Grant v. Mnuchin, Civil Action No. 15-1008 (RMC)

• Decision Date: 29 March 2019
• Docket Number: Civil Action No. 15-1008 (RMC)
• Parties: Aaron Darnell GRANT, Plaintiff, v. Steven T. MNUCHIN, Secretary, United States Department of Treasury, Defendant.
• Court: U.S. District Court — District of Columbia

373 F.Supp.3d 286

Aaron Darnell GRANT, Plaintiff,

v.Steven T. MNUCHIN, Secretary, United States Department of Treasury, Defendant.

Civil Action No. 15-1008 (RMC)

United States District Court, District of Columbia.

Signed March 29, 2019

Aaron Darnell Grant, Washington, DC, pro se.

Steven Terner Mnuchin, pro se.

April Denise Seabrook, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

Aaron Darnell Grant appeals a 2015 Final Order from the Merit Systems Protection Board sustaining his second removal from the Department of the Treasury in 2013. Appearing pro se , Mr. Grant asserts that the 2015 Final Order did not sufficiently weigh his proffered explanations for the incidents leading to his removal against Treasury's reasons for discharge. Secretary of the Treasury Steven T. Mnuchin, sued in his official capacity, moves for summary judgment; Mr. Grant opposes. The Court has fully considered the record and conducted a telephone conference call with the parties, as requested by Mr. Grant.

I. FACTS

Aaron Darnell Grant worked as a Special Agent conducting criminal investigations for the Internal Revenue Service (IRS or Agency), an agency within the Department of the Treasury. He was discharged for various forms of misconduct in 2010. See 9/28/17 Mem. Op. [Dkt. 29]. Mr. Grant was reinstated to the IRS on September 4, 2012, after the Merit Systems Protection Board (MSPB) found errors in the Agency's handling of his discharge but without reaching the merits.¹ Notice, Ex. 32, 2014 MSPB Initial Decision, AR 4190-91.² On his first day back at work after his reinstatement in 2012, Mr. Grant met with his first- and second-line supervisors, Supervisory Special Agent (SSA) Troy Burrus and Special Agent in Charge (SAIC) Rick Raven, respectively. Id. SAIC Raven, who had had no role in any of the relevant prior events, told Mr. Grant that he would review the whole matter and, upon doing so, might re-propose Mr. Grant's removal. Id. On November 9, 2012, Mr. Grant filed an EEO complaint, alleging discrimination based on his alleged disability (alcohol dependence) and retaliation for his successful appeal to the MSPB; he did not allege that his race or sex was a basis for any allegedly discriminatory actions. See Notice, Ex. 30, Pl.'s Formal EEO Compl., AR 185-88. This November 2012 EEO complaint is not before this Court. See 9/28/17 Mem. Op. [Dkt 29] at 12 n.2.³

By notice dated December 7, 2012, the Agency informed Mr. Grant that it was proposing his removal again for three separate reasons: (1) being less than candid in a matter of official business (lack of candor); (2) failing to follow established Agency procedures; and (3) failing to cooperate in an official investigation. Notice, Ex. 18, Second Proposal to Remove (Second Proposal), AR 217-18. The Second Proposal set forth several "specifications" in support of each reason. Each specification detailed at least one alleged violation of outstanding instructions:

Reason 1: You were not candid in a matter of official business.

Specification 1: On April 30, 2010, [Treasury Inspector General for Tax Administration (TIGTA) ] investigators asked you whether you had ever been in a car accident in your Government-Owned Vehicle (GOV). Your response, under oath, was "no." On May 3, 2010, while under oath, you told TIGTA investigators that on January 24, 2009, you were involved in a car accident while driving your GOV. In your affidavit dated May 3, 2010, you also stated that you were in an accident while driving your GOV. You were not candid in your response to TIGTA's official inquiry on April 30, 2010, regarding a matter of official business.

Specification 2: On April 30, 2010, TIGTA investigators asked you whether you had ever lost your credentials. Your response, under oath, was "no." On May 3, 2010, while under oath, you told TIGTA investigators that you had briefly lost your credentials while addressing a car accident. In your affidavit dated May 3, 2010, you also state that you briefly lost your credentials. You were not candid in your response to TIGTA's official inquiry on April 30, 2010, regarding a matter of official business.

Reason 2: You failed to follow established procedures.

Specification 1: On or around January 24, 2009, you were involved in a car accident while driving your GOV. Agency procedures required you to immediately report any accident with your GOV to your supervisor. You did not do so. Therefore, you failed to follow established procedures.

Specification 2: On or around January 24, 2009, you were texting while driving your GOV which resulted in a car accident. You are responsible for exercising accident prevention and safe driving while operating a GOV. You failed to do so. Therefore, you failed to follow established procedures.

Specification 3: In or around January 24, 2009, while on duty, driving your GOV, and wearing your Service-issued firearm, you stopped for lunch. During lunch, you consumed two to five Long Island Iced Teas, an alcoholic beverage. When you finished lunch, you re-entered your GOV and drove it to another destination. As a special agent, you are prohibited from consuming intoxicants at any time during the workday, including mealtimes, periods of leave when you intend to return to duty that day, and any time that you are operating a GOV or carrying a firearm. Your consumption of alcohol while on duty and while wearing your Service-issued firearm constituted a failure to follow established procedures.

Specification 4: On or around March 31, 2010, you consumed three to four Long Island Iced Teas, an alcoholic beverage, while attending a coworkers [sic] birthday party after hours. You left the party at approximately 9 p.m. and walked back to the office. You left the office at approximately 12 midnight driving your GOV. You are responsible for exercising accident prevention and safe driving while operating a GOV. You are also required to be able to respond in a safe and timely manner 24 hours a day. Your operation of your GOV after consuming alcohol constituted a failure to follow established procedures.

Reason 3: You failed to cooperate in an official investigation.

Specification 1: On May 3, 2010, while under oath, you told the TIGTA investigator that you no longer had the contact information for the other motorist involved in a car accident you had with your GOV. You told the TIGTA investigator that you would try to find the contact information. On May 14, 2010, the TIGTA agent telephoned you to see if you had located the requested contact information. You informed the agent that you would allow TIGTA to see the information but would not allow TIGTA to keep it and then you ended the telephone call. On May 17, 2010, you telephoned the TIGTA agent and asked how providing the requested contact information would help your case. The TIGTA agent advised you that the information was needed as part of the investigation. You never provided TIGTA with the requested contact information, which constituted a failure to cooperate in an official investigation.

Id. The Second Proposal also recited the materials the Agency relied upon in proposing Mr. Grant's removal, notified Mr. Grant of his right to review those materials, and provided the contact information for the Agency's Human Resources Specialist to whom he should address his request for the materials. Id. at AR 219-22.

On December 21, 2012, the Agency notified Mr. Grant that additional documents would be considered in support of the Second Proposal and provided him with copies of those documents. Notice, Ex. 19, Agency Letter re Additional Documents, AR 223. On January 17, 2013, Mr. Grant submitted his written response to the Second Proposal Letter, contesting each reason set forth in support of his proposed removal. Notice, Ex. 28, Pl.'s Reply to Second Proposal, AR 206-09.

With respect to the lack of candor charge, Mr. Grant contended that his collision with another vehicle while in his government-owned vehicle was a "near miss," not an accident, and that he had temporarily misplaced rather than "lost" his official credentials. Id. at 206-07; see also Pl.'s Statement of Genuine Issues in Opp'n to Def.'s Mot. for Summ. J. (Pl.'s SOF) [Dkt. 46-2] at 6; cf 2^nd Am. Compl. [Dkt 23] ¶ 5 ("Plaintiff's government-owned vehicle (GOV) came in contact with another vehicle.").

With respect to the charge of failure to follow established procedures, Mr. Grant contested specifications one, two, and four, and admitted the third, that he had consumed alcohol while wearing his Service-issued firearm. He argued that: (1) since he was not in a car "accident," he was not required under Agency policy to report the event, see Mem. in Supp. of Pl.'s Opp'n to Def.'s Mot. for Summ. J. (Opp'n) [Dkt. 46-1] at 5-6; (2) the Agency had no specific policy prohibiting texting while driving and the practice had not been banned by an Executive Order at the time of the incident in January 2009, see id. ; and (3) the Agency failed to introduce objective evidence to prove that he was intoxicated to a specific legal standard when he drove home on the night in question. 2d. Am. Compl. ¶ 96.

With respect to the charge of failure to cooperate in an official investigation, Mr. Grant believed that he was not required to provide the TIGTA investigator with contact information for the other motorist involved in the January 24, 2009 accident because it would have violated his Fifth Amendment privilege against self-incrimination. See Opp'n at 7.

On January 30, 2013, the Agency notified Mr. Grant that it had sustained all reasons and specifications in the Second Proposal and that his removal was effective as of that day. Notice, Ex. 29, 1/30/13 Decision Sustaining Second Proposed Removal, AR 202-05. The Deciding Official for the proposed removal was Sean P. Sowards, Deputy Director, Criminal Investigation. Id.

On December 11, 2013, Mr. Grant filed an appeal with...