The opinion of the court was delivered by: Huvelle, District Judge.
Before the Court is defendant Secretary of Labor Alexis Herman's motion
for summary judgment, plaintiff Fayez Hanna's opposition thereto and
cross motion for judgment, defendant's reply, and plaintiff's response.*fn1
The issues before the Court are twofold: whether defendant's demotion of
plaintiff from GM-15 to GS-14 was discriminatory or retaliatory and
whether the decision of the Merit System Protection Board (MSPB)
affirming his demotion was based on a misinterpretation of the law and
the facts. Upon consideration of these pleadings and the record herein,
the Court concludes that defendant's motion should be granted and summary
judgment on all counts should be entered on behalf of defendant.
Plaintiff is a former employee of the Occupational Safety and Health
Administration (OSHA), which is part of the Department of Labor.*fn2 He
began working at OSHA in 1976. In 1978, he was promoted from a GS-13 to a
GM-15 to join the Directorate of Health Standards Programs as Director of
the Office of Toxic Substances. In 1993, he was working at the
Directorate of Health Standards Programs as Director of the Office of
Risk Reduction Technology, at a GM-15 level. From 1986 until 1993,
plaintiff was supervised by Charles L. Adkins, the Director of the
Directorate of Health Standards.
On September 17, 1993, Adkins proposed that plaintiff be suspended for
fourteen days for refusal to comply with proper orders, defiance of
authority, and insubordination. On September 23, 1993, plaintiff issued a
memorandum to the employees under his supervision. In this memorandum, he
stated that he "did not concede to Charles Adkin's inappropriate order"
and that he "will not respond to, or implement any dictated unreasonable
and unfair managerial practices." (Mem. in Supp. of Def. Mot. for Summ.
Judg. (Def.Mot.) Exh. 3 at 2). On October 15, 1993, Adkins sent plaintiff
a memorandum proposing his demotion from GM-15 to GS-13. The reasons
given for the proposed demotion were: 1) repeated and deliberate refusal
to comply with proper orders, defiance of authority, and
insubordination; and 2) misconduct in exercising management and
supervisory duties, undermining management authority, and inappropriate
conduct in dealing with subordinate employees.
After the demotion was proposed, plaintiff amended a discrimination
complaint that was already pending in the U.S. District Court for the
District of Columbia (Hanna v. Reich, Civil Action 94-226 (GK)), alleging
that the demotion proposal was made in retaliation for his having filed a
discrimination complaint. That complaint alleged disability
discrimination for being denied permission to smoke in his office, and
alleged discrimination based on national origin for receiving a one-day
suspension, not receiving a $500 merit pay bonus in 1989, not having 152
hours of annual leave restored in 1990, and not receiving an
"Outstanding" rating in 1991. That complaint also alleged the defendant
retaliated against plaintiff when his supervisor informed the Department
of Labor's Office of Workers' Compensation Program about his prior
employment discrimination complaint, when plaintiff's 14-day suspension
was proposed and issued in 1993, when plaintiff's demotion was proposed
in October 1993, and when he was detailed to a special assignment in
October 1993. In 1995, a jury trial was held on the retaliation claims,
while the discrimination claims were tried to Judge Gladys Kessler.
Ultimately, the jury held that defendant had retaliated against plaintiff
when his supervisor informed the Department of Labor's Office of Workers'
Compensation Program about his prior employment discrimination complaint
and awarded plaintiff $15,000 in compensatory damages, but found no
retaliation by defendant for any other claims before it, including the
claim of retaliation for proposing plaintiff's demotion. Judge Kessler
ruled that the defendant had discriminated against plaintiff in failing
to pay the merit bonus, failing to restore his annual leave, and failing
to give him an "Outstanding" rating. Plaintiff's disability
discrimination claim was dismissed.
Plaintiff sought to challenge the demotion through the civil service
system. On February 12, 1996, plaintiff presented his case to Gregory
Watchman, who was Deputy Assistant Secretary of Labor for OSHA at the
time. In addition to making an oral presentation, plaintiff submitted a
written statement and a supplemental memorandum. On July 30, 1996,
Watchman upheld the proposal to demote plaintiff, but reduced the penalty
by demoting plaintiff from GM-15 to GS-14 rather than to GS-13. Watchman
upheld reason one of the demotion proposal in part and reason two in
full, finding that disciplinary action — the 14-day suspension
— had already been taken against plaintiff for his refusal to
comply with the order to make the Stevanus assignment and thus the
demotion could not be imposed as additional punishment. Plaintiff's
demotion was effective as of July 31, 1996.
Plaintiff appealed his demotion to the MSPB. A hearing was held on
March 13, 1997, and on April 11, 1997, the Administrative Law Judge (ALJ)
issued a decision upholding Watchman's demotion decision and finding that
plaintiff's conduct constituted defiance of authority and insubordination
and that he engaged in misconduct in exercising his management
supervisory duties, undermining management authority, and inappropriate
conduct in dealing with subordinate employees. The ALJ further found that
the demotion promoted the efficiency of the service of the agency and was
a reasonable penalty for the conduct in question, and she rejected a
claim of reprisal for whistleblowing.
Plaintiff then appealed to the MSPB. The MSPB upheld plaintiff's
demotion, sustaining the charge of misconduct in exercising management
and supervisor duties, undermining management authority, and
inappropriate conduct in dealing with subordinate employees, but
rejecting the charge of defiance of authority and insubordination. The
MSPB also found that plaintiff failed to establish discrimination or that
the demotion was in reprisal for whistleblowing. Furthermore, the MSPB
found the penalty to be reasonable. Plaintiff has now brought this
complaint seeking a reversal of the MSPB's decision.
Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted
if the pleadings, depositions, answers to interrogatories, admissions on
file, and affidavits show that there is no genuine issue of material
fact, and that the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the
"evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505; see
also Washington Post Co. v. United States Dep't of Health and Human
Servs., 865 F.2d 320, 325 (D.C.Cir. 1989).
Where the case before the MSPB involves an appeal from an ordinary
personnel action as well as allegations that the act was discriminatory,
in other words a "mixed case," the Board "must sustain an Agency's
decision . . . if that decision is supported by a preponderance of the
evidence." Murray v. U.S. Dept of Justice, 821 F. Supp. 94, 101
(L.D.N.Y. 1993). The court must review the discrimination claim de novo,
5 U.S.C. § 7703 (c), and the nondiscrimination claim on the
administrative record. Barnes v. Small, 840 F.2d 972, 979 (D.C.Cir.
In a "disparate treatment" case where the plaintiff cannot produce
direct evidence of discriminatory or realiatory animus, the three-part
"shifting burdens" test established by McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. ...