Keel v. U.S. Dept. of Air Force, CIV.A. CV-01-F-1102-N.

• Decision Date: 27 March 2003
• Docket Number: No. CIV.A. CV-01-F-1102-N.,CIV.A. CV-01-F-1102-N.
• Parties: Raymond F. KEEL, Plaintiff, v. UNITED STATES DEPARTMENT OF AIR FORCE, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

256 F.Supp.2d 1269

Raymond F. KEEL, Plaintiff, v. UNITED STATES DEPARTMENT OF AIR FORCE, et al., Defendants.

No. CIV.A. CV-01-F-1102-N.

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

March 27, 2003.

COPYRIGHT MATERIAL OMITTED

Alvin T. Prestwood, Tara Smelley Knee, Prestwood & Associates PC, Robert Bradford Garris, Prestwood & Associates PC, Kathryn Dickey, Richard B. McClelland, Dickey & McClelland, LLC, Montgomery, AL, for plaintiff.

R. Randolph Neeley, Martha Ann Miller, U.S. Attorney's Office, Montgomery, AL, Clarence P. Guillory, Jr., Major, Air Force Legal Services Agency, AFLSA/JACL, Arlington, VA, for defendants.

MEMORANDUM OPINION AND ORDER

FULLER, District Judge.

I. INTRODUCTION

On September 14, 2001, Plaintiff Raymond F. Keel¹ (hereinafter "Plaintiff) filed a Complaint (Doc. # 1) against the following named defendants: the United States Department of the Air Force (hereinafter "the Air Force"), the United States Merit Systems Protection Board (hereinafter "MSPB"), and Lawrence S. Delaney (hereinafter "Delaney"),² Acting Secretary of the United States Department of the Air Force, challenging his removal from a civil service position at Maxwell Air Force Base in Montgomery, Alabama. Additionally, Plaintiff raises claims that he was the victim of unlawful discrimination in that Defendants terminated his employment on the basis of his race and sex in violation of 42 U.S.C. § 2000e-16,³ and that Defendants retaliated against him by barring his access to Maxwell Air Force Base (hereinafter "Maxwell") and the Gunter Annex to Maxwell (hereinafter "Gunter"). Plaintiff attempts to litigate this restriction of access claim pursuant to Title VII as a retaliation claim and also as a violation of his rights under the First and Fifth Amendment of the United States Constitution.

This cause is before the court on the motion to dismiss, or in the alternative, motion for summary judgment filed by the defendants on November 27, 2002 (Doc. # 28). After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the Court finds, for the reasons set forth in this Memorandum Opinion, that the motion is due to be GRANTED.

II. JURISDICTION AND VENUE

The Court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1343 (civil rights), and 42 U.S.C. §§ 2000e to 2000e-17 (Title VII of the Civil Rights Act of 1964 as amended). The parties do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both personal jurisdiction and venue.

III. STANDARD OF REVIEW

5 U.S.C. § 7703 provides for judicial review of decisions of the Merit Systems Protection Board (hereinafter "MSPB"). In cases such as this one, in which a plaintiff has presented certain discrimination claims before the MSPB, the plaintiff may seek review of the MSPB's decisions in district court. See, e.g., Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002), reh'g denied, 57 Fed.Appx. 416 (11th Cir. Jan. 7, 2003).

In these "mixed" cases where discrimination claims as well as claims not based on discrimination were both presented before the Board, the appeals are not bifurcated; instead, the district court has jurisdiction to review both the discrimination and non-discrimination claims.

Id.

The non-discrimination claim⁴ is not subject to de novo review. Kelliher, 313 F.3d at 1274-75. Such claims are subject to review on the record and may only be set aside if the Court finds that the agency action, finding or conclusion is found to be: "(1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." See, e.g., Kelliher, 313 F.3d at 1274-75; 5 U.S.C. § 7703(c). This standard is a "deferential" one. Kelliher, 313 F.3d at 1275.

In contrast, review of the discrimination claims in such "mixed" cases is de novo. Id. at 1274. For purposes of this de novo review, the Court will apply the standards set forth under Federal Rule of Civil Procedure 56(c) and the applicable substantive law.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate "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 the non-moving 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 322-23, 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 [his] 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 simply 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). On the other hand, a court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 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. See Fed.R.Civ.P. 56(c).

IV. FACTS

The court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the Defendants' motion. The submissions of the parties, viewed in the light most favorable to the non-moving party, establish the following facts:

A. The Plaintiff

Plaintiff served in the United States Army from October of 1966 until his honorable discharge in 1969. He joined the Naval Reserve in 1976, and at some later date he joined the reserves at Maxwell where he participated until his retirement from the reserves in 1995. In addition to his service in the military and the military reserves, Plaintiff was a civilian employee of the Air Force from July of 1983 until December of 1999. During that time, he held several positions and worked at both Maxwell and Gunter. In December of 1999, when Plaintiffs employment as a civilian employee of the Air Force was terminated, he was an Industrial Equipment Mechanic working on HVAC⁵ problems. Notwithstanding this termination, Plaintiff retained access to Maxwell and Gunter as a benefit of being a retired military reservist.

B. Events Relating to Plaintiff's Employment Prior to His Removal

In 1998, Plaintiff was working as an Industrial Equipment Mechanic at the Civil Engineering Compound at Gunter. On August 17, 1998, Betty Morgan (hereinafter "Morgan"), an African-American female, was transferred to this Civil Engineering Compound where she began work as a Job Controller. In that capacity, Morgan was responsible for dispatching repair personnel to trouble spots around the base⁶ and overseeing the distribution of work orders. Morgan replaced Robert Smith (who is also known, and will hereinafter be referred to, as "Smitty"), the previous dispatcher.⁷

After Morgan's arrival at Gunter, there was some dissatisfaction within the unit. At the end of one meeting, Morgan heard someone say "fuck you" to her. Morgan suspected that either employee Ralph Mullins (hereinafter "Mullins") or Cecil Manuel (hereinafter "Manuel") made this statement and she complained to Chief Master Sergeant Howard. It is undisputed that Plaintiff was not involved in this incident.

Although Plaintiff had previously worked with Morgan at Maxwell without any problems, he does admit that he began having problems with her after an incident on September 2, 1998. On that day, at approximately 9:00 a.m., Morgan contacted Plaintiff over the radio to dispatch him to a work order. When Plaintiff received the radio call from Morgan, he was taking a normal break with some other employees at the NCO Club. Morgan told Plaintiff that there was a noise in Building 1143 and that he needed to check it out. He responded over the radio that he needed more information, such as a room number or a location within the building. Morgan responded, in what Plaintiff characterizes as a belligerent fashion, and said something to the effect that "he had been working there long enough that he should know where it is." Morgan's harsh response embarrassed Plaintiff, but he nevertheless tried to explain that he needed more information because of the many sections, floors, and mechanical rooms in the building. Morgan's response to this entreaty was even more rude. She said something about not having time to fool with Plaintiff and, according to him, called him a "fool." At that time, Plaintiff turned down the volume on his radio because the other men around him on break had their radios on and there was some "bleed-over noise." Nonetheless, the other employees...