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Robert O. White, Sr v. Robert C. Tapella

July 11, 2012


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,



This case is a mixed case appeal of a Merit Systems Protection Board ("MSPB") decision, in which plaintiff Robert O. White, Sr. alleges that (1) race discrimination motivated the underlying decision of the U.S. Government Printing Office (GPO) to discipline him for failure to observe post orders, in violation of Title VII, 42 U.S.C. § 2000e, et seq. (Count One); and (2) the MSPB's decision was arbitrary and capricious or otherwise violated the standards of review enumerated in 5 U.S.C. § 7703(c) (Count Three).*fn1 Before the Court is defendant's Motion [52] for summary judgment. Upon consideration of the Motion, the opposition [54], the reply [57], the entire record in this case, and the applicable law, the Court will GRANT defendants' Motion. The Court will explain its reasoning in the analysis that follows.


A.Factual Background

Beginning in 1998, plaintiff Robert O. White, Sr. served as a police officer at the Security Services Division of the U.S. Government Printing Office ("GPO"), in its Uniformed Police Branch. Plaintiff White is African-American. In August 2006, White received an 89-day temporary appointment to a Supervisory Police Officer (Sergeant) position. White served as Acting Sergeant on each shift he worked during the 89-day term of his temporary appointment.

On October 29, 2006, White served as officer in charge of the first shift (7 a.m. to 3 p.m.) and supervised four subordinate officers. As officer in charge, White completed the first shift report, which is included in the daily activity log-a chronological account of events that occurred throughout the day at various posts in GPO's facilities. The log entry for October 29 at 7 a.m. reflected that White instructed subordinate officers that all vehicles and persons entering the facility are to be inspected or screened and that all personnel are to possess the proper identification.

After completing the first shift, White worked eight hours of overtime duty on the second shift (3 p.m. to 10 p.m.) and was assigned to Post 32, but also roved between posts to relieve other officers when they took breaks. When Officer Darnelle Everett-White's subordinate- took a meal break from Post 41 at 5:20 p.m., White covered the post and radioed headquarters of that fact.

Post 41 is located inside a secure facility known as Building IV at 735 North Capitol Street, N.E., Washington, D.C. The post is to be staffed by a single GPO officer who is responsible for enforcing post orders, a series of directives designed to ensure the safety and security of that post. White's first-line supervisor, LaMont Vernon, e-mailed plaintiff a draft version of a revised order for Post 41 on August 23, 2006 at 2:15 p.m. The revised Post Order 41 was officially adopted on October 20, 2006, and thereafter guided the conduct of all GPO officers assigned to Post 41.

Pursuant to that order, the officer stationed at Post 41 is "responsible for the identification, inspection, and control of all persons, e.g., GPO employees, visitors, contractors, messengers, vendors, other Government Agency employees, etc. entering and departing through the lobby area." Def.'s Mot. [19] for Summ. J., Ex. K ("Post Order 41"), at 2. Post Order 41 also charged the officer assigned with "detecting and preventing the loss or damage of government and personal property, preventing the introduction of explosive or incendiary devices, illegal firearms, illicit drugs, all alcoholic beverages or other contraband that enter the U.S. Government Printing Office, Passport Building Complex." Id. All visitors to Post 41 must be escorted at all times, provide identification, and sign a register logging their entry and departure times. Id. at 5.

According Post Order 41, Post 41 is an especially sensitive location because Building IV houses a secure area in which sensitive and controlled printed items, including blank Department of State passports, are produced. Id. at 5. The access control area-that is, the space between the lobby and the entry door to the secured sections of Building IV-was equipped with a magnetometer and an x-ray machine for screening visitors and their possessions. Id. at 2--3. The right-hand vertical support of the magnetometer bears a strip of red indicator lights, which activate when a metallic object passes through the magnetometer to indicate the approximate location of the metallic object concealed on the individual entering the access control area. Id. at 3. The order requires all persons entering Building IV to pass through the magnetometer and requires that the officer on duty "pay particular attention to the Red Indicator light strip located on the right side of the detector" when screening persons entering the access control area. Id. at 2--3.

Post Order 41 further provides that if a person passing through the magnetometer activates the red indicator lights, the officer must stop the person and, after directing him or her to a location away from the magnetometer, rescreen the person using a hand-held magnetometer. Id. at 3. Officers assigned to Post 41 must ensure that "[a]ll parcels, packages, suitcases, containers, purses, [gym bags] or any other item capable of carrying clothing and equipment [are] screened by x-ray machine prior to entry. All items are to be placed on the x-ray machine conveyor belt for screening." Id. at 3--4.

Post 41 is equipped with a stationary video camera pointed toward the magnetometer, xray machine, and the entrance to the access control area of the post and records a video image of all persons entering and leaving Building IV through Post 41. Post 41 is also furnished with a podium that is equipped with computer monitors within the sight line of the officer on duty. A button controlling access to the entry door to the secured sections of Building IV is adjacent to the podium and can be used without requiring the officer to leave the post. While at the podium, the officer also has access to a console controlling the operation of two turnstile barrier arms positioned between the lobby of Building IV and the magnetometer. When activated, the barrier arms swing from an open, vertical position to a closed, horizontal position blocking entry to the access control area of the post. The access control area is considered a secure area.

When White relieved Officer Everett on October 29, 2006 at 5:20 p.m., White assumed responsibility for observing and maintaining the security procedures of Post Order 41. Part of White's responsibilities as the Post 41 duty officer included the physical inspection and verification of each GPO employee's credentials and access key card. Post Order 41 at 2. When non-GPO employees visit Building IV, the post orders require that White refer them to the main GPO visitor processing facility located at 732 North Capitol Street. Id. Non-GPO employees without identification are not allowed in the lobby or the access control area of Building IV. Id.

The events that transpired during White's assignment to Post 41 on the evening of October 29, 2006 were recorded by a stationary camera mounted at the post. See Def.'s Mot. [19] for Summ. J., Ex. L. At approximately 6:06 p.m., a female acquaintance of Everett entered the lobby of Building IV carrying a white plastic bag. Porter briefly moved in the direction of the magnetometer and looked into the access control area of Post 41, but stopped, did not proceed through the magnetometer, and then left the lobby. Minutes later, at approximately 6:14 p.m., Everett, his female acquaintance, and a second woman entered the lobby of Building IV and approached the turnstile barrier arms between the lobby and the magnetometer.

When Everett returned, White told Everett that he had to relieve another officer, and Everett responded, "I've got it." AR109; AR128--29; AR132. White then used the console controls to lower the turnstile barrier arms, admitting Everett and the two women into the secure area of the post without further screening. With White standing behind the officer's podium inside the access control area, Everett and the two women proceeded through the magnetometer, triggering the red indicator lights. At this time, Everett was holding a cup and a white plastic bag. In the video, both women with him were wearing coats, and one appeared to be carrying a purse over her left shoulder.

Both White and Everett were under the assumption that when Everett told White, "I've got it," Everett became responsible for Post 41 and White was relieved. See AR109; AR128--29; AR132. White said that he expected Everett to properly inspect the two women pursuant to Post Order 41, as he thought Everett had assumed responsibility for the post. Therefore, contrary to the requirements imposed by Post Order 41, White did not: (1) x-ray the contents of the woman's purse or the coats worn by either woman; (2) use the hand-held magnetometer to inspect further the person of either woman after each triggered the red indicator lights; (3) ask either woman to provide him with identification; or (4) require either woman to sign the entry and departure register. Instead, White exited the access control area at approximately 6:14:40 p.m.

On February 6, 2007, LaMont Vernon, GPO Chief of Security Services and White's first-line supervisor, sent White a letter proposing a 14-day suspension for White and a demotion from his position as Lead Police Officer for failing to properly inspect the two women who arrived with Everett, in violation of Post Order 41. See Def.'s Mot. [19] for Summ. J., Ex. M. After receiving White's oral and written response to the proposal, Rafael Landrau, Deputy Chief Human Capitol Officer, sustained the charges and imposed the suspension and demotion. See id., Ex. N. White ...

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