MEMORANDUM OPINION AND ORDER
Jeffrey K. Armstrong brings this action against Norman Y. Mineta, Secretary of the Department of Transportation,*fn1 alleging that the Department of Transportation ("DOT") wrongfully terminated him from his position as a Physical Security Specialist in violation of the Civil Service Reform Act, 5 U.S.C. § 7513 ("CSRA"), and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(a) ("Title VII"). Armstrong asserts that he was terminated because of his race (Black) and because he had engaged in protected equal employment opportunity ("EEO") activity. Before the court is DOT's motion for summary judgment. Upon consideration of the motion, the opposition thereto, and the summary-judgment record, the court concludes that the motion must be granted in part and denied in part.
Armstrong was hired by DOT's Office of Security as a Physical Security Specialist in October 2002. Before joining DOT, Armstrong spent almost four years as a Physical Security Specialist at the Federal Emergency Management Agency ("FEMA") and ten years with the Drug Enforcement Agency ("DEA") during which time he was assigned to various security-related functions.
DOT requires that all Physical Security Specialists "become a Special Deputy U.S. Marshall in order to perform his/her primary protection duties." Def.'s Ex. 1 (Physical Security Specialist (GS-080-13) Position Description). The United States Marshals Service ("USMS") Special Deputation Program, in turn, requires all Special Deputies to have certain qualifications, including the "successful completion of a basic law enforcement training program" and "previous law enforcement experience."*fn2 Def.'s Ex. 2 (USMS Policy Directive No. 99-13). While the Special Deputation Program is administered by USMS, primary responsibility for ensuring that applicants meet the requirements for deputation lies with the requesting agency.
Armstrong first became a Special Deputy when he was employed by FEMA. At FEMA Armstrong was a Physical Security Specialist with responsibilities that included providing executive protection for a FEMA federal coordinating officer and physical security for various facilities utilized by FEMA employees. FEMA required that Physical Security Specialists with these type of protection duties apply for Special Deputy status, a requirement with which Armstrong complied. Armstrong's first request for Special Deputy status was filed on April 8, 1999, and that request was granted shortly thereafter.
Upon Armstrong's October 2002 transfer to DOT, Armstrong was required to reapply for Special Deputy status because the agency sponsoring his application had changed. In connection with this application, DOT certified that Armstrong satisfied all the requirements necessary for Special Deputy status, and the application was granted. On July 2, 2003, Armstrong once again sought to renew his Special Deputy status, and again, the DOT certified that Armstrong was eligible for Special Deputy status. As with the previous application, this application was granted.
Armstrong worked for several months at DOT without incident. In June 2003, however, Armstrong maintains that the then-Acting Director for the Office of Security, Michael Prendergast, began to question the proprietary of Armstrong's use of administrative leave. According to Armstrong, Prendergast expressed concern that he had taken an uncommon number of days off within a five month period. Armstrong believed that his leave was justified and proper, and therefore raised the issue with Lee Privett, Prendergast's supervisor and the Director of Security. According to Armstrong, Privett accepted his explanations and, despite Prendergast's inquiries, ultimately no disciplinary action was taken against him for the alleged abuse of administrative leave.
On August 20, 2003, Armstrong submitted an affidavit during the investigation of an EEO complaint filed by a colleague, Anisa Williams. Williams claimed that she was discriminated against because of her race, and Armstrong supported her claim by submitting an affidavit that recounted the administration's review of his leave record, an effort that Armstrong believed was motivated by racial animus.
Shortly after Armstrong submitted his affidavit, he again experienced difficulty related to his use of leave. In particular, Armstrong alleges that following his participation in the EEO investigation of Williams's complaint, Privett and Prendergast denied his request for leave to undergo a federally-mandated medical examination related to his work in New York City with FEMA immediately after the September 11, 2001 terrorist attacks. Though there are conflicting accounts of the basis for the reversal of the denial, both parties concede that Armstrong was eventually permitted to take his leave and received his medical examination.*fn3
In or around October 2003, Armstrong confronted Privett with Armstrong's belief that the inquiries concerning his use of leave were the result of discrimination. During this meeting, Armstrong told Privett that he believed Prendergast was a racist. According to Armstrong, Privett responded to this accusation by telling Armstrong that he (Privett) was "in a position to harm Mr. Armstrong's career" and "not to 'f**k' with him." Compl. ¶ 14 (alterations in original).
Approximately a month after this meeting, while preparing for a mediation session designed to address Armstrong's prior discrimination-related grievances, Privett noticed "discrepancies" within Armstrong's employment application. Privett states that he had hoped to be able to offer Armstrong a position with a different agency, the Transportation Security Administration ("TSA"), and was therefore preparing Armstrong's resume to be submitted in connection with a job application. One of the discrepancies that Privett discovered was an apparent contradiction between Armstrong's resume, which indicated that he had attended a Federal Law Enforcement Training Center ("FLETC") course in 2002, and his application for Special Deputy status, which indicated that he had completed the FLETC course in 2000. Upon further inquiry, Privett learned that in 2002 Armstrong had attended a two-week introductory course at FLETC that was not designed for criminal investigators. Apparently, Privett had assumed that Armstrong had participated in a more advanced "sixteen week criminal investigator's school." Id. The nature of the FLETC course was significant given that Armstrong had represented that this FLETC course served as his "basic law enforcement training," a necessary predicate for receiving USMS Special Deputy status.
The other discrepancy that Privett observed was a statement that Armstrong had acquired "law enforcement experience" at FEMA. This concerned Privett because he did not believe that FEMA was a law enforcement agency. In order to assuage his fears, Privett contacted FEMA to determine what, if any, law enforcement duties Armstrong performed at the agency. According to Privett, he was told that Armstrong "had no law enforcement responsibilities with that agency." Id. Again, this apparent lack of experience was significant as an additional requirement for Special Deputy status is a year of "prior law enforcement experience."
Ultimately, Privett concluded that Armstrong was not qualified to receive Special Deputation. Accordingly, Privett contacted USMS to apprise the agency of DOT's decision to withdraw its support for Armstrong's continued status as a Special Deputy. After a number of communications between the two agencies, and because primary responsibility for verifying a Special Deputy's qualifications rests with the certifying agency, USMS accepted DOT's assessment of Armstrong's inability to remain a Special Deputy. On January 20, 2004, USMS revoked Armstrong's Special Deputy status.
Once Armstrong was stripped of his Special Deputy status, he failed to meet the qualifications required to remain a Physical Security Specialist. As a result, DOT was faced with two options: reassign Armstrong within DOT or terminate him. DOT asserts that it attempted to locate a suitable position for Armstrong within DOT but no such position existed, therefore termination was the only viable option.
Prendergast issued Armstrong a Notice of Proposed Removal on February 13, 2004. Privett was originally assigned to make the ultimate decision with respect to Prendergast's recommendation of removal. Following a request by Armstrong's counsel, however, DOT decided that in order to remove the appearance of impropriety the deciding official would be Linda Washington, the Deputy Assistant Secretary for Administration. Washington accepted Prendergast's recommendation and issued the Notice of Removal on April 22, 2004.
On May 28, 2004, Armstrong filed a "mixed case" complaint with the Merit Systems Protection Board ("MSPB") in which he alleged that his removal violated both the CSRA and Title VII. MSPB did not issue a decision within 120 days of the filing of Armstrong's complaint and this action followed.
Armstrong claims that (1) he was terminated in violation of the CSRA, (2) he was terminated on the basis of his race in violation of Title VII and, (3) he was terminated in retaliation for his EEO activity, also in violation of Title VII. DOT seeks summary judgment with respect to all counts.*fn4
As a threshold matter, the court must address whether it has subject matter jurisdiction over Armstrong's CSRA claim. The CSRA provides that final decisions of the MSPB are appealable to the U.S. Court of Appeals for the Federal Circuit, which typically has exclusive jurisdiction over such challenges. 5 U.S.C.A. § 7703(b)(1). After review of the agency record, the Federal Circuit will set aside any action, findings, or conclusions it finds to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C.A. § 7703(c).
An exception to the Federal Circuit's exclusive jurisdiction exists, however, when a plaintiff sets forth a claim for a violation of the CSRA in conjunction with a claim of discrimination. When these so-called "mixed cases" are filed, jurisdiction lies with the federal district court. After a final decision from the MSPB, a plaintiff is permitted to appeal both components of a mixed case to the district court. 5 U.S.C.A. § 7703(b)(2); Powell v. Dep't of Defense, 158 F.3d 597, 598--99 (D.C. Cir. 1998). The district court then reviews the discrimination claim de novo, but employs the same deferential standard used by the Federal Circuit when reviewing the administrative record accompanying the CSRA claim.
A plaintiff pursuing a mixed case, however, need not necessarily await a decision from the MSPB before bringing her mixed case to the district court. If the MSPB does not issue a final decision within 120 days of the filing of an appeal, the plaintiff may file a civil action in the district court "to the same extent and in the same manner" as allowed under Title VII and other anti-discrimination statues. 5 ...