Richards v. Whitley

Decision Date02 February 2021
Docket NumberCiv. No. 19-00624 ACK-RT
PartiesSTEVEN D. RICHARDS, Plaintiff, v. JOHN E. WHITLEY, Acting Secretary of the Army, Department of the Army, Defendant.
CourtU.S. District Court — District of Hawaii


Plaintiff Steven D. Richards is a former GS-12 equipment specialist with the United States Department of the Army, who was stationed at Schofield Barracks in Hawai`i and removed from federal employment in 2017, based on various charges of misconduct. In this lawsuit, Plaintiff seeks review of the Agency decision affirming his removal and brings claims against Acting Secretary John E. Whitley in his official capacity as the Secretary of the Army (the "Army") for retaliation and race and color discrimination.1

Two matters are before the Court: (1) the Army's Renewed Motion to Dismiss or in the Alternative for SummaryJudgment (the "Motion"), ECF No. 29, on the discrimination (including retaliation) claims, and (2) Plaintiff's petition for review of the Merit Systems Protection Board's ("MSPB" or "Board") final order on the non-discrimination claims (the "MSPB Appeal"). For the reasons discussed below, the Army's Motion is GRANTED and the agency decision as upheld by the MSPB is AFFIRMED.


As alluded to, this "mixed-case appeal" presents two sets of claims: appealable non-discrimination claims brought under Section 7703 of the Civil Service Reform Act of 1978 (the "CSRA"), U.S.C. § 1101, et seq., coupled with related discrimination and retaliation claims brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq.

I. Factual Background

During the relevant period, Plaintiff served in a permanent competitive service position as an equipment specialist, also known as an Avionics Logistics Assistance Representative ("LAR"). 1st Am. Compl. ("1AC"), ECF No. 18, ¶¶ 6, 11. As discussed more fully below, Plaintiff was removed from federal employment in 2017 after the Army determined that he engaged in multiple instances of misconduct. See 1AC ¶ 6;see also AR 1364-1446 (the "ALJ Decision"). The following facts related to Plaintiff's removal and allegations of discrimination and retaliation are principally drawn from the 1AC, evidentiary exhibits attached to the parties' briefs and concise statements of fact ("CSF"), and the administrative record, including the ALJ Decision.

a. The Investigation & Plaintiff's Invocation of the Fifth Amendment

In April 2016, Plaintiff returned to Hawaii from a deployment in Iraq. ALJ Decision at 5; 1AC ¶ 14. Two months later, in June, the Army prepared a draft notice of proposed removal ("NOPR") based on various charges of alleged misconduct. ALJ Decision at 7-8. The draft NOPR, while not officially issued to Plaintiff at that time, led to a professional investigation and inquiry against him for possible criminal violations. Id. On October 13, 2016, in connection with the investigation, Plaintiff was detained, fingerprinted, photographed, and told he was a suspect for wire fraud and False Claims Act violations. Id. Plaintiff invoked his Fifth Amendment right to remain silent and to counsel, and he was then released on his own recognizance. Id.

b. The NOPR and Removal

Three months later, on January 9, 2017, the Army issued its official NOPR to Plaintiff. AR 15-22. Plaintiffreplied in writing through his attorney. AR 32-33. Instead of responding substantively to the charges outlined in the NOPR, however, Plaintiff invoked his Fifth Amendment privilege against self-incrimination out of concern that the prior investigation and criminal inquiry were still ongoing. Id.; see also ALJ Decision at 8-9. In the written letter, his attorney explained that Plaintiff had not received immunity assurance or adequate protection for any statements he might make in response to the NOPR. AR 15-22.

Three days later, the Army, through agency counsel, sent Plaintiff a letter advising that his "chain of command was informed that the previous military police inquiry" had been "closed" and there would be "no further criminal inquiry into that matter." AR 31. The Army gave Plaintiff additional time, until 5:00 p.m. EST on February 27, to respond to the NOPR with his side of the story. Id. Plaintiff and his counsel, however, apparently believed that the Army's letter was insufficient to provide adequate immunity from criminal charges or to confirm that Plaintiff would not be prosecuted. See AR 28-29; see also ALJ Decision at 8-9. Plaintiff's counsel thus sent the Army a letter, hours after the 5:00 extended deadline had passed, stating that Plaintiff declined to respond to the NOPR because the Fifth Amendment "protects [Plaintiff] from making any statement or response to the proposed removal notice absent anofficial declination of prosecution" from a "Federal prosecutorial entity" or an "issuance of an immunity," and because the Army lacks "authority to officially decline prosecution." AR 28-29; see also ALJ Decision at 8-9.

Shortly after this exchange, and having received no substantive response from Plaintiff within the deadline, Deciding Official Raymond Morace issued the Notice of Removal determining that Plaintiff would be removed from federal service effective April 5, 2017. ALJ Decision at 6. The removal action proceeded on four charges: "(1) failure to follow procedures and instructions; (2) misuse of a government credit card; (3) lack of candor; and (4) disrespect to a superior."2 AR 8.

c. Incident With Major Maia on Date of Removal

Plaintiff alleges that on April 5, 2017, the date Plaintiff was removed from employment, he was illegally detained by Major Eric Maia, which amounted to an effective arrest. See Ex. E to Army's CSF, ECF No. 30-8 ("EEO Complaint"); see also Ex. A to Pl.'s Opp., ECF No. 52-1 (EEO Complaint and pre-complaint documents).3 In a formal equal employment opportunity ("EEO") complaint—discussed more below—Plaintiff alleged that on the date of his removal he was ordered to surrender his cell phone outside a conference room, and that Major Maia "blocked the door" to prevent Plaintiff from leaving the room; spoke to Plaintiff in an "aggressive[]" tone and "a hostile and loud voice"; did not allow Plaintiff to leave the conference room; and did not allow Plaintiff to consult an attorney. See EEO Complaint at 1-2.

d. The Administrative Proceedings

i. The MSPB Appeal

On May 4, 2017, Plaintiff filed a mixed-case appeal with the MSPB challenging his removal. AR 10; see also 1AC ¶ 18; Ex. A to Army's CSF, ECF No. 13-2. In it, he raised severalaffirmative defenses, including due process or harmful procedural error (relating to his purportedly being denied the right to reply to the NOPR) and retaliation for protected EEO activity (alleging that his removal and the investigation leading up to it was retaliatory based on prior EEO complaints).4 AR 10; Ex. A to Army's CSF.

In a written decision issued on September 13, 2019, the Administrative Law Judge ("ALJ") for the MSPB upheld Plaintiff's removal, finding that the Army proved the specified misconduct charges and considered the relevant factors to impose a penalty "within the tolerable limits of reasonableness." ALJ Decision at 1-2, 75; see also 1AC ¶¶ 19-20. The ALJ also determined that the Army did not retaliate against Plaintiff for engaging in protected EEO activity. ALJ Decision at 58-59. The ALJ's Decision in the MSPB appeal became final on October 18, 2019. 1AC ¶ 20.

ii. The EEO Complaint

Meanwhile, almost two weeks after filing his MSPB appeal, Plaintiff contacted an EEO counselor complaining that hewas discriminated against when he was illegally detained by Major Maia on the date of his removal. See EEO Complaint; see also Ex. A to Pl.'s Opp. Plaintiff eventually filed a formal EEO Complaint describing the incident with Major Maia on April 5, 2017. See EEO Complaint at 1-2. Although the EEO Complaint's narrative of the events in question did not describe the basis for alleging discriminatory intent, Plaintiff checked boxes in the form indicating that he believed he was discriminated against based on his race (African American) and color (Black). See id. He later amended his Complaint to also allege reprisal (i.e., retaliation). See Ex. B to Pl.'s Opp., ECF No. 52-2.

The Equal Employment Opportunity Commission ("EEOC") ultimately dismissed Plaintiff's EEO Complaint on November 30, 2019.

II. Procedural History

Plaintiff filed this lawsuit on November 15, 2019. ECF No. 1. The Army then moved to dismiss or, in the alternative, for summary judgment on the Title VII discrimination and retaliation claims. ECF No. 12. The Court advised the parties that it would wait to consider the Army's motion until it could be heard together with the MSPB Appeal onthe non-discrimination claims.5 ECF No. 16. The Court then administratively withdrew the Army's motion to await the filing of the administrative record in the MSPB Appeal. Id.

Soon thereafter, Plaintiff filed the 1AC. The electronic administrative record was then filed on May 8, 2020, ECF Nos. 24-28, and the Army filed its renewed Motion to Dismiss or in the Alternative for Summary Judgment and CSF four days later. ECF Nos. 29 (Motion) & 30 (CSF). The Court initially set the Motion and the MSPB Appeal for hearing on September 30, 2020. ECF No. 31. But when the COVID-19 pandemic resulted in a delay in obtaining the complete administrative record, the Court rescheduled and held the telephonic hearing on January 12, 2021. See ECF Nos. 35, 38, & 44; see also ECF No. 57. Plaintiff filed his Opposition to the Motion and CSF in opposition on December 22, ECF Nos. 52 & 53, and the Army filed its Reply on December 28, ECF No. 54. As to the MSPB Appeal, Plaintiff filed his Opening Brief on November 25, ECF No. 49; the Army filed itsAnswering Brief on December 22, ECF No. 51; and Plaintiff filed his Reply on...

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