Broussard v. Panetta, Civil No. CCB-11-3401
| Decision Date | 02 January 2013 |
| Docket Number | Civil No. CCB-11-3401 |
| Parties | LAVETTE BROUSSARD v. LEON E. PANETTA, SECRETARY OF DEFENSE |
| Court | U.S. District Court — District of Maryland |
Now pending before the court is a motion to dismiss or, in the alternative, for summary judgment, filed by defendant Leon E. Panetta, Secretary of Defense ("Mr. Panetta"), against plaintiff Lavette Broussard ("Ms. Broussard"). Ms. Broussard is appealing a decision of the Merit Systems Protection Board ("MSPB") sustaining the Defense Department's decision to remove her from her position at the Defense Information Systems Agency ("DISA"). Ms. Broussard is also suing Mr. Panetta, as head of the Defense Department, alleging hostile work environment, retaliation, wrongful termination, and discrimination based on race, age, gender, and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); the Rehabilitation Act of 1973; the Age Discrimination in Employment Act of 1967; and the Civil Service Reform Act. The issues in this case have been fully briefed and no oral argument is necessary. See Local Rule 105.6. For the reasons stated below, Mr. Panetta's motion to dismiss, construed as a motion for summary judgment on two of Ms. Broussard's claims, shall be granted.
Lavette Broussard began working as an IT Specialist for the Defense Information Systems Agency (DISA) at the Department of Defense in 1985. (Compl., ECF No. 1, ¶ 12.) Her duties included diagnosing and resolving hardware and software problems and conducting system security evaluations. (Id. at ¶ 13.) In 1991, Ms. Broussard filed a racial discrimination complaint against DISA. (Id. at ¶ 15.) Fifteen years later, in 2006, Ms. Broussard joined AFGE Local 2. (Id. at ¶ 16.) She was elected executive vice president of Local 2 in 2007 and president in 2008. (Id.) Ms. Broussard claims that DISA has taken adverse actions against her because of her union activity, including disapproving legitimate time she spent representing union employees. (Id. at ¶ 17.) Ms. Broussard eventually resigned as president of the union under medical advice. (Id. at 18.)
In October 2009, Ms. Broussard was suspended for making a false statement about her whereabouts. (Def.'s Mot., ECF No. 11, Ex. 4.) That same month, Ms. Broussard began receiving treatment for stress-induced hypertension, which she attributes to a hostile work environment. (ECF No. 1, ¶ 15.) On June 16, 2010, Ms. Broussard was given a leave counseling memorandum warning her that she would not be given leave without pay anymore because her frequent unscheduled absences adversely affected the work unit. (ECF No. 11, Ex. 5.)
Two days later, Ms. Broussard tripped over a trash can and fell backwards while at work. (Id. at ¶ 21; ECF No. 11, Ex. 6.) She filed a federal worker's compensation claim form with the Department of Labor that same day. (ECF No. 11, Ex. 6.) Ms. Broussard claims that since the fall she has been incapacitated and unable to work, pointing to disability certificates issued by her physician stating that she should not return to work "until and unless the work conditions change[]." (ECF No. 1, ¶¶ 21, 23.) Indeed, Ms. Broussard remained absent from work from June 18, 2010, the date of her injury, until her proposed removal over seven months later, except for apartial day on December 27, 2010. (ECF No. 11, Ex. 1.) On August 27, 2010, Ms. Broussard's supervisor requested medical documentation to justify her continued absence from work. (ECF No. 11, Ex. 8.) On September 20, 2010, Ms. Broussard filed another worker's compensation claim in which she again claimed to be incapacitated for work. (ECF No. 11, Ex. 9.) Ms. Broussard reported earnings from two days of outside employment in her claim. (Id.) In November 2010, Ms. Broussard's supervisor Timothy Kochman sent her two disciplinary memoranda: an "unacceptable attendance" memorandum and a notice of proposed suspension. (ECF No. 11, Ex. 10 & 11.) The unacceptable attendance memorandum informed Ms. Broussard of possible leave "abuse" and requested detailed medical documentation to support her continued absences. (ECF No. 11, Ex. 10 at 1-2.) The notice proposed a thirty-day suspension for "conduct unbecoming," specifically, that Ms. Broussard had worked for another entity while allegedly incapacitated from her position with DISA. (ECF No. 11, Ex. 11 at 1.)
On November 22, 2010, Ms. Broussard submitted medical documentation in response to her supervisor's memoranda. (ECF No. 11, Ex. 12.) The documentation, a radiology report, stated that Ms. Broussard had a "mild narrowing of her lumbar spine," but "no evidence of fracture, dislocation or other bony abnormality." (Id.) On December 6, 2010, the Department of Labor denied Ms. Broussard's claim for worker's compensation benefits because she "did not submit medical evidence containing a medical diagnosis in connection with the injury." (ECF No. 11, Ex. 13 at 1-2.) The decision stated that "[t]he medical evidence in [Ms. Broussard's] case only contains a diagnosis of 'pain,'" and noted that "[p]ain is a symptom and not a diagnosis of a medical condition." (Id. at 2.) On December 10, 2010, Ms. Broussard responded to the notice of proposed suspension, admitting to having worked from home for a non-profit organization in August and September 2010. (ECF No. 11, Ex. 14.) Pursuant to a follow-up request foradditional information from DISA, Ms. Broussard specified that she had worked for compensation from June 27-31, 2010 as a campaign manager for a political campaign and for Patriots Technology Center on four days in August and September 2010. (ECF No. 11, Ex. 16.)
On February 10, 2011, Ms. Broussard filed a formal complaint of discrimination with the DISA EEO, alleging ongoing harassment, discrimination based on race and age, and agency reprisal based on her "previous EEO activities."1 (ECF No. 1, ¶ 33; ECF No. 11, Ex. 2.) On February 16, 2011, Ms. Broussard was issued a notice of proposed removal, which charged Ms. Broussard with conduct unbecoming a federal employee and for being absent without leave or in the alternative for excessive absences. (ECF No. 1, ¶ 35; ECF No. 11, Ex. 1.) In support of the "conduct unbecoming" charge, DISA claimed that Ms. Broussard worked for compensation for two non-federal entities between June and September 2010 even though she had informed the agency that she was incapacitated for work. (Id. at ¶¶ 37, 40.) On April 20, 2011, DISA issued a decision to remove Ms. Broussard from federal service. (Id. at 47.) That decision became effective on April 25, 2011. (Id.)
On May 24, 2011, Ms. Broussard filed an appeal of her termination with the MSPB. In her appeal, Ms. Broussard alleged race, age, and disability discrimination and removal in retaliation for filing a discrimination complaint with the EEO in February 2011. (ECF No. 11, Ex. 3 at 6-7.) On September 21, 2011, the MSPB issued an initial decision upholding Ms. Broussard's removal. That decision became final on October 26, 2011, and on November 23, 2011, Ms. Broussard filed this appeal.
Appeals from MSPB actions are ordinarily heard in the Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1). "A federal employee who claims that an agency action appealable to the MSPB violates [certain] antidiscrimination statute[s]," however, "should seek judicial review in district court." Kloeckner v. Solis, -- S. Ct. --, No. 11-184, 2012 WL 6097022, *10 (Dec. 10, 2012).2 In such a case, the district court reviews the discrimination claims de novo and the nondiscrimination claims under an "arbitrary and capricious" standard. 5 U.S.C. § 7703(c). Specifically, with regard to the nondiscrimination claims, the district court reviews the administrative record to determine whether the MSPB's actions, findings, or conclusions are: "(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." Id. "Substantial evidence" in this context means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Frederick v. Dep't of Justice, 73 F.3d 349, 352 (Fed. Cir. 1996) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The burden is on the appellant to prove arbitrariness or capriciousness, procedural impropriety, or lack of substantial evidence. Harris v. Dep't of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
This case comes before the court on a motion to dismiss pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment. "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v....
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