Bussey v. United States Department of Defense

Filing 37

ORDER by District Judge M. Christina Armijo granting in part and denying in part 28 Motion for Summary Judgment (lvm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

TERRY BUSSEY,
Plaintiff
v.

1:16-cv-906 MCA LF

ASHTON B. CARTER,
Secretary of the UNITED STATES
DEPARTMENT OF DEFENSE,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Department of Defense’s
Motion for Summary Judgment [Doc. 28].

The Court has considered the parties’

submissions and the relevant law, and is otherwise fully informed. For the following
reasons, the Court GRANTS in part and DENIES in part Defendant’s Motion.
I.

Background
Plaintiff Terry Bussey (Plaintiff or Mr. Bussey), who is African American, began

his employment with the federal government in 1987. [Doc. 1, ¶¶ 6, 8] In 1999, he
began working for the Defense Threat Reduction Agency (DTRA) at the Department of
Defense (DOD or Defendant). [Doc. 1, ¶¶ 6, 7] Paul Collins began working for DTRA
and supervising Mr. Bussey in 2012. [Doc. 28-1, Collins Depo, 8:19-9:11] Mr. Collins
was supervised by Calvin Conger, who was located in Washington, D.C. [Doc. 28-1,
Collins Depo, 9:14-15, 34:9-14; Doc. 28-2, Conger Depo, 7:3-12] At times relevant to

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his Complaint, Mr. Bussey was in charge of the vehicles assigned to Mr. Collins’
department. [Doc. 28, ¶ 7; Doc. 32, ¶ 7] In early 2015, Mr. Collins verbally assigned
Mr. Bussey the additional role of “building manager.” [Doc. 28, ¶ 14; Doc. 32, ¶ 14]
After Mr. Collins issued a series of disciplinary notices to Mr. Bussey in 2015, Mr.
Bussey was removed from his position on January 5, 2016. [Doc. 28, ¶ 51; Doc. 32,
¶ 51]

After Mr. Bussey was removed, he filed an appeal with the Merit Systems

Protection Board (MSPB). [Doc. 28, ¶ 59; Doc. 32, ¶ 59] The MSPB held a hearing and
issued an Initial Decision affirming the removal, which became final on July 11, 2016.
[Doc. 28, ¶ 60; Doc. 32, ¶ 60] Consistent with 5 U.S.C. § 7703(b)(2), Mr. Bussey timely
filed the present lawsuit on August 9, 2016. [Doc. 28, ¶ 61; Doc. 32, ¶ 61] In his
Complaint, Mr. Bussey alleges that “Defendant has discriminated against Bussey in the
terms and conditions of his employment on the basis of his race in violation of Title VII.”
[Doc. 1] See 42 U.S.C. § 2000e. He also alleges that “Defendant retaliated against
Bussey in the terms and conditions of his employment in violation of Title VII for
participating as a witness and for previous EEO filings,” and that “Bussey engaged in a
protected disclosure of fraud and waste to the Inspector General’s Office [and] was
subject to an adverse employment action in being disciplined and removed from federal
service.” [Doc. 1] See 42 U.S.C. § 2000e; Whistleblower Protection Enhancement Act
of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat 1465 (2012). Mr. Bussey thus raises
two claims based on Title VII (discrimination claims) and one claim based on the WPEA
(a non-discrimination claim). See Dossa v. Wynne, 529 F.3d 911, 915 (10th Cir. 2008)

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(stating that “Title VII includes retaliation claims and § 7703(b)(2) authorizes judicial
review of them”).
II.

Discussion
Where, as here, “a petition for review of a MSPB decision involves both

discrimination and other claims it is considered a ‘mixed case.’” Williams v. Rice, 983
F.2d 177, 179–80 (10th Cir. 1993). “Normally, . . . the Federal Circuit has exclusive
jurisdiction over appeals from the MSPB, except where, as here, the appellant’s claim
includes an allegation of discrimination.” Id.; see 5 U.S.C. § 7703(b)(1). The Court
reviews the Title VII-based discrimination claims de novo, but “[t]he other, nondiscrimination claims, . . . are reviewed on the administrative record.” Williams, 983
F.2d at 179–80; see Morales v. Merit Sys. Prot. Bd., 932 F.2d 800, 802 (9th Cir. 1991)
(recognizing that a Title VII retaliatory discharge case was properly considered de novo);
5 U.S.C. § 7703(c). The Court will address Mr. Bussey’s claims in reverse order, starting
with the WPEA retaliation claim (Count 3).

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A. WPEA Retaliation Claim1
Under Williams, 983 F.2d at 179–80, Plaintiff’s non-discrimination claim is
reviewed deferentially and the MSPB decision may be reversed only when 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).
Defendant argues that Plaintiff’s retaliation claim should be dismissed because
Mr. Bussey has failed to file the administrative record. [Doc. 28, pg. 25] It points to
Federal Rule of Appellate Procedure 10, which requires an appellant to file the record of
district court proceedings with the appellate court. [Doc. 28, pg. 25] Defendant’s
argument is unavailing, however, because Rule 10 does not apply to appeals in district
court of administrative adjudications. Instead, Rules 16 and 17 govern those appeals, and
Rule 17 provides that “[t]he agency must file the record . . . within 40 days after being
served with a petition for review, unless the statute authorizing review provides

1

To the extent Defendant argues that Plaintiff failed to explicitly appeal the MSPB
decision and therefore the MSPB decision should be affirmed, [Doc. 28, pg. 24] the Court
disagrees that Plaintiff’s Complaint is insufficient in this regard. Under § 7703(b)(2),
“[c]ases of [race] discrimination subject to the provisions [governing appeals of MSPB
decisions] shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16(c))” and “any such case filed . . . must be filed within 30 days after the date the
individual filing the case received notice of the judicially reviewable action under such
section 7702.” Plaintiff cites 42 U.S.C. § 2000e in the discrimination claim, [Doc. 1] and
Defendant acknowledges that the MSPB decision was final on July 11, 2016 and that
“Plaintiff timely filed this lawsuit.” [Doc. 28, ¶¶ 60-61] In addition, in the Complaint,
Plaintiff references the MSPB decision by stating that he “has exhausted his
administrative remedies.” [Doc. 1, ¶ 5] Finally, Defendant acknowledges that Plaintiff’s
Complaint constitutes an appeal of the MSPB retaliation decision by arguing that the
absence of the administrative record precludes review by this Court. [Doc. 28, pg. 24]
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otherwise.” (Emphasis added.) See Singh v. Ashcroft, 367 F.3d 1139, 1147–48 (9th Cir.
2004) (Hawkins, J., dissenting) (noting that the rule governing filing of the record for
appeals of district court decisions differs from that governing appeals of administrative
adjudications); Gearan v. Dep’t of Health & Human Servs., 838 F.2d 1190, 1191 (Fed.
Cir. 1988) (“Pursuant to Fed.R.App.P. 17, the agency must file the record with the Clerk
of the court.”); Pitman v. United States Citizenship & Immigration Servs., No. 2:17-CV0166-CW-EJF, 2017 WL 5991738, at *2 (D. Utah Dec. 1, 2017) (stating that “it is the
government’s burden to file the administrative record in [Administrative Procedures Act]
review cases and to certify that it is complete,” citing Rule 17); 16AA Fed. Prac. & Proc.
Juris. § 3963 (4th ed.) (“It is the duty of the agency, in both review and enforcement
proceedings, to file the record as defined in Rule 16(a) . . . within 40 days after being
served with a petition for review, unless a statute prescribes a different time.”).
The Court shall therefore order Defendant to cause the record of proceedings
before the MSPB to be filed consistent with Rule 16 and 17 of the Federal Rules of
Appellate Procedure. See Luther v. Gutierrez, 618 F. Supp. 2d 483, 496 (E.D. Va. 2009)
(stating that the defendant had been directed “(i) to assemble for filing the MSPB
administrative record, [and] (ii) to meet and confer with plaintiff to assure that the record
was reasonably complete and contained all of the materials necessary to resolve plaintiff's
CSRA claim” by a certain date).
Moreover, to the extent Defendant relies on the summary judgment standard and
attaches portions of the administrative record to support its assertions, this approach is
unavailing. The Tenth Circuit held in Olenhouse that summary judgment procedures do
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not apply to review of agency decisions governed by the Administrative Procedures Act
(APA), like the MSPB decision here. Olenhouse v. Commodity Credit Corp., 42 F.3d
1560, 1579–80 (10th Cir. 1994). The Court held that
[the summary judgment] process, at its core, is inconsistent with the
standards for judicial review of agency action under the APA. The use of
motions for summary judgment or so-called motions to affirm permits the
issues on appeal to be defined by the appellee and invites (even requires)
the reviewing court to rely on evidence outside the administrative record.
Each of these impermissible devices works to the disadvantage of the
appellant. We have expressly disapproved of the use of this procedure in
administrative appeals in the past, and explicitly prohibit it now.
Id. It went on, “Reviews of agency action in the district courts must be processed as
appeals . . . . Motions to affirm and motions for summary judgment are conceptually
incompatible with the very nature and purpose of an appeal.” Id. at 1580.
Faced with a motion for summary judgment concerning an appeal of an
administrative decision, some courts have concluded that they could “[i]gnore the
summary judgment standards and treat the pending motions for summary judgment and
responses and replies filed by each of the parties as briefs of the respective parties,”
reasoning that the parties had a full opportunity to advance their arguments and that this
approach is “the most expeditious and beneficial to the parties.” Logan Farms, Inc. v.
Espy, 886 F. Supp. 781, 785 (D. Kan. 1995). However, in Logan Farms, Inc., the
complete administrative record had been filed. Id. at 789. That is not the case here.
In its appellate capacity, the Court is obliged to assess whether an agency’s action
“was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law” and if it was “unsupported by substantial evidence in the hearing record.”

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Olenhouse, 42 F.3d at 1573-74 (internal quotation marks and citation omitted); see 5
U.S.C. § 7703(c); 5 U.S.C. § 706(2) (a provision of the APA defining the judicial scope
of review). “These standards require the reviewing court to engage in a ‘substantial
inquiry’” of the entire record. Olenhouse, 42 F.3d at 1574. Because the record has not
been filed here, the requisite “substantial inquiry” is impossible.
Because summary judgment on the retaliation claim is foreclosed by Olenhouse
and because the complete record has not been filed, Defendant’s Motion will be denied as
to Plaintiff’s WPEA retaliation claim (Count 3).
B. Plaintiff’s Discrimination Claims (Counts 1 and 2)
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Under this Rule, “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Rather, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Id. at 248.
Initially, the moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th
Cir. 1993) (citations omitted). The moving party need not negate the nonmovant’s claim,
but rather must show “that there is an absence of evidence to support the nonmoving
party’s case.” Celotex v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party
meets its initial burden, the nonmoving party must show that genuine issues remain for
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trial “as to those dispositive matters for which it carries the burden of proof.” Applied
Genetics Int’l Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)
(citation omitted). The nonmoving party cannot rely upon conclusory allegations or
contentions of counsel to defeat summary judgment, see Pueblo Neighborhood Health
Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988), but rather must “go beyond the
pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories,
and admissions on file, designate specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324 (internal quotation marks and citation omitted). If the
responding party fails to properly address the movant’s assertion of fact as required by
Rule 56(c), a district court may “grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled
to it.” Fed. R. Civ. P. 56(e)(3). Upon a motion for summary judgment, a district court
“must view the facts in the light most favorable to the nonmovant and allow the
nonmovant the benefit of all reasonable inferences to be drawn from the evidence.” Kaus
v. Standard Ins. Co., 985 F. Supp. 1277, 1281 (D. Kan. 1997).
1. Undisputed and Disputed Facts
a. Disciplinary Notices
The following facts are undisputed except as noted.2 Where they are disputed, the
Court will set out the alleged facts as stated by each party. For the most part, Mr. Bussey
states that he disputes the facts stated by Defendant. However, in several cases, noted

2

Pursuant to DNM Local Rule Civ. 56.1(b), “[a]ll material facts set forth in the [motion
for summary judgment are] deemed undisputed unless specifically controverted.”
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below, he either denies the allegation in a general manner, or, rather than disputing the
facts, provides an explanation for his conduct. Such “denials” are insufficient under
Local Rule 56.1(b) to dispute a statement of fact. Moreover, although the Court reviewed
Mr. Bussey’s responses to Defendant’s statement of facts, the focus of the Court’s
analysis is on the facts as they appeared to Mr. Collins and Mr. Conger at the time that
they made the decision to remove Mr. Bussey from his position, as discussed further
below. Thus, although Mr. Bussey adduces evidence in this Court to show that Mr.
Collins’s descriptions of certain events were inaccurate, that evidence is immaterial to the
Court’s assessment of whether the evidence before Mr. Collins and Mr. Conger when
they decided to remove Mr. Bussey supported a good faith belief those events occurred as
described.
Beginning in January 2015, Mr. Bussey received a series of disciplinary notices.
The first, a “letter of reprimand,” was based on Mr. Bussey’s alleged failure to follow
instructions in November 2014. [Doc. 28-3] The letter of reprimand first described an
instance in which, after Mr. Collins requested that Mr. Bussey submit reports on vehicles
by the 10th of each month, Mr. Bussey did not submit the November 2014 report and it
was instead submitted by another employee. [Doc. 28, ¶¶ 9, 10; Doc. 32, ¶¶ 9, 10; Doc.
32-1, pg. 7, Bussey Depo] It also stated that on November 6 and November 18, 2014,
Mr. Collins requested that Mr. Bussey prepare an inventory report on certain vehicles by
December 9, 2014. [Doc. 28, ¶ 11; Doc. 32, ¶ 11] Mr. Bussey did not agree with Mr.
Collins about how to assess the vehicles or prepare the report and communicated his
concerns to Mr. Collins via email. [Id.; Doc. 32-1, pg. 13] Mr. Collins responded,
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affirming his instructions for completing the task. [Doc. 32-1, pg. 12] Mr. Bussey did
not sign the report because he did not agree with the way Mr. Collins instructed him to
conduct the inventory and assessment. [Doc. 32, ¶ 11-12; Doc. 32-1, pg. 2, Bussey Depo,
pg. 21; Doc. 34, pg. 4] Mr. Collins completed the report instead. [Doc. 28, ¶ 11; Doc.
32, ¶ 11]
In August 2015, Mr. Collins issued to Mr. Bussey a “Notice of Proposed 5-Day
Suspension” citing “conduct unbecoming a federal employee” and “failure to follow
instructions and disrespect towards your supervisor.” [Doc. 28-5] In the Notice, he
described an incident on June 11, 2015, during which Mr. Collins, as he “caught up with
[Mr. Bussey] and the inspection team” near a DTRA building, observed Mr. Bussey
“speaking in a very loud angry voice” to a security escort who was questioning whether a
group of inspectors had approval to take pictures in one of the DTRA buildings. [Doc.
28-5] Mr. Collins stated that Mr. Bussey “yelled and berated the individual by yelling, I
am in charge. If they got their cameras past the guard shack then they are allowed to use
them.” [Doc. 28-5] He also stated that he, Mr. Collins, “asked [Mr. Bussey] to stand
down [and] back away” and then told Mr. Bussey that he had “handled the situation with
the security escort unprofessionally” and that it was part of his job to assist with the
inspection. [Doc. 28-5] Mr. Collins wrote that Mr. Bussey “responded by walking away
yelling ‘I don’t have a fucking job.’” [Doc. 28-5]
Mr. Bussey generally denies these allegations, stating that Defendant failed to
obtain a statement from the security escort and instead relies only on Mr. Collins’s own
memorandum detailing the incident. [Doc. 32, ¶¶ 18-19] He does not otherwise argue
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that Mr. Collins’ memorandum is inaccurate. [Id.] In his Response, Mr. Bussey also
submits the testimony of a witness at his MSPB hearing who was part of the group of
inspectors, who described Mr. Bussey as “very friendly” and “smiling sunshiny.” [Doc.
32, ¶ 18; Doc. 32-1, pg. 26] She stated that she saw him at “the gate” where the group
received visitors’ badges. [Doc. 32-1, pg. 26-27] The location of the “gate” is not
described further. However, Mr. Collins’ memorandum and the description in the Notice
state that Mr. Bussey “escorted [the witness] and other team members toward the
Electrical Life Safety project under way in the main compound,” and that Mr. Collins
observed Mr. Bussey yelling at the security escort “as [he] caught up with [Mr. Bussey]
and the inspection team.” [Doc. 28-5] Hence, it is not clear that the encounter described
by the witness occurred at the same location and at the same time as the events described
by Mr. Collins.
The Notice of Proposed 5-Day Suspension also described an incident on August
12, 2015 in which Mr. Collins requested that Mr. Bussey, as building manager, change a
light bulb in an office. [Doc. 28-5] Mr. Collins wrote that Mr. Bussey responded that it
was not his job to do so, and that Mr. Collins told Mr. Bussey, “you are the building
manager[,] it’s your job responsibility to take care of the lights so please get it done.”
[Doc. 28-5] According to the Notice, Mr. Bussey left the building, indicating that he was
going to the Post Office. [Doc. 28-5] Another employee ultimately changed the light
bulb. [Doc. 28-5]
Mr. Bussey states that he disputes Mr. Collins’ description of the incident. [Doc.
32, ¶ 21] However, the evidence he cites does not contradict Defendant’s assertions that
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Mr. Bussey was asked to change the light bulb and that he did not do so. [Doc. 21, ¶ 21;
Doc. 32-1, pg. 5, 30:7-32:1] Moreover, Mr. Bussey admitted in his deposition that it was
the building manager’s duty to address an inoperative light bulb. [Doc. 32-1, pg. 5,
Bussey Depo, 30:15-18]
In September 2015, Mr. Collins rescinded the Proposed 5-Day Suspension and
issued a Notice of Proposed 14-Day Suspension. [Doc. 28-11; Doc. 28-12] The Notice
of Proposed 14-Day Suspension included the June and August incidents described above,
as well as instances of alleged failures to comply with leave procedures and lack of
candor. [Doc. 28-12] In July 2015, Mr. Collins had sent his staff, including Mr. Bussey,
an email detailing procedures to be followed when leaving their work areas, using
government vehicles, and for leave requests. [Doc. 28, ¶ 24; Doc. 32, ¶ 24] In the email,
Mr. Collins specified that all employees must notify him or the CPF Coordinator when
they left their respective work areas. [Doc. 28-12; Doc. 28-6; Doc. 28, ¶ 24; Doc. 32,
¶ 24] In the Notice of Proposed 14-Day Suspension, Mr. Collins described asking Mr.
Bussey about his whereabouts from 0630-0830 hours on September 9, 2015. In response,
Mr. Bussey stated that he had been in the bathroom and in another area on the base.
However, badge entry logs indicated that Mr. Bussey entered the base at 0829 hours.
[Doc. 28, ¶¶ 25, 26; Doc. 32, ¶¶ 25, 26; Doc. 28-12] Mr. Bussey disputes this account,
and states that on September 9 he arrived at 0630 and went immediately to another area
of the base and therefore could not notify Mr. Collins that he would be out of the office.
[Doc. 32, ¶ 26] He also argues that the change in procedures prevented him from doing
his work properly. [Id.; Doc. 32-1, pg. 9, 82:8-84:10]
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The Notice of Proposed 14-Day Suspension also cites Mr. Bussey’s absence from
work on the following day, September 10, without prior approval from or notice to Mr.
Collins, contrary to the leave procedures. [Doc. 28, ¶ 27; Doc. 28-12] Mr. Bussey
responds to this assertion of by stating that he “was sick in the morning and went to the
doctor” and “had to wait to get a doctor’s note after his appointment.” [Doc. 32, ¶ 27]
He goes on, “Plaintiff prepared a sick leave form with a prescription receipt as evidence.”
[Id.] These assertions do not address whether Mr. Bussey complied with the leave
procedures.

Moreover, the evidence to which Mr. Bussey points in support of his

contentions—his deposition—appears to address a different date. Mr. Bussey stated that
“[Mr. Collins] knew I was leaving, and he sent me an email back on a Friday, which I
don’t work on Fridays. . . . He sent an e-mail on a Friday telling me that I was AWOL
on that Monday. That Monday I didn’t come in because I was still at the dental office,
and I had a prescription filled somewhere in there.” [Doc. 32-1, pg. 11, 106:12-18]
However, September 10, 2015 fell on a Thursday, not a Monday. Thus, Mr. Bussey’s
testimony does not address the Thursday, September 10 absence cited in the Notice.
Finally, Mr. Collins described noticing on September 16 that Mr. Bussey was not
in his office at 0700 hours, and asking Mr. Bussey the next day about his location. [Doc.
28, ¶ 28; Doc. 28-10; Doc. 28-12] Mr. Bussey stated that he was in the office on the
morning of September 16. [Doc. 28, ¶ 28; Doc. 28-10; Doc. 28-12] Mr. Collins reported
in the Notice that he checked the badge logs, which indicated that Mr. Bussey had not
arrived until 0716. [Doc. 28, ¶ 28; Doc. 28-10; Doc. 28-12] While Mr. Bussey states
that he disputes the allegations, he does not point to any contrary evidence and states only
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that “he was harassed by Mr. Collins regarding his log-in times.” [Doc. 32, ¶ 28 (citing
Mr. Collins’ September 17 email stating why Mr. Collins was rejecting Mr. Bussey’s
timecard)]
On November 9, 2015, Mr. Collins rescinded the Notice of Proposed 14-Day
Suspension and issued a Notice of Proposed Removal. [Doc. 28, ¶¶ 35, 36] Mr. Bussey
was afforded an opportunity to respond to the Notice in writing, which he did. [Doc. 2815; Doc. 32, ¶ 41; Doc. 32-1, Conger Depo, pg. 16, 12:6-12] The Notice of Proposed
Removal cited all of the incidents described in the Notice of Proposed 14-Day
Suspension and two additional incidents. [Doc. 28-13] The first of these additional
incidents was a telephone call with another employee during which Mr. Bussey was
alleged to have acted “unprofessionally” and “rude[ly]” when he refused to go to the
colleague’s office and hung up on the colleague. [Id.; Doc. 28, ¶ 33] The charge in the
Notice related to this incident was “conduct unbecoming a federal officer.” [Doc. 28-13]
Mr. Bussey denies that he behaved rudely and that he hung up on the colleague. [Doc.
32, ¶ 33; Doc. 28-15] In his written response to the Notice, Mr. Bussey did not deny that
he and the colleague disagreed during a telephone conversation and that the call ended
abruptly. [Doc. 28-15] However, he maintained that the colleague may have caused the
call to terminate. [Id.] He also did not deny that the colleague asked him to come to the
colleague’s office, but that Mr. Bussey refused to do so. [Doc. 28-15] He stated that he
and the colleague “have not agreed on anything since [Mr. Bussey’s] arrival at DTRA in
1999.” [Doc. 28-15]

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The second additional incident detailed in the Notice of Proposed Removal
occurred in October 2015, when Mr. Bussey approached a van in which a group of
visitors were seated. [Doc. 28-13; Doc. 28, ¶ 34] Several DTRA staff members were
also in or near the van. [Doc. 28-13; Doc. 28-15] One of the DTRA staff members
reported that Mr. Bussey asked them, “What the fuck are you doing?” and then continued
to question the DTRA personnel using profanity, even though they requested that he
refrain. [Doc. 28-13; Doc. 32-1, pg. 28 (statement by one of the drivers)] The charge in
the Notice related to this incident is titled “abusive language toward co-workers.” [Doc.
28-13] In both his response to the Notice and Response to Defendant’s Motion, Mr.
Bussey does not dispute that he approached the van and used profanity, but maintains that
one of the DTRA staff members was “hostile” and that he was concerned “that something
illegal was going on.” [Doc. 28-15; Doc. 32, ¶ 34]
Defendant asserts that each step of discipline was reviewed with Human
Resources personnel and approved by Mr. Conger before it was issued to Mr. Bussey.
[Doc. 28, ¶¶ 39, 40]

Defendant submits testimony by a DTRA Human Resources

representative who testified at the MSPB hearing that he assisted Mr. Collins in preparing
the letter of reprimand and “[g]ot that coordinated through the legal department and back
to Mr. Collins.” [Doc. 34-2] Mr. Bussey generally denies these facts, but as evidence in
support of his denial points only to the lack of signature by a Human Resources
representative or Mr. Conger on the disciplinary notices. [Doc. 32, ¶¶ 39, 40] He
adduces no evidence indicating that such signatures are required. Hence, his assertions
do not contradict Defendant’s.
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It is undisputed that Mr. Conger reviewed the Notice of Proposed Removal and
Mr. Bussey’s response to it, then made the final decision regarding removal. [Doc. 28,
¶¶ 43, 50; Doc. 32, ¶¶ 43, 50]
b. MSPB and Whistleblowing Activities
Mr. Bussey contends that the disciplinary actions, including his removal, were due
in part to his participation in protected conduct. [Doc. 1 (alleging retaliation for MSPB
and EEO activity and reporting fraud and waste allegations to the Inspector General)] In
2014 or early 2015, just before the letter of reprimand was issued, Mr. Bussey was a
witness in an MSPB hearing for another DTRA employee (the protected conduct). [Doc.
1, ¶ 10; Doc. 28, ¶ 17; Doc. 32, ¶ 17]
It is undisputed that Mr. Collins was aware before the letter of reprimand was
issued that Mr. Bussey had testified in the MSPB hearing. [Doc. 28, ¶ 17; Doc. 32, ¶ 17;
Doc. 32-1, pg. 22; Doc. 28-1, pg. 4, Collins Depo, 16:2 (Mr. Collins stating that he
believed that Mr. Bussey testified before the letter of reprimand was issued)] The MSPB
hearing occurred in “early 2015” and the letter of reprimand was issued on January 21,
2015. [Doc. 28, ¶ 17; Doc. 32, ¶ 17] Mr. Collins stated in his deposition that, while he
knew that Mr. Bussey was a witness in the MSPB hearing, he did not know any details
about the claims or the hearing. [Doc. 28, ¶ 17] Mr. Bussey disputes this assertion and
attached his testimony from the MSPB hearing on his removal stating that he discussed
the hearing with Mr. Collins and that Mr. Collins commented on the individuals involved.
[Doc. 32, ¶ 17; Doc. 32-1, pg. 22] Regardless of whether this conversation occurred, it is
undisputed that Mr. Collins was aware of Mr. Bussey’s involvement in the hearing as a
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witness before issuing the letter of reprimand. Similarly, the parties agree that Mr.
Conger was aware that Mr. Bussey had participated in an Equal Employment
Opportunity (EEO) action.3 [Doc. 28, ¶ 54; Doc. 32, ¶ 54]
2. Analysis
Within the context of a motion for summary judgment on discrimination claims,
courts apply the McDonnell Douglas burden shifting framework. See Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (stating that “the three-part
McDonnell Douglas burden-shifting analysis is limited to the summary judgment
context”). Under this framework,
the plaintiff “must carry the initial burden under the statute of establishing a
prima facie case of racial discrimination.” Once the plaintiff has
established a prima facie case, “[t]he burden then must shift to the employer
to articulate some legitimate, nondiscriminatory reason” for its employment
action. If the defendant makes this showing, the plaintiff must then show
that the defendant’s justification is pretextual.
Id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
In order to demonstrate a prima facie discriminatory discharge claim, a plaintiff
must show that “(1) he belongs to a protected class; (2) he was qualified for his job; (3)
despite his qualifications, he was discharged; and (4) the job was not eliminated after his
discharge.” Kendrick, 220 F.3d at 1229. [Doc. 28, pg. 15; Doc. 32, pg. 18] The parties
differ on whether Mr. Bussey is also required to demonstrate that similarly situated
3

Mr. Bussey alleges in his Complaint that “Defendant retaliated against Bussey in the
terms and conditions of his employment in violation of Title VII for participating as a
witness and for previous EEO filings.” [Doc. 1, ¶ 30] It is not clear from the parties’
asserted facts whether Mr. Conger’s reference in his deposition to “another EEO
proceeding for another employee” was to the same MSPB hearing referenced by Mr.
Collins or to a different proceeding. [Doc. 28, ¶ 54; Doc. 32, ¶ 54]
Page 17 of 33

employees were treated differently from Plaintiff. [Compare Doc. 28, pg. 16 (Defendant
arguing that Mr. Bussey must demonstrate this additional element) with Doc. 32, pg. 18
(Mr. Bussey arguing that he is not required to demonstrate this element)]
Our Tenth Circuit has held that “comparison to a person outside of the protected
class [in a] prima facie case is unnecessary to create an inference of discriminatory
discharge.” Id. (citing Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir.1999)). The
Tenth Circuit explained that
[w]hen viewed against the backdrop of historical workplace discrimination,
an employee who belongs to a racial minority and who eliminates the two
most common, legitimate reasons for termination, i.e., lack of qualification
or the elimination of the job, has at least raised an inference that the
termination was based on a consideration of impermissible factors. The
firing of a qualified minority employee raises the inference of
discrimination because it is facially illogical to randomly fire an otherwise
qualified employee and thereby incur the considerable expense and loss of
productivity associated with hiring and training a replacement.
Id. However, evidence of the treatment of similarly situated employees is an element of
“[a] prima facie case of racial discrimination based upon disparate treatment,” which
“requires a plaintiff to show: ‘(1) that [s]he is a member of a [protected class], (2) that
[s]he suffered an adverse employment action, and (3) that similarly situated employees
were treated differently.’” Juarez v. Utah, 263 F. App’x 726, 737–38 (10th Cir. 2008)
(unpublished) (emphasis added) (quoting Trujillo v. Univ. of Colo. Health Sciences Ctr.,
157 F.3d 1211, 1215 (10th Cir.1998)).
Here, Defendant argues that the only adverse employment action Mr. Bussey can
show is his removal from his position and, therefore, that Mr. Bussey’s claim is limited to
discriminatory discharge. [Doc. 28, pg. 16] Mr. Bussey argues to the contrary that “Mr.
Page 18 of 33

Collins harassed Plaintiff and proposed multiple suspensions in 2015,” that Mr. Bussey
was “not provided an opportunity to respond to Mr. Collins’ proposed suspensions,” and
that “[Mr. Bussey] was the only one who was disciplined for not following instructions
regarding the vehicle fleet.” [Doc. 32, pg. 18-19] Moreover, Mr. Bussey’s Complaint
alleges that “Defendant has discriminated against Bussey in the terms and conditions of
his employment on the basis of his race in violation of Title VII” and that “[t]he
discrimination consisted of Defendant subjecting Bussey to disparate treatment in
regards to discipline and removal from federal service.” [Doc. 1, ¶¶ 26, 27 (Emphasis
added.)] Thus, to the extent Mr. Bussey is alleging both discriminatory discharge and
discriminatory treatment, the Court will assess the present Motion as applied to both
claims.
a. Discriminatory Discharge
To reiterate, the elements of a prima facie discriminatory discharge claim are “(1)
[the plaintiff] belongs to a protected class; (2) [the plaintiff] was qualified for his job; (3)
despite his qualifications, he was discharged; and (4) the job was not eliminated after his
discharge.” Kendrick, 220 F.3d at 1229.
The parties do not dispute that Mr. Bussey belongs to a protected class, that he
was discharged, and that his position was not eliminated after his discharge. [Doc. 28, ¶¶
3, 51, 58; Doc. 32, ¶¶ 3, 51, 58, pg. 19] The first, third, and fourth elements are therefore
met, and the remaining question is whether Mr. Bussey was qualified for his position.
A plaintiff may show that she is qualified “by credible evidence that she continued
to possess the objective qualifications she held when she was hired, . . . or by her own
Page 19 of 33

testimony that her work was satisfactory, even when disputed by her employer, . . . or by
evidence that she had held her position for a significant period of time.” MacDonald,
941 F.2d at 1121 (citations omitted). Here, it is undisputed that “Plaintiff began his
employment with the federal government in 1987” and that he “began working for . . .
DTRA . . . in 1999.” [Doc. 28, ¶ 1; Doc. 32, ¶ 1] It is also undisputed that the letter of
reprimand issued by Mr. Collins in September 2014 was the first time Mr. Bussey had
been disciplined since joining DTRA. [Doc. 32, ¶ 13; Doc. 34, pg. 4] Moreover,
Defendant does not argue that Mr. Bussey was unqualified for his position. These
undisputed facts are sufficient to demonstrate that Mr. Bussey was qualified and,
therefore, to satisfy the second element of the prima facie case of discriminatory
discharge. Id. (stating that the plaintiffs had satisfied their burden on this issue where
they showed that “plaintiffs had held their positions for four years and both presented
evidence that they had never been disciplined or received unfavorable performance
reviews until recently” and that “[b]oth described the satisfactory nature of their work
performance”).
Defendant argues that Mr. Bussey has failed to establish a prima facie case
because he has failed to identify “any other similarly situated individual who engaged in
a comparable series of egregious and unprofessional behavior[s], who was not similarly
disciplined” and because his discharge was justified by his behavior. [Doc. 28, pg. 1617] As discussed, comparison to a similarly situation individual is not an element of a
prima facie case for discriminatory discharge. Trujillo, 157 F.3d at 1215. Moreover, “[a]
defendant’s evidence regarding an employee’s work performance should not be
Page 20 of 33

considered when determining whether the employee has made a prima facie case of
employment discrimination.” Ellison v. Sandia Nat’l Labs, 60 F. App’x 203, 205 (10th
Cir. 2003) (unpublished) (citing MacDonald v. E. Wyoming Mental Health Ctr., 941 F.2d
1115, 1119-20 (10th Cir. 1991) (abrogated on other grounds by Randle v. City of Aurora,
69 F.3d 441, 445 (10th Cir. 1995))). This is so because consideration of this evidence as
part of a plaintiff’s prima facie case
raises serious problems under the McDonnell Douglas analysis, which
mandates a full and fair opportunity for a plaintiff to demonstrate pretext.
Short-circuiting the analysis at the prima facie stage frustrates a plaintiff’s
ability to establish that the defendant’s proffered reasons were pretextual
and/or that [race] was the determining factor; if a plaintiff’s failure to
overcome the reasons offered by the defendant for discharge defeats the
plaintiff’s prima facie case, the court is then not required to consider
plaintiff’s evidence on these critical issues.
MacDonald, 941 F.2d at 1119. Instead, “the employer’s evidence [as to the plaintiff’s
job performance] is properly considered in addressing whether [the employer’s]
articulated reasons [for discharge] are legitimate or merely a pretext for discrimination.”
Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470 (10th Cir. 1992).
Since all four elements of the prima facie case are met, Mr. Bussey has met his
burden on this prong of the McDonnell Douglas framework. See Kenworthy, 979 F.2d at
1469 (stating that the burden to make a prima facie case is “not onerous”) (internal
quotation marks and citation omitted); Gibson v. Mabrey Bank, No. 14-CV-0770-CVEFHM, 2015 WL 5098698, at *6 (N.D. Okla. Aug. 31, 2015) (concluding that where the
plaintiff demonstrated that she was qualified, and “all other elements of the prima facie

Page 21 of 33

case are either uncontested or substantiated by evidence, plaintiff has established a prima
facie case of discriminatory termination”).
The burden therefore shifts to Defendant “to articulate some legitimate,
nondiscriminatory reason for its employment action.”

Kendrick, 220 F.3d at 1226

(internal quotation marks and citation omitted). Defendant points to “numerous examples
of Plaintiff’s rude behavior, unacceptable conduct and defiance of policy and directions”
and attached each of the written notices of disciplinary action taken against Plaintiff,
which detail the alleged unacceptable behavior.

[Doc. 28]

Hence, Defendant has

sufficiently articulated a nondiscriminatory reason for Plaintiff’s discharge. See id. at
1230 (holding that the employer met its burden where it “asserted that [the plaintiff] was
discharged for gross insubordination after . . . [the] Human Resources Manager[]
concluded that [the plaintiff] verbally abused and had physical contact with a supervisor
based upon uncontroverted information”).
The burden now shifts back to Mr. Bussey to “show that the defendant’s
justification is pretextual.” Id. at 1226. Pretext may be shown by “evidence of such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons.” E.E.O.C. v. BCI Coca-Cola Bottling Co. of
Los Angeles, 450 F.3d 476, 490 (10th Cir. 2006) (internal quotation marks and citations
omitted). “In determining whether a plaintiff’s evidence of pretext is sufficient to permit
an inference of discrimination and thereby avoid summary judgment, the Supreme Court
Page 22 of 33

has noted relevant factors ‘includ[ing] the strength of the plaintiff’s prima facie case, the
probative value of the proof that the employer’s explanation is false, and any other
evidence that supports the employer’s case and that properly may be considered’ on a
motion for summary judgment.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d
1160, 1169 (10th Cir. 2007) (quoting Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S.
133, 148–49 (2000)). “Evidence that the employer should not have made the termination
decision—for example, that the employer was mistaken or used poor business
judgment—is not sufficient to show that the employer’s explanation is unworthy of
credibility.”

Swackhammer, 493 F.3d at 1169–70.

Instead, the relevant inquiry is

“whether [the employer] honestly believed those [proffered] reasons and acted in good
faith upon those beliefs.” Id. at 1170. “The employer is entitled to summary judgment if
the employee could not offer evidence tending to show the defendant’s innocent
explanation for his employment decision was false.” Trujillo, 157 F.3d at 1215 (internal
quotation marks and citation omitted).
Here, Plaintiff’s argument regarding pretext consists of a series of factual
assertions, which the Court construes as an attempt to show that Defendant’s reasons are
inconsistent. [Doc. 32] To the extent that Mr. Bussey disputes that he engaged in the
behavior alleged, this argument is unavailing, because the Court’s focus is on whether
Mr. Collins and Mr. Conger had a good faith belief that he did so. In Kendrick, for
example, the Court “assume[d] . . . that Kendrick’s statement that he did not push
[another employee] would create a genuine issue of fact as to whether or not Kendrick in
fact pushed [the employee].”

Kendrick, 220 F.3d at 1231.
Page 23 of 33

The Court stated that,

notwithstanding that assumption, “a challenge of pretext requires us to look at the facts as
they appear to the person making the decision to terminate plaintiff.” Id. It went on to
hold that the plaintiff’s argument that he did not in fact push the other employee was
insufficient to show pretext, because the evidence before the decision-maker indicated
that he had. Id.
Hence, the focus of the inquiry here is on the information before Mr. Collins when
he recommended removal and before Mr. Conger at the time he made the removal
decision. Most of the behavior cited in the disciplinary notices was observed by Mr.
Collins personally. [See, e.g., Doc. 28-13, ¶¶ c, d, e, g, h, i] Moreover, in his response to
the Notice of Proposed Removal [Doc. 28-15], which was reviewed by Mr. Conger, Mr.
Bussey did not dispute most of the allegations. Hence, as to those allegations, “[t]here
was no evidence before [Mr. Conger] to suggest that [Mr. Bussey] had not, in fact,” acted
as described by Mr. Collins.

Id.

The fact that Mr. Bussey disputes some of the

allegations in his Response to Defendant’s Motion is immaterial to whether the evidence
before Mr. Collins and/or Mr. Conger supported their decisions at the time. See Young v.
Dillon Companies, Inc., 468 F.3d 1243, 1251 (10th Cir. 2006) (discussing Kendrick and
stating that “while the decision maker’s conclusion about the plaintiff’s conduct may
have been wrong, [the Kendrick Court] saw no basis on which a reasonable fact finder
could have found that it was not honestly held” and that claims that an employer’s
allegations were unfounded made for the first time during litigation are immaterial to
examination of whether the employer had a good faith basis for discharge at the time).

Page 24 of 33

Mr. Bussey disputed some of the facts stated in the Notice of Proposed Removal
in his response to it. In his response, he disputed the facts alleged by Mr. Collins as to
the encounter with other DTRA staff members on October 21, 2015. However, Mr.
Bussey did not dispute that he used foul language and that the exchange was heated.
[Doc. 28-15] Thus, the evidence before Mr. Conger was undisputed that Mr. Bussey
used “abusive language toward co-workers.” [Doc. 28-13] Mr. Bussey also disputed the
alleged facts of his exchange with a colleague and denied that he hung up on the
colleague. [Doc. 28-15] However, he admitted in his response that he refused to visit the
colleague’s office and that the telephone call was contentious. [Id.] These admissions,
together with the reports by Mr. Collins, are sufficient to support Mr. Conger’s good faith
belief in a nondiscriminatory reason for discharge.
“A plaintiff may also show pretext . . . by providing evidence that he was treated
differently from other similarly-situated, nonprotected employees who violated work
rules of comparable seriousness.”

Kendrick, 220 F.3d at 1232.

The only explicit

references to disparate treatment in Plaintiff’s pretext argument are the statements that,
unlike Plaintiff, “White employees were not required to sign for vehicles” and that
“Plaintiff is the only one who was given a letter of reprimand for allegedly failing to
follow instructions.” [Doc. 32, pg. 21] Mr. Bussey also implies that Mr. Collins treated
him differently by failing to give him a written job description and resources as building
manager and changing the policy regarding leaving the building. [Doc. 32, pg. 21-22]
These allegations and the evidence proffered in support do not meet Plaintiff’s
burden to show that the reasons given for his removal were pretextual. First, Mr. Bussey
Page 25 of 33

has not demonstrated that the White employees within Mr. Collins’ group had the same
responsibility to conduct a vehicle inventory as Mr. Bussey did. Mr. Bussey testified in
his deposition that “[t]here were about 20-plus personnel that had these vehicles on a
daily basis, and they was not required to sign for them. . . . And they was all White.”
[Doc. 32-1, pg. 3, Bussey Depo, 22:2-10] He then stated, “I was not in charge of
vehicles.” [Doc. 32-1, pg. 3, Bussey Depo, 22:20-24] However, he also stated that the
inventory of the vehicles was an “ad hoc duty,” [Doc. 32-1, pg. 3, Bussey Depo, 22:2024], that “[he] was the only one exercised with vehicles,” and that his day-to-day duties
consisted of “[w]hatever Mr. Collins requested [he] do that day.” [Doc. 32-1, pg. 3,
Bussey Depo, 23:5-6, 17-18] In addition, in his Response to Defendant’s Motion, Mr.
Bussey agrees that he was in charge of the vehicles assigned to Mr. Collins’ department
[Doc. 28, ¶ 7; Doc. 32, ¶ 7], and that Mr. Collins requested that he conduct the inventory
and told him how to do it. [Doc. 28, ¶ 11; Doc. 32, ¶ 11] Even if the Court, construing
the evidence in Mr. Bussey’s favor as it must, assumes that White personnel were not
required to sign for the vehicles under their charge, Mr. Bussey’s evidence does not
indicate that any White personnel were assigned to do a similar vehicle inventory and yet
were not disciplined for failure to conduct the inventory as instructed. To the contrary,
Mr. Bussey’s own testimony indicates that he was the only one tasked with that particular
inventory, whether as part of his regular duties or as an “ad hoc” duty. Since the charge
in the Letter of Reprimand was “failure to follow instructions,” and Mr. Bussey does not
dispute that he was instructed to conduct the inventory but did not, his testimony that

Page 26 of 33

White employees were not disciplined for failure to sign for their vehicles is unavailing to
raise a question of fact surrounding pretext.
Similarly, Mr. Bussey does not provide support for his implication that, because
he is African American, he was not given written guidance or resources as building
manager or that Mr. Collins changed the policy regarding leaving the building in order to
discriminate against Mr. Bussey. [Doc. 32, pg. 21-22] He does not dispute that the
change in policy applied to all staff in Mr. Collins’ department. [Doc. 32, ¶ 24] Neither
does he provide evidence that non-African American building managers were given
resources and/or that non-African American employees were not required to follow the
policies regarding leave and absences.
Finally, Mr. Bussey argues that he was not afforded an opportunity to respond to
notices of proposed suspensions issued prior to the Notice of Proposed Removal. [Doc.
32, pg. 21] Mr. Conger stated that Mr. Bussey filed responses to each of the proposed
suspensions and the proposed removal. [Doc. 32-1, pg. 16, Conger Depo, 12:6-12]
Moreover, the Notices were all signed by Mr. Bussey and each contained instructions on
how to file a response. [Docs. 3, 5, 12, 13] The evidence on which Mr. Bussey relies to
the contrary indicates only that Mr. Bussey did not receive an opportunity to respond to
Mr. Collins’ memorandum to the file. [Doc. 28-4; Doc. 32, ¶ 23] That evidence
therefore does not address the assertion that Mr. Bussey had an opportunity to respond to
the proposed suspensions.
In sum, although Mr. Bussey made out a prima facie case for discriminatory
discharge, he has not met his burden to demonstrate that there is a genuine issue of
Page 27 of 33

material fact surrounding whether Defendant’s reasons for his removal were pretextual.
Id. at 1234 (concluding that the district court did not err in granting summary judgment
where the plaintiff put forth a prima facie case of discriminatory discharge, but failed to
rebut the defendant’s legitimate reasons for discharge with evidence of pretext).
b. Discriminatory Treatment
Just as with a discriminatory discharge claim, once a prima facie case of
discriminatory treatment is established, the defendant must put forth legitimate, nondiscriminatory reasons for the action, and then the plaintiff must demonstrate that those
reasons are merely pretextual. Trujillo, 157 F.3d at 1215. To establish a prima facie case
of discriminatory treatment, a plaintiff must show “(1) that he is a member of a racial
minority, (2) that he suffered an adverse employment action, and (3) that similarly
situated employees were treated differently.”

Id..

“In the context of a Title VII

discrimination claim, an adverse employment action is a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.”

Juarez, 263 F. App’x at 737–38 (internal quotation marks and citation

omitted). “Similarly situated employees are those who deal with the same supervisor and
are subject to the same standards governing performance evaluation and discipline.” Id.
(internal quotation marks and citation omitted).
Mr. Bussey contends that he has met his burden to demonstrate that he was treated
differently from similarly-situated employees. He alleges that “Plaintiff was the only one
who was disciplined for not following instructions regarding the vehicle fleet.” [Doc. 32,
Page 28 of 33

pg. 19] However, as just discussed, Mr. Bussey has not shown that there were similarly
situated individuals of another race who were tasked with completing a vehicle inventory
who were treated differently from him. Hence, he has not met his burden to establish a
prima facie case of discriminatory treatment and the Court’s inquiry under McDonnell
Douglas is complete.
Because Mr. Bussey failed to show that there is a genuine dispute of fact related to
whether Defendant’s reasons for his removal were pretextual, summary judgment in
favor of Defendant is appropriate and will be granted as to Plaintiff’s discriminatory
discharge claim (Count 1). To the extent Mr. Bussey asserts a discriminatory treatment
claim (Count 1), summary judgment will be granted because Mr. Bussey has failed to
make a prima facie case on that claim.
c. Title VII Retaliation
“The general approach to Title VII suits set out in McDonnell Douglas is also
applicable to retaliation claims” based on Title VII. Sorensen v. City of Aurora, 984 F.2d
349, 353 (10th Cir. 1993). The plaintiff must therefore begin by establishing a prima
facie case of retaliatory discharge. In order to do so, “a plaintiff must show: (1) she
engaged in protected activity; (2) she subsequently suffered adverse action by the
employer; and (3) there was a causal connection between the protected activity and the
adverse action.” Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1367 (10th Cir. 1997).
As to the third prong of this test, “[i]n order for an action to constitute retaliation for
protected conduct, the actor must know an employee previously engaged in protected
conduct.” Greenlee v. Sw. Health Sys., Inc., No. CIVA 06CV00103 EWNKL, 2007 WL
Page 29 of 33

2320544, at *12 (D. Colo. Aug. 10, 2007). However, “knowledge alone will not suffice”
and “[t]here must also be evidence giving rise to a reasonable conclusion that the actor’s
motive for taking adverse action was his desire to retaliate for the protected activity.” Id.
Defendant concedes that Mr. Collins and Mr. Conger knew about Mr. Bussey’s
participation in an MSPB hearing. [Doc. 28] It argues that because “over a year passed”
between Mr. Bussey’s testimony at the MSPB hearing and his removal, Mr. Bussey has
failed to demonstrate a causal connection between the two events.

[Doc. 28]

In

response, Mr. Bussey relies on the temporal proximity between the MSPB hearing and
the issuance of the Letter of Reprimand, both of which occurred in January 2015, as
evidence that Defendant’s disciplinary actions, which culminated in removal, were
retaliatory. [Doc. 32 (“Only after Plaintiff testified at the EEO proceeding did Plaintiff
ever receive any discipline.”)] The “Tenth Circuit has recognized that ‘a pattern of
adverse personnel actions over a period of weeks or months may demonstrate an
employer’s retaliatory animus notwithstanding the absence of close temporal proximity
between the employee’s initial protected activity and the employer’s ultimate [adverse
action].’” Semsroth v. City of Wichita, 548 F. Supp. 2d 1203, 1211–12 (D. Kan. 2008),
aff’d, 555 F.3d 1182 (10th Cir. 2009) (quoting Steele v. Kroenke Sports Enters., L.L.C.,
264 Fed.Appx. 735, 746 (10th Cir.2008)). However, even if Mr. Bussey is correct that
the temporal proximity between the MSPB hearing and the letter of reprimand is
sufficient to establish a causal relationship, hence establishing a prima facie case for
retaliation, Mr. Bussey has not carried his burden as to the third prong of the McDonnell
Douglas analysis, i.e., demonstrating that there are genuine disputes of material fact as to
Page 30 of 33

whether Defendant’s legitimate, non-discriminatory reasons for his discipline and
eventual removal were pretextual. Instead, he relies on the same allegations discussed
above which the Court has already determined are insufficient to raise a question of fact
on this issue. Mr. Bussey’s argument that Mr. Conger’s failure to adequately investigate
his allegations of discriminatory treatment is evidence of discriminatory intent is also
unavailing.

[Doc. 32, pg. 25]

Without evidence that Defendant’s policy was to

investigate such allegations or that Mr. Conger investigated similar allegations made by
other employees, Mr. Bussey’s assertions do not support an inference that Mr. Conger
failed to investigate because of Mr. Bussey’s protected activity. Cf. Lueck v. Cushing
Mem’l Hosp. Corp., No. 10-CV-04025-JAR, 2011 WL 4900118, at *7 (D. Kan. Oct. 14,
2011) (stating that, where the plaintiff “offered no evidence of a policy, written or
unwritten, to suggest defendant would usually report [certain conduct to a regulatory
body],” a failure to report was not evidence of pretext even if it “would have been
advisable” to do so). Mr. Bussey has “failed to bring forward evidence to show that
retaliatory motive was a determinative factor in h[is] dismissal.” Piercy v. Maketa, 480
F.3d 1192, 1202 (10th Cir. 2007).

Summary judgment in favor of Defendant will

therefore be granted on this issue.
C. Jurisdiction over Remaining WPEA Claim
Where the federal district court’s jurisdiction rests on the filing of a mixed case,
such as this one, and the discrimination claims are dismissed, the court may “(1) retain
jurisdiction over the nondiscrimination claim, or (2) transfer the case to the Federal
Circuit under 28 U.S.C. § 1631.” Afifi v. U.S. Dep’t of Interior, 924 F.2d 61, 64 (4th Cir.
Page 31 of 33

1991). In exercising its discretion, the district court must consider the following factors:
“judicial economy, convenience, concerns for federalism, and fairness to litigants.” Id.
Here, these factors weigh in favor of retaining jurisdiction over Plaintiff’s
nondiscrimination based WPEA claim. The facts surrounding Plaintiff’s whistleblowing
activities are closely interwoven with the disciplinary actions against him. “The Title VII
pretext analysis . . . overlaps to a large extent with whether the MSPB properly sustained
those reasons for [Mr. Bussey]’s removal.” Ali v. Brown, 998 F. Supp. 917, 928 (N.D.
Ill. 1998). This Court has already reviewed Defendant’s reasons for Plaintiff’s removal;
transfer to the Federal Circuit “would not only waste the resources [it has] already
committed to the case, it would also spawn duplicative efforts in the Federal Circuit.” Id.
Because this Court already “spent considerable resources in addressing de novo the
propriety of removal in the discrimination context[,] [it] will expend scant more if [it]
retain[s] jurisdiction to review it in the appellate context, where [the] inquiry is much less
searching.” Id. Moreover, transfer will delay resolution of the matter, “which would be
inconvenient and unfair to the litigants and would not serve the interests of judicial
economy.” Hamilton v. Dep’t of Labor, No. 04 CIV. 9605 (PKC), 2006 WL 760276, at
*6 (S.D.N.Y. Mar. 22, 2006). The Court will, therefore, exercise its discretion to retain
jurisdiction over the WPEA claim.
III.

Conclusion
For the foregoing reasons, the Court GRANTS Defendant Department of

Defense’s Motion for Summary Judgment [Doc. 28] as to Counts 1 and 2 of the

Page 32 of 33

Complaint and DENIES the Motion for Summary Judgment [Doc. 28] as to Count 3 of
the Complaint.
FURTHERMORE, Defendant Department of Defense is hereby ORDERED to
cause the administrative record of proceedings before the MSPB to be filed consistent
with Rule 16 and 17 of the Federal Rules of Appellate Procedure.
SO ORDERED this 5th day of April, 2018.

M. CHRISTINA ARMIJO
United States District Judge

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