Garcia-Cabrera v. Cohen

• Decision Date: 02 February 2000
• Docket Number: Civil Action No. 98-A-1114-N.
• Citation: 81 F.Supp.2d 1272
• Parties: Angel P. GARCIA-CABRERA, Plaintiffs, v. William COHEN, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

81 F.Supp.2d 1272

Angel P. GARCIA-CABRERA, Plaintiffs, v. William COHEN, et al., Defendants.

Civil Action No. 98-A-1114-N.

United States District Court, M.D. Alabama, Northern Division.

February 2, 2000.

COPYRIGHT MATERIAL OMITTED

David George Flack, Montgomery, AL, for Plaintiff.

R. Randolph Neeley, Redding Pitt, U.S. Attorney, U.S. Attorney's Office, Montgomery, AL, for Defendants.

MEMORANDUM OPINION

ALBRITTON, Chief Judge.

I. INTRODUCTION

This cause is before the court on a Motion to Dismiss Or In The Alternative For Summary Judgment (doc. # 21) filed by the Defendants on November 15, 1999.

Garcia-Cabrera brought this action against the Secretary of the United States Department of Defense, William Cohen, (the "Secretary") and four of his supervisors at the Defense Commissary Agency ("DeCA"), the division of the Department of Defense that employed Garcia-Cabrera, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and rights guaranteed by the First Amendment to the United States Constitution.

For the reasons discussed below, the Defendants Motion for Summary Judgment is due to be GRANTED.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-324, 106 S.Ct. 2548.

Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-movant's response consists of nothing more than conclusory allegations, the court must enter summary judgment for the movant. See Peppers v. Coates, 887 F.2d 1493 (11th Cir.1989). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. FACTS

The submissions, when viewed in a light most favorable to Garcia-Cabrera, establish the following undisputed facts:

I. Garcia-Cabrera's Termination

Garcia-Cabrera was appointed to a civil service position termed a "career-conditional" appointment. The Office of Personnel Management ("OPM") Regulations provide general rules applicable to all career-conditional employees. Generally, a career-conditional employee may become a "career" employee upon the completion of a "service requirement" of usually three years. 5 C.F.R. § 315.201.¹ Prior to the completion of the first year of a career-conditional employee's service period — the "probationary period" — the employee may be dismissed "if he fails to demonstrate fully his qualifications for continued employment." 5 C.F.R. § 315.803. During this probationary period, a career-conditional employee is accorded limited procedural rights,² and may seek review of a dismissal only on limited grounds.³

Garcia-Cabrera received his career-conditional appointment as an Accounting Technician for the DeCA at Maxwell Air Force Base ("Maxwell"). The DeCA is the division of the Department of Defense that is charged with the operation and management of the government's commissaries, the retail stores that sell groceries and household supplies "to members of the Military Services, their families, and other authorized patrons...." Department of Defense Directive, 5105.55 at ¶ (C)(1)(a). The DeCA maintains and operates a commissary at Maxwell Air Force Base and at Gunter Military Base in Montgomery, Alabama.

Garcia-Cabrera's career-conditional appointment was contingent on the successful completion of a one year probationary period as mandated by 5 C.F.R. § 315.801 during which Garcia-Cabrera was required to demonstrate his fitness for permanent employment. See 5 C.F.R. § 315.803. The terms of his appointment required that he demonstrate to the satisfaction of the DeCA that he could satisfy five "critical" conditions (termed "performance elements") of his employment. See Def.Ex. 5, (Civilian Performance Plan).⁴ One of these "critical" conditions was described as follows:

Handles all requests from Headquarters, Region, Zone Managers, Store Personnel and ACS supervisors and co-workers in a courteous and professional manner. Demonstrates an ability to work cooperatively with others, by reducing the high potential for stress to a bare minimum. No more than 2 substantiated instances of un-professionalism per year will be considered acceptable.

See Def.Ex. 5 at 2.⁵

On June 13, 1997, Daleen Hulsey ("Hulsey"), who was the Acting Chief of the Accounts Controls Section and Garcia-Cabrera's supervisor during the relevant time period, handed Garcia-Cabrera a letter ("Hulsey letter"), notifying him of his removal. Hulsey explained in her letter to Garcia-Cabrera that he was being terminated because he had failed to conduct himself in a courteous and professional manner as was required by his job description. See generally, Def.Ex. 8. Hulsey cited two specific instances of such conduct:

(1) On 11 June 1997, you [i.e., Garcia-Cabrera] were being counseled by the acting supervisor, Ms. Helen Spangler, regarding your conduct when you became disrespectful, rude, loud, and discourteous towards her. You refused to listen to her, stated that if she wanted to talk to you to talk to your attorney, left the meeting and slammed the door behind you. You have been previously counseled regarding the importance of customer service. This type of behavior is unacceptable, especially towards your lead who was also functioning as your supervisor. (The "Spangler Incident"). (2) On 12 June 1997, I received a complaint from the Maxwell Commissary Officer, Ms. Barbara Sannino, regarding your rude, uncooperative attitude and discourteous conduct towards employees of the Management Support Center (MSC) at the Maxwell AFB Commissary and Gunter Annex Commissary. Employees of these serviced commissaries have reported numerous complaints concerning your negative attitude. All employees have been directed to provide respectful, professional, and cooperative service to all our customers. (The "Sannino Incident").

See Def.Ex. 8 (Hulsey Letter) at 1.

Garcia-Cabrera was immediately placed on administrative leave, and his termination became effective on June 21, 1997. Garcia-Cabrera sought review of the agency decision from the MSPB. He also complained to the Equal Employment Opportunity (EEO) Officer at Maxwell that the decision was based on illegal employment discrimination, and filed a formal Complaint of Discrimination in the Federal Government.

II. The MSPB Appeal

As noted above, probationary employees in the federal civil service are given limited procedural rights. Generally, an employee serving a probationary period is not an "employee" under 5 U.S.C. § 7511(a)(1)(A) (defining "employee" as an "individual in the competitive service ... who is not serving a probationary or trial period under an initial appointment"). The MSPB, therefore, has no jurisdiction over such an employee's appeal from termination during the probationary period. See, e.g., Mastriano v. Federal Aviation Admin., 714 F.2d 1152 (Fed.Cir.1983). The Office of Personnel Management regulations provide a narrow exception to the non-reviewability of termination during the probationary period. The MSPB may entertain such an appeal where the employee alleges the termination "was based on partisan political reasons or marital status." 5 C.F.R. § 315.806(b). In his appeal to the MSPB, Garcia-Cabrera alleged that his removal "was taken without substantial evidence or statements...." and was in retaliation for his having exercised his First Amendment Rights. Def.Ex. 14 at 2. (MSPB Appeal). These allegations, however, do not fit within the narrow exceptions to the non-reviewability of agency decisions regarding probationary employees. Thus, Garcia-Cabrera had no right of review before the MSPB.⁶ See Def.Ex. 17.

III. The EEO Complaint

Garcia-Cabrera also filed a charge of discrimination with the EEO Officer, Sharon K. Wallis ("Wallis"), at Maxwell. In his formal Complaint, Garcia-Cabrera alleged that he had been discriminated against because of his race, his color, his national origin, and he also alleged sexual harassment. He listed eight instances in which he had been discriminated against by the DeCA and its employees. The EEO investigator determined...