Bussey v. Carter

• Decision Date: 05 April 2018
• Docket Number: 1:16-cv-906 MCA LF
• Parties: TERRY BUSSEY, Plaintiff v. ASHTON B. CARTER, Secretary of the UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
• Court: U.S. District Court — District of New Mexico

TERRY BUSSEY, Plaintiff v. ASHTON B. CARTER, Secretary of the UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

1:16-cv-906 MCA LF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 5, 2018

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant Department of Defense's Motion for Summary Judgment [Doc. 28]. The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS in part and DENIES in part Defendant's Motion.

I. Background

Plaintiff Terry Bussey (Plaintiff or Mr. Bussey), who is African American, began his employment with the federal government in 1987. [Doc. 1, ¶¶ 6, 8] In 1999, he began working for the Defense Threat Reduction Agency (DTRA) at the Department of Defense (DOD or Defendant). [Doc. 1, ¶¶ 6, 7] Paul Collins began working for DTRA and supervising Mr. Bussey in 2012. [Doc. 28-1, Collins Depo, 8:19-9:11] Mr. Collins was supervised by Calvin Conger, who was located in Washington, D.C. [Doc. 28-1, Collins Depo, 9:14-15, 34:9-14; Doc. 28-2, Conger Depo, 7:3-12] At times relevant to his Complaint, Mr. Bussey was in charge of the vehicles assigned to Mr. Collins' department. [Doc. 28, ¶ 7; Doc. 32, ¶ 7] In early 2015, Mr. Collins verbally assigned Mr. Bussey the additional role of "building manager." [Doc. 28, ¶ 14; Doc. 32, ¶ 14]

After Mr. Collins issued a series of disciplinary notices to Mr. Bussey in 2015, Mr. Bussey was removed from his position on January 5, 2016. [Doc. 28, ¶ 51; Doc. 32, ¶ 51] After Mr. Bussey was removed, he filed an appeal with the Merit Systems Protection Board (MSPB). [Doc. 28, ¶ 59; Doc. 32, ¶ 59] The MSPB held a hearing and issued an Initial Decision affirming the removal, which became final on July 11, 2016. [Doc. 28, ¶ 60; Doc. 32, ¶ 60] Consistent with 5 U.S.C. § 7703(b)(2), Mr. Bussey timely filed the present lawsuit on August 9, 2016. [Doc. 28, ¶ 61; Doc. 32, ¶ 61] In his Complaint, Mr. Bussey alleges that "Defendant has discriminated against Bussey in the terms and conditions of his employment on the basis of his race in violation of Title VII." [Doc. 1] See 42 U.S.C. § 2000e. He also alleges that "Defendant retaliated against Bussey in the terms and conditions of his employment in violation of Title VII for participating as a witness and for previous EEO filings," and that "Bussey engaged in a protected disclosure of fraud and waste to the Inspector General's Office [and] was subject to an adverse employment action in being disciplined and removed from federal service." [Doc. 1] See 42 U.S.C. § 2000e; Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat 1465 (2012). Mr. Bussey thus raises two claims based on Title VII (discrimination claims) and one claim based on the WPEA (a non-discrimination claim). See Dossa v. Wynne, 529 F.3d 911, 915 (10th Cir. 2008)(stating that "Title VII includes retaliation claims and § 7703(b)(2) authorizes judicial review of them").

II. Discussion

Where, as here, "a petition for review of a MSPB decision involves both discrimination and other claims it is considered a 'mixed case.'" Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir. 1993). "Normally, . . . the Federal Circuit has exclusive jurisdiction over appeals from the MSPB, except where, as here, the appellant's claim includes an allegation of discrimination." Id.; see 5 U.S.C. § 7703(b)(1). The Court reviews the Title VII-based discrimination claims de novo, but "[t]he other, non-discrimination claims, . . . are reviewed on the administrative record." Williams, 983 F.2d at 179-80; see Morales v. Merit Sys. Prot. Bd., 932 F.2d 800, 802 (9th Cir. 1991) (recognizing that a Title VII retaliatory discharge case was properly considered de novo); 5 U.S.C. § 7703(c). The Court will address Mr. Bussey's claims in reverse order, starting with the WPEA retaliation claim (Count 3).

A. WPEA Retaliation Claim¹

Under Williams, 983 F.2d at 179-80, Plaintiff's non-discrimination claim is reviewed deferentially and the MSPB decision may be reversed only when it is "(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).

Defendant argues that Plaintiff's retaliation claim should be dismissed because Mr. Bussey has failed to file the administrative record. [Doc. 28, pg. 25] It points to Federal Rule of Appellate Procedure 10, which requires an appellant to file the record of district court proceedings with the appellate court. [Doc. 28, pg. 25] Defendant's argument is unavailing, however, because Rule 10 does not apply to appeals in district court of administrative adjudications. Instead, Rules 16 and 17 govern those appeals, and Rule 17 provides that "[t]he agency must file the record . . . within 40 days after being served with a petition for review, unless the statute authorizing review providesotherwise." (Emphasis added.) See Singh v. Ashcroft, 367 F.3d 1139, 1147-48 (9th Cir. 2004) (Hawkins, J., dissenting) (noting that the rule governing filing of the record for appeals of district court decisions differs from that governing appeals of administrative adjudications); Gearan v. Dep't of Health & Human Servs., 838 F.2d 1190, 1191 (Fed. Cir. 1988) ("Pursuant to Fed.R.App.P. 17, the agency must file the record with the Clerk of the court."); Pitman v. United States Citizenship & Immigration Servs., No. 2:17-CV-0166-CW-EJF, 2017 WL 5991738, at *2 (D. Utah Dec. 1, 2017) (stating that "it is the government's burden to file the administrative record in [Administrative Procedures Act] review cases and to certify that it is complete," citing Rule 17); 16AA Fed. Prac. & Proc. Juris. § 3963 (4th ed.) ("It is the duty of the agency, in both review and enforcement proceedings, to file the record as defined in Rule 16(a) . . . within 40 days after being served with a petition for review, unless a statute prescribes a different time.").

The Court shall therefore order Defendant to cause the record of proceedings before the MSPB to be filed consistent with Rule 16 and 17 of the Federal Rules of Appellate Procedure. See Luther v. Gutierrez, 618 F. Supp. 2d 483, 496 (E.D. Va. 2009) (stating that the defendant had been directed "(i) to assemble for filing the MSPB administrative record, [and] (ii) to meet and confer with plaintiff to assure that the record was reasonably complete and contained all of the materials necessary to resolve plaintiff's CSRA claim" by a certain date).

Moreover, to the extent Defendant relies on the summary judgment standard and attaches portions of the administrative record to support its assertions, this approach is unavailing. The Tenth Circuit held in Olenhouse that summary judgment procedures donot apply to review of agency decisions governed by the Administrative Procedures Act (APA), like the MSPB decision here. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994). The Court held that

[the summary judgment] process, at its core, is inconsistent with the standards for judicial review of agency action under the APA. The use of motions for summary judgment or so-called motions to affirm permits the issues on appeal to be defined by the appellee and invites (even requires) the reviewing court to rely on evidence outside the administrative record. Each of these impermissible devices works to the disadvantage of the appellant. We have expressly disapproved of the use of this procedure in administrative appeals in the past, and explicitly prohibit it now.

Id. It went on, "Reviews of agency action in the district courts must be processed as appeals . . . . Motions to affirm and motions for summary judgment are conceptually incompatible with the very nature and purpose of an appeal." Id. at 1580.

Faced with a motion for summary judgment concerning an appeal of an administrative decision, some courts have concluded that they could "[i]gnore the summary judgment standards and treat the pending motions for summary judgment and responses and replies filed by each of the parties as briefs of the respective parties," reasoning that the parties had a full opportunity to advance their arguments and that this approach is "the most expeditious and beneficial to the parties." Logan Farms, Inc. v. Espy, 886 F. Supp. 781, 785 (D. Kan. 1995). However, in Logan Farms, Inc., the complete administrative record had been filed. Id. at 789. That is not the case here.

In its appellate capacity, the Court is obliged to assess whether an agency's action "was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" and if it was "unsupported by substantial evidence in the hearing record."Olenhouse, 42 F.3d at 1573-74 (internal quotation marks and citation omitted); see 5 U.S.C. § 7703(c); 5 U.S.C. § 706(2) (a provision of the APA defining the judicial scope of review). "These standards require the reviewing court to engage in a 'substantial inquiry'" of the entire record. Olenhouse, 42 F.3d at 1574. Because the record has not been filed here, the requisite "substantial inquiry" is impossible.

Because summary judgment on the retaliation claim is foreclosed by Olenhouse and because the complete record has not been filed, Defendant's Motion will be denied as to Plaintiff's WPEA retaliation claim (Count 3).

B. Plaintiff's Discrimination Claims (Counts 1 and 2)

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this Rule, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Rather, "[o]nly disputes over facts that might affect...