United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO United States District Judge
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
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,
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
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).
WPEA Retaliation Claim
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.
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.”).
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).
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.
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.
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
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).
Plaintiff's Discrimination Claims (Counts 1 and
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).
Undisputed and Disputed Facts
following facts are undisputed except as noted. 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.
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]
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.'”
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 ...