Crowe v. Whitley
| Decision Date | 02 March 2021 |
| Docket Number | Civ. No. 18-00288 ACK-RT |
| Parties | STEVEN W. CROWE, Plaintiff, v. JOHN E. WHITLEY, Acting Secretary of the Army, Department of the Army, Defendant. |
| Court | U.S. District Court — District of Hawaii |
ORDER GRANTING THE ARMY'S MOTION TO DISMISS (ECF. NO. 55) AND AFFIRMING THE AGENCY'S DECISION UPHELD BY THE MERIT SYSTEMS PROTECTION BOARD
Plaintiff Steven Crowe is a former police officer who worked at Tripler Army Medical Center at Fort Shafter, Hawaii. He was removed from federal employment in 2017 after documented misconduct issues. In this lawsuit, Plaintiff seeks review of the MSPB decision affirming his removal and brings claims against Acting Secretary John E. Whitley in his official capacity as the Acting Secretary of the Army (the "Army" or the "Agency") for discrimination based on Plaintiff's race, sex, and sexual orientation.
Two matters are before the Court: (1) the Army's Motion to Dismiss or in the Alternative for Summary Judgment (the "Motion"), ECF No. 55, on the discrimination claims, and (2) Plaintiff's petition for review of the Merit Systems Protection Board's ("MSPB" or "Board") final order on the non-discrimination claims. For the reasons discussed below, the Army's Motion is GRANTED and the Agency decision as upheld by the MSPB is AFFIRMED.
BACKGROUND
This "mixed case" presents two sets of claims: appealable non-discrimination claims brought under Section 7703 of the Civil Service Reform Act of 1978 (the "CSRA"), U.S.C. § 1101, et seq., coupled with related discrimination and retaliation claims brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq.
The following facts related to Plaintiff's removal and allegations of discrimination are principally drawn from the Complaint, ECF No. 1; evidentiary exhibits attached to the parties' briefs and concise statements of fact ("CSF"), ECF Nos. 55-56 & 85-86; and the administrative record ("AR"), including the decision of the administrative law judge ("ALJ"), ECF Nos. 31-32.
Until his removal in 2017, Plaintiff was employed as a GS-5 police officer in in the Office of the Provost Marshal atTripler. Compl. ¶ 6; Army CSF, ECF No. 56, ¶ 1; Pl. CSF, ECF No. 86, ¶ 1. His first-level supervisor was Supervisory Police Officer Michael Ballesteros, and his second-level supervisor was Deputy Chief Provost Marshal ("DPM") James Ingebredtsen. Compl. ¶ 17; Army CSF ¶ 2; Pl. CSF ¶ 2.
About one year before Plaintiff was removed from his position at Tripler, he complained internally about an interaction he had with Officer Kevin Oda. ECF No. 56-2 at 27:11-27:23; id. at ex. 2. According to Plaintiff, on February 22, 2016, Officer Oda called Plaintiff a "fag" when introducing him to a new officer. Compl. ¶ 13; Army CSF ¶ 15; Pl. CSF ¶ 15; ECF No. 56-2 at ex. 1. Plaintiff reported the incident to his chain of command the next day. ECF No. 56-2 at ex. 1. Less than 30 minutes after Plaintiff reported the incident, Plaintiff's supervisor Officer Ballesteros directed an investigation and corrective action, and a memorandum of counseling was issued on February 24. ECF No. 56-2 at ex. 2; see also Army CSF ¶ 16; Pl. CSF ¶ 16. That same day, Officer Oda sent Plaintiff an email apologizing, ECF No. 56-7 at ex. 2, and Officer Ballesteros testified that he held a meeting with Plaintiff and Officer Oda at which Plaintiff and Officer Oda shook hands and Plaintiff stated that he did not want to pursuethe matter any further, ECF No. 56-2 at 31:8-32:1; id. at ex. 3.1
A few months later, Plaintiff's first-level supervisor Officer Ballesteros became aware of an email sent by Mr. James Sewell on April 9, 2016, in which Mr. Sewell claimed that Plaintiff had approached him in the Tripler Emergency Department ("ED") and confronted him about some sort of relationship conflict involving Plaintiff, Mr. Sewell, and Ms. Anela Garcia, a medical assistant in the Tripler ED. ECF No. 56-3 at ex. 1; id. at 23:6-23:9; ECF No. 56-4 at 260:9-18; see also Army CSF ¶ 2; Pl. CSF ¶ 2. In the email, Mr. Sewell accused Plaintiff of "spreading lies" and cultivating conflict amongst staff; for example, telling employees that Mr. Sewell and Ms. Garcia were in a relationship. ECF No. 56-3 at ex. 1. The email also suggested that Mr. Sewell felt "unsafe" because Plaintiff carries a gun while on duty. Id.; see also ECF No. 56-5 at ex. 1.
The allegations in this email led to Plaintiff becoming the subject of an investigation. ECF No. 56-4 at261:2-17. After consulting with DPM Ingebredtsen and Provost Marshal Kevin Guerrero, Officer Ballesteros assigned Officer Oda to lead the investigation. Id. at 261:18-262:9. According to Officer Ballesteros, Officer Oda was the first person he encountered and was available to handle the investigation at that time. Id. at 262:4-21.
The investigation revealed additional interpersonal conflict between Plaintiff, Ms. Garcia, and Mr. Sewell. See ECF No. 56-5. Specifically, Ms. Garcia testified under oath that she and Plaintiff had engaged in sexual relations at Tripler in a police training room while Plaintiff was on duty and in uniform, around three to four times per week for about six months. ECF No. 56-5 at ex. 6. In her testimony, Ms. Garcia also testified as to the details of the training room. Id. Ms. Garcia then recanted her testimony, ECF No. 56-2 at ex. 9,2 but later reversed course again, saying she had recanted under pressure from one of Plaintiff's coworkers, Officer Justin Brower, ECF No. 56-6 at 147:1-14, 147:25-148:8.
For his part, Plaintiff has denied ever having sexual relations in the police training room while on duty. He admits to having had a sexual relationship with Ms. Garcia but insistsher story about inappropriate behavior while on the job is entirely fabricated.
Other alleged misconduct was revealed through Officer Oda's investigation as well. Witnesses testified that they had observed Plaintiff chatting with Department of Veterans Affairs ("VA") personnel in the VA's ambulatory care clinic ("ACC") for hours at a time, that Plaintiff had shown coworkers photos of women he was having sex with, and that Plaintiff and Ms. Garcia were having sexual relations on the tenth floor at Tripler. ECF No. 56-5 at ex. 5. Other witnesses corroborated the testimony that Plaintiff would stay at the ACC talking with VA employees for hours at a time, and testified that Plaintiff was gossiping about his and his coworkers' purported sexual relationships. Id. at ex. 4.
On May 12, 2016, Plaintiff's supervisor Officer Ballesteros removed Plaintiff's police powers and placed him on temporary detail for 30 days pending an investigation surrounding the alleged misconduct. Army CSF ¶ 7; Pl. CSF ¶ 7. The administrative detail was then extended indefinitely while the investigation was ongoing. ECF No. 56-2 at ex. 15. While Officer Oda began the investigation, it was largely directed by Officer Ballesteros, and DPM Ingebredtsen conducted an independent review of the investigation and its findings. ECF No. 56-4 at 311:11-313:17; ECF No. 56-5 at 57:9-19.
On November 4, 2016, six months after being placed on temporary detail, Officer Ballesteros issued a Notice of Proposed Removal ("NOPR") based on one charge and five specifications. AR 740-43; ECF No. 56-2 at ex. 10; ECF No. 86-7. DPM Ingebredtsen (the deciding official) ultimately issued a Notice Decision on a Proposed Removal on February 14, 2017, which terminated Plaintiff's employment effective March 4. AR 744-48; ECF No. 56-9.
On August 15, 2016, after the investigation had begun but before the NOPR was issued, Plaintiff filed a formal equal employment opportunity ("EEO") complaint alleging a hostile work environment stemming from discrimination based on his race and sexual orientation. ECF No. 56-7 at ex. 2. Plaintiff cited the interaction with Officer Oda, and alleged that "since that day" Plaintiff had been discriminated against and punished without cause. See id. The complaint alleged that Officer Oda was assigned to conduct the investigation into Plaintiff's misconduct despite the previous informal complaint Plaintiff had made about him. See id. The EEO complaint asserted discrimination based on Plaintiff's "perceived" sexual orientation, but it stated, "I'm not gay" and pointed instead toPlaintiff's Facebook page, which Plaintiff indicated showed that many of his family members were openly gay. Id.
On November 5, 2016, the day after the NOPR was issued, Plaintiff amended his EEO complaint to assert that the previously-alleged discrimination had culminated in a shoddy investigation against Plaintiff and ultimately in his proposed removal. ECF No. 56-7 at ex. 4. Then, after the Notice of Removal was issued, Plaintiff again amended his EEO complaint to include the Army's removal action. AR 614-17, 622-704.
On March 29, 2017, Plaintiff filed a mixed-case appeal with the MSPB challenging his removal and alleging unlawful discrimination and "disparate" treatment based on his sexual orientation. AR 6-13; ECF No. 56-7 at ex. 5; see also Army CSF ¶ 22; Pl. CSF ¶ 22. Two months later, the ALJ for the MSPB dismissed Plaintiff's appeal without prejudice. AR 713-23. She found that Plaintiff's amendments to his EEO complaint showed that he had elected to pursue his removal claims as a mixed-case EEO complaint, meaning the appeal to the MSPB was premature. See AR 713-23; see also AR 598-600, 608-17.
After there was no timely decision on his EEO complaint, Plaintiff ultimately refiled his appeal before the MSPB on December 6, 2017. AR 731-50. The only discrimination-related defense he raised before the MSPB was discrimination based on sexual orientation. AR 770.
In a written decision issued on May 24, 2018, the ALJ upheld Plaintiff's removal, finding that the Army (1) proved...
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