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Cross v. Samper

August 15, 2007


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Two questions are presented by the parties' pending motions in this case, in which Plaintiff Michael E. Cross sues his employer, the Smithsonian Institution, for alleged retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and alleged violations of his constitutional rights under the First and Fifth Amendments to the United States Constitution. At a hearing with the parties on June 26, 2007, the Court indicated an initial predisposition to dismiss the constitutional claims as moot inasmuch as Mr. Cross is already reinstated and entitled to full back pay based on his victory in a whistleblowing lawsuit before the Merit Systems Protection Board ("MSPB"). See Def.'s Report Regarding Status of MSPB Proceeding [Dkt. #57].*fn2 Mr. Cross has filed a brief arguing that the constitutional claims are not moot, which the Smithsonian opposes. See Pl.'s Resp. to Show Cause Order Regarding Constitutional Claims [Dkt. #64] ("Pl.'s Mem."). In addition, the Smithsonian moves to reduce any Title VII compensatory damages by the introduction of after-acquired evidence, which Mr. Cross opposes. See Def.'s Mot. to Reduce Title VII Compensatory Damages by the Introduction of After-Acquired Evidence [Dkt. #63] ("Def.'s Mem.").

The Court concludes that Title VII and the Civil Service Reform Act ("CSRA"), 5 U.S.C. § 1101, et. seq., provide comprehensive and exclusive schemes for the redress of employment disputes by federal employees. Therefore, the constitutional claims must be dismissed. The Court is persuaded by the Fourth Circuit's decision in Russell v. Microdyne Corp., 65 F.3d 1229 (4th Cir. 1995), that the Smithsonian must be allowed to attempt to prove that the after-acquired evidence would have led to Mr. Cross's termination, had it been known earlier. If the proof is satisfactory, the period for which Mr. Cross might receive compensatory damages will be reduced.


Plaintiff Michael Cross was hired as a Museum Specialist with the National Air and Space Museum at its Paul E. Garber Preservation, Restoration, and Storage Facility on April 23, 2001. Am. Comp. ¶ 9. He was terminated on April 12, 2002, about two weeks before his one-year probationary period would have ended. Am. Comp. ¶ 24. Claiming that he was fired in retaliation for protected Equal Employment Opportunity ("EEO") activity under Title VII, and that his constitutional rights were violated, Mr. Cross sued his employer, naming former Secretary of the Smithsonian, Lawrence M. Small, in his official capacity.*fn3 Mr. Cross also filed a claim before the MSPB, asserting that he was fired because of whistleblowing activity.

The Smithsonian filed a motion to dismiss or for summary judgment on Counts 1-3 of the Amended Complaint, which alleged a retaliatory hostile working environment, retaliatory discharge, and retaliatory negative references. See Def.'s Mot. for Summary Judgment [Dkt. #9]. By decision dated September 29, 2006, the Court granted the motion in part and denied in part, dismissing the hostile work environment and retaliatory negative references claims and retaining the retaliatory discharge claim. See September 29, 2006 Memorandum Opinion ("Mem. Op.") [Dkt. #46]. The Smithsonian had also sought dismissal of Counts 4 and 5, alleging constitutional violations, on which the Court deferred, directing that Mr. Cross file a brief in opposition. See Mem. Op. at 31.

In the meantime, on September 7, 2006, an administrative judge of the MSPB had issued an initial decision that granted Mr. Cross's request for corrective action, including reinstatement and back pay, finding that the Smithsonian discharged him because of whistleblowing activities. The Smithsonian appealed the administrative judge's decision and it was sustained in a Final Order issued by the MSPB on May 9, 2007.*fn4 See supra note 2. With those remedies already granted, the only remaining potential Title VII remedy for Mr. Cross is compensatory damages. He asserts that his constitutional claims survive because he has a claim for declaratory relief and, if he obtains such relief, he will be entitled to attorney's fees under 42 U.S.C. § 1988. See Pl.'s Mem. at 1 n.1.


A. Constitutional Claims

Mr. Cross argues that his constitutional claims are not moot because he can still get a declaration of his rights and attorney's fees.*fn5

After studying the competing arguments, the Court concludes that the comprehensive and exclusive schemes of the CSRA and Title VII bar Mr. Cross's constitutional claims. Each of Mr. Cross's communications that he asserts were protected by the Constitution arose in the context of his employment: he was complaining about alleged sexual harassment and supervisory misconduct. Title VII is the "exclusive and pre-emptive" remedy available to federal employees asserting claims related to EEO protected activity or statements. Brown v. Gen. Services Admin., 425 U.S. 820, 829 (1976). Any of Mr. Cross's statements that address issues and rights arising under Title VII cannot, therefore, sustain his constitutional claims. He has reluctantly admitted as much. See Pl.'s Opp. to Def.'s Mot. to Dismiss, or in the Alternative, for Sum. J., as to Counts 4 and 5 of the Am. Compl. at 6 [Dkt. #50].

Despite the fact that the Amended Complaint describes every one of Mr. Cross's activities as "protected EEO activity," Am. Compl. ¶¶ 14-20, he now asserts that other statements, not otherwise EEO activity, support his constitutional counts. The Supreme Court has addressed this variation in Bush v. Lucas, 462 U.S. 367, 389-90 (1983), holding that the CSRA provides comprehensive and substantive protection to a federal employee asserting a claim of a constitutional violation, such as retaliation for engaging in speech protected by the First Amendment, and therefore bars any separate civil action. See also Convertino v. U.S. Dep't of Justice, 393 F. Supp. 2d 42, 48 (D.D.C. 2005) (CSRA provided recourse for alleged First Amendment violation).

Mr. Cross argues that the CSRA cannot bar his constitutional claims because, as a probationary employee, he was not eligible to file a complaint under the CSRA. Supreme Court and D.C. Circuit jurisprudence caution otherwise. Bush v. Lucas relied on the CSRA to bar Bivens*fn6 complaints by federal employees even in cases where there would be "'no remedy whatsoever for short suspensions or for adverse personnel actions against probationary employees.'" Spagnola v. Mathis, 859 F.2d 223, 228 n. 8 (quoting Bush v. Lucas, 462 U.S. at 385 n.28). The fact that Mr. Cross cannot end-run the CSRA and advance constitutional claims in court is no injustice. First, Congress specifically barred probationary employees from appealing adverse personnel actions to the MSPB. Second, the CSRA establishes a comprehensive scheme for handling personnel disputes arising in the federal sector and its choices of remedies (or no remedies) must be respected by the courts. Third, Mr. Cross's actions at issue here all entailed workplace issues: in fact, he has to strain mightily to identify anything in his email to former Secretary Small that was not either protected activity under Title VII or whistleblowing. In fact, Mr. Cross filed a whistleblower complaint and MSPB ordered him reinstated with backpay. This is just not a case in which the Court needs to constitutionalize the workplace to afford a remedy to a beleaguered employee.

Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984), on which Mr. Cross relies, does not suggest a different result. The employee in Clark alleged that he was harassed because he was a member of a specific political organization, not because of any activity covered by the EEO statutes or the CSRA. The Clark plaintiff had recourse to ...

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