The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff, a twenty-three year African American veteran of the Department of Agriculture ("USDA"), alleges that his employer discriminated on the basis of race and gender, retaliated against him and created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff also seeks review pursuant to the Civil Service Reform Act, 5 U.S.C. § 7703(b)(2), of the Merit Systems Protection Board ("MSPB") decision upholding his removal from office. The Secretary has moved for summary judgment. As explained herein, the motion is granted in part and denied in part.
Rountree joined USDA in 1981 after graduating from college. He gradually worked his way up to GS-12 Senior Loan Specialist with the Farmers Home Administration in Washington, D.C. In 1994, following a successful EEO complaint, plaintiff was placed in the Executive Management Potential Training Program for one year, and thereafter, from 1995 until 2003, Rountree served in Richmond as GS-13 Program Director for USDA's Rural Business/Cooperative Services Programs ("RBS"). In that position, Rountree's role was to foster economic development in rural Virginia by extending loans for business development. (Def.'s Ex. 33 at 89-93; Pl.'s Ex. 6.)
On October 31, 2001, USDA Rural Development's Virginia State Director, Joseph Newbill, terminated a RBS probationary employee, Princess Prince. She had worked closely with Rountree, and upon her termination, Rountree wrote Newbill that "even though the . . . termination of Princess Prince . . . was during the probationary period and required no justification, . . . you do not have the right to subject my staff and/or me to undue harassment or a hostile working environment . . . ." (Def.'s Ex. 2 (Rountree's 11/15/05 letter to Newbill).) Rountree also complained about Newbill's investigations of himself and his staff for abuse of travel reimbursements, compensatory time, government car usage, etc. Although Rountree acknowledged that Newbill, as State Director, has a "right and privilege" to pursue "alleged abuse," plaintiff contended that the allegations were baseless and that "if the truth was known, [the persons making the allegations] themselves are guilty of what they have alleged of others." (Id.)
On November 7, 2001, Bertha Cook, a GS-6 Technician whom Rountree supervised, requested reassignment away from plaintiff because of a work environment of "continuous hostility" in which she was "dominated" by plaintiff, resulting in "extreme stress that makes it difficult to be able to function to the best of my ability." (Def.'s Ex. 3.) Rountree had apparently castigated Cook that day for not telling plaintiff that his personal friend had stopped by while plaintiff was out, even though the friend had not asked her to pass on such a message. Rountree told Cook that "she had been a problem employee for some time." (Id.) Newbill granted Cook's request, transferring her to another division.
Newbill had previously relayed to Rountree the concerns of plaintiff's subordinates that "they felt they were oppressed by [Rountree] and are in a constant state of fear of being subjected to reprisal and retaliation." (Def.'s Ex. 2 (Rountree's 11/15/05 letter to Newbill, discussing conversations between the State Director and plaintiff on 10/26/01 and 11/14/01).) On December 3, 2001, Newbill asked the USDA Field Services Branch ("FSB") to investigate Cook's allegation that plaintiff created a hostile work environment and showed favoritism towards Prince, allowing her to come in late and then going out to breakfast with her without taking leave time. A FSB investigator from St. Louis (Alice Green) took sworn statements from numerous subordinates of plaintiff, and on April 9, 2002, she submitted her report that substantiated the hostile work environment allegation, finding that he brokered no criticism, that he was openly hostile to his subordinates, that he belittled "anyone brave enough to offer their input," and that he was alleged to "pit his employees against each other . . . question[ing] his employees if they were seen talking to another employee that he didn't like." She advised the State Director that he needed to decide "if discipline is appropriate and if it is in the best interest of the Agency for Mr. Rountree to continue working in a supervisory position." (Def.'s Ex. 5 at 19.)
Meanwhile, Newbill had received complaints from Rountree's customers about plaintiff's treatment of them and his job competency. On March 15, 2002, a Virginia State Senator wrote Newbill that a constituent had been told by Rountree that the constituent's loan was being rejected because the applicant "had gone over [Rountree's] head" by contacting his State Senator, who in turn had earlier inquired about the matter with Newbill. (Def.'s Ex. 8.) On July 2, 2002, the Westmoreland County Administrator wrote Newbill "the first letter I've written concerning the performance of an employee of any state or federal agency in twenty-one years of service as a county administrator." The Administrator said that Rountree "does not either have a solid grasp of the programs within his department or simply cannot articulate the application of those programs to the local level." (Id.) On July 22, 2002, the Risk Management Officer for Farm Credit sent a similar letter, complaining that Rountree told him "that [he] could not contact higher ranking officials in USDA or congressional representatives," and further lamenting the lack of any "attempt on the part of USDA to explain the process that was so rigorously followed," as well as "[t]he perceived attitude that every roadblock possible would be used throughout the process." (Id.)
Shortly thereafter, on August 20, 2002, Newbill proposed demoting plaintiff and reassigning him to a local office elsewhere in Virginia. He based the proposal on Rountree's inappropriate conduct toward other USDA employees, as well as members of the public. Pending a final decision on the demotion, Rountree was to remove all his personal effects from his office that day, was given one day of administrative leave to "make necessary arrangements," and was to report on August 22 to a GS-13 nonsupervisory position with the Rural Business staff in Washington, D.C. (Def.'s Ex. 9.)
On August 21, plaintiff received a faxed travel authorization allowing him to drive from Richmond to Washington on Mondays, stay in Washington for the week, and then return to Richmond on Friday afternoons. (Def.'s Ex. 11 (travel authorization).) However, plaintiff maintains that before he received the fax, he had already signed a lease and paid cash for a one-bedroom basement apartment in Woodbridge, Virginia, for $4500 per month. (Def.'s Ex. 33 at 142-45; Pl.'s Exs. 7-9.) Plaintiff, however, never occupied the unit that he had rented from Ronald Pope, a business associate (Def.'s Ex. 33 at 140-41; Pl.'s Ex. 9), and indeed, reported for less than two full days of work in Washington before taking seven months of administrative, annual, and sick leave. (Compl. ¶ 14; Def.'s Ex. 33 at 204-05.) On October 11, 2002, Rountree submitted a travel voucher seeking reimbursement for $4801.15 in expenses incurred during his 1.75 day detail in August, including the lease for the Woodbridge apartment. (Def.'s Ex. 14, Enclosure 1.) Because of the "amount and unusual nature of [Rountree's] request for travel reimbursement," on October 29 Newbill informed plaintiff that he had requested that the USDA Office of the Inspector General ("OIG") look into the matter. (Def.'s Ex. 16.)
Similarly, on October 17, 2002, Newbill informed Rountree that plaintiff's government credit card contained questionable charges. (Def.'s Ex. 15.) The OIG also investigated this alleged misuse and documented numerous instances when Rountree's card had been improperly used for personal transactions. (Def.'s Ex. 28.) Rountree explained that the "card has been used on numerous occasions without my knowledge by a relative who had access to my card and PIN number," and he pledged to safeguard the card in the future. (Def.'s Ex. 15.)
Nonetheless, on November 22, 2002, based on the OIG Special Agent's swearing out of two criminal affidavits, plaintiff was arrested in Virginia on state charges of felony embezzlement and felony credit card fraud involving $5322 in questionable credit card charges from December 18, 2000 to January 31, 2002. (Def.'s Ex. 18 at 9, Ex. 32 at 109-110.) Ultimately, one of these charges was nolle prosequied and the other was dismissed, in part because the presiding state court judge believed the matter belonged in federal court. (Def.'s Exs. 31, 32 at 110-11.)
On January 16, 2003, Newbill withdrew the proposed demotion of Rountree and replaced it with a removal proposal. He based the proposed action on plaintiff's submission of a false travel voucher, misuse of his government credit card, deficient service to customers, an appearance of favoritism towards Prince, and the creation of an uncomfortable and tense working environment. (Def.'s Ex. 14.) The matter was then the subject of a full administrative process and based on the report and recommendation of Scarlett L. Smith, a Human Resources Specialist, the USDA Rural Development Deputy Administrator for Operations and Management in Washington, D.C., Shirley Hinton Henry, decided that removal was warranted. (Def.'s Exs. 17, 18.) At a result, plaintiff's tenure with USDA ended on September 5, 2003.
Rountree initially alleged discrimination against him by Newbill in a letter to the USDA Director of Civil Rights on February 1, 2002. (Def.'s Ex. 20.) Plaintiff ultimately filed a formal discrimination complaint on November 8, 2002, and the agency agreed to investigate whether it "subjected the Complainant to harassment based [on] race (African/American), sex (male), and reprisal (for prior EEO activity)." (Def.'s Ex. 24 at 3-4.) On July 7, 2004, the Office of Civil Rights rejected plaintiff's claim. (Id. at 14.)
Plaintiff also appealed his termination to the MSPB. After an evidentiary hearing on March 2-3, the Administrative Judge sustained the penalty of removal in her Initial Decision, issued on March 26, 2004. (Def.'s Ex. 25 (MSPB Initial Decision).) This decision became final on April 30, 2004.
Rountree has now sued alleging race and sex discrimination and retaliation in violation of Title VII and attacking the decision of the MSPB on the grounds that it was arbitrary, capricious, and unsupported by substantial evidence. Plaintiff seeks retroactive reinstatement, back pay, expungement of negative information from agency records, and compensatory damages. (Compl. at 9-10.)
The Secretary argues that summary judgment in his favor is warranted because plaintiff cannot make a prima facie case of discrimination or of retaliation, or, alternatively, because defendant had legitimate business reasons for its actions and plaintiff cannot prove that those reasons are pretextual. Defendant also seeks affirmance of the MSPB 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, 247-48 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his ...