Figueroa v. Nielsen

• Decision Date: 24 September 2019
• Docket Number: 17-cv-04249 (DAB)
• Citation: 423 F.Supp.3d 21
• Parties: Richard FIGUEROA, Plaintiff, v. Kirstjen M. NIELSEN, Secretary, Department of Homeland Security, Defendant.
• Court: U.S. District Court — Southern District of New York

423 F.Supp.3d 21

Richard FIGUEROA, Plaintiff,

v.Kirstjen M. NIELSEN, Secretary, Department of Homeland Security, Defendant.

17-cv-04249 (DAB)

United States District Court, S.D. New York.

Signed September 24, 2019

Alan Edward Wolin, Wolin & Wolin, Jericho, NY, for Plaintiff.

Natasha Waglow Teleanu, Samuel Hilliard Dolinger, United States Attorney's Office, New York, NY, for Defendant.

MEMORANDUM AND ORDER

Deborah A. Batts, United States District Judge

Plaintiff Richard Figueroa ("Figueroa") brings this suit against Defendant Kirstjen M. Nielsen, Secretary of Homeland Security ("DHS" or the "Government"), for relief as a result of being removed from his position as a Customs and Border Protection Officer ("CBPO") with DHS in 2017. The Complaint alleges two causes of action: 1) that the Merit Systems Protection Board's affirmation of DHS' order to remove Plaintiff was arbitrary, capricious, not in accordance with law, or not based on substantial evidence in violation of 5 U.S.C. § 7703(c) ; and 2) that DHS's employment practices are in violation of Title VII of the Civil Rights Act of 1964, in particular 42 U.S.C. § 2000e et seq. (Pl.'s Compl., ECF No. 1, at 30-31.)

Figueroa moved for summary judgment as to Count 1, the arbitrary and capricious claim, and DHS cross-moved for summary judgment as to Count 1. For reasons set forth below, Figueroa's Motion for Summary Judgment as to as to Count 1 of the Complaint is DENIED and DHS' Motion for Summary Judgment as to Count 1 of the Complaint is GRANTED.¹

I. BACKGROUND

The following facts are undisputed unless otherwise stated. Additional facts are included in the Administrative Judge's ("AJ") initial decision. (Initial Decision in Figueroa v. Dep't of Homeland Security, Apr. 3, 2017, AR, at 2134-91)("AJ Decision".)

A. Incident of August 11, 2014

In 2001, Plaintiff became employed by U.S. Customs and Border Protection and was assigned to JFK Airport. (Pl.'s Rule 56.1 Statement ¶ 11, ECF No. 18.)² Because the position of CBPO is a weapons-carrying position, officers are required to "qualify" with their weapon on a shooting range four times per year. (Id. ¶ 24.) If an officer fails a qualification, their firearm privileges are revoked. (Id. ) Customs and Border Protection ("CBP") designates certain officers as "firearms instructors," and those instructors oversee the qualification classes at which CBPOs must qualify. (Id. ¶ 25.) From October 2012 until his termination, Plaintiff served as a CBP firearms instructor. (Id. )

On August 11, 2014, Plaintiff was serving as firearms instructor for a group of officers seeking to fulfill one of their four required qualifications. (Id. ¶ 28.) Among the group was Supervisory Customs and Border Protections Officer ("SCBPO") Deborah Tricarico ("Tricarico"), whom Plaintiff had named in a 2012 Equal Employment Opportunity complaint arising from an incident in which Tricarico cited Plaintiff for failing to carry required equipment. (Id. ¶ 34-35; see also AR, at 2313, 2684-85.) During the shooting portion of the qualification, Tricarico left the area. (Pl.'s Rule 56.1 Statement ¶ 39.) Tricarico claims she did this because Plaintiff's lecture made her feel uncomfortable and wanted to request a different instructor; Figueroa disputes this, saying that he was not "angry [or] agitated, nor was it his intent to make anyone uncomfortable." (Compare AR, at 2318-19 with Pl.'s Rule 56.1 Statement ¶ 33-36.)

Later, SCBPO Tricarico returned to the firing range with CBPO Christopher Beeg ("Beeg"). (Id. ¶ 40.) CBPO Beeg informed Plaintiff that Deputy Chief Chance Youngs ("Youngs") had ordered CBPO Beeg to conduct SCBPO Tricarico's shooting test.³ (Id. ¶ 41) Plaintiff responded by accusing CBPO Beeg of interfering with his duties as firearms instructor, and a shouting match ensued between CBPO Beeg and Plaintiff. (Id. ¶ 42.) According to CBPO Peter Santoro's testimony, on which the AJ relied in finding Plaintiff guilty of inappropriate contact, at some point during this altercation Plaintiff raised his hand to prevent CBPO Beeg from entering the firing range and in so doing touched CBPO Beeg. (AJ Decision, at 4, 12.)

SCBPO Sean Noonan ("Noonan") was called to the firing range to resolve the dispute between Plaintiff and CBPO Beeg.⁴ (Pl.'s Rule 56.1 Statement ¶ 43; AJ Decision, at 13.) The parties dispute what happened next. According to DHS, SCBPO Noonan ordered both CBPO Beeg and Plaintiff to leave the area and enter a classroom to resolve the dispute privately. (AJ Decision, at 4; Defendant Kirstjen M. Nielsen's Memorandum of Law in Support of Her Motion for Summary Judgment on Count 1 of Plaintiff Richard Figueroa's Complaint, ECF No. 22, at 5, "Def.'s Mot.".) Although the AJ found otherwise, Plaintiff contends that SCBPO Noonan never asked him to leave the range. (Pl.'s Compl. ¶ 51; Pl.'s Rule 56.1 Statement ¶ 43-44; see also AJ Decision, at 26.) Plaintiff testified that, after the interaction with SCBPO Noonan at the firing range, he "did not leave or abandon his post." (AR, at 2787.)

B. Incident of September 12, 2014

A few weeks later, a verbal altercation erupted between CBPO Beeg and Plaintiff in the Firearms Instructor Office. (AJ Decision, at 5.) Plaintiff alleges that CBPO Beeg initiated the altercation by taunting him. (Pl.'s Rule 56.1 Statement ¶ 49.)

SCBPO Noonan overheard the argument and entered the Firearms Instructor Office. (Id. ¶ 50.) According to Plaintiff, SCBPO Noonan instructed Plaintiff, but not CBPO Beeg, to enter DCO Youngs's office. (Id. ) According to SCBPO Noonan, however, that directive was given to both CBPO Beeg and Plaintiff, and, when Plaintiff refused, SCBPO Noonan reiterated the directive as an order specifically to Plaintiff. (AJ Decision, at 5; AR, at 2446.) Plaintiff admits that he refused to comply with SCBPO Noonan's directive. (AR, at 2706.) Plaintiff claims that he refused to comply because he believed that he was entitled to union representation before entering DCO Youngs's office, arguing it was likely that SCBPO Noonan or DCO Youngs would speak to him "in a negative manner." (Pl.'s Rule 56.1 Statement ¶ 51.) Plaintiff then left the Firearms Instructor Office and contacted the union. (Id. ¶¶ 51-52.) Later that day, SCBPO Noonan provided Plaintiff with a copy of his Weingarten rights,⁵ which Plaintiff signed. (Id. ¶ 53.)

C. Removal

On September 18, 2014, Director of Field Operations ("DFO") Robert Perez ("Perez") forwarded Plaintiff's complaints to the Port Director of JFK Airport, who then investigated the incidents of August 11 and September 12. (AJ Decision, at 5.)⁶

On March 13, 2015, Plaintiff was notified that DHS had proposed to remove him on the basis of two charges. (Id. at 7; Pl.'s Rule 56.1 Statement ¶ 84.) The first charge alleged that Plaintiff committed inappropriate conduct on August 11, 2014. (AJ Decision, at 7.) The second charge alleged that Plaintiff twice failed to follow SCBPO Noonan's orders, once on August 11, 2014 and again on September 12, 2014. (Id. )

On May 11, 2015, Plaintiff requested the recusal of DFO Perez, who had been assigned as the deciding official in Plaintiff's removal case. (AR, at 994.) Plaintiff's grounds for the request were that DFO Perez had served as deciding official in a prior disciplinary action against Plaintiff and that he had also testified in a matter involving the Plaintiff.⁷ (Id.; Pl.'s Rule 56.1 Statement, ¶¶ 84-86.) Plaintiff alleges that, during DFO Perez's testimony in a prior proceeding, DFO Perez showed "a great deal of animus toward Plaintiff." (Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment as to That Part of the Case Which Seeks to Annul and Reverse the Determination of Defendant, as Affirmed by the Merit Systems Protection Board, Which Resulted in Plaintiff's Termination as Customs and Border Protection Officer, ECF No. 19, "Pl.'s Mot.".) DFO Perez denied Plaintiff's recusal request. (AJ Decision, at 7.) On July 7, 2015, DFO Perez sustained the charges against Plaintiff and ordered that he be removed. (Id. )

D. The Merit Systems Protection Board Appeal

On July 28, 2015, Plaintiff appealed the agency's removal decision to the Merit Systems Protection Board ("MSPB"). (Id. at 1-2.) The MSPB has jurisdiction over the appeal pursuant to 5 U.S.C. §§ 7511(a)(1)(A), 7512(1), and 7701(a).

Plaintiff's hearing was held before Administrative Judge ("AJ") Maria M. Dominguez ("Dominguez") over three days: September 14, 2016; September 23, 2016; and November 9, 2016. (Id. at 2.) On April 3, 2017, Administrative Judge Dominguez affirmed DHS's decision to terminate Plaintiff.

E. Summary Judgment

On July 23, 2018, the parties filed cross motions for partial summary judgment as to Count 1 of the Complaint. (See Pl.'s Mot.; Def.'s Mot.) Plaintiff filed a brief opposing the Government's motion for partial summary judgment on August 23, 2018. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, ECF No. 24, "Pl.'s Opp.") The Government filed an opposition brief to Plaintiff's partial summary judgment motion on August 24, 2018. (Defendant Kirstjen M. Nielsen's Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment on Count 1 of Plaintiff's Complaint, ECF No. 26, "Def.'s Opp."). Plaintiff filed a reply brief in support of his motion on September 13, 2018. (Plaintiff's Reply Memorandum of Law, ECF No. 27, "Pl.'s Repl."). In turn, on September 14, 2018, the Government filed a reply brief in support of its motion.

(Reply Memorandum of Law in Further Support of Defendant Kirstjen M. Nielsen's Motion for Summary Judgment on Count 1 of Plaintiff's Complaint, ECF No. 28, "Def.'s Repl.").

II. LEGAL STANDARD

A court should grant summary judgment when there is "no genuine dispute as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). Genuine issues of material fact cannot be created...