The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff is an attorney formerly employed by the Drug Enforcement Agency (DEA) who was suspended and then terminated for off-duty misconduct. She brought suit against the DEA alleging gender and race discrimination and retaliation for her past EEO activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and age discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 631 et seq. She further asserts that the decision of the Merit Systems Protection Board ("MSPB") affirming her suspension and removal was not based on "substantial evidence," see Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001), and therefore violated the Civil Service Reform Act of 1978 ("CSRA"), as amended, 5 U.S.C. §1101 et seq. Plaintiff's age and gender discrimination claims were dismissed with prejudice in an Order issued by this Court on March 19, 2004. Defendant now moves for summary judgment as to the remaining counts. For the reasons set forth below, the Court finds that defendant's motion should be granted.
Plaintiff worked as an attorney-advisor in the DEA Office of the Chief Counsel from 1978 until September 21, 2000. (Am. Compl. & Answer to Am. Compl. ¶¶ 6, 36.) At the time of her termination, she was working in the Administrative Law Section of the Office of the Chief Counsel. (Am. Compl. ¶ 4.) The events leading to plaintiff's removal from federal service took place on December 12, 1998.*fn1 Early that morning, plaintiff was arrested and charged with obstruction of justice following a confrontation with four policemen from Fairfax County, Virginia. (Def.'s Facts ¶ 4.) The officers were responding to a 911 call alerting them to a domestic disturbance at the home of Carl Jackson, a friend of the plaintiff's. (Def.'s Facts ¶¶ 4-5.) Plaintiff asserts, and the defendant does not contest, that she and Jackson arrived at the house after the 911 call had been made but before the police arrived. (Pl.'s Opp. at 5.) Soon after arriving, the police determined that the dispute leading to the 911 call involved Jackson's son, Carl Jackson III (hereinafter Jackson III). Jackson III and his girlfriend, Leila Jackson (hereinafter Ms. Jackson), had gotten into a fight that led to her calling 911, but the fight was resolved and his girlfriend left before the police arrived. (Def.'s Ex. 1-D (Report of Officer Bassett).) The officers asked for Ms. Jackson's telephone number so that they could verify that she was no longer at Jackson's house. Jackson asked plaintiff to watch the door while he went to get Ms. Jackson's number. While Jackson was inside, plaintiff attempted to close the front door despite the officers' instructions not to. One officer kept his foot in the door to prevent her from shutting it. (Id.)
Jackson returned with his address book and though he claimed not to have the number, one of the officers saw Ms. Jackson's number as Jackson flipped through the pages. (Def.'s Ex. 1-D (Report of Officer Buck).) One of the officers called Ms. Jackson to ensure that she had safely left the premises. While speaking to the officer, Ms. Jackson received a call from plaintiff, who, according to Ms. Jackson, wanted her to tell the police that they were no longer needed at the house. (Id.) According to Ms. Jackson's later sworn court testimony, she received three or four phone calls from plaintiff during the time when the police were at Jackson's house. (Def.'s Ex. 1-H.) Ms. Jackson informed the police that Jackson III lived at the house and had been there when she left. The officers then ran a computer check on Jackson III and discovered three outstanding warrants for his arrest. (Def.'s Facts ¶ 7.) The officers informed Jackson, who was outside the house at that time, that they were going to enter the premises to search for Jackson III, with or without his permission. They banged on the door, and plaintiff opened it slightly, at which point Jackson attempted to block the officers from entering. A physical altercation ensued and Jackson was handcuffed and placed in a police cruiser. (Def.'s Ex. 1-D (Report of Officer Bassett).) Plaintiff proceeded to block the officers' access to the rest of the house after they entered through the front door. (Def.'s Ex. 1-D (Report of Officer Crooke).) Plaintiff was asked not to impede their progress, then warned that she would be arrested for obstruction of justice if she did not obey their instructions. According to the police, plaintiff refused to cooperate and was arrested, handcuffed and placed in a police cruiser. The police then arrested Jackson III, who was upstairs in the house. (Id.) All three were taken to the Fairfax County Adult Detention Center where. During the booking processing, plaintiff provided inaccurate personal information to the police, both misspelling her name and giving her brother's address as her home address. (Def.'s Ex. 1-D (Report of Officer Buck); Def.'s Ex. 1-I (Proposal Letter, Removal).)
II. Plaintiff's Suspension
Following her release from custody, plaintiff contacted her supervisor, DEA Associate Chief Counsel Charles Walden, and informed him of her arrest. (Def.'s Ex. 1-B.) At a meeting on December 14, 1998, DEA Chief Counsel Cynthia Ryan, Chief Inspector Felix Jiminez and Deputy Administrator Donnie Marshall decided that the DEA Office of Professional Responsibility ("OPR") should open an investigation. Based on the results of the OPR investigation, on January 21, 1999, Deputy Administrator Marshall proposed that plaintiff be indefinitely suspended without pay pending the adjudication of her criminal charge. (Def.'s Ex. 1-E.) The proposal letter stated, "[o]bstruction of justice is incompatible with service as a legal representative of a law enforcement agency in the Department of Justice," and therefore suspension was necessary "to promote the efficiency of the service." (Id.) Catherine Reeves, the Deputy Director of the Office of Attorney Personnel Management ("OAPM") at the Department of Justice, approved plaintiff's indefinite suspension, finding "reasonable cause to believe that [plaintiff] committed the crime of obstruction of justice." (Def.'s Ex. 1-F.) As a result, plaintiff was suspended without pay pending the resolution of the criminal charge.
III. Plaintiff's Removal from Federal Service
A bench trial was held on May 26, 1999, in the Fairfax County General District Court. The judge dismissed the charge of obstruction of justice after only one officer appeared to testify, finding the charge had not been proven beyond a reasonable doubt. (Def.'s Ex. 1-G.) In response, the DEA lifted plaintiff's indefinite suspension and placed her on administrative leave with pay. OPR continued its investigation and issued a final report on October 13, 1999. (Def.'s Ex. 1-H.) The report, which was based on sworn interviews with the participants, the Fairfax County police reports, and the trial transcript, presented both the officers' and the plaintiff's account of the events of December 12, 1998. After reviewing the OPR report, DEA Deputy Administrator Marshall proposed terminating plaintiff from federal service and explained the bases for his recommendation in a letter dated April 13, 2000. (Def.'s Ex. 1-I.) The letter charged plaintiff with Conduct Unbecoming a DEA Employee, Making False Statements and Poor Judgment. The Deputy Administrator detailed four instances of Conduct Unbecoming an Employee: attempting to impede the officers' entry into Jackson's house; being combative and refusing to cooperate when being placed in the police cruiser; providing incorrect personal information to the police after her arrest; and failing to obtain a Virginia driver's license -- a violation of state law. The Deputy Administrator cited the "consistence and detail" of the officers' testimony in finding their account of the events "more credible than [plaintiff's]." (Id.) The False Statements charge was based on plaintiff's testimony that she did not know Ms. Jackson prior to the night of the arrest and her mischaracterizations regarding her phone calls to Ms. Jackson while the police were at Jackson's house. The Deputy Administrator considered plaintiff's testimony to be "false" with respect to the number of times she called Ms. Jackson and the purpose of those calls, finding it "likely that you called Ms. Jackson to reproach her for having called the police in the first place and to urge her . . . to tell the police that everything was okay so they would go away." (Id.) Plaintiff was charged with Poor Judgment because of her attempt to contact Ms. Jackson at a time when she knew the police were trying to reach her. The Deputy Administrator also took into account plaintiff's performance record during her tenure at the DEA, including several past disciplinary actions. Finding plaintiff's actions "incompatible with service as a legal representative of a law enforcement agency in the Department of Justice," the Deputy Administrator proposed that plaintiff be terminated from federal employment. (Id.)
In a letter dated September 21, 2000, Deputy Director of the OAPM Catharine Reeves, upheld the Deputy Administrator's recommendation and removed plaintiff from federal service. (Def.'s Ex. 1-J.) Reeves found that the evidence supported three of the four specifications of Conduct Unbecoming a DEA Employee, rejecting only plaintiff's failure to obtain a Virginia driver's license as a basis for termination, and sustained the charges of Making False Statements and Poor Judgment. (Id.) Reeves took into account plaintiff's positive performance rating but also noted her three prior disciplinary actions, finding that she had "a history of failing to take responsibility for [her] actions and of being less than honest and cooperative in investigations of [her] prior misconduct." (Id.) Seeing "no ... potential for rehabilitation," Reeves determined that removal was necessary "to promote the efficiency of the service." (Id.)
Plaintiff's appeals to the MSPB and the DOJ's Equal Employment Opportunity Office were consolidated before the MSPB, which issued a final decision affirming plaintiff's suspension and removal on August 12, 2002. (Def.'s Ex. 1-L.)
This Court previously dismissed with prejudice plaintiff's claims in Counts III, V and VI for sex and age discrimination. Defendant now moves for summary judgment on the remaining claims alleging race discrimination (Counts I and II), ...