiff from federal service.
11. Due Process Violations
In addition to the purported errors discussed above,
plaintiff also asserts a claim for “violations of due process.”
See Compl. ¶¶ 85-90. In his complaint, plaintiff asserts three
purported due process violations: (i) defendant’s failure to
produce certain discoverable information, Compl. ¶ 87;
(ii) defendant’s failure to produce certain witnesses at the MSPB
hearing, Compl. ¶ 88; and (iii) the vagueness of Specification
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One of the Insubordination Claim in the Agency’s Proposal of
Removal, Compl. ¶ 89. As a threshold matter, the Court notes
that “the Fifth Amendment ‘only requires that a person receive
his ‘due’ process, not every procedural device that he may claim
or desire.’” Kropat v. FAA, 162 F.3d 129, 132 (D.C. Cir. 1988)
(quoting Johnson v. United States, 628 F.2d 187, 194 (D.C. Cir.
1980)); see also Chang v. D.C. Dep’t of Regulatory & Consumer
Affairs, 604 F. Supp. 2d 57, 64 n.4 (D.D.C. 2009) (“If an
individual receives adequate notice and the opportunity to be
heard in a meaningful manner, [his] procedural due process rights
have not been violated, even though [he] believes the decision
that results from that opportunity to be heard to be incorrect.”
(citing American Towers, Inc. v. Williams, 146 F. Supp. 2d 27, 33
(D.D.C. 2001))). For the reasons discussed above, see supra
Sections III.B.1, III.B.6, the Court finds that defendant’s
purported failure to produce certain discoverable information as
well as defendant’s failure to produce certain witnesses at an
administrative hearing that plaintiff withdrew from does not
amount to a due process violation as plaintiff has failed to
demonstrate how these alleged deficiencies substantially
prejudiced his right to be heard in a meaningful manner. To the
contrary, this Court finds that plaintiff received a more than
adequate opportunity to present his case and engage in discovery.
See Def.’s Mot. for Summ. J. at 22-23 (“As noted throughout AJ
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Armstrong’s lengthy decision, Adair clearly set forth arguments,
attempted to rebut arguments and evidence by Defendant, and his
arguments received a thorough analysis by an impartial
adjudicator.”).
The Court also rejects plaintiff’s claim that Specification
One of the Insubordination Charge in the Notice of Proposed
Removal was impermissibly vague. This specification states:
During the October 17, 2002 mid-year performance
review meeting, I explicitly told you that you had
not been taken off the Employers Mutual case. I
told you that all of us are required to work on
cases or assignments that we would rather not do,
but that was part of our responsibility to the
people whose interests we represent. You said that
you were not going to work on the case. You said
that we had already had that conversation in August
2002 when I told you that I was sending you an
email telling you to do certain assignments for the
case. You said that you had told me then, that you
would not work on the case and you continue to
refuse to work on the case.
Notice of Proposed Removal at 5. While plaintiff may not agree
with the substance of the charge, the Court is not persuaded that
the specification failed to provide plaintiff with sufficient
notice of the facts underlying the specification. The Court,
therefore, upholds the MSPB’s determination that this
specification was “sufficiently specific to put the appellant on
notice of the underlying facts so that he could fully respond to
the agency’s charges.” MSPB Decision at 40.
In sum, the Court concludes that the MSPB Decision is
clearly supported by the law, is not arbitrary or capricious, and
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was not obtained in violation of plaintiff’s procedural rights.
Indeed, the Court finds that the administrative record in this
case provides ample support for the MSPB’s finding that the
agency sustained the three charges of misconduct by a
preponderance of the evidence, and - given the serious nature of
the charges and their impact on the agency - that plaintiff’s
removal was appropriate. Accordingly, the decision of the MSPB
is AFFIRMED, defendant’s request for summary judgment as to
plaintiff’s non-discrimination claims are GRANTED, and
plaintiff’s request for partial summary judgment on these claims
is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS
defendant’s motion for summary judgment and DENIES plaintiff’s
cross-motions for partial summary judgment. An appropriate Order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
September 30, 2010
Notice to:
Paul C. Adair
1325 13th Street, NW
Apartment 52
Washington, DC 20005
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