493 F.3d 186 (D.C. Cir. 2007), 06-5016, Vickers v. Powell

Docket Nº:06-5016.
Citation:493 F.3d 186
Party Name:Cynthia J. VICKERS, Appellant v. Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.
Case Date:July 06, 2007
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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493 F.3d 186 (D.C. Cir. 2007)

Cynthia J. VICKERS, Appellant


Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellee.

No. 06-5016.

United States Court of Appeals, District of Columbia Circuit.

July 6, 2007

Argued March 14, 2007.

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Appeal from the United States District Court for the District of Columbia (No. 03cv00174)

Richard L. Swick argued the cause for appellant. With him on the briefs were David H. Shapiro and Ellen K. Renaud.

Marian L. Borum, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.


GRIFFITH, Circuit Judge.

Appellant Cynthia Vickers claims that the Federal Deposit Insurance Corporation ("FDIC") wrongfully terminated her employment. We review the district court's grant of summary judgment against Vickers on all her claims and affirm its decision that she was not the victim of illegal retaliation and discrimination, but vacate the decision granting summary judgment for the FDIC on her hostile work environment claim. We also reverse its decision that the Merit Systems Protection Board ("MSPB" or "Board") was not arbitrary and capricious when it failed to explain why Vickers' refusal to sign a medical release form that did not protect her privacy interest was a firing offense.


A. Background

Cynthia Vickers is an African-American woman who worked as a federal law enforcement officer since 1984 and as a criminal investigator in the Atlanta office of the FDIC from 1991 until her dismissal in 2001. By all accounts, Vickers had a strained relationship with her direct supervisor at the FDIC, Dana Bedwell, the Special Agent in Charge ("SAC") of the Atlanta office. On October 31, 2000, there was an unpleasant workplace exchange between the two. Vickers told Bedwell that she would be out of the office for most of the next week conducting investigations and would miss the full week after that for medical treatment. Already concerned about the way Vickers was spending her time, Bedwell asked her how many interviews each upcoming investigation would require. Vickers could not tell him on the spot and, in frustration, accused Bedwell of micromanaging her work. The discussion became heated, and both Bedwell and Vickers raised their voices. Vickers stormed out of the office, saying "I don't need this" and "I'm out of here." On the way out, she gave a secretary her government identification and cellular phone. The next day, Vickers' husband came to the office and turned in her government

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credit card, office keys, and a laptop computer. The following day, November 2, 2000, Bedwell sent Vickers a letter that gave his account of the argument and granted her four hours of administrative leave for the time she left work that day. The letter also put Vickers on notice that she was absent without authorized leave and warned her that if she did not return to work by November 6, 2000, Bedwell would begin termination proceedings against her. Vickers returned to the office on November 6, not to work, but to hand Bedwell a letter requesting six months leave without pay to resolve the "mental, emotional, and physical anguish" caused by her employment at the FDIC. The FDIC granted her request. Sometime in November, Vickers spoke with an Equal Employment Opportunity ("EEO") counselor at the FDIC and even filed a complaint with the Equal Employment Opportunity Commission alleging various discriminatory acts against her. The record tells us nothing about her conversation with the counselor, the content of her complaint, or its disposition.

For the next five months, Vickers was treated for severe depression. On March 20, 2001, she gave the FDIC a letter from her psychiatrist stating that she would be able to return to work on May 1, 2001. In a letter dated March 23, 2001, Bedwell notified Vickers that before she could be allowed to return to work after an illness, she was required pursuant to 5 C.F.R. § 339.3011 to successfully complete a medical examination at the U.S. Public Health Services ("PHS") on April 9 and 10, 2001. Vickers did not contest this requirement and submitted to the examination, but, acting on the advice of counsel, refused to sign either of the two forms that authorized the release of her medical information because, according to Vickers, they lacked sufficient safeguards to protect her privacy, especially in light of office rumors about her previous medical treatments. One of the forms, the Release Form, was a general medical release that authorized the recipient to release medical information to whomever was listed on the form. The second release, the Exam Form, was to be completed as part of Vickers' medical examination and authorized the recipient to release information pertinent to the exam. On April 18, 2001, acting-SAC Thomas McDade, who had replaced Bedwell after his March 2001 retirement, sent Vickers a letter demanding that she return to the PHS to complete the required paperwork. The letter warned that failure to do so would "be grounds for disciplinary action up to and including removal." Vickers again refused to sign either form.

Assistant Inspector General for Investigations ("AIGI") Samuel Holland, who was "designated the agency official authorized to make the final decision in this matter," made the decision to fire Vickers effective December 14, 2001, and gave four reasons for doing so: (1) she showed disrespect to Bedwell during their October 31, 2001 meeting; (2) she failed to provide the information regarding her work that Bedwell requested in that meeting; (3) she

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failed to sign the releases, which were a necessary part of the required medical examination; and (4) she failed to follow McDade's instructions to return to the PHS to sign the releases. Letter from Samuel Holland, Assistant Inspector General for Investigations, FDIC, to Cynthia Vickers (December 6, 2001).

B. Prior Proceedings

We have commented before on the "extremely complicated" interplay between the two statutory schemes that govern the process by which a civil servant may challenge an adverse employment action when she claims that she was not only treated unfairly but in violation of her civil rights. See Butler v. West, 164 F.3d 634, 638-39 (D.C.Cir.1999). This case illustrates the point. The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in sections of 5 U.S.C.), grants civil servants like Vickers a statutory right to appeal adverse employment actions to the Merit Systems Protection Board. Before the Board, the employer must demonstrate that its reasons for firing the civil servant are supported by a preponderance of the evidence, see 5 U.S.C. § 7701(c)(1)(B), and that the penalty imposed was reasonable, see Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280 (1981). The employee must prove any affirmative defenses by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2)(iii). Vickers appealed her discharge to the Board in January 2002. She denied any wrongdoing and countered the FDIC's accusations with affirmative defenses that her termination was the result of unlawful sexual and racial discrimination and retaliation for having engaged in EEO activities. An administrative law judge ("ALJ") took evidence, heard arguments, and upheld the FDIC's firing of Vickers. See Vickers v. FDIC, No. AT-0752-02-0233-I-2 (M.S.P.B. Dec. 9, 2002) ("MSPB Decision"). The ALJ found that Vickers failed to follow Bedwell's instructions to update him on her cases and the later instruction from McDade to sign the medical releases, id. at 12-13, but rejected the FDIC's charge that Vickers was disrespectful to Bedwell. Because Bedwell had raised his voice during the argument, the ALJ found "that her responses and leaving the meeting were not acts of disrespect, but rather a spur-of-the-moment, emotional reaction to [Bedwell's] failure to maintain his own professionalism." Id. at 4.

Significantly for our analysis, the ALJ did not fault Vickers for her refusal to sign one of the medical release forms--the Release Form--because it "was blank as to the name of the doctors/clinics [to whom] these forms would be sent and to whom the information would be released," id. at 7, and "Holland testified that he would not order an employee to sign a form that did not say to whom the information would be released," id. at 10. The ALJ did fault Vickers, however, for her refusal to sign the other medical release form--the Exam Form--because in the ALJ's view it expressly limited the PHS to making inquiries about Vickers medical history of "doctors, hospitals, or clinics she mentioned in answering the questions on the form" and it provided that any medical information collected could only be released "to the agency's designated point of contact on a need-to-know basis." Id. at 10. The ALJ was further swayed by the fact that Vickers "had previously signed the [same] release on the Exam Form on January 21, 2000." Id.2

The ALJ rejected Vickers' affirmative defenses that she was fired because of her race and gender and in retaliation for her EEO activities. As to her discrimination

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defense, the ALJ held that Vickers "presented no direct evidence that reflects directly the discriminatory attitude and bears directly on her removal." Id. at 13 (emphasis in original). The ALJ rejected Vickers' retaliation defense because she had not provided sufficient evidence demonstrating that her firing was done in...

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