Harold v. Barnhart
| Decision Date | 17 August 2006 |
| Docket Number | Civil Action No. 05-5841. |
| Parties | Denise S. HAROLD, Plaintiff, v. Joanne BARNHART, Commissioner of the Social Security Administration, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
David M. Frazier, Frazier & Associates, Lansdowne, PA, for Plaintiff.
Susan Dein Bricklin, U.S. Attorney's Office, Philadelphia, PA, for Defendant.
Plaintiff is a former employee of the Social Security Administration ("SSA" or "the agency"). She sues the Commissioner of the Social Security Administration seeking review of her termination from the SSA's Office of General Counsel, Region III, in Philadelphia, PA.1 Plaintiff claims that she is entitled to equitable, declaratory and injunctive relief because defendant's actions during the termination process violated her rights under the Self-Incrimination and Due Process Clauses of the Fifth Amendment2; because the agency lacked substantial evidence to support its decision to fire her; and because her termination was racially motivated, in violation of Title VII of the Civil Rights Act. Jurisdiction is proper under 28 U.S.C. § 1331 and 5 U.S.C. § 7703(b)(2).
Before me are defendant's original and renewed motions to dismiss plaintiffs Fifth Amendment and Title VII claims and for summary judgment on plaintiff's dismissal on the basis of the administrative record. Plaintiff has opposed defendant's motion and cross moves for summary judgment on all claims except for that brought under Title VII. For the reasons stated below, I will deny plaintiff's motion and will grant in part and deny in part defendant's motions.
Plaintiff is an African American female who was employed during the relevant period as a Grade Twelve Information Technology Computer Specialist at the SSA's Office of General Counsel, Region III, in Philadelphia, PA.
On October 28, 2003, Johann Sharp ("Sharp"), an office-mate of plaintiff, reported to Sharp's supervisor, Eric Kressman, that plaintiff had falsely signed that day's Time and Attendance Roster ("timesheet") for another co-worker, Edwinter Pace ("Pace"). Thomas Petro ("Agent Petro"), a Special Agent of the SSA Office of the Inspector General ("OIG"), proceeded to investigate Sharp's report.
On March 10, 2004, plaintiff met with Agent Petro for approximately two hours to provide handwriting exemplars for the investigation. Agent Petro asked plaintiff three times to write in cursive. Plaintiff refused and continued to print, explaining that cursive was not her customary mode of writing. A representative from plaintiffs union, the American Federation of Government Employees ("AFGE") Local 2006, objected to the agent's request that plaintiff write in cursive. Plaintiff alleges that Agent Petro subsequently told her to write the way she normally wrote. On that date, plaintiff also gave a written statement averring that she had not signed the timesheet for Pace on October 28, 2003.
Shortly after meeting with plaintiff, Agent Petro spoke to Patricia Smith ("Smith"), Deputy Regional Chief Counsel for the SSA. Agent Petro informed her that the results of the handwriting analysis were likely to be "undetermined"4 because he did not obtain enough cursive samples. In September 2004, Smith called plaintiff and plaintiff's union representative to a meeting in her office. Smith told plaintiff that Agent Petro had informed her that plaintiff had failed to cooperate in the handwriting analysis.
On December 18, 2003, Smith proposed the removal of Pace, the co-worker for whom plaintiff allegedly signed in on October 28, 2003. The proposal was enacted. Pursuant to 5 U.S.C. § 7701, Pace appealed the termination decision to the Merit Systems Protection Board ("MSPB"), the administrative body charged with hearing federal employee appeals. On July 16, 2004, plaintiff testified on Pace's behalf at a hearing before an Administrative Judge ("AJ") of the MSPB ("the Pace hearing"). Plaintiff testified that she did not sign Pace's name or write "6:00 a.m." next to Pace's name on the October 28, 2003 timesheet. The AJ ultimately upheld Pace's removal, finding that Pace was not present at work at the time the timesheet indicated, and that someone else had signed her in. (A.R., Vol. 1 at 335-36.) The AJ made no specific finding as to who had signed in for Pace. (Id.)
On March 11, 2004, plaintiff approached two co-workers who had participated in the investigation, Maria Mengel and Tammy Mouzon. Plaintiff told these two coworkers that she was no longer their friend because of what they had told the OIG during the investigation. Defendant alleges that plaintiff was yelling and acting intimidating; plaintiff maintains that she spoke to them in a calm, non-threatening manner and that they were the ones to use loud voices. After this encounter, Smith met with plaintiff and notified her that two employees had filed complaints against her, alleging that she had intimidated them for being witnesses in the investigation.
On November 9, 2004, Smith proposed plaintiffs removal for: 1) signing in for Pace on October 28, 2003; 2) refusing to provide cursive handwriting exemplars to Agent Petro; 3) falsely denying guilt during the investigation and at Pace's hearing; and 4) confronting two witnesses regarding statements they gave during Pace's investigation. (A.R., Vol. 1 at 322-26.) On the same date, defendant restricted plaintiffs access to confidential records. On November 12, 2004, plaintiffs duties of a confidential nature were reassigned.
Plaintiff retained Joseph Ponisciak ("Ponisciak"), Executive Vice President of the AFGE Local 2006, to represent her. On November 17, 2004, Ponisciak sent an e-mail to Donna Calvert ("Calvert"), SSA Regional Chief Counsel, requesting copies of "all documents used to support Ms. Smith's proposal [of removal], including all memos and reports, any shredded paper, and any statements." (See A.R., Vol. 2 at 204.) On November 23, 2004, Calvert responded with eleven documents. Calvert did not tell Ponisciak at this time that on March 10, 2004, Agent Petro had orally informed Smith that the handwriting analysis was likely to be "undetermined." On December 2, 2004, Calvert provided Ponisciak a copy of a declaration by Agent Petro stating that at their meeting on March 10, 2004, Agent Petro asked plaintiff to write in cursive three times, but plaintiff nonetheless continued to print, giving the explanation that plaintiff does not write in cursive. (A.R., Vol. 1 at 319-20.)
On December 1, 2004, Ponisciak responded on plaintiffs behalf to the proposed removal, denying the SSA's allegations and arguing that it lacked sufficient evidence. Ponisciak noted that the result of the handwriting analysis "couldn't determine who wrote the [timesheet] entries" and argued that this weighed in plaintiffs favor. (A.R., Vol. 1 at 312.)
On January 5, 2005, the SSA offered plaintiff a "Last Chance Agreement" ("LCA") that provided for plaintiff to remain at the SSA in a lower-grade position and with a long-term suspension, in exchange for plaintiff acknowledging the charged misconduct and waiving her right to appeal. (See A.R., Vol. 2 at 100.) Plaintiff was told that if she did not accept the LCA, she would be terminated in two days. Plaintiff was not asked to sign a waiver of her Fifth Amendment rights. The LCA was silent on whether plaintiffs acknowledgment of the charged misconduct could be used against her in a later criminal proceeding.
Plaintiff refused the LCA and was officially terminated by Calvert in a memorandum dated January 7, 2005. Plaintiff appealed to the MSPB, challenging the sufficiency of the evidence and asserting affirmative defenses of retaliation, violations of the Due Process and Self—Incrimination Clauses, and race discrimination. On May 2, 2005, after a period for discovery, a single AJ for the MSPB heard plaintiffs appeal. He upheld the termination. Plaintiff appealed to the full panel of the MSPB. The full panel affirmed and adopted the AJ's decision on October 4, 2005.
To date, plaintiff has not faced a criminal investigation or charges based upon the misconduct alleged by the agency.
Plaintiff filed this suit on November 7, 2005. On January 27, 2006, defendant filed a motion for summary judgment to uphold the MSPB's termination decision and a motion to dismiss plaintiff's constitutional and race discrimination claims for failure to state a claim. Plaintiff responded by filing an amended complaint. Defendant renewed her motion to dismiss and for summary judgment in relation to the amended complaint on March 13, 2006. On March 28, 2006, plaintiff opposed defendant's motion on all claims and filed a cross-motion for summary judgment as to all of her claims except for her claim of race discrimination (upon which she merely seeks to proceed to discovery). No discovery has taken place.
Under 5 U.S.C. § 7703(c), judicial review of a termination decision by the MSPB is limited to review of the administrative record. Such decisions must be affirmed unless they are "arbitrary, capricious, not in accordance with law, obtained without procedures required by rule, law, or regulation, or unsupported by substantial evidence." 5 U.S.C. § 7703(c). See also Buchanan v. Dep't of Energy, 247 F.3d 1333 (Fed.Cir.2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). It is more than a "mere scintilla" but may be somewhat less than a preponderance of the evidence. Id. The substantial evidence standard is extremely deferential to the factfinder. Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997). In determining whether substantial evidence supports an agency's decision, a court...
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