Murray v. US Dept. of Justice, No. CV-91-0539.

• Decision Date: 11 May 1993
• Docket Number: No. CV-91-0539.
• Citation: 821 F. Supp. 94
• Parties: Henry L. MURRAY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, FBI, William F. Sessions, and John Doe, Defendants.
• Court: U.S. District Court — Eastern District of New York

821 F. Supp. 94

Henry L. MURRAY, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, FBI, William F. Sessions, and John Doe, Defendants.

No. CV-91-0539.

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

May 11, 1993.

COPYRIGHT MATERIAL OMITTED

Robert J. DeGroot, Newark, NJ, for plaintiff.

Ann M. Gulyassy, Anjali D. Ashley, U.S. Dept. of Justice, Civ. Div., Washington, DC, Arthur P. Hui, Asst. U.S. Atty., Brooklyn, NY, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff Henry L. Murray, a former Special Agent of the Federal Bureau of Investigation ("FBI" or "Bureau"), alleges that the FBI terminated his employment on the basis of race in violation of 42 U.S.C. § 1983 and "other sections of the United States Code and Constitution." Plaintiff also seeks judicial review, pursuant to 5 U.S.C. § 7703, of the decision by the Merit Systems Protection Board ("MSPB" or "Board") affirming his dismissal.¹ Defendants have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or alternatively, for summary judgment pursuant to Rule 56. For the reasons provided below, defendants' motion for summary judgment is hereby granted and this action is dismissed in its entirety.

FACTS

Plaintiff Henry L. Murray, a black male, was employed for twelve years by the FBI as a Special Agent assigned to the New York Field Office.² On August 3, 1990, following an extensive administrative investigation, the FBI removed Murray from its rolls on the grounds that his conduct was "totally unacceptable and incompatible with the standards expected of all employees." (A.R. 63) This determination arose out of an off-duty incident in which Murray vandalized an automobile parked in his leased spot and verbally abused a crowd of onlookers; although Murray initially denied under oath that he had engaged in this conduct, he confessed to the incident the following day. Plaintiff appealed his dismissal to the MSPB, and on December 14, 1990 the Board affirmed the FBI's decision to terminate plaintiff's employment. During the administrative investigation and course of the MSPB proceeding, plaintiff conceded the facts recounted below. He contends, however, that the sanction imposed upon him was disproportionate and discriminatory.

I. The Administrative Investigation

The FBI investigation of Special Agent Murray, which culminated in his August 1990 discharge, commenced as a result of an anonymous letter forwarded to FBI Headquarters on October 23, 1989 by the Assistant Director in Charge ("ADIC") of the FBI's. New York Office. This letter—addressed to Director Sessions, the ADIC-New York, two United States Senators, and a United States Congressman—complained of an incident in which Murray had smashed the windows of a vehicle parked in his leased parking space and, when confronted, threatened several observers with physical violence. (A.R. 254-55)³ The author identified herself as someone who had a parking space near to Murray's.

The FBI, pursuant to its normal practice and procedure, began an administrative investigation of these charges upon receipt of this letter. (A.R. 226-28, 259) FBI Special Agents conducted interviews of the witnesses to the October 9, 1989 events. (A.R. 237-41) They also interviewed Murray several times and eventually had him sign two sworn statements which are discussed in detail below. (A.R. 248, 252)

The administrative investigation revealed that plaintiff indeed had been involved in an incident concerning his parking space. On October 9, 1989 Murray returned from work to his apartment complex in Forest Hills, New York, used his car to run a brief errand, and again returned to his building, this time to find an automobile improperly parked in his leased space. When faced with this same problem on prior occasions, plaintiff experienced difficulty in getting the violating vehicles removed and had his car stolen and ticketed as a result of having to park on the street. (A.R. 233; Tr. 111-12) On this particular occasion, plaintiff reacted to his frustration by taking a hammer and smashing the car's windshield and side window. (Sworn Statement of Henry L. Murray, dated November 9, 1989, at A.R. 220, 221) When the hammer slipped from his hand into the car, Murray used his feet to kick in the second side window. (A.R. 221) He then approached the building's doorman and told him to find the car's owner or Murray would "tear the f***ing thing up." (A.R. 221)

When Murray returned to the vandalized vehicle, which was then surrounded by a crowd of people, he began shouting abusive remarks and threats. Two of the observers, who later turned out to be the car owner's son and grandson, approached plaintiff and one of the men screamed at him; plaintiff responded by urging that man to back off or Murray would "bash his f***ing head in." (A.R. 221) The misparked vehicle was subsequently moved, and plaintiff parked his car in his space. (A.R. 222)

Murray returned to his apartment where he was contacted over his intercom by a New York City police officer who requested that Murray descend to the lobby. (A.R. 222) Not knowing the officer, plaintiff refused; however, he invited the officer up to his apartment. Thereafter, two police officers arrived at Murray's door, and the three men engaged in a short conversation during which Murray denied breaking the car windows. Because he was armed, Murray identified himself as a Special Agent of the FBI and showed the officers his badge and credentials; he refused, however, to give those credentials to the officers or to identify the FBI office in which he worked. The FBI's Manual of Administrative Operations and Procedures (the "Manual"), Part I, § 1-15.2, requires all FBI employees "to report promptly to their supervisors any incidents in which they are involved with law enforcement officials." (A.R. 71) Murray did not report the incident or his contact with the police to his supervisors or co-workers. (Sworn Statement of Henry L. Murray dated November 7, 1990 at A.R. 233, 235; Stipulation ¶ 4 at A.R. 1566) He attributes his failure to do so to his not having known of the reporting requirement and to his observation that the officers seemed satisfied with his responses. (A.R. 235)

The owner of the vandalized automobile, Barbara S. Brodie, filed a report regarding this incident with the New York City Police Department on October 9, 1989. (Stipulation ¶ 3 at A.R. 1565) The owner's grandson filed a second police report on the same date, alleging that his father had been verbally threatened and harassed by plaintiff. (A.R. 1565) The police department subsequently closed these complaints without further investigation. (A.R. 248) No criminal charges were ever brought against plaintiff based on this incident.

The FBI received the aforementioned anonymous letter in late October of 1989. On November 6, 1989, during an initial interview with agents conducting the administrative investigation referred to above, Murray acknowledged using threatening language when he saw a "mob" surrounding his parking space, but he denied that he had broken any automobile windows. (A.R. 231) The agents who interviewed him noted discrepancies between his account of the incident and the other witnesses' accounts, including that of a building security guard (A.R. 241); these discrepancies led the investigating agents to stress to Murray the importance of being candid. (A.R. 231, 238) The material gathered during this interview, conducted without attorneys present, was then used to prepare a sworn statement. (A.R. 233-36) On November 7, 1989 Murray reviewed the statement and made minor corrections to it but did not change the substance of his remarks; he then signed the statement which included the assertion, under oath, that he was not responsible for breaking the windows of the vehicle. (A.R. 235, 236)⁴

The day after signing this sworn statement, plaintiff notified his supervisor and the investigating agents that he wished to make some changes in the statement. He thereafter executed a second sworn statement in which he admitted that he had smashed the car windows, made false statements to the police, and lied under oath. (A.R. 220; Stipulation ¶¶ 5, 6 at A.R. 1566) More specifically, he explained as follows:

I have asked to change my statement because I'm not just an outright liar. Since giving my statement I have had time to think about the incident. Everything I said in my first statement was correct except the fact that I denied responsibility for breaking the windows. In a way I think I am not totally responsible because the owner of the vehicle knew that they should not have parked in my leased space.

When I was first called into the Office to be interviewed for my statement, I was suddenly faced with the possibility of losing my job or perhaps losing my chance for an OP transfer. After twelve (12) years of service the loss of either of these heavily impacted on me. I now know I was wrong in my actions and have apologized for it.

I would also like to state that an interview I did yesterday (November 8, 1989) impacted upon by my conduct. I interviewed a young subject of an ITSP case. During this interview I knew that this individual was lying to me. At that time the realization that my conduct was not much better than this individual's hit me. It was at that point that I decided I needed to change my original statement.

(A.R. 223) Plaintiff also advised that while he had not paid for any of the damage he had caused, "he was prepared to pay for the damage if required." (A.R. 222; Stipulation ¶ 7 at A.R. 1566)

On March 1, 1990 the FBI advised Murray by letter that it was considering his dismissal from the rolls of the Bureau based on five charges: (1) destruction of private property and unprofessional personal conduct in violation of FBI regulations; (2) lack of candor during an administrative inquiry; (3) failure to report contact with police in violation of...