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HANNA v. HERMAN

November 13, 2000

FAYEZ B. HANNA, PLAINTIFF,
V.
ALEXIS HERMAN, SECRETARY OF LABOR, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

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.

BACKGROUND

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 8, 1993, Adkins issued a memorandum to plaintiff, directing plaintiff to assign Kenneth Stevanus, one of the employees in plaintiff's division, to serve on a panel. The panel to which Stevanus was to be assigned was to review bids by contractors to provide technical service to OSHA's Office of Regulatory Analysis. Plaintiff refused to make the assignment and so stated in a memorandum to Adkins. Adkins then sent another memorandum to plaintiff, explaining the Stevanus assignment in greater detail and warning plaintiff that any further refusal to make the assignment would be considered to be insubordination. Plaintiff responded by sending Adkins another memorandum restating his refusal to make the assignment. Adkins confronted plaintiff in his office, at which time plaintiff reconfirmed that he was not going to make the assignment and Adkins again informed plaintiff that he considered such behavior to constitute insubordination.

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.

ANALYSIS

Standard of Review

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. 1988).

I. Discrimination Claim

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. ...


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