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determining that the ALJ's finding of nexus on failure to follow orders was supported by the substantial evidence, including testimony that the actions "detracted from the agency's ability to carry out its mission"
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17-cv-04249 (DAB)
2019-09-24
Richard FIGUEROA, Plaintiff, v. Kirstjen M. NIELSEN, Secretary, Department of Homeland Security, Defendant.
Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff. Natasha Waglow Teleanu, Samuel Hilliard Dolinger, United States Attorney's Office, New York, NY, for Defendant.
Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff.
Natasha Waglow Teleanu, Samuel Hilliard Dolinger, United States Attorney's Office, New York, NY, for Defendant.
MEMORANDUM AND ORDER
Deborah A. Batts, United States District Judge
Plaintiff Richard Figueroa ("Figueroa") brings this suit against Defendant Kirstjen M. Nielsen, Secretary of Homeland Security ("DHS" or the "Government"), for relief as a result of being removed from his position as a Customs and Border Protection Officer ("CBPO") with DHS in 2017. The Complaint alleges two causes of action: 1) that the Merit Systems Protection Board's affirmation of DHS' order to remove Plaintiff was arbitrary, capricious, not in accordance with law, or not based on substantial evidence in violation of 5 U.S.C. § 7703(c) ; and 2) that DHS's employment practices are in violation of Title VII of the Civil Rights Act of 1964, in particular 42 U.S.C. § 2000e et seq. (Pl.'s Compl., ECF No. 1, at 30-31.)
Figueroa moved for summary judgment as to Count 1, the arbitrary and capricious claim, and DHS cross-moved for summary judgment as to Count 1. For reasons set forth below, Figueroa's Motion for Summary Judgment as to as to Count 1 of the Complaint is DENIED and DHS' Motion for Summary Judgment as to Count 1 of the Complaint is GRANTED.
At pretrial conference, the Court ordered briefing as to Count 1 of Plaintiff's Complaint and ordered a second pretrial conference as to Count 2 after the briefs for Count 1 had been submitted. (See Scheduling Order, ECF No. 14, at 2.) A conference regarding Count 2 of Plaintiff's Complaint was held on February 21, 2019. (See Scheduling Order, ECF No. 34.)
I. BACKGROUND
The following facts are undisputed unless otherwise stated. Additional facts are included in the Administrative Judge's ("AJ") initial decision. (Initial Decision in Figueroa v. Dep't of Homeland Security, Apr. 3, 2017, AR, at 2134-91)("AJ Decision".)
A. Incident of August 11, 2014
In 2001, Plaintiff became employed by U.S. Customs and Border Protection and was assigned to JFK Airport. (Pl.'s Rule 56.1 Statement ¶ 11, ECF No. 18.) Because the position of CBPO is a weapons-carrying position, officers are required to "qualify" with their weapon on a shooting range four times per year. (Id. ¶ 24.) If an officer fails a qualification, their firearm privileges are revoked. (Id. ) Customs and Border Protection ("CBP") designates certain officers as "firearms instructors," and those instructors oversee the qualification classes at which CBPOs must qualify. (Id. ¶ 25.) From October 2012 until his termination, Plaintiff served as a CBP firearms instructor. (Id. )
The Government argues that this Court should set aside Plaintiff's Rule 56.1 statement. (Def.' Opp., at 2-4)(citing Just Bagels Mfg., Inc. v. Mayorkas, 900 F. Supp. 2d 363, 372 n.7 (S.D.N.Y. 2012).) In Just Bagels, however, the Court held only that Rule 56.1 Statements are not "necessary" for cases based on a review of the administrative record; it did not hold that the Rule 56.1 Statement cannot be considered in such cases. (Id. ) In recommending that the Local Rules be updated to exempt cases based on the Administrative Procedure Act from the Rule 56.1 Statement, the Court called attention to the fact there is indeed no exception for cases based on review of the administrative record. (Id. ) Although Plaintiff does not respond to the Government's argument, the Court notes that the Local Rules require a Rule 56.1 Statement, and thus the Court shall consider facts alleged in Plaintiff's Statement. See Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, Local Civil Rule 56.1 (effective Oct. 29, 2018).
On August 11, 2014, Plaintiff was serving as firearms instructor for a group of officers seeking to fulfill one of their four required qualifications. (Id. ¶ 28.) Among the group was Supervisory Customs and Border Protections Officer ("SCBPO") Deborah Tricarico ("Tricarico"), whom Plaintiff had named in a 2012 Equal Employment Opportunity complaint arising from an incident in which Tricarico cited Plaintiff for failing to carry required equipment. (Id. ¶ 34-35; see also AR, at 2313, 2684-85.) During the shooting portion of the qualification, Tricarico left the area. (Pl.'s Rule 56.1 Statement ¶ 39.) Tricarico claims she did this because Plaintiff's lecture made her feel uncomfortable and wanted to request a different instructor; Figueroa disputes this, saying that he was not "angry [or] agitated, nor was it his intent to make anyone uncomfortable." (Compare AR, at 2318-19 with Pl.'s Rule 56.1 Statement ¶ 33-36.)
Later, SCBPO Tricarico returned to the firing range with CBPO Christopher Beeg ("Beeg"). (Id. ¶ 40.) CBPO Beeg informed Plaintiff that Deputy Chief Chance Youngs ("Youngs") had ordered CBPO Beeg to conduct SCBPO Tricarico's shooting test. (Id. ¶ 41) Plaintiff responded by accusing CBPO Beeg of interfering with his duties as firearms instructor, and a shouting match ensued between CBPO Beeg and Plaintiff. (Id. ¶ 42.) According to CBPO Peter Santoro's testimony, on which the AJ relied in finding Plaintiff guilty of inappropriate contact, at some point during this altercation Plaintiff raised his hand to prevent CBPO Beeg from entering the firing range and in so doing touched CBPO Beeg. (AJ Decision, at 4, 12.)
Plaintiff, however, argues that DCO Youngs could not relieve Plaintiff of his duties as Firearms Instructor because "DCO Youngs did not have the authority, under the Handbook, to direct Plaintiff's actions on the range." (Pl.'s Mot., at 9.) Moreover, Plaintiff suggests that even if DCO Youngs did have that authority, he would have had to give Plaintiff an order directly, not indirectly via CBPO Beeg. (Id. ) The Court declines to adjudicate this disagreement, however, since it does not relate to inappropriate conduct or failure to follow SCBPO Noonan's orders, which are the charges on which Plaintiff was removed from his position.
SCBPO Sean Noonan ("Noonan") was called to the firing range to resolve the dispute between Plaintiff and CBPO Beeg. (Pl.'s Rule 56.1 Statement ¶ 43; AJ Decision, at 13.) The parties dispute what happened next. According to DHS, SCBPO Noonan ordered both CBPO Beeg and Plaintiff to leave the area and enter a classroom to resolve the dispute privately. (AJ Decision, at 4; Defendant Kirstjen M. Nielsen's Memorandum of Law in Support of Her Motion for Summary Judgment on Count 1 of Plaintiff Richard Figueroa's Complaint, ECF No. 22, at 5, "Def.'s Mot.".) Although the AJ found otherwise, Plaintiff contends that SCBPO Noonan never asked him to leave the range. (Pl.'s Compl. ¶ 51; Pl.'s Rule 56.1 Statement ¶ 43-44; see also AJ Decision, at 26.) Plaintiff testified that, after the interaction with SCBPO Noonan at the firing range, he "did not leave or abandon his post." (AR, at 2787.)
There is dispute as to who summoned SCBPO Noonan. SCBPO Noonan testified that he received a phone call from CBPO Beeg. (AJ Decision, at 13; Hearing Transcript, at 135.) Plaintiff alleges that he called SCBPO Noonan, asking for him to come down to the range since "Beeg [was] interfering with [his] qualification..." (Pl.'s Rule 56.1 Statement ¶ 43.)
B. Incident of September 12, 2014
A few weeks later, a verbal altercation erupted between CBPO Beeg and Plaintiff in the Firearms Instructor Office. (AJ Decision, at 5.) Plaintiff alleges that CBPO Beeg initiated the altercation by taunting him. (Pl.'s Rule 56.1 Statement ¶ 49.)
SCBPO Noonan overheard the argument and entered the Firearms Instructor Office. (Id. ¶ 50.) According to Plaintiff, SCBPO Noonan instructed Plaintiff, but not CBPO Beeg, to enter DCO Youngs's office. (Id. ) According to SCBPO Noonan, however, that directive was given to both CBPO Beeg and Plaintiff, and, when Plaintiff refused, SCBPO Noonan reiterated the directive as an order specifically to Plaintiff. (AJ Decision, at 5; AR, at 2446.) Plaintiff admits that he refused to comply with SCBPO Noonan's directive. (AR, at 2706.) Plaintiff claims that he refused to comply because he believed that he was entitled to union representation before entering DCO Youngs's office, arguing it was likely that SCBPO Noonan or DCO Youngs would speak to him "in a negative manner." (Pl.'s Rule 56.1 Statement ¶ 51.) Plaintiff then left the Firearms Instructor Office and contacted the union. (Id. ¶¶ 51-52.) Later that day, SCBPO Noonan provided Plaintiff with a copy of his Weingarten rights, which Plaintiff signed. (Id. ¶ 53.)
As the AJ noted, "Weingarten rights" refers to the right to union representation during an "investigatory interview" under the National Labor Relations Act. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). Although the NLRA does not apply to most employees of the federal government, Lim v. Dep't of Agriculture, 10 M.S.P.R. 129, 130 (1982), notes that Congress created Weingarten-style rights for federal employees in the Civil Service Reform Act. 5 U.S.C. § 7114(a)(2).
C. Removal
On September 18, 2014, Director of Field Operations ("DFO") Robert Perez ("Perez") forwarded Plaintiff's complaints to the Port Director of JFK Airport, who then investigated the incidents of August 11 and September 12. (AJ Decision, at 5.)
The AJ Decision reads, "In an effort to investigate both the August 11, 2014 and the September 2, 2014 [sic] allegations at once..." Because there does not appear to be an incident that occurred on September 2, the Court assumes that Administrative Judge Dominguez intended to write "September 12, 2014."
On March 13, 2015, Plaintiff was notified that DHS had proposed to remove him on the basis of two charges. (Id. at 7; Pl.'s Rule 56.1 Statement ¶ 84.) The first charge alleged that Plaintiff committed inappropriate conduct on August 11, 2014. (AJ Decision, at 7.) The second charge alleged that Plaintiff twice failed to follow SCBPO Noonan's orders, once on August 11, 2014 and again on September 12, 2014. (Id. )
On May 11, 2015, Plaintiff requested the recusal of DFO Perez, who had been assigned as the deciding official in Plaintiff's removal case. (AR, at 994.) Plaintiff's grounds for the request were that DFO Perez had served as deciding official in a prior disciplinary action against Plaintiff and that he had also testified in a matter involving the Plaintiff. (Id.; Pl.'s Rule 56.1 Statement, ¶¶ 84-86.) Plaintiff alleges that, during DFO Perez's testimony in a prior proceeding, DFO Perez showed "a great deal of animus toward Plaintiff." (Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment as to That Part of the Case Which Seeks to Annul and Reverse the Determination of Defendant, as Affirmed by the Merit Systems Protection Board, Which Resulted in Plaintiff's Termination as Customs and Border Protection Officer, ECF No. 19, "Pl.'s Mot.".) DFO Perez denied Plaintiff's recusal request. (AJ Decision, at 7.) On July 7, 2015, DFO Perez sustained the charges against Plaintiff and ordered that he be removed. (Id. )
The administrative record, however, does not address what this prior disciplinary action involved, or the nature of DFO Perez's testimony against Plaintiff.
D. The Merit Systems Protection Board Appeal
On July 28, 2015, Plaintiff appealed the agency's removal decision to the Merit Systems Protection Board ("MSPB"). (Id. at 1-2.) The MSPB has jurisdiction over the appeal pursuant to 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), and 7701(a).
Plaintiff's hearing was held before Administrative Judge ("AJ") Maria M. Dominguez ("Dominguez") over three days: September 14, 2016; September 23, 2016; and November 9, 2016. (Id. at 2.) On April 3, 2017, Administrative Judge Dominguez affirmed DHS's decision to terminate Plaintiff.
E. Summary Judgment
On July 23, 2018, the parties filed cross motions for partial summary judgment as to Count 1 of the Complaint. (See Pl.'s Mot.; Def.'s Mot.) Plaintiff filed a brief opposing the Government's motion for partial summary judgment on August 23, 2018. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, ECF No. 24, "Pl.'s Opp.") The Government filed an opposition brief to Plaintiff's partial summary judgment motion on August 24, 2018. (Defendant Kirstjen M. Nielsen's Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment on Count 1 of Plaintiff's Complaint, ECF No. 26, "Def.'s Opp."). Plaintiff filed a reply brief in support of his motion on September 13, 2018. (Plaintiff's Reply Memorandum of Law, ECF No. 27, "Pl.'s Repl."). In turn, on September 14, 2018, the Government filed a reply brief in support of its motion. (Reply Memorandum of Law in Further Support of Defendant Kirstjen M. Nielsen's Motion for Summary Judgment on Count 1 of Plaintiff's Complaint, ECF No. 28, "Def.'s Repl.").
II. LEGAL STANDARD
A court should grant summary judgment when there is "no genuine dispute as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). Genuine issues of material fact cannot be created by conclusory allegations. Victor v. Milicevic, 361 F. App'x 212, 214 (2d Cir. 2010). Summary judgment is appropriate only when, after drawing all reasonable inferences in favor of a nonmovant, no reasonable juror could find in favor of that party. Melendez v. Mitchell, 394 F. App'x 739, 740 (2d Cir. 2010).
A. Standard of Review on an MSPB Appeal
The Court must affirm the decision of the Board unless the decision is found to be "(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). This standard is "extremely narrow ... and allows the [MSPB] wide latitude in fulfilling its obligation to review agency disciplinary actions." U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) ). As a result, the reviewing court should not "substitute its own judgment for that of the Board.... The role of judicial review is only to ascertain if the Board has met the minimum standards set forth in the statute." Id.
The "substantial evidence" standard is more deferential than the "clearly erroneous" standard of review. See Stern v. Marshall, 564 U.S. 462, 515, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) (citing Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) ); see also Wu v. Lynch, 813 F.3d 122, 127-28 (2d Cir. 2016) (discussing that a clear error might still constitute substantial evidence). In reviewing the record, "substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kasten v. MSPB, 687 Fed. App'x 42, 43 (2d Cir. 2017) (citing McEntee v. Merit Systems Protection Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (internal quotation marks omitted)). "To reverse [the agency's finding, the Court] must find that the evidence not only supports [the] conclusion [that the agency was incorrect], but compels it ..." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
The review of the MSPB's determination is made "solely upon the administrative record." Fineman v. U.S. Postal Serv., 555 F. Supp. 1336, 1341 (S.D.N.Y. 1983) ; see also Marro v. Nicholson, No. 06-CV-6644 (JFB) (ARL), 2008 WL 699506 at *5, 2008 U.S. Dist. LEXIS 19272 at *17 (E.D.N.Y. 2008) ; Murray v. United States Dep't of Justice, 821 F. Supp. 94, 101 (E.D.N.Y. 1993), aff'd, 14 F.3d 591 (2d Cir. 1993).
III. ANALYSIS
In order to prevail at an MSPB appeal, the Government must make three showings. First, it must prove by a preponderance of the evidence that the charged conduct occurred. 5 U.S.C. § 7701(c)(1)(B) ; Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147 (Fed. Cir. 1997). Second, the agency must show a "nexus between [the charged conduct] and efficiency of service." Pope, 114 F.3d at 1147 (citing 5 U.S.C. § 7513(a) ). Third, the agency must establish the reasonableness of the punishment. Pope, 114 F.3d at 1147 (citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306-07 (1981) ); see also Marro, 2008 WL 699506, at *13–14, 2008 U.S. Dist. LEXIS 19272, at *49 (citing Davis v. U.S. Postal Serv., 257 Fed. App'x 320 (Fed. Cir. 2007) ); Shaw v. Dep't of Veterans Affairs, 2017 WL 5508914, 2017 U.S. Dist. LEXIS 222085 (S.D.N.Y. 2017). Pursuant to 5 U.S.C. § 7703(c), this Court must affirm the AJ's decision unless any of these findings were found to be arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence. Kasten v. MSPB, 687 Fed. App'x 42, 43 (2d Cir. 2017).
A. Proof of Charged Conduct
Plaintiff urges this Court to conclude that DHS "did not meet its burden of proving that Plaintiff engaged in any chargeable misconduct; let along [sic] conduct that justified removal." (Pl.'s Mot., 12.) The standard of review, however, is not whether the Government met its burden of proof, but whether the AJ's conclusion that the Government met that burden was based on substantial evidence. 5 U.S.C. § 7703(c)(3) ; see also Shaw, 2017 WL 5508914, at *2, 2017 U.S. Dist LEXIS 222085, at *4-*5 (citing Murray, 821 F. Supp. at 108 )(noting that substantial evidence is derived from the record as a whole.) For the following reasons, we find that the AJ's determination that the Government met its burden regarding the charged conduct was made on the basis of substantial evidence.
1. Inappropriate Conduct
The AJ determined that Plaintiff's "conduct [on August 11, 2014] was inappropriate because he yelled obscenities at CBPO Beeg, touched his arm, and raised his voice in front of other officers," and thus the AJ sustained the Government's charge that Plaintiff engaged in inappropriate conduct. (AJ Decision, at 24.) Plaintiff claims that this finding is not supported by the record. (Pl.'s Mot., at 12, 18)("A review of the record must lead to the inescapable conclusion that Defendant did not meet its burden of proof and that Plaintiff did not engage in chargeable misconduct ...") Plaintiff argues that the testimony of SCBPO Tricarico, SCBPO Noonan, and CBPO Santoro, on which the AJ partially based her decision, did not constitute substantial evidence and invites the Court to reconsider the credibility determinations the AJ made. (See Pl.'s Repl., at 3.)
The AJ partially based her finding that inappropriate conduct occurred on the live testimony of SCBPO Tricarico, CBPO Santoro, AJ Decision, at 24.) SCBPO Tricarico testified that she heard Plaintiff yelling at CBPO Beeg. (AR, at 2325.) CBPO Santoro testified that he saw Plaintiff touch Beeg's arm in order to stop Beeg from entering the range, and also that he heard both men raise their voices. (Id. at 2379, 2394.) SCBPO Noonan testified that he saw the two men arguing loudly and swearing, and that Plaintiff and SCBPO Noonan. (was more heated than CBPO Beeg. (Id. at 2425, 2431.) The AJ found that this behavior "runs contrary to the agency's Standards of Conduct, which ... requires employees to maintain high standards of ... integrity, ... character, and professionalism to ensure the proper performance of government business and the continued trust and confidence of the public." (AJ Decision, at 24)(internal quotation marks omitted.)
Plaintiff testified that, after telling CBPO Beeg that he could not come onto the range, CBPO Beeg clenched his fists and "was getting ready to come after" Plaintiff. (Id., at 18.) Moreover, Plaintiff testified that he never yelled at or cursed at CBPO Beeg during the altercation. (Id. ) Lastly, Plaintiff denied both touching CBPO Beeg and physically trying to stop him from entering the firing range. (Id. )
Understanding that there was conflicting testimony between Plaintiff and these witnesses, the AJ appropriately indicated that she would need to make credibility determinations as to each witness's testimony. (See id., at 19-20) ("Resolution of this conflicting testimony requires an administrative judge to make credibility determinations after having had an opportunity to hear all the testimony, review all the evidence, and observe the demeanor of all the parties and witnesses involved".) Based on the credibility factors outlined in Hillen v. Dep't of Army, 35 M.S.P.R. 453 (1987), the AJ determined that "the agency's version of events [was] more credible than the appellant's." (AJ Decision, at 20, n. 7.)
Hillen sets down seven factors for assessing the credibility of a witness: (1) the opportunity and capacity to observe the event or act; (2) the character of the witness; (3) prior inconsistent statements made by the witness; (4) the witness' bias; (5) contradiction by or consistency with other evidence; (6) inherent improbability of the testimony; and (7) the demeanor of the witness. 35 M.S.P.R. 453 (1987)
Plaintiff urges the Court to re-assess the credibility determinations that the AJ made, arguing that the evidence on which the AJ relied was inconsistent, and thus not credible. (Pl.'s Repl., at 3.) Plaintiff points to two inconsistencies. First, Plaintiff claims that SCBPO Tricarico's testimony conflicts with CBPO Santoro's testimony about Plaintiff's demeanor during the lecture portion of the qualification. (Compare Pl.'s Mot., at 12-13 with id., at 14.) Second, Plaintiff argues that CBPO Santoro's testimony contradicts SCBPOs Tricarico and Noonan's testimony regarding who summoned SCBPO Noonan to the firing range. (Id., at 15.) The Court declines to re-evaluate the AJ's credibility determinations for two reasons.
First, "the [AJ's] determinations regarding witness credibility are ‘virtually unreviewable’ ... since the ‘determination of the credibility of the witnesses is within the discretion of the presiding official who heard their testimony and saw their demeanor.’ " Davis v. U.S. Postal Serv., 257 Fed. App'x 320, 323 (Fed. Cir. 2007) (citing Hambasch [Hambsch] v. Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) ; Griessenauer v. Dep't of Energy, 754 F.2d 351 [361], 364 (Fed. Cir. 1985) ); see also Shaw, [2017 WL 5508914, at *4], 2017 U.S. Dist. [LEXIS] 222085, at *10. A reviewing court may only re-evaluate the AJ's credibility determinations if they are "inherently improbable or discredited by undisputed fact." White v. U.S. Postal Serv., 382 Fed. App'x 928, 933 (Fed. Cir. 2010) (citing Pope, 114 F.3d at 1149 ). Yet Plaintiff does not specify what testimony was inherently improbable or discredited by undisputed fact, nor does Plaintiff specify whose testimony should be set aside as non-credible. (See Pl.'s Repl., at 3.) Nothing in the record suggests it is inherently improbable or discredited by undisputed fact that Plaintiff's demeanor during the lecture was inappropriate. Further, nothing in the record suggests that it is improbable that CBPO Beeg, as opposed to Plaintiff, called SCBPO Noonan to the range. It is also evidently not an undisputed fact. The Court cannot say that the AJ was wrong to rely on SCBPOs Tricarico and Noonan's testimony as a whole, simply because their testimony differs from CBPO Santoro's on a small factual point.
Second, neither of the contradictions alleged by Plaintiff relate directly to the grounds on which the AJ sustained the charge. The AJ sustained the charge of inappropriate conduct based on evidence that Plaintiff "yelled obscenities," touched Beeg's arm, and raised his voice in front of other officers, in violation of CBP's Standards of Conduct. (AJ Decision, at 24.) Plaintiff's demeanor during the lecture portion of the qualification and the question of who summoned SCBPO Noonan to the firing range have little bearing on Plaintiff's behavior during the altercation with Beeg, and thus Plaintiff seeks to discredit entire witnesses' testimony over a relatively small factual point.
Plaintiff argues that the live testimony of SCBPOs Tricarico and Noonan, and CBPO Santoro were not substantial enough evidence for the AJ to find inappropriate conduct. After examining that evidence, the Court disagrees. Further, the AJ did not rest her decision solely on this live testimony. In addition, the AJ relied on an email written by CBPO Beeg on that date (AR, at 389), an unsworn declaration under penalty of perjury provided by Beeg (AR, at 473-78), an email written by CBPO Thomas Fazio on September 24, 2014 (AR, at 421), and an unsworn declaration under penalty of perjury by CBPO Fazio (AR, at 483-86), all of which corroborated the claim that Plaintiff screamed at CBPO Beeg in front of other officers. (AJ Decision, at 15, 20-21.) Plaintiff points to no contrary evidence, apart from his own live testimony, that would discredit the evidence on which the AJ relied in making her finding. Consequently, Plaintiff has not presented evidence so weighty that it "compels" the Court to disturb the AJ's finding, and thus we find the AJ sustained the charge of inappropriate conduct on the basis of substantial evidence. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.
Plaintiff does not challenge the AJ's use of unsworn declarations, but rather challenges the AJ's failure to draw an adverse inference against the Government for failure to call CBPO Beeg and DCO Youngs to testify. (Pl.'s Mem., at 18-19.) This argument is addressed below.
Based on the forgoing, the Court finds that the AJ's decision that the Government met the burden of proof in showing that Plaintiff engaged in inappropriate conduct on August 11, 2014 was supported by substantial evidence, was not an abuse of discretion, and not arbitrary, capricious, or contrary to law.
2. Failure to Follow Orders
As previously stated, the Government, in advocating removal, alleged that Plaintiff twice failed to follow SCBPO Noonan's orders, once on August 11, 2014 and again on September 12, 2014. (AJ Decision, at 7.)
a. Specification #1: August 11, 2014
The AJ found that Plaintiff failed to follow SCBPO Noonan's order to leave the firing range on August 11, 2014. (AJ Decision, at 27.) Plaintiff disputes that he was given an order. (Pl.'s Mot., at 16; AR, at 2790.)
The AJ rested her finding that Plaintiff was given an order on SCBPO Noonan's testimony. (AJ Decision, at 25; see also AR, at 2433 ("I told both of them that they needed to come off of the range and we needed to discuss what was going on.").) Plaintiff asserts that "[a]t no time did SCBPO Noonan direct Plaintiff to leave the range and enter classroom." (Pl.'s Mot., at 9)(citing AR, at 2798.) Plaintiff does not allege that what SCBPO Noonan said to him on the range did not legally amount to an order; rather, Plaintiff only disputes as a matter of fact whether SCBPO Noonan directed him to leave the range. (Id. ) The AJ was thus again forced to make a determination as to whose testimony was more credible. As discussed above (see supra n. 9), these determinations are nearly unreviewable, unless inherently improbable or discredited by undisputed fact. White, 382 Fed. App'x at 933. Plaintiff does not point to any discrediting undisputed fact, nor does he show why SCBPO Noonan's testimony that he gave Plaintiff an order would be inherently improbable. The AJ determined it was an order on the basis of the credibility of SCBPO Noonan's testimony, and the Court finds that this decision was supported by substantial evidence. The AJ determined that that Plaintiff failed to follow SCBPO Noonan's order based on Plaintiff's own testimony. (AJ Decision, at 26.) The AJ noted that Plaintiff did not deny refusing to leave the range and enter the classroom. (Id., at 26; AR, at 2787.) When Plaintiff was asked to clarify whether he refused to leave, he answered "I did not leave or abandon my post." (Pl.'s Mot., at 26; AR, at 2787.) For this reason, the AJ found that Plaintiff did not comply with SCBPO Noonan's order to leave the firing range and enter the classroom area. (AJ Decision, at 26-27.)
Plaintiff argues that, even if SCBPO Noonan had given him an order to do so, because he was Firearms Instructor for this particular qualification session, it would have been wrong to leave the firing range. (See AR, at 2787.) As the AJ noted, however, only in "extreme and unusual circumstances" may an order be disregarded. (AJ Decision, at 26)(citing Pedeleose v. Dep't of Defense, 110 M.S.P.R. 508, 516, aff'd 343 F. App'x 605 (Fed. Cir. 2009) ) (noting that these circumstances include only a dangerous situations or ones that will cause irreparable harm.) Absent a dangerous situation or irreparable harm, "where there is substantial reason to believe that an order is improper, an employee first must obey the order and then challenge its validity." Baldwin v. Dep't of Army, DE-0752-16-0316-I-2, 2017 MSPB LEXIS 4835, at *11 (2017).
The AJ noted that there was no dangerous situation or irreparable harm that could have arisen from following the order, since "the officers had already finished qualifying.... [t]he danger of anyone getting hurt, if at all, was limited, and there was no dispute that other instructors were on the range to assist... [and] [t]here is no indication that following the order would have caused [Plaintiff] irreparable harm or, placed him in a clearly dangerous situation." (AJ Decision, at 26.) Plaintiff supplies no evidence or case suggesting that following SCBPO Noonan's order would have created a dangerous situation or irreparable harm. Consequently, even if it was a violation of CBP rules for Plaintiff to leave the range, he nevertheless unlawfully violated SCBPO Noonan's order.
Consequently, the AJ's finding that the Government proved the first specification by a preponderance of the evidence was rested on substantial evidence.
b. Specification #2: September 12, 2014
The AJ determined that Plaintiff disregarded SCBPO Noonan's September 12 order to leave the Firearms Instructor office to mediate his dispute with CBPO Beeg in DFO Youngs's office on the basis of unsworn declarations by CBPOs Beeg and Vincent Mascoli, an email sent by SCBPO Noonan on September 12, and the live testimony of SCBPO Noonan, who each claimed that Plaintiff was given an order. (Id., 27-30.) The AJ also based this finding on Plaintiff's own testimony that SCBPO Noonan ordered him into DFO Youngs's office and that he refused. (Id., at 31; see also AR, at 2716)("I'm not going into the office".)
Plaintiff argues that the order was illegal because SCBPO Noonan did not provide him Weingarten rights, that he was entitled to union representation at such a meeting, and that he was, therefore, not required to follow Noonan's order. (See Pl.'s Mot., at 17-18.) As previously stated, absent a dangerous situation or irreparable harm, even "where there is substantial reason to believe that an order is improper, an employee first must obey the order and then challenge its validity." Baldwin, 2017 MSPB LEXIS 4835, at *11 (2017). The AJ noted that following the order would not have placed Plaintiff in a clearly dangerous situation nor caused him irreparable harm, and thus his refusal does not fall within one of the established exceptions to following an order. (AJ Decision, at 32.)
See Nat'l Labor Relations Bd. v. Weingarten, 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975).
Plaintiff counters that obeying SCBPO Noonan's order would have caused him irreparable harm "because it would have impacted his job negatively." (Pl.'s Mot., at 12.) It seems unlikely that this is the case: the order related to leaving the firing range and reporting to DFO Youngs's office to mediate the Plaintiff's dispute with Beeg. (AJ Decision, at 31.) Further, Plaintiff, provides no legal basis to hold that a potential negative impact on employment could constitute "harm" sufficient to disregard an order. Moreover, even if compliance with SCBPO Noonan's order would have caused harm to Plaintiff's job, that harm was not "irreparable" harm, because Plaintiff had recourse to cure the harm. See Cooke v. U.S. Postal Serv., 67 M.S.P.R. 401, 408 (1995) (discussing Fleckenstein v. Dep't of Army, 63 M.S.P.R. 470, and noting that harm is irreparable when it cannot "readily be cured during the course of the appeal ... [because the harm would have been] beyond the scope of the pending disciplinary action"). Here, Plaintiff seeks via the appeals process a remedy to cure whatever harm he suffered, and thus the harm falls within the "scope" of the appeal and is not "irreparable." In this vein, Pedeleose and its progeny have concluded that "an employee does not have the unfettered right to disregard an instruction merely because there is substantial reason to believe it is improper; he must first comply with the instruction and then register his complaint or grievance." Washington v. Dep't of Veterans Affairs, DA-0752-15-0413-I-1, 2016 MSPB LEXIS 3848 (2016).
Consequently, the AJ found on the basis of substantial evidence that the Government had proven the second specification by a preponderance of the evidence. Moreover, the AJ's decision was not arbitrary, capricious, or contrary to law.
B. Nexus Between Charged Conduct and Efficiency of Service
To succeed in proving its adverse action against Plaintiff, the Government must establish by preponderant evidence that there is a "nexus between the conduct and the efficiency of service." Bryant v. NSF, 105 F.3d 1414 (Fed. Cir. 1997) (citing 5 U.S.C. § 7513(a)(1994) ). In order to satisfy the nexus requirement, "the agency must establish that Plaintiff's misconduct would have an adverse impact on the agency's performance of its functions." Shaw, 2017 WL 5508914, at *5, 2017 U.S. Dist. LEXIS 222085, at *13 (citing Banks v. Dep't of Veterans Aff., 25 F. App'x 897, 899-900 (Fed. Cir. 2001) ; see also Davis v. Dep't of Veterans Affairs, 4 F. App'x 779, 781 (Fed. Cir. 2001) (holding that to satisfy this requirement, the agency "must establish a nexus between [plaintiff's] and the [agency's] performance of its functions."). The AJ found that such a nexus exists. (AJ Decision, at 51.)
"Efficiency of service" appears to be a term of art—the case law addresses how this test is fulfilled without necessarily defining what it is that is being fulfilled. See, e.g., Banks, 25 F. App'x at 899-900.
The AJ observed that "it is well-settled that agencies are entitled to expect its employees to comply with its instructions and policies." (AJ Decision, at 50) (citing Blevins v. Dep't of Army, 26 M.S.P.R. 101, 104 (1985), aff'd, 790 F.2d 95 (Fed. Cir. 1986).) Further, the AJ pointed out that "the efficient and proper performance of government business requires that employees treat each other with a minimum degree or [sic] courtesy ..." (Id. ) (citing Glover v. Dep't of Health, Education & Welfare, 1 M.S.P.R. 660 (1980).) The AJ found that there was a nexus on the basis of DFO Perez's testimony that, as a public-facing agency concerned with national security, CBP requires employees that follow orders and act professionally. (Id. ) Because the charges sustained against Plaintiff included inappropriate conduct and failure to follow orders, the AJ concluded that a nexus exists between Plaintiff's behavior and efficiency of service. (Id., at 51.)
Plaintiff argues that, because his job performance evaluations remained high after the incidents, there was insufficient evidence to sustain the finding a nexus. (Pl.'s Mot., at 19.) Plaintiff correctly notes that there are three ways to sustain the nexus element: the conduct "(1) affected the employee's or his coworkers' job performance, (2) affected management's trust and confidence in the employee's job performance, or (3) interfered with or adversely affected Defendant's Mission." (Id. ) (citing Johnson v. Dep't of Health & Human Servs., 86 M.S.P.R. 501, 509 (2001), aff'd, 18 Fed. App'x 837 (Fed. Cir. 2001), aff'd sub nom. Delong v. HHS, 264 F.3d 1334 (Fed. Cir. 2001).) Plaintiff then makes a conclusory allegation that the Government "totally failed to provide that a nexus existed herein." (Id. ) On the contrary, applying the framework that Plaintiff endorses suggests the existence of a nexus. DFO Perez testified that "acting unprofessionally or inappropriately and not following orders from their superiors ... can and does particularly limit and detract from the Agency's ability to affect its mission," testimony which appears directly relevant to the application of the Johnson's third prong. (AR, at 2521.) The AJ credited DFO Perez's statement, and concluded that it was sufficient to sustain the finding of a nexus. (AJ Decision, at 50)("[H]e testified that the [Plaintiff's] actions detracted from the agency's ability to carry out its mission ...".) Plaintiff's argument that his job performance remained highly-regarded speaks potentially to the first Johnson category, the "employee's ... job performance," not to category three, the agency's mission, which was relevant to the AJ's decision.
The Court finds the AJ's ruling establishing a nexus between the charged conduct and the efficiency of service was based on substantial evidence, and was not arbitrary, capricious, or contrary to law.
C. Reasonableness of Punishment
After finding that the Government had proved both charges against Plaintiff and shown the nexus between the charged conduct and efficiency of service, the AJ found the penalty of removal to be appropriate. (Id., at 57.) The Merit Systems Protection Board has described twelve factors that are relevant to assessing whether a punishment is reasonable. Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981). The AJ noted that DFO Perez considered all twelve Douglas factors, and she discussed how each one supported the conclusion that removal was a reasonable punishment under the circumstances. (AJ Decision, at 51 n. 12, 52-57.) Plaintiff contends that the factors were not properly considered and thus that the penalty was not reasonable. (Pl.'s Mot., at 22-23.)
The factors include: "(1) The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated; (2) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position; (3) the employee's past disciplinary record; (4) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability; (5) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties; (6) consistency of the penalty with those imposed upon other employees for the same or similar offenses; (7) consistency of the penalty with any applicable agency table of penalties; (8) the notoriety of the offense or its impact upon the reputation of the agency; (9) the clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question; (10) potential for the employee's rehabilitation; (11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others." Douglas v. Veterans Admin., 5 M.S.P.R. at 305-306.
The AJ noted that she is not required to conduct an independent evaluation of the Douglas factors, but rather must "determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness." Shoghi v. Dep't of Homeland Security, SF-0752-19-0311-I-1, 2019 MSPB LEXIS 2584, at *23 (2019) (citing Woebcke v. Dep't of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010) ); AJ Decision, at 51-52. When the AJ is "satisfied that all relevant factors have been considered by the agency and there has been a responsible balancing of those factors ... that ends the matter [of evaluating the punishment's reasonableness]." Hayes v. Dep't of Navy, 727 F.2d 1535, 1540 (Fed. Cir. 1984). Moreover, agencies are not required to consider all factors listed in Douglas. See Webster v. Dep't of Army, 911 F.2d 679, 686 (Fed. Cir. 1990).
The AJ began her review noting that DFO Perez testified that he considered all the Douglas factors when he upheld Plaintiff's removal. (AJ Decision, at 52; AR, at 2523-2532.) The AJ reviewed DFO Perez's testimony on each of the twelve Douglas factors and found it "clear that DFO Perez considered all of the ... factors." (AJ Decision, at 57) (emphasis added.)
The AJ then considered whether the penalty of removal was "within tolerable bounds of reasonableness." (Id. ) After considering DFO Perez's testimony, the AJ concluded that removal was appropriate and in-line with other MSPB cases, given that Plaintiff is a law enforcement officer and that his behavior consisted of refusing to follow instructions as well as disrespectful conduct. (Id. ) (citing Thompson v. Dep't of Justice, 51 M.S.P.R. 43, 49 (1991).)
Plaintiff contends that the penalty was unreasonable and argues that the Douglas factors support a lesser punishment. (Pl.'s Mot., at 23.) Plaintiff does not discuss in detail what precisely was unreasonable about the penalty, nor does he cite a case as to why the factors must be read as cutting in Plaintiff's favor. Plaintiff thus essentially invites this Court to rebalance the Douglas factors as weighed by DFO Perez in the original agency proceeding. The standard of review here is, however, "highly deferential." Webster, 911 F.2d at 685. "Unless the penalty is totally unwarranted or grossly disproportionate to the misconduct," the reviewing court should not disturb the penalty. Mazares v. Dep't of Navy, 302 F.3d 1382, 1386 (Fed. Cir. 2002.) Plaintiff provides the Court with no basis to do so, and the AJ identified several cases where removal was imposed for similar conduct, suggesting that the penalty was not totally unwarranted or grossly disproportionate. (AJ Decision, at 57-58.) As such, the Court concludes that the AJ's finding regarding penalty was not arbitrary and capricious, was not made without substantial evidence, and was not contrary to law.
Plaintiff does not cite to a single case in his first two briefs on this issue, and the cases to which he cites in his Reply are cited without indication as to why they are relevant, and appear to be factually distinguishable. (See Pl.'s Repl., at 5)("It is also submitted that, under the appropriate scope of review, plaintiff's removal was ‘totally unwarranted in light of all facts.’ Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) Plaintiff's removal was also ‘unconscionably disproportionate.’ Allen v. United States Postal Service, 466 F.3d 1065, 1071 (Fed. Cir. 2006)").
D. Affirmative Defenses
"[T]he agency's decision may not be sustained ... if the employee ... (A) shows harmful error in the application of the agency's procedures in arriving at such a decision; (B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or (C) shows that the decision was not made in accordance with law." 5 U.S.C. § 7701(c)(2).
In his verified complaint, Plaintiff alleges four affirmative defenses. First, Plaintiff alleges that CBP engaged in harmful procedural error in allowing DFO Perez to continue as the deciding official in Plaintiff's case. (Pl.'s Compl., ¶ 100.) Second, Plaintiff alleges that CBP engaged in harmful procedural error when SCBPO Noonan ordered Plaintiff to enter DCO Youngs's office without first providing him Weingarten rights. (Id., ¶ 101.) Third, Plaintiff alleges he was entitled to an adverse inference against CBP during the MSPB hearing because CBPO Beeg and DFO Youngs did not testify. (Id., ¶¶ 114-115.) Fourth, Plaintiff contends that his termination was retaliation for engaging in whistleblowing activity. (Id., ¶¶ 118-134.)
Plaintiff also asserts that his termination was retaliation for engaging in protected EEO activity. (Id., ¶ 135.) Plaintiff is protected against retaliation for exercising his Title VII rights (5 U.S.C. § 7701(c)(2) ), and Plaintiff does not raise this in relation to summary judgment as to Count 1 of the Complaint. This Title VI claim, Count 2 of the Complaint, is entitled to de novo review. 5 U.S.C. § 7703(c).
The AJ addressed each of these arguments and found that Plaintiff failed to prove any by a preponderance of the evidence. (AJ Decision, at 33-49.) For the following reasons, the Court finds that the AJ's determination was not arbitrary and capricious or made without substantial evidence.
1. Retaliation for Whistleblowing Activity
Plaintiff alleges that he engaged in activity protected by 5 U.S.C. § 2302(b)(8), that his removal was retaliation for engaging in that protected activity, and that therefore his removal cannot be sustained pursuant to 5 U.S.C. § 7701(c)(2)(B). (Pl.'s Opp., at 7-11.) Section 2302(b)(8) prohibits retaliation against a federal employee for "disclosure of information" that demonstrates "(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(i-ii).
The Government argues at the outset that Plaintiff waived his right to a whistleblowing defense by failing to mention it in his initial summary judgment brief. (Def.'s Repl., at 5-6.) On this point, the Government cites to two cases. (Id., at 6.) The first held that arguments on an MSPB appeal to the Federal Circuit are waived if they are not included in the initial brief. See Asatov v. Merit Sys. Prot. Bd., 513 F. App'x 984, 986 n. 3 (Fed. Cir. 2013) ; Pl.'s Compl. ¶ 118. The second case the Government cites holds that the basic rule from Asatov applies to summary judgment briefs in D.C. District Court. Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49, 72 (D.D.C. 2014) ; see also EMILY'S List v. FEC, 569 F. Supp. 2d 18, 25 n. 6 (D.D.C. 2008) (citing New York v. United States Envtl. Prot. Agency, 413 F.3d 3, 20 (D.C. Cir. 2005) (inferring that failure to raise an argument in a revised motion for summary judgment constitutes waiver of the argument from the notion that failure to raise an argument in an opening appellate brief constitutes waiver of that argument). While this rule makes inherent sense, the Second Circuit has not yet ruled on this question. The Court cannot say as a matter of law that Plaintiff has waived his right to make the whistleblower defense simply by failing to include it in his initial summary judgment brief. The Court, therefore, proceeds to address whether the AJ's finding that Plaintiff failed to prove the whistleblowing defense by a preponderance of the evidence is supported by substantial evidence.
The AJ correctly stated the burden-shifting scheme for whistleblower retaliation. (AJ Decision, at 40.) After the Government proves its charges, "the former employee must prove by a preponderance of the evidence that he or she made a protected disclosure under 5 U.S.C. § 2302(b)(8) [and] that [it] was a contributing factor to the employee's termination. If the employee establishes this prima facie case ... the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure." Whitmore v. Dep't of Labor, 680 F.3d 1353, 1364 (Fed. Cir. 2012) (citing 5 U.S.C. § 1221(e) ) (quotation marks omitted); see also Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999) (reformulating the test to include elements that the removing official has the authority to take personnel action and that such authority was used).
The Court finds that the AJ's decision that Plaintiff failed to establish that the purported disclosures was a contributing factor to his removal is supported by substantial evidence. (See AJ Decision, at 44.) The AJ observed that no witnesses testified to knowing about Plaintiff's alleged whistleblower complaints, and therefore that the testimony against Plaintiff for the charged conduct could not have been influenced by the alleged disclosures. (Id. ) The AJ also credited DFO Perez's testimony that he considered Plaintiff's quasi-whistleblower activity only to the extent it was put forward as a defense, but that it "was not considered while deciding to remove [Plaintiff]." (Id. ) Plaintiff points to no facts in the record suggesting that his whistleblowing activities contributed to his termination, let alone facts sufficient to disrupt the AJ's finding to the contrary. Thus, the AJ determined on the basis of substantial evidence that Plaintiff did not establish a prima facie whistleblower defense.
Because of the forgoing, the Court finds that the AJ's decision that Plaintiff did not sufficiently show that any protected disclosures made contributed to his removal is supported by substantial evidence. As such, the AJ's finding that Plaintiff did not sufficiently prove a whistleblower defense is also supported by substantial evidence. Because a finding that the protected disclosure contributed to the termination is necessary to support a whistleblower defense, the Court need not evaluate whether, in fact, Plaintiff made a protective disclosure, and whether the Government would have taken the same employment action absent the disclosure.
First, the AJ found that Plaintiff did not meet the first prong of the prima facie whistleblower defense: to show that he made protected disclosures. See supra note 15. The AJ applied, without citation, a legal standard for determining whether a protected disclosure was made. (AJ Decision, at 40)("Specifically the appellant must identify: (a) the date, substance and recipients of the protected disclosure ....) The Court is, however, unable to locate a legal basis for this standard. Second, the AJ found that, even if Plaintiff had made out a prima facie case, "the agency showed by clear and convincing evidence that it would have taken the same personnel action even if [Plaintiff] had not engaged in protected activity." (Id., at 44) The AJ cited the correct legal framework for evaluating the clear and convincing standard. (AJ Decision, at 44-45); see also Carr v. SSA, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (citing Geyer v. Dep't of Justice, 70 M.S.P.R. 682, 688, aff'd, 116 F.3d 1497 (Fed. Cir. 1997). Nevertheless, the AJ seems to have placed the burden on Plaintiff to show by clear and convincing evidence that the agency treated him differently, rather than placing the burden on the Government to show that it would take the same personnel action, as the burden-shifting framework requires. For example, the AJ noted that "appellant has not demonstrated, or indeed provided any evidence, that agency officials had a motive to retaliate against him." (AJ Decision, at 45.) Despite these two faults with the AJ's decision, she concluded on the basis of substantial evidence that Plaintiff did not show the second prong of the prima facie case of whistleblower defense, and thus properly concluded that plaintiff was not entitled to a whistleblower defense.
Indeed the Court has reservations about the AJ's analysis with respect to these elements, particularly regarding whether the Government showed by clear and convincing evidence that it would have taken the same employment action absent a disclosure. As a basis for her finding that "the agency showed by clear and convincing evidence that it would have taken the same personnel action even if [Plaintiff] had not engaged in protected activity," the AJ considered that "appellant has not demonstrated, or indeed provided any evidence, that agency officials had a motive to retaliate against him" (motive is relevant to this inquiry, see Carr v. SSA, 185 F.3d 1318, 1323 (Fed. Cir. 1999) and the lack of evidence "that the agency does not take similar action against employees who engaged in similar conduct but had not blown the whistle" (AJ Decision, at 44-45.) This analysis, however, would appears to place the burden of proof for this factor on Plaintiff, and not where it should lie, with the Government.
2. Adverse Inference
Plaintiff alleges that the AJ "should have concluded that [CBPO Beeg and DCO Youngs] did not testify because their testimony would have been adverse to the [Government's] case." (Pl.'s Mot., at 18.) Plaintiff urges the Court to consider the AJ's decision not to draw an adverse inference from the failure to testify to be contrary to law.
To support his claim that Beeg and Youngs should have been called as witnesses, Plaintiff cites Shustyk v. Postal Serv., 32 M.S.P.R. 611, aff'd, 831 F.2d 305 (Fed. Cir. 1987). The AJ acknowledged rightly, however, that Shustyk "stands for the proposition that an adverse inference should be drawn when a party is silent in the face of probative evidence." (AJ Decision, at 33, n. 9) (citing Shustyk, 32 M.S.P.R. at 614-615 ); see also Adams v. Dep't of Transportation, 735 F.2d 488, 492 (Fed. Cir. 1984) (noting that responding to a prima facie showing with silence warrants drawing an adverse inference). Plaintiff, however, both before the AJ and this Court, fails to point to any probative evidence in the face of which the Government was silent.
Further, Plaintiff gives no reason to think that CBPO Beeg and DCO Youngs were anything other than non-hostile witnesses for the Government, and Shustyk holds that an adverse inferences is not available against a party who simply fails to call its own non-hostile witnesses at the hearing" or if the witness would merely be cumulative. See Shustyk, 32 M.S.P.R. at 614 (citing Logan v. Dep't of Navy, 29 M.S.P.R. 573, 577-78 (1986) ) (emphasis added).
Thus, the AJ's decision to deny Plaintiff's request for an adverse inference against the Government relating to the lack of testimony from DCOs Beeg and Youngs was not contrary to law.
3. Procedural Error
"The harmful-error rule of 5 U.S.C. § 7701(c)(2)(A) provides that an agency's decision that is appealable to the [MSPB] may not be sustained if the employee shows harmful error in the application of the agency's procedures in arriving at such decision." Cornelius v. Nutt, 472 U.S. 648, 657, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985) (quotation marks omitted). "By regulation, the Merit Systems Protection Board places the burden on the petitioner to show that the error was harmful, that it caused substantial harm or prejudice to his/her rights." Miguel v. Dep't of Army, 727 F.2d 1081, 1084-85 (Fed. Cir. 1984) (citing 5 C.F.R. § 1201.5(c)(3) (1982) ). Thus, Plaintiff must show both that the agency committed procedural error and that the agency "is likely to have reached a different conclusion in the absence of the procedural error." Ward v. United States Postal Serv., 634 F.3d 1274, 1282 (Fed. Cir. 2011).
a. SCBPO Noonan's Order
Plaintiff alleges that the Government engaged in harmful procedural error in September 2014 when SCBPO Noonan told Plaintiff to enter DCO Youngs's office without first providing him notice of his Weingarten rights. (Pl.'s Mot., at 22.) The AJ noted that, because SCBPO Noonan provided Plaintiff with a Weingarten form on the afternoon of September 12, 2014, and because SCBPO Noonan's request for information from Plaintiff was by email, Plaintiff was never denied the right to union representation in an investigatory interview. (AJ Decision, at 49.) Plaintiff provides no evidence to contradict this point, which is sufficient to uphold the AJ's decision, since the statute in question regards the right to union representation, not the right be told about representation. See 5 U.S.C. § 7114(a)(2)(B)(i). Further, Plaintiff only argues that SCBPO Noonan's decision to give him the Weingarten rights form three hours after the shouting match with CBPO Beeg constitutes admission that failure to provide the form at the time of the order was an error. (Pl.'s Mot., at 12, 22.) But, Plaintiff cites to no authority indicating that failure to provide the Weingarten form constitutes procedural error. (Id.) Plaintiff therefore provides no reason to disturb the AJ's finding that "an agency is not required to inform an employee of his right to have a union representative present at a covered investigatory interview." (AJ Decision, at 49)(citing Howard v. Office of Personnel Mgmt., 31 M.S.P.R. 617, 621 (1986) (" 5 U.S.C. § 7114(a) does not require that the agency inform the employee of his or her right to have a union representative at each individual interview").) The Court, therefore, concludes that the AJ found on the basis of substantial evidence and in accordance with law that Plaintiff did not carry his burden to establish that any failure to provide Weingarten rights constituted procedural error. b. Non-Recusal of DFO Perez
Employees "shall be given the opportunity to be represented" by their Union at any meeting in connection with an investigation if the employee "reasonably believes that the examination may result in disciplinary action." 5 U.S.C. § 7114(a)(2)(B)(i).
The AJ also found that Plaintiff provided no evidence that he would not have been removed if SCBPO Noonan had provided him the Weingarten form in the first instance. (Id. ) In his briefs, Plaintiff contends that the supposed error was harmful because, if SCBPO Noonan violated of 5 U.S.C. § 7114(a)(2), which enshrines Weingarten rights for federal employees, SCBPO Noonan's order to leave the Firearms Instructor office and enter DFO Youngs's office would not have been lawful and thus Plaintiff could not have been disciplined for refusing to follow an order. (See Pl.'s Mot., at 22.) However, as previously discussed, a failure to provide the Weingarten forms is not a license to disregard an order unless it leads to a dangerous situation or irreparable harm. (See supra at 19 ; Baldwin, 2017 MSPB LEXIS 4835, at *11 (2017) ("[W]here there is substantial reason to believe that an order is improper, an employee first must obey the order and then challenge its validity.")
Plaintiff alleges that the Government "engaged in harmful procedural error by virtue of the fact that DFO Perez ... refused to recuse himself" from acting as the deciding official in Plaintiff's case. (Pl.'s Mot., at 20.) Plaintiff argues that DFO Perez was "deeply involved in Plaintiff's previous disciplinary matters ... testif[ied] against Plaintiff in the prior MSPB case.... [and] showed a great deal of animus toward Plaintiff" in the earlier case. (Pl.'s Mot., at 21.)
The AJ concluded that Plaintiff failed to carry his burden in showing that DFO Perez's failure to recuse himself constituted harmful procedural error. (AJ Decision, at 47.) The AJ noted that "[Plaintiff] failed to cite any case law collective bargaining provision, or agency regulation that stands for the proposition that a deciding official must recuse himself in a subsequent case merely by virtue of the fact he served as a deciding official in a prior case involving the same [employee] or, because he previously testified in a previous matter involving that same employee." (Id., at 46.) The AJ noted that one case in which the deciding official in the agency's initial action against the employee was also the only complaining witness against the employee—the Merit Systems Protection Board declined to find as a matter of law that there was procedural error. (Id. )(discussing Eichner v. U.S. Postal Service, 83 M.S.P.R. 202, ¶¶ 12-13 (1999).) The AJ then noted that "the Board has found that in the absence of a showing of bias, a deciding official need not recuse himself." (Id. )(discussing Teichmann v. Dep't of Army, 34 M.S.P.R. 447, 451-52 (1987) ); see also Goines v. Dep't of Agric., 113 Fed. App'x 925, 930 (Fed. Cir. 2004) (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) )(noting that the standard for requiring recusal is "evidence of ‘a deep-seated favoritism or antagonism that would make fair judgment impossible.’ ") The AJ determined here, however, that Plaintiff failed to substantiate the claim that DFO Perez was "incapable of fairly considering the matter at issue," and thus there was no reason to conclude that there was harmful procedural error. (AJ Decision, at 46.)
The Second Circuit has held that "claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a basis for questioning a judge's impartiality." Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d Cir. 2009)
In Eichner, the Board reversed the employee's punishment on the grounds that the AJ who first heard Eichner's appeal failed to address the potential bias of the deciding official during his testimony before the AJ. Eichner, 83 M.S.P.R. at ¶ 13. The Board found that the deciding official was not a credible witness both because of his possible bias and because of inconsistencies found between his notes and his testimony. (Id. )
Before this Court, Plaintiff again fails to cite to authority that establishes that someone in DFO Perez's position is not qualified to be the deciding official. Plaintiff martialed no evidence at the MSPB hearing, nor does he cite any in his briefs, indicating that DFO Perez prejudiced his rights at the removal hearing before AJ Dominguez. (Pl.'s Mot., at 20-21.) Plaintiff alleges conclusorily that "DFO Perez was deeply involved in Plaintiff's previous disciplinary matters and his EEO activity, including testifying against Plaintiff in the prior MSPB case ... [and] [i]n these roles, he showed a great deal of animus toward Plaintiff." (Pl.'s Mot., at 21.) But, Plaintiff does not explain what DFO Perez actually said in the prior adverse action that might suggest he was incapable of giving fair judgment. Nor does Plaintiff explain the nature of Perez's involvement in those hearings that would indicate the same. The Second Circuit has made clear that adverse rulings, without more, will rarely suffice to provide a basis for questioning a judge's impartiality." See (Pl.'s Mot., at 21; Chen, 552 F.3d at 227.)
Plaintiff cites only to cases holding broadly that employees have a right to unbiased decision makers and a right that the risk of unfairness not be "intolerably high." (Pl.'s Mot., at 21)(citing Martinez v. Dep't of Veterans Affairs, 119 M.S.P.R. 37 (2012) ; Svejda v. Dep't of Interior, 7 M.S.P.R. 108 (1981) ).
Plaintiff, therefore, has not provided reason to disturb the AJ's conclusion that she was "unpersuaded that ... DFO Perez was incapable of fairly considering the matter at issue once all the evidence was presented to him." (Id. )(See also AR, at 2749-51.) It is Plaintiff's burden to prove that a harmful procedural error occurred, and without more, the Court finds that the AJ's decision that Plaintiff failed to prove procedural error relied on substantial evidence, was not made arbitrarily, capriciously, or in a manner contrary to law.
IV. CONCLUSION
For the aforementioned reasons, Figueroa's Motion for Summary Judgment on Count 1 is DENIED and DHS' Motion for Summary Judgment on Count 1 is GRANTED.
SO ORDERED.