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Grant v. Mnuchin

United States District Court, District of Columbia

March 29, 2019

AARON DARNELL GRANT, Plaintiff,
v.
STEVEN T. MNUCHIN, Secretary, United States Department of Treasury, Defendant.

          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. ...


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