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Bussey v. Mattis

United States District Court, D. New Mexico

June 26, 2019

TERRY BUSSEY, Plaintiff,
v.
JAMES MATTIS, Secretary of U.S. DEPARTMENT OF DEFENSE, Defendant.

          MEMORANDUM OPINION AND ORDER

         This 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.

         I. FACTUAL BACKGROUND

         Plaintiff 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 AR 461.

         Paul 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.

         On 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.

         On 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.

         With 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. Id.

         Mr. 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.

         The 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.

         The 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.

         The 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.

         Mr. 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.

         Mr. 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?” Id.

         Mr. 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.

         In his 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.

         Calvin 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.

         On 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 protected ...


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