Haskins v. Nicholson et al
Filing
73
Memorandum Opinion and Order dismissing 1 Complaint with prejudice. Plaintiff has failed to prove his discrimination or retaliation claims relative to the termination of his employment or the termination of his BCBC insurance coverage. The court further finds that the decision of the MSPB is not arbitrary or capricious, and is in conformity with the law and supported by substantial evidence, as set out herein. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 8/8/12 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MICHAEL HASKINS
PLAINTIFF
VS.
CIVIL ACTION NO. 3:07CV738TSL-JCS
R. JAMES NICHOLSON, FORMER
SECRETARY, AND GORDON H.
MANSFIELD, ACTING SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Haskins filed the present “mixed case
appeal” pursuant to the Civil Service Reform Act (CSRA), 5 U.S.C.
§ 1101 et seq., seeking review of a ruling by the Merit System
Protection Board (MSPB) upholding his termination from employment
by defendant Department of Veterans Affairs (VA).1
In addition,
plaintiff has challenged a separate decision by the Equal
Employment Opportunity Commission on a claim that the VA’s
termination of his health insurance coverage following the
1
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.
§ 1101 et seq., provides certain federal employees the right to
administrative and judicial review of specified adverse employment
actions, including removal. Elgin v. Dep’t of Treasury, — U.S. —,
132 S. Ct. 2126, 2130 (2012) (citations omitted). Pursuant to 28
U.S.C. § 1295(a)(9), the Court of Appeals for the Federal Circuit
has exclusive jurisdiction over an appeal from a final decision of
the MSPB; but “[i]f a case involves a discrimination claim, the
Federal Circuit's jurisdiction is not exclusive and a federal
employee may obtain de novo review of an MSPB decision in such a
‘mixed case appeal’ by filing a civil action in federal district
court.” Orr v. Merit Systems Protection Bd., 379 Fed. Appx. 333,
335, 2010 WL 2008149, 1 (5th Cir. 2010). Haskins has filed a
“mixed case appeal.”
termination of his employment was retaliatory.
By agreement of
the parties, the entire case has been submitted to the court for
decision.
Having considered the parties’ “trial briefs” and the
administrative record, the court concludes that plaintiff has
failed to establish any grounds to reverse the MSPB’s ruling
affirming the VA’s termination decision.
Further, the court,
having reviewed all the record evidence, concludes that plaintiff
has failed to establish that his termination was discriminatory or
retaliatory, or that the termination of his health benefits was
retaliatory.
Accordingly, the court concludes that plaintiff’s
complaint should be dismissed with prejudice.
Plaintiff Haskins, an African-American male, became employed
by the G. B. (Sonny) Montgomery V.A. Medical Center in Jackson,
Mississippi as a Supervisory Biomedical Engineer on May 2, 2005.
At that time, he had been employed by the federal government for
sixteen years, most recently at the VA Medical Center in Amarillo,
Texas.
In late September 2005, several months into Haskins’
employment at the Jackson Medical Center, his direct supervisor,
Don Wainwright, became aware that plaintiff was rumored to be
having an affair with Karen Blocker, a budget technician in the
Medical Center’s Facilities Management Service (FMS) whose
husband, Joe Blocker, was also employed in the Facilities
Management Service, as an electrician.
Joe Blocker had suspected
his wife of an affair with a co-worker, and after discovering an
2
incriminating text message on her cell phone, took the phone to
his supervisor, Jack Christian, who determined that the phone
number from which the message was sent was Haskins’.
Christian
advised Wainwright of what he had learned, and expressed concern
about its effect on Joe Blocker, who was reportedly distraught
over the situation.
Wainwright, in turn, provided this
information to Acting Medical Center Director Rebecca Wiley.
Wiley responded by appointing an Administrative Board of
Investigation (ABI), effective November 10, 2005, which was tasked
to thoroughly investigate the facts and circumstances regarding
allegations that Haskins had created a hostile work environment
within the FMS by entering into and carrying on an alleged
personal/romantic relationship with Karen Blocker.
In addition,
based on information that Haskins had sought outside assistance to
learn how to permanently delete
e-mail correspondence from his government computer, the ABI was
also directed to investigate Haskins’ alleged inappropriate use of
government equipment (i.e. computers, telephones, etc.), space,
and time for non-government business.
Haskins was notified the same day, November 10, 2005, of the
appointment of the ABI.
He was informed contemporaneously that
due to the ABI’s reviewing allegations of inappropriate behavior
in the workplace, he would be detailed to an alternate work
assignment outside of the biomedical engineering section, and he
3
was directed not to make contact during the investigation with any
non-managerial FMS staff.
Commencing December 1, 2005, the ABI met and took the sworn
statements of several individuals purported to have information
bearing on the matters under investigation, including Haskins, Joe
Blocker, Karen Blocker, Don Wainwright and Jack Christian.
In the
meantime, on December 5, 2005, plaintiff was notified that he was
being placed on paid administrative leave from December 6, 2005
through January 6, 2006 pending the outcome of the ABI’s
investigation.2
During his absence, the ABI decided that until it
completed its investigation, Haskins should be placed in a
non-supervisory detail and assigned to another location to keep
him and Joe Blocker from running into each other in the building.
Plaintiff was thus advised on January 6, 2006 that upon his return
to work on January 9, 2006, he would be reassigned to an alternate
work location outside of the Medical Center.
On December 19, 2005, while on administrative leave,
plaintiff submitted a complaint of employment discrimination to
the EEOC, in which he claimed that the VA had taken certain
actions against him on account of his race and sex, and in
2
The VA has explained without contradiction that is the
normal procedure to remove a person who has allegations against
them for their own protection and to ease discomfort of others in
the office when an administrative board of investigation is
ongoing.
4
retaliation for his having previously complained to VA management
and to the EEOC that he had been the victim of sexual harassment
during his employment at the Medical Center.
Ultimately, on February 13, 2006, the ABI issued its report,
finding that Haskins had subjected employees to a hostile work
environment and inappropriately used government equipment for
non-government business.
Following his review of the findings,
Medical Center Director Richard Baltz issued plaintiff a proposed
notice of removal on April 3, 2006, based on charges of lack of
candor; inappropriate use of supervisory authority which impacted
the efficiency and effectiveness of the FMS; failure as a
supervisor to uphold and adhere to VA and Medical Center policies
on employee responsibilities and conduct; seeking unauthorized
external assistance to modify or delete Medical Center information
contained within a VA government computer system; and creating a
hostile work environment for staff that has impacted the
efficiency and effectiveness of the FMS operations.
On May 2,
2006, a final Notice of Removal was issued making plaintiff’s
termination effective June 2, 2006.
Haskins timely filed a mixed case appeal with the Merit
System Protection Board (MSPB), challenging his termination by the
VA and alleging that the termination was caused by discrimination
5
and retaliation in violation of Title VII.3
On October 4, 2006,
the MSPB issued its initial decision upholding the termination;
and following Haskins’ appeal to the full board, a final decision
was issued February 26, 2007 adopting the initial decision.4
3
A federal employee who is terminated and also alleges he
was discriminated against in violation of Title VII presents a
“mixed case.” See 29 C.F.R. § 1614.302 (“A mixed case appeal is
an appeal filed with the MSPB that alleges that an appealable
agency action was effected, in whole or in part, because of
discrimination on the basis of race, color, religion, sex,
national origin, handicap or age.”); see also Chappell v. Chao,
388 F.3d 1373, 1375 (11th Cir. 2004) (explaining that “[a]lthough
the MSPB does not have jurisdiction over discrimination claims
that are not related to adverse actions, it can entertain appeals
in ‘mixed cases,’ where an employee alleges a Title VII violation
in relation to one of the specified adverse employment actions.”)
(citing 5 U.S.C. § 7702; 29 C.F.R. § 1614.302).
4
The Federal Circuit explained that an employee who
intends to pursue a mixed case has several paths available to him:
At the outset, the aggrieved party can choose between
filing a “mixed case complaint” with [his] agency's EEO
office and filing a “mixed case appeal” directly with
the MSPB. By statute, the relevant agency EEO office
and the MSPB can and must address both the
discrimination claim and the appealable personnel
action. Should [he] elect the agency EEO route, within
thirty days of a final decision [he] can file an appeal
with the MSPB or a civil discrimination action in
federal district court. If 120 days pass without a
final decision from the agency's EEO office, the same
avenues of appeal again become available: the
complainant can file either a mixed case appeal with the
MSPB or a civil action in district court.
When a complainant appeals to the MSPB, either directly
or after pursuing [his] claim with the agency EEO
office, the matter is assigned to an Administrative
Judge who takes evidence and eventually makes findings
of fact and conclusions of law. The AJ's initial
decision becomes a final decision if neither party, nor
the MSPB on its own motion, seeks further review within
6
Plaintiff then filed the present action challenging the MSPB's
decision.5
The Fifth Circuit has explained that in a mixed-case appeal,
which presents non-discrimination-based claims and discriminationbased claims,
“discrimination claims raised administratively” are
reviewed de novo”. Aldrup v. Caldera, 274 F.3d 282,
285-86 (5th Cir. 2001) (citing 5 U.S.C. § 7703(c)
(regarding judicial review of MSPB decisions)). On the
other hand, “non-discrimination claims based on the
administrative record” are reviewed with deference; we
“will uphold the [MSPB]'s determinations unless they are
clearly arbitrary and capricious, unsupported by
substantial evidence or otherwise not in accordance with
law”. Id. at 287.
thirty-five days. However, both the complainant and the
agency can petition the full Board to review an initial
decision. Should the Board deny the petition for
review, the initial decision becomes final; if the Board
grants the petition, its decision is final when issued.
At this point, the complainant again has a choice:
within thirty days of receiving a final decision from
the MSPB, [he] can either appeal the discrimination
claim to the EEOC, or appeal the entire claim (or any
parts thereof) to the appropriate district court.
Finally, if the MSPB fails to render a judicially
reviewable decision within 120 days from the filing of a
mixed case appeal, the aggrieved party can pursue her
claim in federal district court.
164 F.3d 634, 638–39 (D.C. Cir. 1999) (citations omitted).
5
In addition to challenging his termination as
discriminatory/retaliatory, Haskins initially attempted to pursue
claims in this cause relating to alleged discrimination and
retaliation experienced during his employment at the VA, i.e.,
pre-termination discrimination/retaliation. Previously, by order
dated January 4, 2010, the court dismissed those claims for
failure to exhaust.
7
Arensdorf v. Geithner, 329 Fed. Appx. 514, 516, 2009 WL 1311511, 2
(5th Cir. 2009).
The court first considers Haskins’ non-discrimination-based
claims.
A decision by the MSPB as to the validity of any
personnel action is not to be set aside unless it is “(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. §7703(c).
"The petitioner
bears the burden of establishing error in the Board's decision."
Harris v. Dep't of Veterans Affairs, 142 F.3d 1463, 1467 (Fed.
Cir. 1998).
"In reviewing the merits of the agency's decision, the
court will not disturb its findings if supported by
substantial evidence based on the record as a whole."
Substantial evidence is more than a scintilla, less than
a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. The reviewing court "may not reweigh the
evidence or substitute its own judgment for that of the
Board even if [it] finds that the evidence preponderates
against the Board's decision."
Frazier v. Secretary of Homeland Security, 626 F. Supp. 2d 618,
626 (E.D. La. 2009) (citations omitted).
Medical Center Director Baltz cited five bases for
plaintiff’s termination, as follows:
lack of candor;
inappropriate use of supervisory authority which impacted the
efficiency and effectiveness of the FMS; failure as a supervisor
to uphold and adhere to VA and Medical Center policies on employee
8
responsibilities and conduct; seeking unauthorized external
assistance to modify or delete Medical Center information
contained within a VA government computer system; and
creating a hostile work environment for staff that has impacted
the efficiency and effectiveness of the FMS operations.
To
justify the decision to terminate plaintiff’s employment, the VA
was required to prove by a preponderance of the evidence that
he, in fact, committed the misconduct for which he was removed;
that his discharge, based on the misconduct, will promote the
efficiency of the service; and that the penalty imposed was within
tolerable bounds of reasonableness based on a consideration of the
factors set forth in Douglas v. Veterans Admininistration, 5 MSPB
313, 5 M.S.P.R. 280, 305–06 (M.S.P.B. 1981)).
See Kugler v.
Department of Agriculture, 397 Fed. Appx. 634, 637, 2010 WL
4008179, 1 (Fed. Cir. 2010); Bonet v. U.S. Postal Serv., 712 F.2d
213, 214 (5th Cir. 1983).
Haskins maintains herein that the
Board’s decision is not supported by substantial evidence, as the
VA wholly failed to establish that he engaged in conduct to
justify his removal from employment.
He further insists that
there is not substantial evidence to support the Board’s finding
of a nexus between the alleged misconduct and efficiency of
service.
Lastly, he submits that even if the VA had proven the
alleged conduct, the penalty of removal was not within the bounds
of reasonableness for the alleged conduct, and a lesser penalty
9
would have sufficed.
The court, having reviewed the
administrative record, concludes the MSPB's decision affirming
plaintiff’s termination is in accordance with the law and
supported by substantial evidence.
Haskins argues that there was not substantial evidence to
support the Board's decision to uphold the charge of lack of
candor.
The lack of candor charge was based on Haskins’ responses
to certain questions posed to him during his December 5, 2005
sworn statement to the ABI during its investigation.
Haskins was
questioned concerning Karen Blocker and was asked specifically
whether he had an affair with Karen Blocker, to which he responded
he did not, and to describe his relationship with Karen Blocker,
to which he responded it was "strictly a working relationship."
In addition, he was asked to describe his personal contact with
Joe Blocker, to which he responded that he had only met Joe
Blocker once, when Blocker came to his office.
In a later
affidavit, Haskins admitted that in fact, he had encountered Joe
Blocker in a hallway on another occasion, but he denied accounts
of Blocker and another witness who had described that encounter as
"heated.”
The AJ found that Karen Blocker’s testimony before the ABI
revealed that she was having a personal or intimate relationship
with plaintiff outside the job and off agency premises; and based
on that finding, the AJ further found that Haskins’ sworn denial
10
to the ABI that he and Karen Blocker were having an affair, and
his assertion that the two had strictly a working relationship,
demonstrated a lack of candor.
The AJ noted that other evidence
corroborated the existence of a relationship between plaintiff and
Karen Blocker, including evidence of the text message on her cell
phone from Haskins’ phone number which read something to the
effect, “I can’t wait to have you back in my arms.”
The AJ also found that Haskins was less than candid when he
stated he had only met Joe Blocker on one occasion in his office,
as the evidence established that the two men had a conversation in
the hallway on another occasion, in which Haskins, by his own
admission, told Blocker, “I’m not afraid of any man.”
The AJ
concluded that this was obviously a personal encounter between
plaintiff and Joe Blocker, and yet plaintiff had answered
otherwise when asked about his personal contact with Joe Blocker.
Haskins claims that since he consistently denied that he was
having an intimate relationship with Karen Blocker, and since she
also executed an affidavit denying any such relationship and never
affirmatively testified that any such relationship existed, then
there simply was no credible evidence before the AJ to support the
lack of candor charge.
In the court’s opinion, however, there was
ample evidence to support the finding that Haskins failed to
respond fully and truthfully to the questions posed to him
regarding his relationship with Karen Blocker.
11
The AJ specifically found that Karen Blocker’s affidavit
which Haskins submitted to the Board was not credible.
He also
reasonably found that a fair inference from Karen Blocker’s
testimony before the ABI was that, contrary to Haskins’ denials,
she and Haskins were involved in an intimate relationship, albeit
off the VA premises and away from the job.
As the AJ observed,
when asked about her relationship with Haskins, Mrs. Blocker
inquired whether she was required to answer questions pertaining
to her contact with Haskins outside the job; she told the ABI she
did not “really care to answer” questions relating to her contact
with Haskins outside the job for non-VA reasons; she stated that
she did not have an affair with Haskins “on VA premises or on the
job”; and she testified she did not feel comfortable answering the
question as to who initiated “intimate relationships” between her
and Haskins.
Her responses, coupled with the testimony regarding
the cell phone message, constitute substantial evidence to support
the conclusion that Haskins’s responses to the inquiries
concerning the relationship were not credible.
See Hambsch v.
Dep't of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) (“The
Board's determination of witnesses’ credibility is ‘virtually
unreviewable.’”).
As to his testimony regarding personal contact with Joe
Blocker, Haskins submits that he was not less than truthful, and
that there was not substantial evidence to support the ALJ’s
12
contrary finding.
He acknowledges that there was an occasion when
he and Joe Blocker met in a hallway and had a conversation that
involved Haskins’ relationship with Karen Blocker.
And he does
not dispute that he failed to mention this conversation when asked
in his ABI testimony about any personal contact with Joe Blocker.
However, Haskins points out that in his testimony before the ABI,
he never denied this encounter with Joe Blocker; and he suggests
that the ABI interrogators never gave him an opportunity to admit
or deny the encounter as they never specifically asked him about
any contact other than the one meeting in Haskins’ office.
Clearly, however, plaintiff was given an opportunity to describe
any and all personal contact there had been between him and Joe
Blocker; and despite that opportunity, plaintiff failed to mention
a specific encounter between the two men in a hallway in which
there obviously was discussion about the alleged relationship
between Haskins and Karen Blocker and in which Haskins reportedly
told Blocker, “I’m not afraid of any man.”
The AJ was certainly
warranted in concluding that Haskins had been less than candid
with the ABI.
See Ludlum v. Dep’t of Justice, 278 F.3d 1280, 1285
(Fed. Cir. 2002) (finding a lack of candor where agent “did not
respond fully and truthfully” to the questions posed to him in an
administrative inquiry”); see also Swan Creek Communications, Inc.
v. Federal Communications Commission, 39 F.3d 1217, 1222 (D.C.
Cir. 1994) (lack of candor exists when an applicant breaches the
13
duty "to be fully forthcoming as to all facts and information
relevant to a matter before the FCC, whether or not such
information is particularly elicited.").6
A second charge supporting Haskins’ removal was his failure
as a supervisor to uphold and adhere to VA Medical Center policies
on employee conduct and responsibilities.
This charge was based
on Haskins’ having engaged in inappropriate e-mail dialogue and
implied sexual bantering with other female lower-graded staff
members throughout the Medical Center during his duty hours.
The
AJ reviewed e-mails to and from Haskins and various female
employees, and focused, in particular, on e-mail communications
between Haskins and Human Resources Assistant Tawn White which
contained implied sexual bantering and were clearly inappropriate
under VA policy regarding permissible use of e-mail.
The AJ
observed, for instance, that the e-mails discussed enhancing
performance in the bedroom, the desire to let a woman share
6
Haskins argues the finding of lack of candor is not
supported by substantial evidence because there was no proof, nor
any finding, that he had any intent to deceive. However, “[t]o
establish lack of candor, the Board need not prove there was
intent to deceive but only that a person failed ‘to disclose
something that, in the circumstances, should have been disclosed
in order to make the given statement accurate and complete.’”
Ebron v. Dep’t of Homeland Sec., 2012 WL 1385488, 2 (Fed. Cir.
2012) (quoting Ludlum v. Dep't of Justice, 278 F.3d 1280, 1284
(Fed. Cir. 2002)).
14
control in the bedroom, how to handle a woman in the bedroom, and
plaintiff’s taking applications for a companion.
As the AJ noted, VA policy states that "[u]se of e-mail will
be limited to sending and receiving messages considered necessary
and in the interest of VA" and that "[m]essages and replies should
be meaningful, in good taste, and in language appropriate to a
business environment.
The use of improper, vulgar, or profane
language is prohibited and is considered unauthorized use of
e-mail."
This same policy is repeated in the VA’s policy allowing
limited use of government office equipment for personal needs,
which states that employees "are expected to conduct themselves
professionally in the workplace and to refrain from using
government office equipment for activities that are
inappropriate.”
The AJ was well warranted in finding that the
e-mails were inappropriate and in violation of VA policy, and that
Haskins’ conduct in this regard constituted a failure on his part,
as a supervisor, to uphold and adhere to VA policies on employee
conduct and responsibilities.
A further basis cited for Haskins’ removal was his seeking
unauthorized external assistance to modify/delete VA Medical
Center information in a VA government computer.
This charge was
based on information that on October 31, 2005, Haskins had sought
advice and guidance from a friend employed by the Social Security
Administration on how to permanently delete e-mails from his VA
15
computer.
The ALJ found that Haskins’ explanations – that he did
not know this violated VA guidelines and that he was doing the
Agency a favor by cleaning out his computer’s hard drive – were
not credible.
The AJ found, instead, that Haskins, having
participated in network supervisory training, knew there was an
in-house information technology department he could have contacted
to learn how to delete “spam” e-mails, if, in fact, that was his
goal, as Haskins claimed; and the AJ further reasonably inferred
that in bypassing the in-house IT department and seeking help from
a non-VA employee to permanently delete e-mails, Haskins acted
surreptitiously, and was likely “trying [to] hide something.”
Though Haskins contends otherwise, there clearly was substantial
evidence to support this decision.
The final basis cited for Haskins’ removal was his “creating
a hostile work environment for staff that has impacted the
efficiency and effectiveness of the Facility Management Service
operations.”
The VA concluded, and the AJ concurred, that
Haskins’ romantic relationship with Karen Blocker created a
hostile work environment for Joe Blocker, in that it exposed
Blocker to taunting and teasing from co-workers (one of whom joked
about Blocker having trouble keeping a woman), and otherwise
created the potential for conflict between Blocker and Haskins in
the workplace, as evidenced by a heated exchange between them
about Haskins’ relationship with Karen Blocker.
16
The AJ found,
based on substantial evidence, that these instances occurred
because of Haskins’ relationship with Blocker’s wife, and that it
was Haskins’ conduct that had created an uncomfortable situation
in the workplace for Blocker and others.
In sum, the Board’s findings that all of this conduct
occurred as charged in the notice of removal, are supported by
substantial evidence.
Haskins contends that the decision to
discharge him is arbitrary and capricious because it is not based
upon specific findings of a nexus between the charged misconduct
and the efficiency of the service and because to the extent there
is such a finding, it is not supported by substantial evidence.
His position is without merit.
Under the applicable regulation, a federal employer may
discharge an employee only if “conduct of the individual may
reasonably be expected to interfere with or prevent effective
performance by the employing agency of its duties and
responsibilities.”
Bonet, 712 F.2d at 215-216 (quoting 5 C.F.R.
§ 731.202(a)(2)); see also 5 U.S.C. § 7513(a) (“Under regulations
prescribed by the Office of Personnel Management, an agency may
take an action covered by this subchapter against an employee only
for such cause as will promote the efficiency of the service.”).
The Board specifically found that Haskins’ lack of candor
necessarily negatively impacted the efficiency of the service.
See Ludlum v. Dep’t of Justice, 87 M.S.P.R. 56, 68 (2000) (finding
17
that employee’s lack of candor directly impacted the efficiency of
the service as “an agency has a right to expect its workers to be
honest, trustworthy, and candid” and the employee’s lack of candor
“strikes at the very heart of the employer-employee
relationship”).
Further, the VA points out that Haskins’
relationship with Karen Blocker otherwise negatively affected
efficiency of the service because of its effect on Joe Blocker,
and the fact that job assignments had to be rearranged to separate
Haskins and Joe Blocker.
See Bonet, 712 F.2d at 215 (“[A]n
adverse influence on the work of other employees is a factor to be
considered in making the above determination.”).
An agency’s decision to discharge an employee will not be
disturbed "unless it exceeds the range of permissible punishment
or is 'so harsh and unconscionably disproportionate to the offense
that it amounts to an abuse of discretion.'"
Gonzalez v. Defense
Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985).
The
decision is entitled to deference, so long as selection of the
penalty was based upon a responsible balancing of the relevant
factors set forth in Douglas v. Veterans Administration, 5
M.S.P.R. 280, 296-308 (1981).7
See Bloom v. McHugh, 828 F. Supp.
7
The Douglas factors are: (1) the nature and seriousness
of the offense, and its relation to the employee's duties,
position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated; (2) the
employee's job level and type of employment, including supervisory
18
2d 43, 54 (D.D.C. 2011) (“[T]he Court's function is not to decide
what penalty it would impose, but rather to ensure that the
agency's judgment has been properly exercised and that the penalty
does not exceed the maximum limits of reasonableness.”).8
If an
agency's action is based on multiple charges, and if some of the
charges are not sustained, the Board’s decision "to sustain the
penalty should contain a reasoned explanation demonstrating that
or fiduciary role, contacts with the public, and prominence of the
position; (3) the employee's past disciplinary record; (4) the
employee's past work record, including length of service,
performance on the job, ability to get along with fellow workers,
and dependability; (5) the effect of the offense upon the
employee's ability to perform at a satisfactory level and its
effect upon supervisors' confidence in the employee's ability to
perform assigned duties; (6) consistency of the penalty with those
imposed upon other employees for the same or similar offenses; (7)
consistency of the penalty with any applicable agency table of
penalties; (8) the notoriety of the offense or its impact upon the
reputation of the agency; (9) the clarity with which the employee
was on notice of any rules that were violated in committing the
offense, or had been warned about the conduct in question; (10)
potential for the employee's rehabilitation; (11) mitigating
circumstances surrounding the offense such as unusual job
tensions, personality problems, mental impairment, harassment, or
bad faith, malice or provocation on the part of others involved in
the matter; and (12) the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the employee or
others. Douglas, 5 MSPB 313, 5 M.S.P.R. at 305–06.
8
With respect to the penalty, the court reviews the
agency-imposed penalty only to determine if the agency considered
all the relevant factors, as set forth in Douglas v. Veterans
Admininistration, 5 MSPB 313, 5 M.S.P.R. 280, 305–06 (M.S.P.B.
1981), and exercised management discretion within tolerable limits
of reasonableness.
19
all relevant Douglas factors were properly considered."
Kline v.
Dep’t of Transp., 808 F.2d 43, 45 (Fed. Cir. 1986).
While Haskins maintains that the penalty of removal is not
within the limits of reasonableness for the charges, the principal
basis offered for this contention is his continued insistence that
“there was an absence of credible evidence to support that there
was an adulterous relationship between Plaintiff Haskins and Karen
Blocker” and that he was thus not less than candid in denying
there was such a relationship.
He further argues that the AJ
concluded the penalty of discharge was within the bounds of
reasonableness without properly addressing his affirmative
defenses of discrimination and retaliation.
In fact, though,
while he obviously disagrees with the AJ’s conclusion that he
failed to carry his burden to prove that he was removed because of
discrimination and/or retaliation, he cannot reasonably deny that
the AJ fully considered these claims.
In the end, the court is
satisfied that the board considered the relevant factors
articulated in Douglas for weighing the reasonableness of the VA’s
decision, and reasonably concluded that the VA considered the
relevant factors and that the selected penalty was within the
bounds of reasonableness.9
Based on all of the foregoing, the
9
In his opinion, the AJ cited the testimony
Baltz, the deciding official, that he had considered
against Haskins to be serious, particularly in light
position as a supervisor, which meant he was held to
20
of Richard
the charges
of Haskins’
a higher
court concludes that the MSPB's decision to sustain the VA’s
termination of Haskins’ employment was made to promote the
efficiency of the service and is supported by substantial
evidence.
The court thus turns its attention to plaintiff’s
discrimination and retaliation claims.
Because discrimination and
retaliation claims brought in the district court are reviewed de
novo, the court anticipated a jury trial of plaintiff’s
discrimination/retaliation claims based on plaintiff’s demand for
same.
However, shortly prior to the date set for trial, plaintiff
requested not only that the court, rather than a jury, decide his
discrimination/retaliation claims, but also that it do so based on
the existing record.
Defendant agreed to this procedure.
The
parties thus jointly agreed to forego a trial of plaintiff’s
discrimination/retaliation claims and to submit those claims for
the court’s consideration based on the evidence contained in the
administrative record, together with supplemental evidence
submitted to this court by the parties.
The parties’ arguments as
standard of conduct. The AJ observed that Baltz viewed the
charges of lack of candor and creating a hostile work environment
as the most serious ones, and that in arriving at the decision to
recommend removal, he considered Haskins’ failure to accept any
culpability; and this lack of honesty, in turn, impacted Baltz’s
discharge decision. Baltz testified that Haskins’ having sought
outside assistance to delete e-mails reemphasized this lack of
trust, for if he had a legitimate reason for seeking such
assistance, he could have gone to someone in the VA’s own IT
department.
21
to these claims are set forth in their respective “trial briefs”
submitted for the court’s consideration.
The court applies a modified McDonnell Douglas approach to a
plaintiff’s claim for discriminatory or retaliatory discharge.
Under this approach, the plaintiff must first establish a prima
facie case of discrimination or retaliation.
If he makes the
requisite prima facie showing, the burden then shifts to the
employer to articulate a legitimate, nondiscriminatory or
nonretaliatory reason for its employment decision.
If the
employer meets its burden of production, the plaintiff then bears
the ultimate burden of proving “(1) that the defendant's reason is
not true, but is instead a pretext for [discrimination/
retaliation] (pretext alternative); or (2) that the defendant's
reason, while true, is only one of the reasons for its conduct,
and another motivating factor is the plaintiff's [race, in the
case of his discrimination claim, or his protected activity in the
case of his retaliation claim] (mixed-motive alternative).”
Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir.
2005) (quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312
(5th Cir. 2004)) (internal quotation marks omitted)).
To establish a prima facie case of discriminatory discharge,
a plaintiff must prove that: (1) he is a member of a protected
group or class; (2) he was qualified for his position; (3) he was
discharged; and (4) he was replaced by someone outside the
22
protected class, or he was otherwise discharged because of his
race/gender.
Lawson v. Southern Components, Inc., 410 Fed. Appx.
833, 835, 2011 WL 480038, 1 5th Cir. 2011) (citing Bryan v.
McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004)); Fields
v. J.C. Penney Co., 968 F.2d 533, 536 n.2 (5th Cir. 1992)).
“A
plaintiff can fulfill the fourth element if [he] proves that [he]
was discharged under circumstances in which an employee of a
different race would not have been discharged, irrespective of the
race of his replacement.”
Moore v. Potter, 716 F. Supp. 2d 524,
534 (S.D. Tex. 2008) (quoting E.E.O.C. v. Brown & Root, Inc., 688
F.2d 338, 340-341 (1982)).
Although plaintiff’s trial memorandum generally references a
putative claim for gender discrimination, his brief contains no
argument or citation to evidence to support any such claim.10
He
does not contend he was replaced by a female or suggest any other
basis for finding that his gender was a factor in his discharge.
For its part, defendant notes that when asked at the MSPB
pre-hearing conference to identify any females whom he believed
were valid comparators, Haskins replied that female employees who
sent him inappropriate e-mails (and thereby created a hostile work
10
Plaintiff declares only that he “has presented credible
evidence that he was ‘singled out’ and treated differently; and
that his ‘comparator’ was not terminated despite serious work
performance issues that had been documented.” He offers no
evidence to support this vague assertion.
23
environment for him) were not investigated or in any way
disciplined, much less discharged.
However, as defendant
correctly notes, only one of these female employees held a
supervisory position, and her alleged misconduct, i.e., e-mailing
Haskins to request a date, in no way compares to the offenses for
which plaintiff was terminated.
See Lee v. Kansas City S. Ry.
Co., 574 F.3d 253, 260 (5th Cir. 2009) (holding that to show that
other employees are similarly situated, employee must offer
comparator who was treated more favorably “under nearly identical
circumstances,” which is satisfied when “the employees being
compared held the same job or responsibilities, shared the same
supervisor or had their employment status determined by the same
person, and have essentially comparable violation histories.”).
Accordingly, the court concludes that Haskins has failed to
establish a prima facie case of gender discrimination and this
claim will be dismissed.
As for his claim of race discrimination, plaintiff has not
purported to identify a white comparator – a similarly situated
white employee who engaged in nearly identical conduct and yet was
not discharged – but he does claim and has offered supporting
evidence that he was replaced by a Caucasian, Richard Cox.
On
this issue, Karen Blocker testified in her deposition that after
Haskins’ termination, Don Wainwright hired Cox as a bio-med
supervisor to take over the duties previously performed by
24
Haskins.
Defendant has pointed to no evidence to the contrary.11
The court thus concludes that plaintiff has made out a prima facie
claim of race discrimination.
The VA has articulated legitimate, nondiscriminatory reasons
for Haskins’ discharge, all of which have been detailed supra.
In
the court’s opinion, Haskins has failed to carry his burden to
establish either that the proffered reasons are false or unworthy
of credence, or that if true, his race was also a motivating
factor in defendant’s decision to terminate his employment.
Haskins declares that he “can present credible evidence that
the reason given [by the VA for his termination] is not true, but
instead a pretext for discrimination.”
Yet the only evidence he
purports to have presented toward that end consists of his denials
that he engaged in the conduct for which he was ostensibly
11
In its trial memorandum, defendant states, “Other than
the deposition of Karen Blocker, Plaintiff presents no evidence in
the record to show that Richard Cox was a valid comparative.”
However, plaintiff does not contend Cox is a comparator but rather
that Cox was his replacement. Moreover, defendant does not
suggest any basis for disregarding Ms. Blocker’s testimony on this
issue.
Defendant next declares that, “[m]ore importantly,
Plaintiff’s being replaced by a Caucasian male is not an
issue which was ever considered by the MSPB or the EEOC, and,
therefore, Plaintiff has failed to exhaust his administrative
remedies on this issue.” However, the fact that plaintiff may
have failed to present proof in the administrative proceedings
before the EEOC and MSPB as to the identity of his replacement
does not mean that he failed to exhaust his claim for
discriminatory discharge. Plaintiff clearly asserted in the
administrative proceedings that he was discharged on account of
his race, and such claim is thus properly before this court.
25
terminated.
Plaintiff continues to deny he was involved in an
intimate relationship with Karen Blocker.
But there is ample
circumstantial evidence of the affair; and there is no evidence
even tending to show that VA officials who participated in the
decision-making process did not, in fact, believe that Haskins and
Mrs. Blocker had an affair.
Likewise, there is no evidence that
casts doubt on the veracity of the VA’s conclusion that
plaintiff’s lack of candor warranted his dismissal.
Furthermore,
VA officials explained, quite credibly in the court’s view, their
legitimate concerns that plaintiff’s presence in the Medical
Center, in proximity to Joe Blocker, created the unavoidable
potential for conflict in the workplace, and was detrimental to
the efficiency of the service.
Further, plaintiffs’ admittedly
seeking outside assistance to delete e-mails form his VA computer,
would have rightly concerned his employer; and in the court’s
view, plaintiff’s explanation for his actions in this regard ring
false.
Finally, plaintiff cannot and does not deny that his e-
mails exchange with Tawn White, which involved sexual bantering,
was an inappropriate use of VA computers during working hours and
was particularly inappropriate conduct in view of his position as
a supervisor.
In short, plaintiff has failed to establish that
even one of the VA’s several proffered reasons for the decision to
terminate his employment is false or unworthy of credence.
26
Haskins argues alternatively that he “can present credible
evidence that ... the reason proffered may be true, [but] is only
one of the reasons for Defendant’s conduct; and another
‘motivating factor’ is the Plaintiff’s protected characteristic.”
Yet again, he offers no evidence (beyond his replacement by a
Caucasian) suggesting that his race played any role in the
termination decision.
Accordingly, as plaintiff has failed to
sustain his burden to prove either pretext or mixed-motive
relative to his race discrimination claim, that claim will be
dismissed with prejudice.
Plaintiff’s retaliation claim stems from an allegation that
he was the victim of sexual harassment during his employment at
the Jackson VA.
According to plaintiff, soon after commencing
employment at the Jackson VA Medical Center, a number of
aggressive female employees began approaching him at work asking
for dates with him, and calling him and sending him unsolicited
and unwelcome e-mails seeking dates, all of which created for him
a hostile work environment.
Plaintiff has testified that in
August 2005, he verbally reported this sexual harassment to his
direct supervisor, Don Wainwright, and sought Wainwright’s
assistance.
When Wainwright failed to take action to address the
harassment, which continued unabated, he contacted the EEOC on
November 14, 2005 to report the harassment.
In his subsequent
sworn statement to the ABI on December, 6, 2005, he informed the
27
ABI that he had contacted the EEOC to complain of sexual
harassment in the workplace, and he testified, as well, that he
had informed Wainwright of the harassment in August, but that no
action had been taken.
On December 19, 2005, plaintiff filed a
formal charge of discrimination and retaliation with the EEOC.
After the ABI issued its findings on February 13, 2006, plaintiff
filed a supplement to his charge, in which he claimed that he had
suffered various forms of retaliation since his initial report of
sexual harassment.
A prima facie case of retaliation consists of proof by
plaintiff that “(1) he participated in an activity protected by
Title VII; (2) his employer took an adverse employment action
against him; and (3) a causal connection exists between the
protected activity and the adverse employment action.”
McCoy v.
Cty. of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007).
Defendant VA acknowledges that plaintiff engaged in protected
activity in that he filed charges of discrimination and
retaliation with the EEOC in December 2005 and in February 2006.
It also necessarily acknowledges that plaintiff suffered an
adverse employment action, as he was terminated.
Defendant’s
position as to whether plaintiff has established the third element
of his prima facie case is unclear.
Haskins points out that within a day of his appearance before
the ABI in which he testified that he had made a report of sexual
28
harassment to the EEOC (and to Wainwright) and was pursuing his
claim with the EEOC, he was administratively suspended; a month
later, on January 9, 2006, he was relocated from the facility and
removed from his supervisory role; another month later, on
February 13, 2006, the ABI made findings that ultimately resulted
in his termination; and less than two months thereafter, on April
2, 2006, he was recommended for termination.
Plaintiff submits
that for the purpose of his prima facie case, the timing of these
events establishes the requisite causal link between his protected
activity and his discharge.
See McCoy, 492 F.3d at 562
(recognizing that “[c]lose timing between an employee's protected
activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of
retaliation”)(internal quotation marks omitted); see also Evans v.
City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (“[A] time
lapse of up to four months has been found sufficient to satisfy
the causal connection....”) (internal quotation marks omitted).
The VA does not specifically deny that the timing of Haskins’
termination and the process leading to his termination could
potentially be considered sufficiently close to satisfy his burden
at the prima facie stage; but it insists that Haskins cannot
sustain his ultimate burden to prove that his participation in any
protected activity played any role whatsoever in the ABI process,
the ABI’s findings, or the ultimate decision to terminate his
29
employment.
The court will assume for the sake of argument that
plaintiff has established a prima facie case of retaliation.
As discussed supra, the VA has articulated legitimate,
nondiscriminatory reasons for Haskins’ discharge.
Also, as the
court has concluded supra, Haskins has not proven that the reasons
assigned for his termination are false or unworthy of credence.
Thus, to prevail on his claim, plaintiff must establish that
retaliation was a motivating factor in defendant’s termination
decision.
However, the only evidence cited by plaintiff as proof
of a retaliatory motivation is the close timing referenced supra
in connection with his prima facie case; and the Fifth Circuit has
made clear that a plaintiff cannot sustain his burden to prove
mixed-motive with nothing more than proof of close timing.
See
Nunley v. City of Waco, 440 Fed. Appx. 275, 281, 2011 WL 3861678,
5 (5th Cir. 2011) (distinguishing “the initial ‘causal-link’
required for making out a prima facie case, and the ‘but for’
causation required after the employer has offered a legitimate,
non-discriminatory justification” and holding that requirement of
establishing “but for” causation applies to mixed-motive
alternative); Strong v. Univ. Healthcare Sys., LLC., 482 F.3d 802,
808 (5th Cir. 2007) (holding that “temporal proximity alone is
insufficient to prove but for causation”).
It follows that
plaintiff’s retaliation claim fails, and will thus be dismissed.
30
Haskins finally alleges that following his discharge, he was
subjected to additional retaliation and reprisal by the VA’s
termination of his health insurance coverage.
In support of this
claim, plaintiff notes that under VA policy, once an employee is
terminated, he is to receive a Form 2810 from the VA terminating
his membership in the VA’s health program.
Plaintiff alleges that
“[n]o such action was taken by the Agency as required by VA policy
and Plaintiff Haskins continued to receive health coverage through
Blue Cross and Blue Shield (“BCBS”) until the benefits were
terminated in December 2008.
The required Form 2810 was never
issued by the Agency as mandated by VA policy.”
cognizable claim.
Plaintiff has no
He acknowledges that once an employee is
separated from employment with the VA, he is no longer entitled to
receive health insurance coverage from the VA.
Thus, the
termination of his insurance benefits flowed directly from the
termination of his employment (which he has not shown was
retaliatory).
And in any event, plaintiff has not demonstrated
that the VA caused the termination of his health insurance
coverage (except to the extent that it caused his termination).
In fact, the facts related by plaintiff indicate that the VA
failed to take steps normally required to effect a termination of
health insurance coverage, and that BCBS terminated his coverage
on its own upon learning of his termination (and he has not shown
that BCBS’s actions are in any way connected to his participation
31
in any protected activity).
In short, plaintiff has presented no
evidence that anyone from the VA took any action regarding the
termination of his insurance coverage after he was separated from
his employment in June of 2006.
This claim will therefore be
dismissed.
Based on all of the foregoing, the court concludes that
Haskins has failed to prove his discrimination or retaliation
claims relative to the termination of his employment or the
termination of his BCBC insurance coverage.
The court further
concludes that the decision of the MSPB is not arbitrary or
capricious, and is in conformity with the law and supported by
substantial evidence.
Therefore, it is ordered that plaintiff’s
complaint is dismissed with prejudice.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 8th day of August, 2012.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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