Cohen v. Austin

• Citation: 861 F. Supp. 340
• Decision Date: 25 August 1994
• Docket Number: Civ. A. No. 92-CV-5623.
• Parties: Robert N. COHEN, Plaintiff, v. Richard G. AUSTIN, administrator, General Services Administration, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

861 F. Supp. 340

Robert N. COHEN, Plaintiff, v. Richard G. AUSTIN, administrator, General Services Administration, Defendant.

Civ. A. No. 92-CV-5623.

United States District Court, E.D. Pennsylvania.

August 25, 1994.

Dennis L. Friedman, Philadelphia, PA, for plaintiff.

David R. Hoffman, James G. Sheehan, Lois W. Davis, U.S. Attys. Office, Philadelphia, PA, for defendant.

MEMORANDUM AND ORDER

JOYNER, District Judge.

Before the Court are the cross-motions for summary judgment of the parties pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. This case involves an action filed by plaintiff, Robert N. Cohen, who was removed from his position as a GS-12 contract specialist with defendant, General Services Administration. The case has a lengthy procedural history, which we have already fully discussed in a previous opinion. See Cohen v. Austin, 833 F.Supp. 512 (E.D.Pa.1993) (denying an earlier motion for summary judgment filed by defendant). Suffice it to say that plaintiff has filed suit in this Court alleging violations of Title VII, 42 U.S.C. § 2000e-16(c), in that his removal and denial of his within-grade increase were prompted by religious discrimination, and that his removal was based on reprisal for engaging in prior protected activities. Pursuant to the Civil Service Reform Act, 5 U.S.C. § 7701 et seq., plaintiff also seeks review of the decision of the Merit Systems Protection Board ("MSPB"), which affirmed defendant's actions of removing him and denying his within-grade increase. Finally, plaintiff seeks review of the decision of the Equal Employment Opportunity Commission ("E.E.O.C."), which affirmed the MSPB's findings of no discrimination and reprisal.

Standards

A. Standard for a motion for summary judgment

In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S.Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)).

In cases where the parties have filed cross-motions for summary judgment, each side essentially contends that no issue of material fact exists from its perspective. United States v. Hall, 730 F.Supp. 646, 648 (M.D.Pa. 1990). The court must, therefore, consider each motion for summary judgment separately. Id. Nor do the standards under which the court grants or denies summary judgment change because cross-motions are filed. Id. Each party still bears the initial burden of establishing a lack of genuine issues of material fact. Id. Such contradictory claims do not necessarily guarantee that if one party's motion is rejected, the other party's motion must be granted. See id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)).

B. Standards under the Civil Service Reform Act

This Court has jurisdiction to hear plaintiff's claims because it is a "mixed case" of both discrimination and non-discrimination claims. Kean v. Stone, 926 F.2d 276 (3rd Cir.1991); Gollis v. Garrett, 819 F.Supp. 446, 449 (E.D.Pa.1993); Mayo v. Edwards, 562 F.Supp. 907, 908 (D.D.C.1983), aff'd, 741 F.2d 441 (D.C.Cir.1984). However, there are different standards of review with regard to mixed cases. For the non-discrimination claims (the denial of the within-grade increase and plaintiff's removal), the decision of the MSPB will be set aside if it 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) (1980); Murray v. United States Dept. of Justice, 821 F.Supp. 94, 108 (E.D.N.Y.1993), aff'd, 14 F.3d 591 (2nd Cir.1993). Review of the MSPB decision is limited solely to the administrative record.¹Murray, 821 F.Supp. at 108; Diaz v. United States Postal Serv., 668 F.Supp. 88, 91 (D.P.R.1987), aff'd, 853 F.2d 5 (1st Cir.1988). Further, judicial review of the MSPB's decision is very narrow. Romero v. Department of the Army, 708 F.2d 1561, 1563 (10th Cir.1983). To determine if the decision is supported by substantial evidence, courts inquire whether the decision is supported "`by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Tilley v. Frank, 728 F.Supp. 1293, 1296 (E.D.La.1990); Murray, 821 F.Supp. at 108. While the evidence need not be unequivocal, there must be more than a mere scintilla of evidence which must reasonably support the MSPB's findings. Henley v. United States, 379 F.Supp. 1044, 1049 (E.D.Pa.1974). Under the arbitrary and capricious standard, courts will defer to the MSPB decision "unless the penalty is so harsh or disproportionate to the offense as to be an abuse of discretion." Tilley, 728 F.Supp. at 1297. Reviewing courts should not generally inquire into the wisdom of the agency's personnel decisions or substitute its own judgment for that of the agency when considering personnel decisions because such decisions are usually within the competence and discretion of the executive officials. Diaz, 668 F.Supp. at 91 (citations omitted).

With regard to the discrimination claims, however, plaintiff is entitled to de novo review. 5 U.S.C. § 7703(c)(3) (1980); Rana v. United States, 812 F.2d 887, 890 (4th Cir. 1987). Thus, plaintiff is entitled to a review of the formal record as well as any new evidence that is presented to this Court. Rana, 812 F.2d at 890; Hodgson v. Department of the Air Force, 750 F.Supp. 1037, 1040 (D.Colo.1990), aff'd, 999 F.2d 547 (10th Cir.1993).

Discussion

I. Review of the MSPB decision

Before addressing plaintiff's arguments, a brief discussion about performance standards is warranted. As a GS-12 contract specialist working for a governmental agency, plaintiff was bound by a set of performance standards which the agency used in evaluating his performance. See Wilson v. Department of Health and Human Serv., 770 F.2d 1048, 1050-1053 (Fed.Cir.1985) (discussing performance appraisal system for federal employees). Plaintiff's performance standards were divided into five critical elements, each of which represented different tasks to be performed by plaintiff. For instance, critical element number one states "Analyzes requirements and plans procurements. Includes the following tasks: Reviews procurement requests ... Identifies and resolves deficiencies in scope of work and specifications. Performs industry analysis. Develops the procurement plan." For each critical element, there are standards "which set forth the degree of proficiency necessary to achieve a given rating (e.g., minimally satisfactory, satisfactory, or outstanding)." Wilson, 770 F.2d at 1050. The purpose of these standards is "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria ... related to the job in question for each employee or position under the system." 5 U.S.C. § 4302(b)(1) (1977 & Supp.1994).

A. Different performance standards

Plaintiff first argues that he is entitled to summary judgment because different performance standards were imposed on him than were imposed on other GS-12 contract specialists. Essentially, plaintiff argues that the agency action in providing him with different standards is arbitrary and capricious, that the MSPB erred by not considering this argument, and as such, the decision below is not supported by substantial evidence. However, plaintiff's first argument is without merit.

In analyzing this issue, we will only consider plaintiff's argument with regard to critical element number two of his performance standards. In so doing, we note that to sustain defendant's action, it only needs to be shown that plaintiff's performance was unacceptable with regard to one critical element. Robinson v. Department of Army, 50 M.S.P.R. 412, 421 (1991) (citing Wilson v. Department of the Navy, 29 M.S.P.R. 6, 8 (1985)). Since Administrative Judge Squire and the MSPB ultimately affirmed defendant's actions by concluding that plaintiff had failed in his performance only with regard to critical element number two, we only need to consider that critical element.

It is clear from the record that plaintiff received his initial set of performance standards on September 22, 1988. These standards set out the expected performance for all GS-12 contract specialists within the branch. Critical element two states as follows: "Develops and issues solicitations. Includes the following tasks: Assembles and issues solicitation packages. Identifies exceptions or changes needed in standard contract provisions. Selects appropriate contract type. Coordinates socioeconomic factors with appropriate activities." Under the standards of expected performance for critical element number two, the following is stated:

—Solicitations are complete and conform to requirements of the FAR Federal Acquisition Regulations and GSAR General Services Acquisition Regulations. Protests or audits do not later reveal defects in the solicitation package such that the

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