MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Aaron
Darnell Grant appeals a 2015 Final Order from the Merit
Systems Protection Board sustaining his second removal from
the Department of the Treasury in 2013. Appearing pro
se, Mr. Grant asserts that the 2015 Final Order did not
sufficiently weigh his proffered explanations for the
incidents leading to his removal against Treasury's
reasons for discharge. Secretary of the Treasury Steven T.
Mnuchin, sued in his official capacity, moves for summary
judgment; Mr. Grant opposes. The Court has fully considered
the record and conducted a telephone conference call with the
parties, as requested by Mr. Grant.
I.
FACTS
Aaron
Darnell Grant worked as a Special Agent conducting criminal
investigations for the Internal Revenue Service (IRS or
Agency), an agency within the Department of the Treasury. He
was discharged for various forms of misconduct in 2010.
See 9/28/17 Mem. Op. [Dkt. 29]. Mr. Grant was
reinstated to the IRS on September 4, 2012, after the Merit
Systems Protection Board (MSPB) found errors in the
Agency's handling of his discharge but without reaching
the merits.[1] Notice, Ex. 32, 2014 MSPB Initial
Decision, AR 4190-91.[2] On his first day back at work after his
reinstatement in 2012, Mr. Grant met with his first- and
second-line supervisors, Supervisory Special Agent (SSA) Troy
Burrus and Special Agent in Charge (SAIC) Rick Raven,
respectively. Id. SAIC Raven, who had had no role in
any of the relevant prior events, told Mr. Grant that he
would review the whole matter and, upon doing so, might
re-propose Mr. Grant's removal. Id. On November
9, 2012, Mr. Grant filed an EEO complaint, alleging
discrimination based on his alleged disability (alcohol
dependence) and retaliation for his successful appeal to the
MSPB; he did not allege that his race or sex was a basis for
any allegedly discriminatory actions. See Notice,
Ex. 30, Pl.'s Formal EEO Compl., AR 185-88. This November
2012 EEO complaint is not before this Court.
See 9/28/17 Mem. Op. [Dkt 29] at 12
n.2.[3]
By
notice dated December 7, 2012, the Agency informed Mr. Grant
that it was proposing his removal again for three separate
reasons: (1) being less than candid in a matter of official
business (lack of candor); (2) failing to follow established
Agency procedures; and (3) failing to cooperate in an
official investigation. Notice, Ex. 18, Second Proposal to
Remove (Second Proposal), AR 217-18. The Second Proposal set
forth several “specifications” in support of each
reason. Each specification detailed at least one alleged
violation of outstanding instructions:
Reason
1: You were not candid in a matter of official business.
Specification 1: On April 30, 2010, [Treasury Inspector
General for Tax Administration (TIGTA)] investigators asked
you whether you had ever been in a car accident in your
Government-Owned Vehicle (GOV). Your response, under oath,
was “no.” On May 3, 2010, while under oath, you
told TIGTA investigators that on January 24, 2009, you were
involved in a car accident while driving your GOV. In your
affidavit dated May 3, 2010, you also stated that you were in
an accident while driving your GOV. You were not candid in
your response to TIGTA's official inquiry on April 30,
2010, regarding a matter of official business.
Specification 2: On April 30, 2010, TIGTA investigators asked
you whether you had ever lost your credentials. Your
response, under oath, was “no.” On May 3, 2010,
while under oath, you told TIGTA investigators that you had
briefly lost your credentials while addressing a car
accident. In your affidavit dated May 3, 2010, you also state
that you briefly lost your credentials. You were not candid
in your response to TIGTA's official inquiry on April 30,
2010, regarding a matter of official business.
Reason
2: You failed to follow established procedures.
Specification 1: On or around January 24, 2009, you were
involved in a car accident while driving your GOV. Agency
procedures required you to immediately report any accident
with your GOV to your supervisor. You did not do so.
Therefore, you failed to follow established procedures.
Specification 2: On or around January 24, 2009, you were
texting while driving your GOV which resulted in a car
accident. You are responsible for exercising accident
prevention and safe driving while operating a GOV. You failed
to do so. Therefore, you failed to follow established
procedures.
Specification 3: In or around January 24, 2009, while on
duty, driving your GOV, and wearing your Service-issued
firearm, you stopped for lunch. During lunch, you consumed
two to five Long Island Iced Teas, an alcoholic beverage.
When you finished lunch, you re-entered your GOV and drove it
to another destination. As a special agent, you are
prohibited from consuming intoxicants at any time during the
workday, including mealtimes, periods of leave when you
intend to return to duty that day, and any time that you are
operating a GOV or carrying a firearm. Your consumption of
alcohol while on duty and while wearing your Service-issued
firearm constituted a failure to follow established
procedures.
Specification 4: On or around March 31, 2010, you consumed
three to four Long Island Iced Teas, an alcoholic beverage,
while attending a coworkers [sic] birthday party after hours.
You left the party at approximately 9 p.m. and walked back to
the office. You left the office at approximately 12 midnight
driving your GOV. You are responsible for exercising accident
prevention and safe driving while operating a GOV. You are
also required to be able to respond in a safe and timely
manner 24 hours a day. Your operation of your GOV after
consuming alcohol constituted a failure to follow established
procedures.
Reason
3: You failed to cooperate in an official investigation.
Specification 1: On May 3, 2010, while under oath, you told
the TIGTA investigator that you no longer had the contact
information for the other motorist involved in a car accident
you had with your GOV. You told the TIGTA investigator that
you would try to find the contact information. On May 14,
2010, the TIGTA agent telephoned you to see if you had
located the requested contact information. You informed the
agent that you would allow TIGTA to see the information but
would not allow TIGTA to keep it and then you ended the
telephone call. On May 17, 2010, you telephoned the TIGTA
agent and asked how providing the requested contact
information would help your case. The TIGTA agent advised you
that the information was needed as part of the investigation.
You never provided TIGTA with the requested contact
information, which constituted a failure to cooperate in an
official investigation.
Id. The Second Proposal also recited the materials
the Agency relied upon in proposing Mr. Grant's removal,
notified Mr. Grant of his right to review those materials,
and provided the contact information for the Agency's
Human Resources Specialist to whom he should address his
request for the materials. Id. at ¶ 219-22.
On
December 21, 2012, the Agency notified Mr. Grant that
additional documents would be considered in support of the
Second Proposal and provided him with copies of those
documents. Notice, Ex. 19, Agency Letter re Additional
Documents, AR 223. On January 17, 2013, Mr. Grant submitted
his written response to the Second Proposal Letter,
contesting each reason set forth in support of his proposed
removal. Notice, Ex. 28, Pl.'s Reply to Second Proposal,
AR 206-09.
With
respect to the lack of candor charge, Mr. Grant contended
that his collision with another vehicle while in his
government-owned vehicle was a “near miss, ” not
an accident, and that he had temporarily misplaced rather
than “lost” his official credentials.
Id. at 206-07; see also Pl.'s Statement
of Genuine Issues in Opp'n to Def.'s Mot. for Summ.
J. (Pl.'s SOF) [Dkt. 46-2] at 6; cf
2nd Am. Compl. [Dkt 23] ¶ 5
(“Plaintiff's government-owned vehicle (GOV) came
in contact with another vehicle.”).
With
respect to the charge of failure to follow established
procedures, Mr. Grant contested specifications one, two, and
four, and admitted the third, that he had consumed alcohol
while wearing his Service-issued firearm. He argued that: (1)
since he was not in a car “accident, ” he was not
required under Agency policy to report the event,
see Mem. in Supp. of Pl.'s Opp'n to
Def.'s Mot. for Summ. J. (Opp'n) [Dkt. 46-1] at 5-6;
(2) the Agency had no specific policy prohibiting texting
while driving and the practice had not been banned by an
Executive Order at the time of the incident in January 2009,
see id.; and (3) the Agency failed to introduce
objective evidence to prove that he was intoxicated to a
specific legal standard when he drove home on the night in
question. 2d. Am. Compl. ¶ 96.
With
respect to the charge of failure to cooperate in an official
investigation, Mr. Grant believed that he was not required to
provide the TIGTA investigator with contact information for
the other motorist involved in the January 24, 2009 accident
because it would have violated his Fifth Amendment privilege
against self-incrimination. See Opp'n at 7.
On
January 30, 2013, the Agency notified Mr. Grant that it had
sustained all reasons and specifications in the Second
Proposal and that his removal was effective as of that day.
Notice, Ex. 29, 1/30/13 Decision Sustaining Second Proposed
Removal, AR 202-05. The Deciding Official for the proposed
removal was Sean P. Sowards, Deputy Director, Criminal
Investigation. Id.
On
December 11, 2013, Mr. Grant filed an appeal with the MSPB
from the Agency's Decision on his second removal; he also
alleged that discrimination and retaliation caused his
discharge, based on his disability and prior protected
activity. Notice, Ex. 32, 2014 MSPB Initial Decision, AR
4162. On July 17, 2014, MSPB Administrative Judge Andrew
Niedrick issued an Initial Decision upholding the
Agency's findings on all charges and specifications that
were asserted for Mr. Grant's second removal.
Id. at ¶ 4158-213. Mr. Grant filed a timely
Petition for Review by the MSPB. Notice, Ex. 33, 2015 MSPB
Final Order, AR 4471. The two sitting members of the MSPB
affirmed the Administrative Judge's decision on May 27,
2015, modifying it only to “clarify the administrative
judge's analysis that [Plaintiff] failed to prove his due
process claims.” Id.
Mr.
Grant filed his Complaint in this Court on June 26, 2015, and
subsequently filed an Amended Complaint [Dkt. 7] on November
11, 2015 and the operative Second Amended Complaint [Dkt. 23]
on August 19, 2016. He alleged violations of the Civil
Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et
seq., Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. § 2000e et seq., and the
Rehabilitation Act of 1973 (Rehab Act), 29 U.S.C. § 701
et seq. On the government's motion for partial
summary judgment, this Court reviewed Mr. Grant's
discrimination claims under Title VII and Rehab Act de novo.
Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988).
Those allegations were dismissed on September 28, 2017,
leaving open for review Mr. Grant's appeal of MSPB's
decision under the CSRA sustaining his second removal.
See 9/28/17 Mem. Op. [Dkt. 29]; 9/28/17 Order [Dkt.
30]. The Court experienced an extended illness and several
extensions of briefing deadlines were granted so the
immediate motion for summary judgment did not become ripe for
decision until January 31, 2019.
Almost
immediately thereafter, on February 5, 2019, Mr. Grant filed
an “Emergency Motion for Telephonic Conference.”
Mot. for Telephonic Conference (Mot. for Tel. Conf.) [Dkt.
50]. In that motion, he asserted inter alia that the 2010
TIGTA Report of Investigation used in the removal proceedings
was “fraudulent, ” and “tampered with by
agency officials to hide their misconduct before/during/after
the TIGTA investigation.” Id. at 1. The
government filed an Opposition and Mr. Grant filed a Reply.
See Def.'s Opp'n to Pl.'s Mot. for a
Telephonic Conference (Opp'n to Tel. Conf.) [Dkt. 51];
Pl.'s Reply to Def.'s Opp'n to Pl.'s Mot. for
a Telephonic Conference (Reply re Tel. Conf.) [Dkt. 52]. The
Court conducted a telephone conference with the parties on
March 28, 2019. It addresses the motion below.
II.
LEGAL STANDARD
A.
District Court Review of “Mixed” Cases Before the
MSPB
This
matter involves Mr. Grant's appeal from the 2015 MSPB
Final Order sustaining his second discharge in 2013. See
9/28/17 Mem. Op. at 14; 2d Am. Compl. The MSPB has
jurisdiction over violations of the CSRA. As a general rule,
jurisdiction over an MSPB Final Order lies in the Federal
Circuit. See 5 U.S.C. § 7703. However, the
instant matter came to this Court as a “mixed”
case, meaning that it involves “both an agency action
reviewable by the MSPB (e.g., removal [under the CSRA]) and
allegations that the action was motivated by unlawful
discrimination.” Koch v. White, 251 F.Supp.3d
162, 169 (D.D.C. 2017); see also 5 U.S.C. §
7703(b)(2). When an employee appeals an MSPB decision
covering violations of both the CSRA and federal
antidiscrimination laws, jurisdiction lies in the federal
district court. 5 U.S.C. § 7703(b)(2); Ikossi v.
U.S. Dep't of Navy, 516 F.3d 1037, 1042 (D.C. Cir.
2008); Williams v. U.S. Dep't of Army, 715 F.2d
1485, 1491 (Fed. Cir. 1983) (“We hold that where
jurisdiction lies in the district court under 5 U.S.C. §
7703(b)(2), the entire action falls within the jurisdiction
of that court and this court has no jurisdiction, under 5
U.S.C. § 7703(b)(1), over such cases.”). Where, as
here, the Board granted a petition for review of the
Administrative Judge's decision, the Board's decision
constitutes the Final Agency Decision. See White
v. Tapella, 876 F.Supp.2d 58, 65 (D.D.C. 2012).
Different
standards apply to this Court's review of an MSPB
decision on adverse personnel actions under the CSRA and its
review of an MSPB decision on discrimination claims.
SeeHayes v. U.S. Gov't Printing
Office,684 F.2d 137, 139 (D.C. Cir. 1982). A court
considers a CSRA appeal to determine only whether the MSPB
decision was “arbitrary or capricious, obtained without
compliance with lawful procedures, unsupported by substantial
evidence[, ] or otherwise not in accordance with law, ”
Barnes, 840 F.2d at 979. See Hayes, 684 F.2d at 137.
In contrast, this Court conducted a de novo review of Mr.
...