Bussey v. Carter

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARMIJO United States District Judge

         THIS MATTER is before the Court on Defendant Department of Defense's Motion for Summary Judgment [Doc. 28]. The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS in part and DENIES in part Defendant's Motion.

         I. Background

         Plaintiff Terry Bussey (Plaintiff or Mr. Bussey), who is African American, began his employment with the federal government in 1987. [Doc. 1, ¶¶ 6, 8] ¶ 1999, he began working for the Defense Threat Reduction Agency (DTRA) at the Department of Defense (DOD or Defendant). [Doc. 1, ¶¶ 6, 7] Paul Collins began working for DTRA and supervising Mr. Bussey in 2012. [Doc. 28-1, Collins Depo, 8:19-9:11] Mr. Collins was supervised by Calvin Conger, who was located in Washington, D.C. [Doc. 28-1, Collins Depo, 9:14-15, 34:9-14; Doc. 28-2, Conger Depo, 7:3-12] At times relevant to his Complaint, Mr. Bussey was in charge of the vehicles assigned to Mr. Collins' department. [Doc. 28, ¶ 7; Doc. 32, ¶ 7] In early 2015, Mr. Collins verbally assigned Mr. Bussey the additional role of “building manager.” [Doc. 28, ¶ 14; Doc. 32, ¶ 14]

         After Mr. Collins issued a series of disciplinary notices to Mr. Bussey in 2015, Mr. Bussey was removed from his position on January 5, 2016. [Doc. 28, ¶ 51; Doc. 32, ¶ 51] After Mr. Bussey was removed, he filed an appeal with the Merit Systems Protection Board (MSPB). [Doc. 28, ¶ 59; Doc. 32, ¶ 59] The MSPB held a hearing and issued an Initial Decision affirming the removal, which became final on July 11, 2016. [Doc. 28, ¶ 60; Doc. 32, ¶ 60] Consistent with 5 U.S.C. § 7703(b)(2), Mr. Bussey timely filed the present lawsuit on August 9, 2016. [Doc. 28, ¶ 61; Doc. 32, ¶ 61] In his Complaint, Mr. Bussey alleges that “Defendant has discriminated against Bussey in the terms and conditions of his employment on the basis of his race in violation of Title VII.” [Doc. 1] See 42 U.S.C. § 2000e. He also alleges that “Defendant retaliated against Bussey in the terms and conditions of his employment in violation of Title VII for participating as a witness and for previous EEO filings, ” and that “Bussey engaged in a protected disclosure of fraud and waste to the Inspector General's Office [and] was subject to an adverse employment action in being disciplined and removed from federal service.” [Doc. 1] See 42 U.S.C. § 2000e; Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat 1465 (2012). Mr. Bussey thus raises two claims based on Title VII (discrimination claims) and one claim based on the WPEA (a non-discrimination claim). See Dossa v. Wynne, 529 F.3d 911, 915 (10th Cir. 2008) (stating that “Title VII includes retaliation claims and § 7703(b)(2) authorizes judicial review of them”).

         II. Discussion

         Where, as here, “a petition for review of a MSPB decision involves both discrimination and other claims it is considered a ‘mixed case.'” Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir. 1993). “Normally, . . . the Federal Circuit has exclusive jurisdiction over appeals from the MSPB, except where, as here, the appellant's claim includes an allegation of discrimination.” Id.; see 5 U.S.C. § 7703(b)(1). The Court reviews the Title VII-based discrimination claims de novo, but “[t]he other, non-discrimination claims, . . . are reviewed on the administrative record.” Williams, 983 F.2d at 179-80; see Morales v. Merit Sys. Prot. Bd., 932 F.2d 800, 802 (9th Cir. 1991) (recognizing that a Title VII retaliatory discharge case was properly considered de novo); 5 U.S.C. § 7703(c). The Court will address Mr. Bussey's claims in reverse order, starting with the WPEA retaliation claim (Count 3).

         A. WPEA Retaliation Claim^[1]

         Under Williams, 983 F.2d at 179-80, Plaintiff's non-discrimination claim is reviewed deferentially and the MSPB decision may be reversed only when it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c).

         Defendant argues that Plaintiff's retaliation claim should be dismissed because Mr. Bussey has failed to file the administrative record. [Doc. 28, pg. 25] It points to Federal Rule of Appellate Procedure 10, which requires an appellant to file the record of district court proceedings with the appellate court. [Doc. 28, pg. 25] Defendant's argument is unavailing, however, because Rule 10 does not apply to appeals in district court of administrative adjudications. Instead, Rules 16 and 17 govern those appeals, and Rule 17 provides that “[t]he agency must file the record . . . within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise.” (Emphasis added.) See Singh v. Ashcroft, 367 F.3d 1139, 1147-48 (9th Cir. 2004) (Hawkins, J., dissenting) (noting that the rule governing filing of the record for appeals of district court decisions differs from that governing appeals of administrative adjudications); Gearan v. Dep't of Health & Human Servs., 838 F.2d 1190, 1191 (Fed. Cir. 1988) (“Pursuant to Fed.R.App.P. 17, the agency must file the record with the Clerk of the court.”); Pitman v. United States Citizenship & Immigration Servs., No. 2:17-CV-0166-CW-EJF, 2017 WL 5991738, at *2 (D. Utah Dec. 1, 2017) (stating that “it is the government's burden to file the administrative record in [Administrative Procedures Act] review cases and to certify that it is complete, ” citing Rule 17); 16AA Fed. Prac. & Proc. Juris. § 3963 (4th ed.) (“It is the duty of the agency, in both review and enforcement proceedings, to file the record as defined in Rule 16(a) . . . within 40 days after being served with a petition for review, unless a statute prescribes a different time.”).

         The Court shall therefore order Defendant to cause the record of proceedings before the MSPB to be filed consistent with Rule 16 and 17 of the Federal Rules of Appellate Procedure. See Luther v. Gutierrez, 618 F.Supp.2d 483, 496 (E.D. Va. 2009) (stating that the defendant had been directed “(i) to assemble for filing the MSPB administrative record, [and] (ii) to meet and confer with plaintiff to assure that the record was reasonably complete and contained all of the materials necessary to resolve plaintiff's CSRA claim” by a certain date).

         Moreover, to the extent Defendant relies on the summary judgment standard and attaches portions of the administrative record to support its assertions, this approach is unavailing. The Tenth Circuit held in Olenhouse that summary judgment procedures do not apply to review of agency decisions governed by the Administrative Procedures Act (APA), like the MSPB decision here. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994). The Court held that

[the summary judgment] process, at its core, is inconsistent with the standards for judicial review of agency action under the APA. The use of motions for summary judgment or so-called motions to affirm permits the issues on appeal to be defined by the appellee and invites (even requires) the reviewing court to rely on evidence outside the administrative record. Each of these impermissible devices works to the disadvantage of the appellant. We have expressly disapproved of the use of this procedure in administrative appeals in the past, and explicitly prohibit it now.

Id. It went on, “Reviews of agency action in the district courts must be processed as appeals . . . . Motions to affirm and motions for summary judgment are conceptually incompatible with the very nature and purpose of an appeal.” Id. at 1580.

         Faced with a motion for summary judgment concerning an appeal of an administrative decision, some courts have concluded that they could “[i]gnore the summary judgment standards and treat the pending motions for summary judgment and responses and replies filed by each of the parties as briefs of the respective parties, ” reasoning that the parties had a full opportunity to advance their arguments and that this approach is “the most expeditious and beneficial to the parties.” Logan Farms, Inc. v. Espy, 886 F.Supp. 781, 785 (D. Kan. 1995). However, in Logan Farms, Inc., the complete administrative record had been filed. Id. at 789. That is not the case here.

         In its appellate capacity, the Court is obliged to assess whether an agency's action “was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and if it was “unsupported by substantial evidence in the hearing record.” Olenhouse, 42 F.3d at 1573-74 (internal quotation marks and citation omitted); see 5 U.S.C. § 7703(c); 5 U.S.C. § 706(2) (a provision of the APA defining the judicial scope of review). “These standards require the reviewing court to engage in a ‘substantial inquiry'” of the entire record. Olenhouse, 42 F.3d at 1574. Because the record has not been filed here, the requisite “substantial inquiry” is impossible.

         Because summary judgment on the retaliation claim is foreclosed by Olenhouse and because the complete record has not been filed, Defendant's Motion will be denied as to Plaintiff's WPEA retaliation claim (Count 3).

         B. Plaintiff's Discrimination Claims (Counts 1 and 2)

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this Rule, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (citations omitted). The moving party need not negate the nonmovant's claim, but rather must show “that there is an absence of evidence to support the nonmoving party's case.” Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets its initial burden, the nonmoving party must show that genuine issues remain for trial “as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citation omitted). The nonmoving party cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment, see Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988), but rather must “go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted). If the responding party fails to properly address the movant's assertion of fact as required by Rule 56(c), a district court may “grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(3). Upon a motion for summary judgment, a district court “must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence.” Kaus v. Standard Ins. Co., 985 F.Supp. 1277, 1281 (D. Kan. 1997).

         1. Undisputed and Disputed Facts

         a. Disciplinary Notices

         The following facts are undisputed except as noted.^[2] Where they are disputed, the Court will set out the alleged facts as stated by each party. For the most part, Mr. Bussey states that he disputes the facts stated by Defendant. However, in several cases, noted below, he either denies the allegation in a general manner, or, rather than disputing the facts, provides an explanation for his conduct. Such “denials” are insufficient under Local Rule 56.1(b) to dispute a statement of fact. Moreover, although the Court reviewed Mr. Bussey's responses to Defendant's statement of facts, the focus of the Court's analysis is on the facts as they appeared to Mr. Collins and Mr. Conger at the time that they made the decision to remove Mr. Bussey from his position, as discussed further below. Thus, although Mr. Bussey adduces evidence in this Court to show that Mr. Collins's descriptions of certain events were inaccurate, that evidence is immaterial to the Court's assessment of whether the evidence before Mr. Collins and Mr. Conger when they decided to remove Mr. Bussey supported a good faith belief those events occurred as described.

         Beginning in January 2015, Mr. Bussey received a series of disciplinary notices. The first, a “letter of reprimand, ” was based on Mr. Bussey's alleged failure to follow instructions in November 2014. [Doc. 28-3] The letter of reprimand first described an instance in which, after Mr. Collins requested that Mr. Bussey submit reports on vehicles by the 10th of each month, Mr. Bussey did not submit the November 2014 report and it was instead submitted by another employee. [Doc. 28, ¶¶ 9, 10; Doc. 32, ¶¶ 9, 10; Doc. 32-1, pg. 7, Bussey Depo] It also stated that on November 6 and November 18, 2014, Mr. Collins requested that Mr. Bussey prepare an inventory report on certain vehicles by December 9, 2014. [Doc. 28, ¶ 11; Doc. 32, ¶ 11] Mr. Bussey did not agree with Mr. Collins about how to assess the vehicles or prepare the report and communicated his concerns to Mr. Collins via email. [Id.; Doc. 32-1, pg. 13] Mr. Collins responded, affirming his instructions for completing the task. [Doc. 32-1, pg. 12] Mr. Bussey did not sign the report because he did not agree with the way Mr. Collins instructed him to conduct the inventory and assessment. [Doc. 32, ¶ 11-12; Doc. 32-1, pg. 2, Bussey Depo, pg. 21; Doc. 34, pg. 4] Mr. Collins completed the report instead. [Doc. 28, ¶ 11; Doc. 32, ¶ 11]

         In August 2015, Mr. Collins issued to Mr. Bussey a “Notice of Proposed 5-Day Suspension” citing “conduct unbecoming a federal employee” and “failure to follow instructions and disrespect towards your supervisor.” [Doc. 28-5] In the Notice, he described an incident on June 11, 2015, during which Mr. Collins, as he “caught up with [Mr. Bussey] and the inspection team” near a DTRA building, observed Mr. Bussey “speaking in a very loud angry voice” to a security escort who was questioning whether a group of inspectors had approval to take pictures in one of the DTRA buildings. [Doc. 28-5] Mr. Collins stated that Mr. Bussey “yelled and berated the individual by yelling, I am in charge. If they got their cameras past the guard shack then they are allowed to use them.” [Doc. 28-5] He also stated that he, Mr. Collins, “asked [Mr. Bussey] to stand down [and] back away” and then told Mr. Bussey that he had “handled the situation with the security escort unprofessionally” and that it was part of his job to assist with the inspection. [Doc. 28-5] Mr. Collins wrote that Mr. Bussey “responded by walking away yelling ‘I don't have a fucking job.'” [Doc. 28-5]

         Mr. Bussey generally denies these allegations, stating that Defendant failed to obtain a statement from the security escort and instead relies only on Mr. Collins's own memorandum detailing the incident. [Doc. 32, ¶¶ 18-19] He does not otherwise argue that Mr. Collins' memorandum is inaccurate. [Id.] In his Response, Mr. Bussey also submits the testimony of a witness at his MSPB hearing who was part of the group of inspectors, who described Mr. Bussey as “very friendly” and “smiling sunshiny.” [Doc. 32, ¶ 18; Doc. 32-1, pg. 26] She stated that she saw him at “the gate” where the group received visitors' badges. [Doc. 32-1, pg. 26-27] The location of the “gate” is not described further. However, Mr. Collins' memorandum and the description in the Notice state that Mr. Bussey “escorted [the witness] and other team members toward the Electrical Life Safety project under way in the main compound, ” and that Mr. Collins observed Mr. Bussey ...