United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiff Terry Bussey's
appeal (ECF No. 49) of the final decision of the Merit System
Protection Board (“MSPB”), which became final on
July 11, 2016. Administrative Judge David Brooks (“AJ
Brooks” or “MSPB AJ”) affirmed the decision
to remove Mr. Bussey from his position working for the
Defense Threat Reduction Agency (“DTRA”) at the
Department of Defense (“DOD”). The MSPB AJ's
decision constitutes the final action for purposes of review
of a decision of the MSPB. Plaintiff timely filed the present
lawsuit on August 9, 2016. This Court previously granted
summary judgment in favor of Defendant on Plaintiff's
discrimination and retaliation claims under Title VII and
ordered Defendant to file the administrative record
(“AR”) of proceedings before the MSPB consistent
with Rules 16 and 17 of the Federal Rules of Appellate
Procedure. See Mem. Op. and Order 32-33, ECF No. 37.
The Court, having carefully reviewed the administrative
record, the parties' arguments in their briefs, and the
relevant law, affirms the decision of the MSPB.
Terry Bussey had a lengthy career in the military and in
federal service. See AR 462, 745, 1042-43. Mr.
Bussey began working for the DTRA in 1999, where he was last
employed as a Logistic Management Specialist GS-11. AR 461,
1044. He had no history of disciplinary actions taken against
him during his federal employment prior to 2015. See
Collins began working for DTRA in February 2012 as a division
chief of facilities and logistics. AR 758. Mr. Collins
officially became Mr. Bussey's supervisor approximately
2012-2013 after the agency underwent a reorganization, and he
remained so during all times when disciplinary acts were
taken against Mr. Bussey. See AR 461, 759-60, 1060.
January 21, 2015, Mr. Collins issued Mr. Bussey a Letter of
Reprimand for failure to follow instructions, specifically
for failing to submit mileage reports, as per a host tenant
agreement and as tasked by Mr. Collins, and for failing to
conduct an inventory of vehicles as required by DOD and
tasked by Mr. Collins. See AR 163-65. Mr. Bussey
filed a complaint with the Defense Criminal Investigative
Service (“DCIS”), an arm of the DOD Inspector
General (“IG”) on August 15, 2015. See
AR 550, 740.
August 31, 2015, Mr. Collins gave Mr. Bussey Notice of
Proposed 5 Day Suspension for conduct unbecoming a federal
employee and failure to follow instructions arising from
incidents on June 11 and August 12, 2015. See AR
116-17, 716. Regarding the June 11, 2015 incident, outside
contractors were to conduct an energy and safety inspection
of the main compound building, and Mr. Bussey's duties
included escorting them around the main compound.
See AR 116, 760-62, 1075. Despite receiving an
advance request for inspectors to take photographs of
appropriate equipment, a security guard interrupted the
inspection to inquire if the inspectors had authority to take
photographs. See AR 719, 761-64, 1077-78. Mr.
Collins alleged that during the inspection and in front of
the contractors, Mr. Bussey yelled at and berated the
security guard, yelling that he [Mr. Bussey] was in charge
and if he says they can have cameras here, they can have
cameras here. See AR 116. Mr. Collins asserted in
the notice of proposed suspension that he walked up to Mr.
Bussey and told him to stand down, to which Mr. Bussey
responded by saying to the effect, “fine I am done,
” and then Mr. Bussey walked away. Id. Mr.
Collins asserted he followed him and told him he acted
unprofessionally, to which Mr. Bussey responded that he would
no longer be building manager. Id. Mr. Collins
alleged that when he said Mr. Bussey needed to continue doing
his job and finish his work escorting the inspection team,
Mr. Bussey replied that he did not have a fucking job, turned
and walked away. Id.
respect to the August 12, 2015 incident, Mr. Collins alleged
that another employee asked Mr. Bussey to change a light
bulb, but Mr. Bussey responded that he needed to speak with
one of the facilities employees and that it was not his job.
See AR 117. Mr. Collins stated that he told Mr.
Bussey it was his job as the building manager and asked him
to change the light bulb. See Id. Mr. Bussey replied
that it was not his job, and when Mr. Collins turned back to
further discuss the issue, Mr. Bussey cut him off with a
raised hand and said in a loud, confrontational voice,
“Sir, with all due respect, I am having a conversation
with [this other employee] and you don't need to be
involved.” Id. Mr. Collins again directed him
to change the light bulb, but Mr. Bussey did not do so, and
another facilities employee had to change the light bulbs.
Bussey submitted a response on September 17, 2015, explaining
his version of the June 11 and August 12, 2015 events.
See AR 170-72. He disputed that he raised his voice
and was unprofessional during the June 11th incident.
See AR 170-72. Regarding the light bulb incident,
Mr. Bussey asserted he believed it was a prank. See
AR 171. He did not address whether he cut off Mr. Collins and
told him he did not need to be involved. See AR
170-72. Mr. Collins rescinded the proposed suspension on
September 24, 2015, giving as his reason that during the
notice period Mr. Bussey was “involved in additional
misconduct.” AR 114.
same day, Mr. Collins issued a Notice of Proposed 14 Calendar
Days Suspension for conduct unbecoming a federal employee,
failure to comply with leave procedures, lack of candor, and
absence without leave. AR 107. In addition to the June 11 and
August 12, 2015 incidents, three new September incidents were
included. See AR 107-12. According to the notice,
the first occurred on September 9, 2015, in which Mr. Collins
inquired of Mr. Bussey where he had been at 7:00 a.m. when
Mr. Collins did not see him in his office. See AR
108. Mr. Collins alleged that Mr. Bussey responded, “I
don't need to tell you, ” and when Mr. Collins
replied that he did, Mr. Bussey refused to do so.
Id. After Mr. Collins asked by email where he had
been, Mr. Bussey responded five days later that he had been
in the bathroom and left to go to Kirtland AFB maintenance.
AR 108-09. Mr. Collins asserted that he reviewed badge entry
logs that revealed Mr. Bussey had entered the compound for
the first time at 8:29 a.m., so he rejected Mr. Bussey's
timecard showing his presence from 0630 to 1700 hours and
charged him as AWOL from 0630-0830 hours. AR 109.
14-day proposed suspension was also based on Mr. Bussey's
failure to report to work on September 10, 2015 or request
leave. Id. Mr. Bussey subsequently submitted a
timecard for sick leave, but Mr. Collins rejected it and
charged him as AWOL, asserting that submitting a leave form
after the fact was not in accordance with proper procedures,
as sent to employees on July 20, 2015, that require an
employee to telephone his employer to request leave within
two hours after the employee is scheduled to report for duty.
See AR 108-09.
third new incident began on September 16, 2015, when Mr.
Collins alleged he did not see Mr. Bussey in his office at 7
am, and the next day, when he asked Mr. Bussey where he was
the prior morning, Mr. Bussey replied in his office. AR 109.
Mr. Collins asserted in the notice that he reviewed the badge
entry logs and found that on September 16, 2015, Mr. Bussey
did not arrive until 7:16 a.m., despite having submitted a
timecard showing he was present at work from 0630 to 1700
hours. AR 109. Mr. Collins charged him as AWOL from 0630 to
0715 hours. Id.
Bussey submitted a response to the proposed 14-day suspension
on October 16, 2015, in which he supplied additional facts
and arguments in response to the June 11 and August 12, 2015
incidents and responded to the new allegations of violating
leave procedures and being AWOL. See AR 173-76. On
November 9, 2015, Mr. Collins rescinded the proposed 14-day
suspension, stating “during the notice period [Mr.
Bussey was] involved in additional misconduct.” AR 94.
Collins issued on November 9, 2015, a Notice of Proposed
Removal for conduct unbecoming a federal employee, abusive
language towards co-workers, failure to comply with leave
procedures, lack of candor, and absence without leave. AR 87.
The Notice included the five incidents described in the
proposed 14-day suspension, and Mr. Collins added two new
incidents occurring on October 5 and October 21, 2015.
See AR 87-93. Mr. Collins asserted in the Notice
that another employee called Mr. Bussey on October 5, 2015
for assistance in completing a memorandum of understanding,
and during the call Mr. Bussey treated him rudely, hung up on
him, and caused the employee's project to be delayed. AR
90. Finally, Mr. Collins alleged that on October 21, 2015,
Mr. Bussey approached the drivers of a van parked outside the
DTRA main building that was filled with outside contractors
and asked essentially, “What the fuck are you
doing?” Id. The drivers reported that Mr.
Bussey continued to use profanity in front of the
contractors, and when advised by a driver to refrain from
using profanity in front of the contractor personnel, Mr.
Bussey responded, “I'm going to kick your
motherfucking ass” or words to that effect, and asked
another driver “what the fuck is his problem?”
Bussey submitted a response to the proposed removal on
December 4, 2015, refuting some of the allegations and
raising issues of discrimination and retaliation.
See AR 79-86. Mr. Bussey refuted that he hung up on
the employee on October 5th but admitted that he refused to
visit the employee's office and that the call became
contentious. See AR 80. Mr. Bussey also admitted
that he used foul language during the encounter with the van
drivers and offered explanations for his behavior.
See AR 80-81.
December 4, 2015 response, Mr. Bussey also urged DTRA to
compare his acts with those of Mr. Collins, asserting that
Mr. Collins' “unscrupulous and willful acts of
mismanagement, waste, fraud, abuse of Tax payer's
dollar[s] are far more critical than any acts confronting
myself.” AR 85. Mr. Bussey further stated in his
response that he had “advised Mr. Collins not to
execute actions (verbally, in writing, and copied excerpts)
of DoD, JTR and Code of Federal Law.” Id. Mr.
Bussey alleged that Mr. Collins had misused credit cards,
purchased unnecessary items, and engaged in wrongful
accounting practices. See AR 85-86. Mr. Bussey set
forth eight detailed incidents of Mr. Collins' purported
“gross and willful intents.” Id. Mr.
Bussey stated that, after inquiring about the legality of
using a certain fund for building upgrades, Mr. Collins told
him he was treading in deep water without a paddle. AR 86.
Mr. Bussey alleged that each of his efforts to address these
issues resulted in Mr. Collins being hostile toward and
harassing him. Id.
Conger, Chief of the Engineering & Facilities Division,
issued his Notice of Decision on January 5, 2016, in which he
removed Mr. Bussey from federal service. See AR
72-75. Mr. Conger stated that the decision was made after
considering all the facts, including Mr. Bussey's written
responses and arguments he set forth in his September 17,
October 16, and December 4, 2015 memoranda. AR 72. Mr. Conger
noted: “you alleged other acts of malfeasance on the
part of Mr. Collins and others at DTRA. While I take these
allegations seriously and will look into those allegations, I
do not find them relevant to the misconduct that is alleged
in the proposal memorandum and the allegations do not
mitigate your own misconduct.” AR 72.
January 18, 2016, Plaintiff filed an MSPB Appeal of his
removal. AR 1. He alleged in his appeal that the
“Agency violated Merit Systems Protection Board (Merit
System Principles), Anti-Discrimination and
Anti-Retaliation/Reprisal Laws, Regulations, Rules and
Policies and Whistle Blower Protection Laws, Regulations
Rules and Polices in effecting this removal.” AR 4. The
MSPB AJ ordered Appellant Bussey to submit a statement of
facts and issues, including any and all defenses.
See AR 40-42. He specifically ordered Mr. Bussey to
identify, as to his claim of violation of the Whistleblower
Protection Laws, (a) the date, substance and recipients of
the protected disclosure, (b) whether the disclosure
constitutes a violation of law, rule, regulation, gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial danger to the public; (c) whether the
proposing and/or deciding official knew of the disclosure;
and (d) how it was a contributing factor in the agency's
decision. AR 42. After appellant failed to file a timely
submission, AJ Brooks entered a subsequent order on February
17, 2016. See AR 193-94. AJ Brooks clarified that he
expected “the appellant to identify any and all