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April 10, 1974

Raymond C. Richardson, Plaintiff,
Robert E. Hampton, Chairman, United States Civil Service Commission et al., Defendants

Gasch, D.J.

The opinion of the court was delivered by: GASCH


This matter is before the Court on defendants' motion for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons set forth fully below, the Court has determined that this is a case in which summary judgment can appropriately be granted to defendants. The material facts as to which there is no genuine issue are as follows.

 I. Factual Background.

 The plaintiff, a black 25-year employee of the United States government, held the position of a supervisory computer operator (GS-12) until he was terminated on January 30, 1970, on charges of falsification of payroll documents and neglect of duty. These charges were set forth with particulars in a written notice of December 18, 1969, *fn1" and were the result of an intensive investigation within the Department of Agriculture (hereafter referred to as the Department) into unauthorized absences and reported falsification of time records by a number of employees. *fn2" It was the decision of the Department to suspend three persons who had committed violations while only issuing letters of reprimand to two others. Mr. Richardson, who allegedly had the most flagrant record as to frequency and duration of absences and falsifications, was the only person terminated.

 Mr. Richardson immediately appealed the removal decision to the Secretary of Agriculture and a hearing was held on March 16, 1970. *fn3" The findings and conclusions of the hearing examiner were issued on April 29, 1970. While finding the evidence gave prima facie support to the charge of falsification of payroll supporting documents, *fn4" Mr. Pittman, the hearing officer, found the punishment was unduly harsh in light of Mr. Richardson's 25 years of competent service, the loose operation of the computer center, and the less severe penalty meted out to others. *fn5" Nevertheless, the Deputy Director of Personnel issued a final decision on July 20, 1970, *fn6" affirming the removal and finding the action not arbitrary and capricious. This judgment was also appealed to the United States Civil Service Commission which held a hearing on September 16, 1970. *fn7" Upon review of the record, the Commission affirmed the prior ruling on November 30, 1970, *fn8" and this ruling was affirmed by the Board of Appeals and Review of the Civil Service Commission on February 1971. *fn9"

 It was after this final Civil Service Commission ruling that plaintiff filed a complaint of discrimination on February 3, 1972. *fn10" In response to this discrimination charge, the Department's Office of Equal Opportunity wrote plaintiff rejecting his complaint as untimely filed since plaintiff had "ample opportunity previously to raise such issue and have it considered." *fn11" This decision was appealed to the Board of Appeals and Review of the Civil Service Commission *fn12" and on May 15, 1972, the Commission advised plaintiff's counsel:

All of the issues raised in the earlier processing of Mr. Richardson's appeal were disposed of when the appellate decisions were issued by the Appeals Examining Office and by the Board. The decision of the Board is final with respect to matters before the Board at that time and there is no further right of appellate review of any issue therein except upon direction of the Civil Service Commissioners to reopen the case. The Board concurs in the finding of the Director of the Office of Equal Opportunity, that Mr. Richardson's complaint under Part 713 of the Commission's Regulations is not timely filed and his decision is hereby affirmed. *fn13"

 Plaintiff has taken issue with many aspects *fn14" of the proceedings both before and after his dismissal but the Court finds that only three merit discussion here. First, plaintiff argues that his discrimination complaint, rejected as untimely filed, should have been considered. Secondly, plaintiff contends that defendants deprived him of his basic rights of procedural due process in considering his alleged prior disciplinary record in determining what punishment to impose while only notifying plaintiff of the charges of falsification of payroll supporting documents and neglect of duty. Finally, it is plaintiff's contention that the Department acted arbitrarily in removing plaintiff while dealing less harshly with others who had committed similar offenses.

 II. Summary Judgment.

 Before addressing the merits of plaintiff's complaint, it is perhaps appropriate to state why this Court feels this is an appropriate case for summary judgment.

 Plaintiff has argued that defendants have not carried their burden of demonstrating convincingly the absence of a triable issue. Underwater Storage, Inc. v. United States Rubber Co., 125 U.S. App. D.C. 297, 371 F.2d 950 (1966), cert. denied, 386 U.S. 911, 17 L. Ed. 2d 784, 87 S. Ct. 859 (1967). The Court finds this argument is without merit when viewed in light of what this Court considers not only a voluminous record but a complete record as to Mr. Richardson's claims.

 Plaintiff contends, however, that this record is fatally deficient. This allegation is based upon the fact that neither Mr. Pittman, the initial Department hearing officer, nor plaintiff were provided a list of all Department employees guilty of similar offenses and showing their respective punishments. Without this information, it is urged, this Court cannot judge whether like punishments were provided for like offenses. It is the conclusion of this Court based upon the record and circumstances of this case that the question of the arbitrariness of agency action can be determined from the record as it is now constituted. The offenses committed by Mr. Richardson and his fellow employees are well reflected in the record and it would be unduly burdensome to require the agency to search through decades of disciplinary actions, essentially irrelevant to the facts of this action, to determine if in different cases, at different times, and under different circumstances other employees were disciplined less severely for similar offenses. See, e.g., Burroughs v. Warner Bros. Pictures, Inc., 14 F.R.D. 165, 166 (D. Mass. 1953). The Court will proceed, then, to consider this case on the basis of the record now before the Court. Polcover v. Secretary of Treasury, 155 U.S. App. D.C. 338, 477 F.2d 1223 (1973); Dabney v. Freeman, 123 U.S. App. D.C. 166, 358 F.2d 533 (1965); Studemeyer v. Macy, 116 U.S. App. D.C. 120, 321 F.2d 386 (1963); Hargett v. Summerfield, 100 U.S. App. D.C. 85, 243 F.2d 29 (1957), cert. denied, 353 U.S. 970, 1 L. Ed. 2d 1137, 77 S. Ct. 1060 (1957); Eustace v. Day, 114 U.S. App. D.C. 242, 314 F.2d 247 (1962).

 III. Discrimination Complaint.

 Addressing first the discrimination complaint filed by plaintiff, it is the position of the defendants that this question is not properly before the Court due to the failure of plaintiff to file such a complaint within the time constraints outlined in 5 C.F.R. 713.214(a). That section provides that the agency may ...

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