Olson v. Rice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KARL oLsoN,
Plaintiff,
v. Civil Action No. 06-1205 (GK)
HILLARY cLINToN,1
in her capacity as
Secretary of State
Defendant.
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MEMORANDUM OPINION2
Plaintiff, Karl Olson, a Foreign Service Officer in the United
States Department of State (“DOS” or the “Department”), brings this
action against Condoleeza Rice, Secretary of the DOS, pursuant to
the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
Plaintiff seeks judicial review of a Foreign Service Grievance
Board (“FSGB” or “Board”) decision, alleging that it was “arbitrary
and capricious” and “tainted by prejudicial procedural errors.” 5
U.S.C. § 706(2).
1 Former Secretary of State Condoleeza Rice was named as the
original lead respondent in this case. Pursuant to Federal Rule of
Civil Procedure 25(d), the Court automatically substitutes her
successor, Secretary of State Hillary Clinton, as the new lead
respondent.
2 Because Plaintiff filed all his pleadings under seal, it is
necessary to redact various sections of this Opinion.
On February 3, 2005, in a prior action brought by Plaintiff,
this Court remanded the case to the FSGB to “consider evidence of
alleged anti-homosexual-bias.” Mem. Op., Olson v. Powell, 02-l37l,
at ll (Feb. 3, 2005) (“Mem. Op.”).
This matter is now before the Court on Plaintiff's Motion for
Summary Judgment [Dkt. No. 30] and Defendant’s Cross-Motion for
Summary Judgment [Dkt. No. 3l]. Upon consideration of the Motions,
Oppositions, Replies, the entire record herein, and for the reasons
stated below, Plaintiff's Motion is denied and Defendant’s Motion
is granted.
I. Background3
A. Factual Background“
Plaintiff has been a Ebreign Service Officer with the DOS
since l985 and was tenured in l988. From September 1993 to August
l996, he served as the Chief of the Non-Immigrant Visa (“NlV”)
Section of the United States Consulate General in Rio de Janeiro,
Brazil. His rank at that time was Foreign Service Officer Class
Three. ln 2000, he was promoted to Class Two.
Plaintiff was the second-ranking officer in a six-officer
Consular Section and supervised approximately twenty employees,
3 Unless otherwise noted, the facts set forth herein are
undisputed.
4 Because the factual background of this case has not changed
since the Court’s February 3, 2005 Opinion, this section is drawn
heavily from that Opinion.
including up to five American Junior Officers and fifteen Brazilian
Foreign Service Nationals (“FSN”). During his service in Rio de
Janeiro, his Consular Section was understaffed, lacked adequate
space and resources, and faced a rapidly increasing workload.
while serving in Rio de Janeiro, Plaintiff received Emp1oyee
Evaluation Reports (“EER”), covering the periods of (l) August 28,
1994, to April 15, 1995 (“First EER”), and (2) April 16, 1996, to
August 30, 1996 (“Second EER”).5 His rating officer for each EER
was Edwin L. Beffel, the Chief of the Consular Section. His
reviewing officer for the first EER was Consul General James M.
Derham. His reviewing officer for the second EER was Consul
General David E. Zweifel.
These two EERs contained a mixture of positive comments and
negative comments. For example, the 1994-1995 EER stated that
Plaintiff “gets the work done against tremendous pressure and lack
of staff, space, and resources” and that Plaintiff “has grown into
a very capable, tolerant, and experienced manager under
unimaginably stressful, constantly changing circumstances.”
Compl., Ex. 3 at 31 (FSGB Fina1 Decision, Nov. 7, 2005). 1n l995,
Beffel wrote that Plaintiff is “the hardest working officer 1 have
5 Every year, foreign service officers are evaluated by their
supervisors in EERs. Gonzalez v. Dep't of State, 135 F. Supp. 2d
193, 194 (D.D.C. 2001). Those EERs reflect the assessment of a
rating officer and a reviewing officer. Tov v. United States, 263
F. Supp. 2d l, 3 (D.D.C. 2002). Foreign service selection boards
use the EERs to evaluate foreign service officers for promotion or
selection out of the service. ld;
3
ever served with.” Def.’s Statement of Material Facts at 3.
The EERs also contained critical feedback. In the 1994-1995
EER, Beffel wrote that Plaintiff was “at times overly demanding of
his staff” and had “a tendency to be overly officious with NIV
applicants,” which “generated. an unusual amount of complaints
directed against him publicly.” Def.'s Mot. at 4.
Aside from the EERs themselves, the record includes numerous
statements by other employees concerning Plaintiff’s struggles to
foster a collegial working environment and to handle interactions
with the Brazilian public with aplomb. Consular Officer James
Thiede stated that Plaintiff “attracted quite a bit of negative
press coverage in the Brazilian media, principally as a result of
several incidents throughout 1995 and 1996 in which he yelled and
screamed at difficult or obtuse visa applicants.” Def.’s Statement
of Material Facts at l4. He also discussed Plaintiff’s “tendency
to be rude,” his “daily rudeness,” and stated that he “personally
witnessed Mr. Olson yelling and screaming not only at visa
applicants but also at State FSO's, USIS FSG’s, and NIV FSN's
[sic].” 1;L_ at 14-15. He claims that Plaintiff “literally
terrorized the staff and had employees walking in fear and
trembling.” lQL at 15.
Mark Lore, the Deputy Chief of Mission, stated that Plaintiff
could be “unnecessarily rigid and insensitive” and that his
“occasional displays of insensitivity toward Brazilian visa
applicants were well known within both the Bra2ilian and U.S.
official communities.” ld4 at l7.
Consul General Layton Russell stated that “a great deal of
[Plaintiff’s] supervisor's time and effort are required to ensure
that his efforts are properly channeled” and that “it was typical
of Karl to do everything short of clear insubordination to get his
way on policy and procedural issues.” lQA at 18-19. He also
referred to “frequent, negative articles in the press” that alleged
“rude treatment by visa officers” and cited Plaintiff by name. lQ4
at 20.
Economic Officer Nadia Tongour overheard criticisms of “Karl’s
professional style/approach in dealings with the public.” LQ; at
20. Deputy Principal Officer Charles Trotter acknowledged that
“improving his interpersonal skills should enable Mr. Olson to
advance in the Foreign Service.” lQ4 at 22.
Administrative Officer Roland Estrada stated that Plaintiff
was “not well regarded by both the American and local staff,” that
he “exhibited a tendency to argue over small details,” and that his
“strident personality made him at times a difficult person to deal
with.” lQ4 at 20~2l.
Ambassador Melvyn Levitsky stated that he handled “[s]everal
instances of Mr. Olson’s rudeness and discourtesy to visa
applicants.” lQL at 24. He stated that he “received so many
complaints about Mr. Olson” that he initiated a “campaign to
1d. at 25.
emphasize ‘courtesy and respect' to our visa officers.”
Consul General James Derham stated that “Mr. Olson was often
abusive” and that his “procrastination in preparing FSN evaluation
reports was a serious continuing problem.” Id. at 26. He recalled
incidents in which Plaintiff “slipped into fanaticism” and
“berated” other employees. ld. at 26.
ln addition, some of Plaintiff’s colleagues felt that certain
supervisors at the Consulate Genera1 demonstrated anti~homophobic
sentiments. Donna Hamilton, the Deputy Assistant Secretary for
Visa Services, wrote that “comments were made to us both in Rio and
Brasilia that indicated homophobic attitudes by management at both
posts.”
Consular .Affairs Management Analyst Leigh Carter noticed
during a 1996 visit to the Consulate that “an atmosphere of
homophobia prevailed at the top ranks of th[e] post.” Consular
Officer Leilani Straw believed that Beffel “omitted achievements
and included prejudicial statements in [Plaintiff’s employment
evaluations] because of his homosexual orientation.” She also said
there was “joking and derisive comments” about homosexuals at the
post.
Consular Officer David Schlaefer was told that Consul General
David E. Zweifel was pleased about his coming to the Consulate
because Zweifel was “glad that a heterosexual was ‘finally’ coming
into the section.” Schlaefer also said that Zweifel disapproved of
homosexuality anda that this was “well known in the Consulate
community.”
Finally, Consular Officer David Connell, who was homosexual
and worked for Plaintiff, said that tolerance toward homosexuals
ended after Zweifel joined the post in August of l994.
ln June 1994, an American citizen who needed urgent medical
treatment for HlV/AIDS attempted to return to the United States on
a VARlG Airlines flight. The pilot refused to allow the passenger
to board the plane because the passenger did not have a medical
certificate.
ln response, Plaintiff began issuing the pilot single-entry
visas, forcing him to reapply for visas every time he had a flight
scheduled to the United States. The President of VARIG ultimately
called Zweifel to complain about the treatment, alerting him that
the Brazilian government was prepared to reciprocate by issuing
single-entry visas to American airline personnel. In response,
Zweifel ordered that airline personnel should be issued
multiple-entry visas.
On August 3l, 1994, Zweifel sent a letter to the President of
VARIG, apologizing for the incident and acknowledging that the
VARIG pilot had a right to request a medical certificate for the
passenger.
On August 3, l994, the Diplomatic Security Office in Brazil
sent a telegram (the “Cable”) to the DOS’s Diplomatic Security
0ffice in Washington, D.C., which read as follows:
THE FOLLOWING STATE OFFICERS ASSIGNED TO THE CONGEN RIO
DE JANEIRO CLEARLY EXHIBIT HOMOSEXUAL PREFERENCES AND RSO
REQUESTS BACKGROUND INFO TO CONDUCT PROPER DEFENSlVE
BRIEFINGS FOR EACH, INCLUDING RELATlONSHIP REPORTING
UNDER PROVISIONS OF 3 FAM 609. WE HAVE NOT LEARNED OF
ANY INFAMOUS OR NOTORIOUS CONDUCT NOR HAVE CI CONCERNS,
SUCH AS CONTACT PATTERNS, ARlSEN. PLEASE ADVISE IF THESE
MEN ARE DECLARED. lF FURTHER ACTION IS APPROPRlATE
PLEASE ADVISE.
The cable was titled a “Request for Assistance,” and Plaintiff was
one of the two officers named in the cable. According to an August
23, 2000, memo from Juliane Tilton, then the Consulate's Regional
Security Office Secretary, the Consulate received a response
indicating that “sexual orientation (homosexuality) was no longer
considered an issue by the Department of State.”6
On an unspecified date, Beffel gave Plaintiff a “mock three
dollar bill with the words ‘Queer Reserve Note’ printed on the
front.” Compl., Ex. 3 at l9.
Other employees stated that they did not observe anti~
homosexual bias at the Consulate General. Thiede stated that he
did not believe that Zweifel and Beffel “included critical or
prejudicial comments in Mr. Olson's EER’s [sic] because of an anti~
homosexual bias” and that “[t]here was nothing but tolerance for
homosexual orientation” at the Consulate General. Def.’s Statement
6 Tilton indicated in the memo that she did not recall the
exact date of the response but thought it was received soon after
the initial cable was sent.
of Material Facts at 15-l6. Lore stated that he did not observe
“any prejudice” against Plaintiff’s sexual orientation by Zweifel
and Beffel. lgL at l7. Tongour never heard either Zweifel or
Beffel “express any sentiment” that would indicate they were
homophobic. ld; at 20.
Similarly, Trotter stated that Zweifel and Beffel “always
treated Mr. Olson fairly, without regard to his sexual
orientation,” and that they are “honest and objective and would
never allow any bias against sexual orientation, race, or anything,
even if one existed, to influence their professional conduct.” ld4
at 23. Ambassador Levitsky stated that Plaintiff’s sexual
orientation did not “affect the judgment of his supervisors.” LdL
at 25. Derham recounts that “nothing in the EER prepared by Mr.
Beffel reflects bias against homosexuals” and that none of the
officers in the Consulate General ever raised the issue of anti-
homosexual bias with him. lQ; at 27.
B. Procedural Background
On May 22, 1998, Plaintiff filed a grievance with the DOS,
alleging that the EERs covering his time in Rio de Janeiro were
inaccurate and falsely prejudicial, omitted favorable information,
contained inadmissible comments, and were based on the
anti-homosexual bias of Beffel and Zweifel.
On September 30, l998, the DOS denied Plaintiff's grievance.
On November 25, l998, Plaintiff appealed the decision to the FSGB.
On April 4, 2002, the FSGB issued an opinion, finding that the EERs
in question were not inaccurate, falsely prejudicial, or otherwise
defective. The FSGB also found that even though there was “weighty
evidence [of anti-homosexual bias] from credible outside
observers,” the evidence of bias was irrelevant because it had
already determined that Plaintiff’s EERs were not inaccurate or
falsely prejudicial,
On July 7, 2002, Plaintiff filed a Complaint in this Court.
Plaintiff and Defendant each filed Motions for Summary Judgment.
On February 3, 2005, the Court granted in part and denied in
part Plaintiff's Motion and granted in part and denied in part
Defendant’s Motion. lt found that the FSGB’s decision was
arbitrary and capricious because it did not consider “weighty
evidence” of Beffel’s and_ Zweifel's anti-homosexual bias. lt
remanded the case to the FSGB to consider this evidence. ln
addition, it found that the FSGB’s decision was not tainted by
procedural errors because any such errors were not prejudicial.
The Court stated that the FSGB decision had failed to
demonstrate a “rational connection between the facts found and the
choice made.” Mem. Op. at ll. In deciding that it did not need to
consider evidence of bias, the FSGB “ignore[d] a relevant factor”
in determining that “the subjective judgments contained in the EERs
were fair and accurate.” ;d4 The Court stated that the “logic of
this reasoning is hard to fathom.” ld.
10
The Court remanded the case to the FSGB to “consider evidence
of alleged anti~homosexual bias.” The issue on remand was limited
to determining “whether homosexual bias unfairly tainted” the EERs.
Order, Olson v. Powell, 02-1371 (Feb. 3, 2005). The Court
specifically directed the FSGB to “consider all relevant evidence
in determining whether the judgments and evaluations (which were
necessarily subjective) of Beffel and Zweifel were tainted by bias
or were, in their totality, fair and accurate.” Mem. Op. at 11
n.7.
On remand, the FSGB issued its final decision on November 7,
2005. lt made two principal findings. First, it “concluded that
Olson's claim that anti-homosexual bias tainted his evaluations had
not been satisfactorily demonstrated.” Compl., Ex. 3 at 2. After
examining the evidence presented by both sides, the Board “found
more credible the evidence which showed the validity of the
evaluations.” ld4 Second, it determined that O1son. had not
demonstrated that “his rater was a dysfunctional manager not
competent to properly evaluate him.” lg4
On June 30, 2006, nearly eight months after the FSGB's
decision, Plaintiff filed this Complaint. He again alleged that
the FSGB’s decision was arbitrary and capricious and “tainted by
procedural errors.” Compl. He sought fourteen specific types of
relief: (l) reversal of the FSGB’s decision, (2) promotion to FS-
02, backdated to 1995 with interest, (3) promotion to FS~O1,
ll
backdated to 2000 with interest, (4) promotion to Senior Foreign
Service, Class of Counselor (FE-OC), backdated to 2005 with
interest, (5) expungement of his 1994-1995 EER, (6) one additional
year time-in-class and time-in-service, (7) expungement of “all
falsely prejudicial and inaccurate comments” in Plaintiff’s 1995-
1996 EER, (8) elimination of “any and all derogatory information in
[his] DOS records, (9) inclusion of his “substantial contributions
and. efforts on the visa reciprocity issue and. their positive
effects on U.S. policy” in his EER file, (l0) an order to the State
Department's Medical Decision to conduct a medical examination to
“restore [Plaintiff’s] Category One medical clearance,” (11) an
order to Defendant to “assign [Plaintiff] to the Foreign Service
assignment of his choice, to take effect within one year,” (12) an
award of equitable damages, (13) an award of reasonable attorney
fees and costs incurred in this action and in the previous one, 02-
1371, and (14) consequential damages. lQ4
II. Standard of Review
Summary judgment will be granted when there is no genuine
issue as to any material fact. _ee Fed. R. Civ. P. 56(c). Since
this case involves a challenge to a final administrative decision,
the Court’s review on summary judgment is limited to the
administrative record. HolV Land Found. for Relief and Dev. v.
Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) (citing Camp v. Pitts, 411
U.S. 138, 142 (1973)); Richards v. lmmigration & Naturalization
§e;yL, 554 F.2d 1173, 1177 (D.C. Cir. 1977)) (“Summary judgment is
an appropriate procedure for resolving a challenge to a federal
agency's administrative decision when review is based upon the
administrative record.”).
The Foreign Service Act provides that the APA “shall apply
without limitation or exception” to a district court’s review of a
decision by the FSGB. 22 U.S.C. § 4l40(a); Tov v. United States,
263 F. Supp. 2d 1, 5 (D.D.C. 2002). Under the APA, an agency's
action may be set aside only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A).
“The arbitrary and capricious standard [of the APA] is a
narrow standard of review.” Citizens to Preserve Overton Park,
lnc. v. Volpe, 401 U.S. 402, 416 (1971). This Circuit has held
that “[t]his court’s review is . . . highly deferential” and “we
are ‘not to substitute [our] judgment for that of the agency” but
must “consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment.” Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003)
(citations and internal quotation marks omitted); see also Wright
v. Foreign Serv. Grievance Bd., 503 F. Supp. 2d 163, 172 (D.D.C.
2007) (“This deferential standard of review reflects a legislative
judgment that the Foreign Service Grievance Board’s familiarity
with the foreign service ought to be respected by the judiciary.”)
13
(internal punctuation omitted); see also United States v. Paddack,
825 F.2d 504, 514 (D.C. Cir. 1987). ln reviewing an agency action,
the Court “must consider whether the [agency] decision was based on
a consideration of the relevant factors and whether there has been
a clear error of judgment.” Citizens to Preserve Overton Park,
lnc., 401 U.S. at 416.
lf the “agency’s reasons and policy choices . . . conform to
‘certain. minimal standards of rationality' . . . the [agency
decision] is reasonable and must be upheld.” Small Refiner Lead
Phase-Down Task Force v. EPA, 705 F.2d 506, 521 (D.C. Cir. 1983)
(citation omitted); see Kisser v. Cisneros, 14 F.3d 615, 619 (D.C.
Cir. 1994).
The FSGB is responsible for making findings of fact. IQy, 263
F. Supp. 2d at 7. Accordingly, the FSGB possesses the “authority
to find one witness more credible than another” and to “assess the
existence and degree of any bias on the part of the witnesses.”
ld; (citing United States v. Abel, 469 U.S. 45, 52 (1984)).
Despite this deferential standard, the Court will “intervene
to ensure that the agency has ‘examine[d] the relevant data and
articulate[d] a satisfactory explanation for the action.'”
Petroleum Commc’ns, lnc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir.
1994) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
lns. Co., 463 U.S. 29, 43 (l983)). “Moreover, the agency's
decision must evince ‘a rational connection between the facts found
14
and the choice made.’” Toy, 263 F. Supp. 2d at 5-6 (quoting State
Farm, 463 U.S. at 43).
A court may reverse an FSGB’s decision if it finds that it was
“wholly unsupported 131 the evidence iJ1 the record” or~ if the
“requisite ‘rational connection’ is missing.” LQy, 263 F. Supp. 2d
at 10. ln addition, if the agency fails to provide a “reasoned
explanation” or if “the record belies the agency's conclusion,”
then a court must reverse it. IQy, 263 F. Supp. 2d at 6 (quoting
AT&T Co. v. FCC, 974 F.2d 1351, 1354 (D.C. Cir. 1992)).
“Regardless of whether it may agree with the FSGB's holding, a
court must restrict itself to determining whether the FSGB’s
decision was reasonable and supported by the weight of the entire
record.” Ehrman v. United States, 429 F. Supp. 2d 61, 68 (D.D.C.
2006).
III. Ana1ysis
A. The False1y Prejudicial Standard
A member of the Foreign Service may bring a grievance before
the FSGB when he believes that one of his EERs contains “falsely
prejudicial material which may have been a substantial factor in an
agency action.” 22 C.F.R. § 905.1(b). When he makes this
a1legation, the grievant bears the burden of establishing by a
preponderance of the evidence that his clain1 is meritorious.
lQA at § 905.1(a). Though EERs carry a “presumption of
regularity," this presumption “yields if the EER is shown to be
15
tainted by bias.” Compl., Ex. 3 at 26. However, even if the
reviewers and raters who draft an EER are biased, the EER is not
falsely prejudicial if it is accurate. §§§ 22 C.F.R. §
905.18(a)(1); gee Compl., Ex. 3 at 27 (“The issue in the grievance
is whether these differences resulted in an inaccurate and falselV
prejudicial EER harmful to his career.”) (citing FSGB, Case No. 94-
50 (Mar. 2, 1995)) (emphasis added).
In its prior opinion, the Court stated. that “bias would
clearly be relevant to a decision about the fairness and accuracy
of [Beffel and Zweifel's] judgment,” but it did not indicate that
evidence of bias would be sufficient to grant Plaintiff relief.
Mem. Op. at 11. The Court stated that the FSGB's decision would be
upheld if it “consider[ed] all relevant evidence” and determined
that the “judgments and evaluations (which were necessarily
subjective) of Beffel and Zweifel were tainted by bias or were, in
their totality, fair and accurate.” lQA at 11 n.7.
B. The FSGB’s Decision was Not Arbitrary and Capricious.
Plaintiff alleges that his EERs contaiJ1 material that is
“falsely prejudicial and inaccurate.” Compl.
}_\
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As the Court previously stated in its February 3, 2005
Opinion, there is strong evidence in the record that anti-
homosexual bias pervaded the atmosphere of the Consulate General in
Rio de Janeiro Mem. Op. at `Numerous staff members have
17
recounted the “atmosphere of homophobia” or described “joking and
derisive comments,” §§§_§up;a l.A (describing the comments of Straw
and Carter), although it is also true that other staff members
observed no such bias.
Perhaps the most disturbing incident was the sending of Cable
94 Rio de Janeiro 2982. The Cable targeted Plaintiff for no reason
other than his sexual orientation and cited his homosexuality as
its basis for initiating a defensive briefing. §§g Def.’s
Statement of Material Facts at 27-28.
lt is problematic that the Discussion and Findings section of
the FSGB's decision makes no mention of the Cable and also omits
any reference to the mock three dollar bil1, one of Plaintiff’s key
allegations. Several important questions remain unanswered: Who
wrote the Cable? Did the Cable's author participate in filling out
Plaintiff’s EERs? Did the incident with the mock three dollar bill
occur?
The Board attaches a substantial amount of weight to
statements made by Beffel and Zweifel, the very two officers whom
Plaintiff accuses of anti-homosexual bias. The decision concluded
that “[n]either had any motive to lie.” Compl., Ex. 3 at 25. lt
is not clear, however, that two supervisors would have no motive to
lie when their professional reputations would be damaged if the
Board found them to be homophobic.
Despite these shortcomings in the Board’s decision, the Court
18
must determine not whether the Board’s decision was perfectly
correct, but whether it was arbitrary. _§g §lQgh, 348 F.3d at 1068
(“[W]e will “uphold an agency decision of less than ideal clarity
if the agency's path may reasonably be discerned.”) (internal
citations omitted); see Miller v. Dep’t of Navv, 2009 WL 485735, at
*4 (D.D.C. 2009, Feb. 27, 2009) (ho1ding that the task of a court
reviewing an agency decision is to determine whether the decision
was “deficient” not to “reinvestigate” the plaintiff's claims). lt
is not this Court’s role to determine the facts anew or to reach
its own conclusions about whether Plaintiff’s EERs were accurate.
See Ackerman v. United States, 324 F. Supp. 2d 1, 7 (D.D.C. 2004)
(“[U]nder the highly deferential administrative review standard,
the decision to weight different events in a foreign service
officer’s employment history is within the expertise of the FSGB
and must receive deference.”
The Board wrote a detailed, thorough, 43-page opinion in which
it acknowledged comments made by numerous staff members about the
anti-homosexual atmosphere. However, it also stated, “even biased
raters and reviewers can prepare valid EERs.” Compl., Ex. 3 at 27.
Therefore the critical question is not whether bias existed -- it
did -- but whether the FSGB's decision was arbitrary and capricious
when it determined that the EERs were not falsely prejudicial,
For each of Plaintiff’s allegations, the Board cites to
evidence from numerous sources affirming the statements made in the
19
EERs at issue. See, e.g., Compl., Ex. 3 at 29 (“Not only are the
criticisms Olson condemns supported by the evidence of rater
Beffel, and Olson's reviewers, but they also are corroborated by
several others whose remarks are strikingly similar among
themselves.”).7 ln the aggregate, they provide strong support for
the Board’s conclusion that the EERs were accurate.
For example, the Board cites Derham's comments that
Plaintiff’s insistence “on certain procedures sometimes slipped
into fanaticism,” and that “a touch of over zealousness slips into
his performance.” Compl., Ex. 3 at 32. lt discusses Thiede's
recollection of incidents in which Plaintiff “yelled and screamed”
at visa applicants. ld; Other staff members, including Ambassador
Levitsky, Trotter, Tongour, Beffel, and Zweifel recounted similar
difficulties in working with Plaintiff. §ee supra l.A. The Board
summarizes the comments by acknowledging their intensity and their
volume: “Strong criticisms, indeed! And, from several sources.”
Compl., Ex. 3 at 32.
The Board also determines that the EERs were accurate because
they were not one-sided. lt refers to the multitude of statements
in the EERs that praise Plaintiff's performance and that
acknowledge the challenging conditions in which he worked. The
EERs stated that Plaintiff “gets the work done against tremendous
7 ln its previous Opinion, the Court recognized that
Plaintiff “undoubtedly had serious personality issues, as reflected
in his EERs.” Mem. Op. at 11 n.7.
20
pressures and lack of staff, space, and resources,” and that
Plaintiff was working during “a very hectic time,” in which “Rio
experienced a seismic explosion of its NlV workload.” Compl., Ex.
3 at 31. The EERs stated that Plaintiff “responded to a serious
crisis with a masterstroke.” lQL The Board notes that several
comments praise Olson and describe him as not overbearing. ld4 at
32.
ln reviewing the decision of the FSGB, this Court must defer
to the Board’s factual determination that the large number of staff
members who reported Plaintiff’s problems at work were truthful.
After reviewing all the statements in the record, the Board
reasonably determined that the statements made by Plaintiff's co-
workers and supervisors were consistent with the statements made in
the EERs. §e§ Compl., Ex. 3 at 26 (stating that the Board denied
Plaintiff’s claim because it was “persuaded by so many witnesses
giving evidence corroborative of the criticisms made against
Olson”). lt reasonably determined that the substantial number of
statements consistent with the EERs adds weight to Defendant’s
argument that they are accurate. §§§ id4
Given the quantity and consistency of the statements made by
Plaintiff’s co-workers, Plaintiff has failed to demonstrate that
the Board acted arbitrarily and capriciously when it found that the
EERs were not “falsely prejudicial.”
21
C. The FSGB's Procedures were Not Arbitrary and Capricious.
In response, Defendant makes four arguments. First, Defendant
argues that Plaintiff “acknowledges that those pages” left out of
the Administrative Record in the earlier case before this Court
“were in the record considered by the FSGB both in its original
decision and on remand, and plaintiff further acknowledges that
those pages are in the administrative record filed in this case.”
Def.’s Opp'n at 34. Second, Plaintiff does not explain “how” the
5
omission of the email “tainted” the FSGB’s decision, Id. I
addition, Defendant states that the emails are now included in the
Administrative Record. Id. Third, Defendant argues that the FSGB
complied with the Order by searching “in every p1ace” where
located.” ld4_at 34-35. Finally, Defendant argues that “Plaintiff
does not, and could not, argue prejudice from the exclusion of
these materials.” ld4 at 35.
when a plaintiff alleges that an agency's decision suffers
from procedural flaws that render its decision “arbitrary and
capricious,” he must show that procedural errors existed and that
prejudice resulted from these errors. Carstens v. Nuclear
RegulatorV Comm’n, 742 F.2d 1546, 1558 (D.C. Cir. l984) (“[T]he
onus is squarely on [the plaintiff] to establish prejudice.”); Mem.
Op. at 12.
ln the February 3, 2005 Opinion, the Court found that
Plaintiff had “fail[ed] to offer any evidence” that procedural
errors occurred and “fail[ed] to cite any actual prejudice that
resulted” from the alleged errors. Mem. Op. at 12-13.
Similarly, in the Motions now before this Court, Plaintiff has
failed to demonstrate that the alleged procedural errors caused him
actual prejudice. He has made only the conclusory argument that
the FSGB's decision was “tainted” by ex parte email communications
that were not included in the Administrative Record. He has not
stated how the exclusion of these communications tainted the
decision, and therefore has failed to carry his burden to show they
caused him any prejudice. Moreover, he has not identified any
specific prejudice that resulted from the other alleged procedural
defects.
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IV. Conc1usion
For the reasons set forth above, Plaintiff’s Motion for
Summary Judgment [Dkt. No. 30] is denied, and Defendant’s Motion
for Summary Judgment [Dkt. No. 31] is granted. An Order shall
accompany this Memorandum Opinion.
pa lida/aaa
march lQ;>, 2009 s1adys kessler
United States District Judge
Copies to: Attorneys of record via ECF
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