Opinion
Cause No. IP00-1849-C-T/L, IP 00-1849-C-T/G.
August 17, 2004
ENTRY ON PLAINTIFF'S APPEAL OF THE DECISION OF THE MERIT SYSTEMS PROTECTION BOARD AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Barbara Owens, is a former employee of the federal agency defendant, the Department of the Army ("the Army"). She was removed from employment with the Army in November of 1995. Her Amended Complaint seeks review of five separate complaints of discrimination, including a charge that her termination was discriminatory. The type of discrimination alleged includes, race, gender and reprisal for engaging in the discrimination complaint process. Ms. Owens is African-American. The Amended Complaint also seeks a review of the decision of the Merit Systems Protection Board ("MSPB") which affirmed the decision of an administrative judge, who upheld the agency's decision removing her from employment. However, during the course of the briefing on Defendant's Motion for Summary Judgment, Plaintiff has admitted that she can not make her case with regard to any of the discrimination complaints other than the one that claims that her termination was a reprisal for her past involvement in equal employment opportunity ("EEO") discrimination claims. What is left for the court is a review of the decision of the MSPB and a determination of whether the Defendant has established that it is entitled to summary judgment on the one remaining claim of discrimination.
Standard of Review
As a civilian employee of a United States military department, Owens is entitled to protection against employment discrimination under Title VII of the Civil Rights Act of 1964. That protection is provided through 42 U.S.C. § 2000e-16, as opposed to the statutory scheme set forth in 42 U.S.C. § 2000e-5 for individuals who work for private employers. A unique procedural process is involved when a federal employee's Title VII claim coexists with a challenge to a decision of the MSPB. Normally, the Federal Circuit has exclusive jurisdiction over appeals of decisions rendered by the MSPB. 5 U.S.C. § 7703(b)(1). However, when an employee seeks to challenge both procedural error in the MSPB decision and maintain a discrimination claim, both claims can be heard in federal district court in what is referred to as a "mixed case." Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000).
The "substantial evidence" standard applies to an appeal of an MSPB decision, meaning this court's review of the merits of such a decision is limited to determining whether the decision is unsupported by substantial evidence or arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6 (2001). Plaintiff's discrimination claim is entitled to a de novo review by this court. Chandler v. Roudebush, 425 U.S. 840, 845 (1976). However, only her discrimination claim is entitled to such a non-deferential review, otherwise Plaintiff might seek to have the higher standard of review apply to procedural error by coupling those claims with groundless claims of discrimination. Tickles v. Hodel, 38 Fair Empl. Prac. Caves. (BNA) 272 (D.D.C. 1985). Hence, the court sits as an appellate court relative to the review of the MSPB decision, while at the same time serving as the trial court for Plaintiff's discrimination claim.
The Army seeks summary judgment on Owens' claim of discrimination. Summary judgment is appropriate when the record shows "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." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable trier of fact could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether a genuine issue of material fact exists, the court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in favor of that party. Id. at 255.
A party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. A party moving for summary judgment on a claim on which the nonmovant party bears the burden of proof at trial may discharge its burden by showing, "that is, pointing out" an absence of evidence to support the nonmovant's case. Id. at 325.
A plaintiff alleging intentional discrimination in employment can avoid summary judgment in two ways: (1) by presenting direct evidence of discriminatory intent through either direct evidence or significant circumstantial evidence; or (2) by presenting indirect evidence under the burden-shifting method of proof established by McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See, e.g., Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir. 1999); Kennedy v. Schoenberg, Fisher Newman, Ltd., 140 F.3d 716, 722-23 (7th Cir.), cert. denied, 525 U.S. 870 (1998). In her response brief, Owens indicates that she is employing what she calls the "mosaic of evidence" approach to establishing direct evidence of discrimination. This approach is derived from the Seventh Circuit Court of Appeals decision in Troupe v. May Department Stores Co., 20 F.3d 734 (7 Cir. 1994) and amounts to reliance upon circumstantial evidence under the direct method of proof.
The "mosaic of evidence" under Troupe can consist of many different kinds of evidence none conclusive in itself. Id. at 737. However, a plaintiff must establish enough "bits and pieces" to satisfy her burden of producing sufficient evidence to allow a rational jury to infer that she was the victim of, in this case, retaliation for having engaged in previous protected activity. Id. Indeed, this accumulation of circumstantial evidence must point directly at a discriminatory reason for the employer's action. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). The Seventh Circuit has repeatedly noted, however: "Whether the evidence presented is characterized as `indirect' evidence or `mosaic' evidence, very often the best way to evaluate plaintiff's case at the summary judgment stage is to use the McDonnell Douglas steps, with appropriate modifications depending on the type of case that is presented. Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1090 (7th Cir. 2000) (quoting Sattar v. Motorola, Inc., 138 F.3d 1164, 1169 (7th Cir. 1998)).
Background
Unless otherwise qualified, the facts and circumstances set forth in this section are either uncontested or described in a light most favorable to the Plaintiff, the non-moving party.
Owens began working for the Army in 1967. After five years she transferred to the Department of Housing and Urban Development, but returned to work for the Army at Fort Benjamin Harrison in 1986. From 1988 until her termination in 1995, she worked for the Army in the Directorate of Contracting at Fort Benjamin Harrison.
In November of 1991, Owens put her name in for an announced vacancy within the Directorate for the position of Contract Specialist (GS-11). Her name and the names of two other employees, who were white females, were given to the selecting officer as the most qualified candidates for the position. One of those other employees was Dorothy Thompson, who several years later had a significant role in the decision to terminate Owens' employment. In January 1992, after the selecting officer created a matrix assigning points to each candidate in various categories of experience, education and performance, he filled two vacant Contract Specialist positions with the two individuals who accumulated the highest number of points on his matrix. Owens was the individual on the most qualified list that was not selected for either position. In March of 1992, Owens filed a Formal Complaint of Discrimination based on race, color and reprisal.
Later in 1992, Owens again put her name in for a vacant position. A list of four most qualified candidates was provided to a different official charged with selecting a candidate to fill a vacant Contract Administrator (GS-11) position. Including Owens, the list included two black females and two white females, one of which was again Dorothy Thompson. After interviews and a review of the candidates' past records, the selecting officer, Barbara Wilson, chose Dorothy Thompson to fill the position. In December Owens filed another Formal Complaint of Discrimination, alleging discrimination based upon race, color and reprisal.
On August 24, 1994, the Defense Finance and Accounting Services-Indianapolis Center Administrative and Support Services, Central Procurement Office, issued a vacancy announcement for the position of Contract Specialist (GS-11). Owens applied for the vacancy. The vacancy announcement was later cancelled as the position was filled by James Murphy, who was entitled to the position by virtue of the Priority Placement Program implemented due to the reduction in force at Fort Benjamin Harrison. Owens filed a Formal Complaint of Discrimination based on race, color, sex and reprisal in March of 1994 complaining of, among other things, the failure to select her for that position.
On September 6, 1995, Owens again filed a Formal Complaint of Discrimination. The issues, as identified and accepted for investigation by the Army were whether, as a result of discrimination: 1) she was given lower performance ratings; 2) she did not receive a timely change in her "rater status"; or, 3) she was denied certification as a Contact Certifier. Barbara Wilson was the certifying official for all Level I and Level II employees in the directorate through January of 1995. Ron Martin assumed that role following Wilson's departure. In order to qualify for certification as a Contract Certifier an individual had to complete various designated training and college-level course work, in addition to having certain levels of experience. Wilson was unsure whether the college class work which Owens had completed was of the type which would qualify her to be certified as a Contract Certifier. Wilson left her position as direct supervisor of Owens prior to determining if she qualified for the certification. Ultimately, the constructive credit that Owens had previously received from an accredited college for her "life experience" was considered acceptable for purposes of certification and some time in the summer of 1995, Martin certified Owens as a Contract Certifier. The delay, if any, in obtaining status as a Contract Certifier did not cause Owens to suffer any loss of employment opportunity or a reduction in benefits of any kind.
In November of 1995, Owens was removed from her employment for misrepresenting her educational plans as described in a document she authored on June 7, 1994. In that June 1994 communication, Owens requested five months leave without pay ("LWOP") to attend college classes at Indiana University-Purdue University Indianapolis ("IUPUI") in the mornings and afternoons to work toward her degree in Business Management. She was granted the leave. Owens registered for four classes for a total of twelve credit hours. However, she dropped three of the four classes before the semester started. She now claims it was necessary to do so in order to care for her father who had moved into her home following a stroke he suffered in July of that year. She did not notify the Army of the change in her circumstances, and her supervisors had not instructed her to notify them regarding any changes in her class schedule.
In November of 1994, Owens submitted a request for another five months of LWOP. Wilson maintains that upon receipt of that request she informed Owens that a copy of her fall semester grades would be needed before the additional leave could be considered and Owens never provided her with such a copy. Owens had applied to Indiana Wesleyan in an attempt to expedite her attainment of a degree through a unique program which that school offered. According to Owens, in January of 1995 she learned that she had been accepted into the program at Indiana Wesleyan and could attend the classes she needed during the evenings. Owens withdrew her request for the additional five months of LWOP and returned to work at the end of January.
In June of 1995, Dorothy Thompson became the Acting Director of Contracting and Owens' supervisor. Owens went to Thompson to inquire about why she had yet to be certified as a Contract Certifier. In investigating the educational credits Owens had accumulated, Thompson discovered that Owens had only taken one course in the fall of 1994, despite her request for LWOP to attend classes both mornings and afternoons. After discussions with Owens and an unfulfilled request that Owens provide Thompson with her class registration forms, Thompson issued a Notice of Proposed Removal detailing why she believed that Owens intentionally misrepresented her education plans in order to obtain an approved leave and why that should result in the discontinuation of her employment. Within the Notice of Proposed Removal, Thomson indicates that Owens' explanation for taking only one class during the fall 1994 semester, "Using a Personal Computer", was that when labs and necessary tutoring were taken into account the class was essentially continuous throughout the day. She also explained that she was not enrolled in the School of Business and could not be until she obtained credits in the continuing Studies Program.
After several requests for the class registration paperwork, on September 6, 1995, Owens gave Thompson the business card of her attorney and told her that the attorney had the records and could be contacted about obtaining copies. Thompson testified that she gave the card back to Owens and told her that she would contact Owens' union if she liked, but that only the union could be her designate in the ongoing internal process.
Pursuant to the prescribed process, Owens was allowed to respond to the Notice of Proposed Removal, and did so through her legal counsel. The response was submitted on October 19, 1995, and included an affidavit from Owens wherein she mentions the fact that she had filed several claims of discrimination against her former supervisor, Barbara Wilson, with the agency EEO office. The response also notes Wilson's supposed close friendship with Dorothy Thompson, Owens' current supervisor who had recommended Owens' removal. Finally, according to the Army, Owens' written response to the Notice of Proposed Removal was the first time she raised the issue of the necessity of caring for her father; while Owens maintains that she had mentioned the same to Wilson in passing during the fall 1994 semester, when she stopped by the office to complete some paperwork.
Colonel John Querfeld, the Garrison Commander of the Soldier Support Center, was the official charged with reviewing the Notice of Proposed Removal and Owens' response in order to determine what action would be taken. On November 7, 1995, Colonel Querfeld issued a Notice of Decision, sustaining the Notice of Proposed Removal and dismissing Owens from employment for misrepresenting her educational plans. In the Notice of Decision, he states:
The U.S. Army has a right to expect its workers to be honest, trustworthy and candid. This is especially true in the contract administration arena. Your work is subject to the most intense scrutiny of the Congress and the public at-large. They demand the highest level of integrity with regard to the conduct of these employees charged with the safekeeping and effective utilization of public funds. Providing inaccurate information or failing to provide accurate information to supervisors is serious particularly when you had an obligation to do so. Your misconduct strikes at the very heart of the employee-employer relationship and will not be tolerated.
Owens filed a Formal Complaint of Discrimination with regard to her removal from employment. The Army issued a final decision finding no discrimination on February 12, 1997. She then appealed the decision and her discrimination charge to the MSPB. On July 15 and 16, 1997, a hearing was held before Administrative Judge Phillip Miller. Judge Miller issued an Initial Decision on July 6, 1998, upholding the Army's determination that Owens should be removed from employment. Owens filed a petition with the MSPB for a full Board review. By order dated May 25, 1999, the MSPB denied Owens' petition, finding that the Army had supported its termination decision with a preponderance of the evidence. It remanded the discrimination issue for a supplemental hearing. That hearing was held and Judge Miller determined that Owens had failed to prove her discrimination claim. On June 1, 2000, the MSPB denied Owens' request for review of the administrative judge's determination on the discrimination issue. She then filed a timely petition with the Equal Employment Opportunity Commission on July 11, 2000, asking for a review of the MSPB decision with regard to her claim of discrimination. On October 22, 2000, the Commission issued its decision, finding that the MSPB decision "constitutes a correct interpretation of the laws, rules, regulations and policies governing this matter and is supported by the evidence in the record as a whole." The Commission decision concluded the exhaustive administrative appeals process and the case at bar is the start of the judicial process, which is to provide further assurance that Owens' rights have not been violated.
Appeal of MSBP Decision Upholding Termination
A federal agency must establish three things in order to withstand a challenge to an adverse employment action taken against an employee. It must prove: 1) that a preponderance of the evidence establishes that the conduct complained of occurred; 2) that there is a nexus between the conduct and the efficient operation of the agency; and, 3) that the penalty imposed is reasonable. Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147 (Fed. Cir. 1997).Owens raises three issues in her appeal of the MSBP decision. First, she argues that there is insufficient evidence to support a finding that she intentionally misrepresented her educational plans in her LWOP request. Second, she claims the Board's decision was arbitrary and capricious because it upheld her termination for reasons that deviated from the reasons expressed in the Notice of Proposed Removal. Finally, she claims that upholding such a severe penalty as removal from employment is an abuse of discretion.
Insufficient Evidence
The Administrative Judge categorized the charged conduct as falsification and correctly identified the necessity of demonstrating an intent to deceive which, since the Federal Circuit's decision in Naekel v. Department of Transportation, 782 F.2d 975 (Fed. Cir. 1986), courts have required in federal employee disciplinary cases founded upon a claim of document falsification or other intentional misrepresentation. Upon a challenge to the adverse employment action, the agency must show that the employee provided incorrect information or withheld correct information and did so with the intention of deceiving or misleading the agency. Id. at 978; see also, Haebe v. Dep't of Justice, 288 F.3d 1288, 1305 (Fed. Cir. 2002). Proving intent to deceive can be accomplished through offering either direct or circumstantial evidence. Naekel, 782 F.2d at 978.
The Federal Circuit, which is the exclusive venue for all non-mixed case MSPB appeals, has found that a charge of "lack of candor" is a "broader and more flexible" alternative offense dealing with the employee's veracity which does not require proof of an intent to deceive. Ludlum v. Dep't of Justice, 278 F.3d 1280 (Fed. Cir. 2002). In Ludlum, the Federal Circuit did not opine as to whether removal would be a reasonable penalty for a charge of lack of candor and, no doubt the answer to that inquiry would be dependent upon the circumstances of the case. This court is of the mind that labels can skew the focus and intent behind a review of an adverse employment action when, since Pope v. U.S. Postal Service, 114 F.3d 1144 (Fed. Cir. 1997), it has been made clear that the real determinative test is the three prong requirement of objectionable conduct, a relationship between the conduct and the efficient operation of the agency and a reasonable penalty. See also, James v. Dale, 355 F.3d 1375, 1378 (Fed. Cir 2004). If the agency offers evidence which meets its burden on those prerequisites, the label used to describe the objectionable conduct would seem to be of little significance. However, in reaching its decision in this case the court has required substantial evidence of intent to deceive, consistent with the decisions which have required the same.
In reaching the conclusion that Owens intended to deceive the Army, the administrative judge and the MSPB found support in the documentation and testimony of Wilson and Thompson. That evidence indicated Owens first attempted to skirt the issue of her having completed only one class which met for less than an hour three times a week by contending, as a pretext for the real reason, that the difficulty of the course dictated a need for extended tutoring and lab sessions. In advancing this basis for her limited class credits, Owens initially offered a signed statement from a classroom assistant for the professor teaching the course who stated that Owens had substantial difficulty grasping the concepts of the course quick enough to keep up in the class. Both the Army and the Board found it difficult to believe that an introductory course on the use of a personal computer was so difficult as to require Owens' entire educational focus. Thompson testified that Owens told her that as the class got tougher she had to drop her other courses. However, the records from IUPUI clearly show that she dropped the other courses prior to the start of the semester. In addition, in comparing Wilson's testimony as to why Owens never received approval for the second semester LWOP (her failure to provide grades from the fall semester) to Owens' own claim that she was in the midst of a switch to another college and educational program, the Board found an additional indication that Owens' original justification for receiving only three credit hours while on full time leave was pretext for some other reason.
The Initial Decision also provides an analysis of the subsequent reason offered by Owens for taking only one class in a semester when she had indicated a need for leave to pursue a full course load. The subsequent reason offered by Owens was her father's health being so bad as to necessitate her spending a great deal of time tending to his needs. According to the Army this was first brought to its attention only after the Notice of Proposed Removal was issued. Further, in his Notice of Decision, after learning of this excuse through Owens' response to the proposed removal, Colonel Querfeld opined that the failure of Owens to alert her supervisors of her change in circumstances, if those circumstances were truly at the root of her limited academic endeavors, was in disregard of her continuing obligations as an employee. The Board found that there was ample evidence to support a finding that Owens' father, Earlie Oatts, had significant health problems, but insufficient evidence for it to find reasonable Owens' explanation of when and how her considerable attention to him was in demand After a review of the pertinent evidence the decision of the Board reads:
The appellant would have the Board believe that on June 7, 1994, the appellant's need to care for her father was unforeseeable; by August 1st, he needed substantial living assistance that only the appellant was able to give; that the appellant's failure to so inform the agency at that time was merely an oversight; and that by October Mr. Oatts was no longer in need of appellant's care. Again, she articulated no reasonable explanation [why] she did not inform the agency of the situation before she went on leave or why she did not return to work prior to January 23, 1995, if her father's health had improved by October 1994.
(MPBS Initial Decision by Admin. J. Phillip Miller at 11.)
Much of the Board's decision is premised on factual findings made after weighing the credibility of testimony offered by Owens, Thompson, Wilson and Martin. In nearly all instances where factual testimony was inconsistent and irreconcilable, the administrative judge found the testimony of Owens to be less credible than the testimony of her supervisors, and the Board agreed. In each instance Judge Miller set forth fairly extensive reasoning for his credibility findings within the Initial Decision. The evaluation of witness credibility is within the sole province of the administrative judge and is "virtually unreviewable." Frey v. Dep't of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004). When an administrative judge's decision is explicitly or implicitly based largely upon the demeanor of those who testified before him, that decision is due "special deference." Chauvin v. Dep't of Navy, 38 F.3d 563, 566 (Fed. Cir. 1994). While this decision was based on more than simply Judge Miller's assessment of witness credibility, to the extent such assessment played a role in the decision, this court finds nothing in the record that would convince it to reach a different conclusion on witness credibility.
It is clear to this court that, at a minimum, Owens failed to let her supervisors know that she would not be pursuing a full course load at IUPUI, when there is no question that the leave was granted on that basis. Owens argues that her obligation to report the change in circumstances was ambiguous and therefore there can be no finding of intent to deceive on her part. She cites Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) as support for her argument. However, two circumstances distinguish Haebe from the situation in this case.
First, in Haebe, the Board had substituted its credibility findings for those of the administrative judge, without good reason. Id. at 1291. Here, the MSPB accepted the credibility findings of Judge Miller. Second, the ambiguous policy at issue in Haebe was a local policy of the DEA with regard to protecting a confidential informant's ("CI") identity when completing reports. Haebe drafted a report which, in pertinent part, could have been interpreted as his firsthand observation of a particular piece of luggage when in fact it was a description provided by a CI. Id. at 1295. Haebe's first line supervisor said the report was not a falsification and was in line with the local agency policy of protecting the identity of a CI. Id. Haebe's second line supervisor testified that there was a local policy of protecting a CI in connection with such reports, but that Haebe was required to have seen the bag firsthand to include such a description in his report. Id. Haebe testified he was trying to protect the CI, not deceive anyone into believing that he personally viewed the bag at issue. Id. The court found that if Haebe's "intent was to apply the policy but he blundered in doing so, or if the contours of the policy were not sufficiently clear, he would not meet the intent prong of the Naekel test." Id. at 1305-06 (citations omitted). The court then reversed the MSPB's final decision which had reversed the determination of the administrative judge on that issue.
In this case, Owens did not blunder in an attempt to follow policy. She knew her leave was granted on the basis of her pursuing a full academic load of college courses. She did not pursue her academics full time and did not bother to report that to any of her supervisors.
Furthermore, Owens' presentation of alternative and inconsistent reasons for her limited course work in the fall of 1994, and her sudden withdrawal of a request for a continuation of that leave through the spring semester, when she learned she would need to supply grades from her fall semester, add sufficient fuel to the circumstantial fire to support a conclusion that there was likely an attempt to deceive from the very beginning. However, this court is in agreement with Colonel Querfeld's opinion regarding the significance of Owens' failure to alert the Army of her change in circumstances. This court does not find it necessary for deceit to be measured at the exact moment Plaintiff filed her request for LWOP in order to support a charge of intentional misrepresentation. To the extent intent to deceive is an evidentiary burden born by the agency, there is no question that such a burden was carried by the Army through its proof of Owen's failure to report the new circumstances inconsistent with her reasons for initially requesting and receiving leave and her postulating alternative inconsistent reasons for her having completed only three credit hours. Accordingly, the court finds that there is substantial evidence to support the Board's conclusion that Owens intentionally misrepresented her LWOP request.
Deviation From Grounds Set Forth in Notice of Proposed Removal
Next Owens asks the court to reverse the MSPB decision because she claims it sustains her removal on grounds which were not originally in the Notice of Proposed Removal. More specifically, she points to the fact that the Notice of Proposed Removal does not include any reference to her failure to report her change of circumstances, yet Colonel Querfeld's Notice of Decision justifies her removal, in part, on the basis of her failure to report the change in her circumstances which she claims occurred in connection with her father's health. She then cites the Board's decision in Riley v. Department of Army, 53 M.S.P.R. 683 (M.S.P.B. 1992) and the decision in Home v. Merit Systems Protection Board, 684 F.2d 155 (D.C. Cir. 1982) as precedential support.
While the authorities relied upon by Owens do stand for the proposition that the Board may not substitute its own disciplinary justification for that which is advanced by the agency, those are not the circumstances which exist in this case. Colonel Querfeld's Notice of Decision is a part of the grounds the agency has relied upon in its decision. The agency decision is not simply the Notice of Proposed Removal. Owens was given a chance to respond to the Notice and it was in that response that the issue of her father's health and his need for her assistance was first brought to the Army's attention. It would be nonsensical to forbid the agency from addressing the employee's asserted basis for engaging in the conduct at issue when publishing its Notice of Decision. Colonel Querfeld confirmed the initial grounds contained in the Notice of Proposed Removal and added the contention that if Owens did have a change in circumstances she did not bring it to the attention of the Directorate as she should have done. In short, the Board did not substitute its own basis for confirming Owens' removal; rather, it affirmed the decision of the agency on the same grounds asserted by the agency in its Notice of Decision.
Severity of the Penalty of Removal
Plaintiff maintains that affirming the penalty of removal is so unreasonable under the circumstances that it constitutes abuse of discretion on the part of the MSPB. When it sustains the charges brought against an employee the MSPB is also charged with the responsibility of reviewing the penalty to assure that the agency has not abused its discretion by invoking a penalty which is entirely unwarranted in light of all relevant circumstances. Guise v. Dep't of Justice, 330 F.3d 1376, 1382 (Fed Cir. 2003).
Owens does not challenge the fact that removal is within the range of penalties allowed by Army regulations for a first time offense of intentional misrepresentation. However, she does argue that removal is the harshest penalty in a wide range which begins with written reprimand, and the circumstances are not so severe as to suggest that removal is reasonable. She argues that application of the Douglas factors should not result in a determination that removal is a reasonable penalty. The factors which she refers to are those that are set forth in the seminal MSPB decision of Douglas v. Veterans Administration, 5 M.S.P.R. 280 (M.S.P.B. 1981). Courts have cited favorably the Douglas decision and found it to be precedent applicable to agencies and the MSPB when it reviews disciplinary penalties. See e.g., Schuck v. Frank, 27 F.3d 194 (6th Cir. 1994); McClaskey v. U.S. Dep't of Energy, 720 F.2d 583, 587 (9th Cir. 1983). However, the factors listed in Douglas are not exhaustive, and an agency is required only to consider those factors found to be relevant to the action. Bryant v. Nat'l Sci. Found., 105 F.3d 1414, 1418 (Fed. Cir. 1997).
The factors which were recognized in Douglas as relevant considerations in determining the appropriateness of a penalty are:
(1) The nature and seriousness of the offense, and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
(2) the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
(3) the employee's past disciplinary record;
(4) the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;
(7) consistency of the penalty with any applicable agency table of penalties;
(8) the notoriety of the offense or its impact upon the reputation of the agency;
(9) the clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question;
(10) potential for the employee's rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.Douglas, 5 M.S.P.R. at 305-306.
In her Notice of Proposed Removal, Thompson described her consideration of five of the twelve factors. First, since contract administration requires the utmost integrity and is the visible link between the Army and its vendors and suppliers, she found that misrepresentation "strikes at the very heart of our mission" and is an extremely serious offense. She noted that Army policy recommends removal of employees for intentionally dishonest conduct and that removal was within the range of penalties under Army regulations for first time offenses involving intentional misrepresentation. Management's trust in Owens was severely eroded, according to Thompson, because a grant of LWOP is discretionary and considerable effort went into transferring her normal work load to the rest of her co-workers while she took only a single college course, and a course which could have been taken at the employee learning center. Thompson expressed doubt as to Owens' ability to be rehabilitated in light of her apparent disregard for whether Thompson trusted her. She emphasized Owens attempt to ignore and dodge Thompson's continuing requests that she clear up the credit hour discrepancy, even refusing to accept an offer of administrative leave to go to the IUPUI campus and pick up the requested registration documentation. In mitigation, Thompson considered Owens' lengthy service to the Army, but found that the aggravating circumstances prevailed. More specifically Thompson pointed out that the closing of the Army Soldier Support Center was having an adverse effect on everyone and that Owens' receipt of LWOP was an attempt on the part of her management to help lessen the adverse effect on her by allowing her to increase her level of education, while due to mission requirements not all others were afforded the same favor.
After reviewing Thompson's Notice and the response of Owens, wherein she first raises her cancellation of classes in order to care for her father and characterizes any failure to report the same as inadvertent and not requested, Colonel Querfeld concurred with Thompson's penalty analysis. He indicated he found two of the factors she discussed deserving of the most weight. The Colonel emphasized the need for employees to demonstrate the highest degree of honesty and integrity in the area of contract administration. He also found the likelihood of rehabilitation to be very poor, in part stating:
Everyday you were absent was a day this command assumed you were in school on a full-time basis pursuing your stated goals. Management's decision to approve your LWOP was made in the firm belief you were in school for the reasons stated in your letter of 7 June 1994. The evidence points to the contrary, and clearly shows that you made no attempt to correct the record. I also noted that your actions and responses subsequent to Ms. Thompson's inquiries indicate that you were consciously evasive in responding to her repeated requests for information. You made it clear from your actions that you had no desire to work with her and clarify any questions she had regarding your attendance in school. I believe you would have continued the pattern of deception had you been given the opportunity. This is evidenced in the record by the fact that when you asked for an additional five (5) months of LWOP, you still didn't notify management of the change in your circumstances.
In his Initial Decision, following the hearing before him, Judge Miller also visited the nature and reasonableness of the penalty. He too made reference to the Douglas decision, and the test it expressed as whether "managerial judgment has been properly exercised within tolerable limits of reason." Douglas, 5 M.S.P.R. at 302. Owens argued to the administrative judge that her failure to alert the Army of her need to care for her father had no real effect on circumstances, because had she so advised she would have been entitled to leave under the Family and Medical Leave Act. Judge Miller rightly pointed out, among other things, that it was not clear that she would have qualified for such leave, the Army had a right to make that determination at the time it should have been sought and, even if she had qualified, the limit for such leave was half of the time she spent out on discretionary LWOP. Overall, the administrative judge and the MSPB found the penalty to be within the tolerable limits of reason.
This court agrees. At this stage, Owens' only argument relative to the reasonableness of the penalty is that neither the administrative judge nor her management considered that any obligation to inform the agency of a change in circumstances while on leave is not written in any policy or employee guideline and was not included in any instructions from her supervisors. Accordingly, she argues the "clarity factor" set forth in Douglas was particularly important to the situation and should have been considered.
This court does not find Plaintiff's argument persuasive. Following Owens' line of reason, had she been granted twelve weeks of leave to care for a sick family member and had that family member died within the first week, it would have been unclear to her unless expressed in a regulation or policy that, all other things being equal, the Army would have expected her to return to work prior to the expiration of the full twelve weeks of leave. Some things do not require written or verbal affirmation to be resolute. The court views one of those things to be that if you tell your employer you would like special dispensation to accomplish a particular task, and then quite quickly learn of something that will prevent you from accomplishing that task, your employer has a right, without expressing a request in writing, to expect that you will inform it of your inability to accomplish the task. This is a logical extension of the truth and part of the basic distinction between what is right and what is wrong. Instead, in these circumstances, Owens accepted the benefit of a discretionary leave with right of return without alerting her employer that she would not be following through with her part of the deal.
Like the MSPB, this court finds that the agency decision to discharge Owens, under all relevant circumstances, to be within the bounds of reason. It can not be said, under the deferential standard applicable to this review, that the MSPB decision to affirm the penalty of removal was an abuse of discretion. None of the three arguments advanced by Owens for reversing the MSPB have merit.
Summary Judgment On Title VII Discrimination Claim
The Army argues that it is entitled to summary judgment on Owens' claim of retaliatory discrimination in connection with her termination. Owens attempts to paint a picture of Thompson as a supervisor who held a grudge against her because of their past competition for open positions and because Owens had pursued EEO claims subsequent to losing those competitions. She goes on to string together various pieces of evidence in an attempt to show discriminatory motive. Meanwhile, the Army hones in on the circumstances which tend to support a conclusion that retaliation played no role in the decision making process. This court finds the arguments of the Army most persuasive.
Owens' mosaic of evidence begins with her reference to the backdrop against which her troubles played out. She reminds the court that in 1995 the Army closed Fort Benjamin Harrison and that there was a large exodus of Army employees in the months leading up to the closing. Barbara Wilson, the person who approved Owens' LWOP, left in January of 1995. Ron Martin, who had replaced Wilson, left in May of 1995 and Dorothy Thompson then became Owens' supervisor for the remaining months of the Fort's operational existence.
Thompson was aware of the fact that Owens had filed EEO claims following Thompson's receipt of two appointments to vacancies that they were both seeking to fill. According to Owens, this gave Thompson a motive and her unilateral action of investigating Owens and recommending Owens removal was taken to further that motive. To bolster this claim, and her evidentiary mosaic, Owens points to what she claims are inconsistencies and unexplained coincidences in Thompson's testimony and actions. These include:
1) Thompson's alleged statement to Owens that if she would produce the registration form demonstrating she registered for a full load of courses, "it would be a done deal" and her later refusal to accept the registration through Owens' attorney.
2) Thompson's original affidavit stated that she did not know of Owens' past EEO activity, but she later testified that the affidavit was incorrect because she was aware that Owens had filed discrimination charges.
3) On August 2, 1995, Owens submitted a pre-complaint worksheet alleging that she was being discriminated against in the delay in her receipt of Contract Certifier certification and receipt of a performance review. Only a few days later, Thompson provided her with a performance review that included a request that she support her June 1994 LWOP request with a copy of her IUPUI registration, despite Thompson's discovery of the discrepancy more than six week earlier.
4) On September 6, 1995, Owens filed a formal complaint of Discrimination based upon the events she had described in her pre-complaint worksheet and told Thompson her registration forms were with her attorney, to which Thompson responded immediately by electing to pursue disciplinary action.
Owens then extends her mosaic by arguing that Thompson's repeated statements to Owens, that if she produced the class registration documentation Thompsons' inquiry would stop, were lies and a pretext for her continued efforts at retaliation. Further, she points to Thompson's statement in the Notice of Proposed Removal that the efficiency of the agency will be promoted by the hiring of someone who will perform duties in a trustworthy and responsible manner and describes it as "odd" in light of the fact that the Fort was closing in a matter of days and Thompson had moved to a position where she would not be supervising Owens. Finally she concludes her mosaic argument by referring to Colonel Querfeld as a "cats paw" to his subordinate who was the true decision maker. She offers no argument that Colonel Querfeld personally harbored discriminatory animus or motives.
First, as pointed out by the Army, very few of the facts described by Owens in her mosaic argument are accompanied by citations to the record. Much of the argument appears to be based upon pure speculation and conjecture. A closer examination of the facts proffered and the arguments made confirm that appearance.
Thompson did not engage in a unilateral investigation of Owens. Shortly after Thompson became Owens' supervisor, Owens inquired of Thompson regarding the status of Owens' Contract Certifier certification. Because that certification is premised upon the completion of various courses, it is not surprising that in following up on Owens' inquiry Thompson discovered the discrepancy between Owens fall 1994 credits and her full time leave request. Further, there is a large gap in logic that has not been bridged in the attempt to link the fact that Owens filed discrimination complaints against the decision makers who chose Thompson over Owens for two previous job vacancies (notably not the job Thompson held when she authored the Notice of Proposed Removal) with a retaliatory motive on the part of Thompson. While there may be an inference that Owens felt she was as qualified or more so than Thompson for those positions, she had not complained of Thompson personally. Finally, more than three and one half years had passed since Thompson received the last of the two job appointments for which they had both applied.
It is certainly true that Thompsons' affidavit was not accurate. However, Thompson readily admitted and corrected that mistake. She went on to testify that she, like most in the office, was aware that Owens had filed numerous discrimination claims. She could have just as easily held to the affidavit's accuracy if reprisal was truly her motivation. There was no imminent danger of impeachment. And, while any affiant should be scolded for not reading their affidavit close enough to catch the fact that the word "not" had been inserted in front of the word "aware", the court has already indicated that it does not accept Thompson's "awareness" of the past EEO claims against others as a motive for her to act in an adverse manner toward Owens since those complaints were not made against Thompson.
Several times in her brief, Owens harps on the fact that Thompson stated that all Owens needed to do was get her a copy of the IUPUI class registration forms and "it" (presumably the inquiry into the class credit discrepancy) would be a "done deal." Owens thumps this statement like a tub, drawing all types of conclusions from the fact that when Owens finally offered to make the forms available through her attorney, Thompson declined to accept them in that manner and went forward with the discipline. However, the context of Thompson's statement is extremely important, yet neglected by Owens. At the time Thompson made the statement, Owens had yet to reveal her story regarding the need for her to attend to her father and was advancing a theory that the "Using a Personal Computer" course was requiring her to spend mornings and afternoons in academic pursuits to keep up with the class. Furthermore, Owens doesn't challenge the fact that Thompson's immediate response to Owens mention of obtaining documents from her attorney was that only the union could serve as her internal representative at that stage. Nor does she challenge the accuracy of that response.
As to Owens complaint regarding the nature of her performance review that shortly followed her pre-complaint discrimination work sheet, it should first be noted that the court has found nothing in the record that establishes that Thompson received or was even aware of Owens' pre-complaint discrimination work sheet. While the court may have missed it in the approximately two thousand pages of transcripts and exhibits that make up the record, it is not this court's duty to scour the record to find support for a non-moving party's arguments if that party neglects to provide citation to the relevant material. Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995). What is more disturbing to the court is that it did find a copy of the pre-complaint worksheet in the record and a review of its content leads the court to a conclusion that it is not at all as described by Owens in her brief. It does not complain of a lack of a performance review; rather, it complains of the nature of a performance review given by Ron Martin back in December of 1994. It does express discontent with the delay in receiving certain certifications, but the targets of that complaint are Martin and Wilson — not Thompson as is inferred in Plaintiff's mosaic argument. Even if Thompson was privy to this work sheet she would have no reason to feel accused or defensive about anything. In short, it provides absolutely no motive whatsoever for Thompson to take any discriminatory or retaliatory action.
Plaintiff's "mosaic of evidence" is unconvincing and does not, as required, point to a discriminatory reason for Thompson's Notice of Proposed Removal or Colonel Querfeld's Notice of Decision. See, Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir. 2003). The circumstantial evidence relied on does not reach the required level of direct proof which would allow a reasonable jury to infer discrimination. See, Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir. 2003). Owens' past claims of discrimination did not implicate either of the decision makers here and until she brought them to Colonel Querfeld's attention through her response to the Notice of Proposed Removal, he was not even aware of the past charges.
Furthermore, there has been a legitimate reason for the adverse employment action advanced by the Army in this case. Owens claimed she needed LWOP to attend college full time. She took only one class and did not inform the Army of any change in her leave circumstances until the disciplinary process was instigated. Plaintiff has no direct proof of discrimination and, although she does not argue that she can meet the requirements of the indirect method of proof, the evidence of record does not allow her to overcome the legitimate reason for her discharge and consequently she could not prevail in that manner either.
Conclusion
Plaintiff has not carried her burden on appeal of the MSPB decision of demonstrating that the decision affirming her removal was arbitrary, an abuse of discretion or unfounded by substantial evidence. Defendant has carried its burden of establishing that no material question of fact remains with regard to Owens' claim that she was removed in reprisal for past protected activity and that it is entitled to summary judgment on that claim. Accordingly, the decision of the Merit Systems Protection Board will be AFFIRMED and Defendant's Motion for Summary Judgment will be GRANTED. Final judgment will be separately entered in favor of the Defendant.