74 F.4th 1011
9th Cir.2023Background
- Stephen Crowe, a police officer at Tripler Army Medical Center, complained about a coworker’s homophobic slur; later the Army investigated allegations Crowe had sex on duty and engaged in misconduct.
- Crowe was placed on administrative detail (loss of police powers and overtime), received a notice of proposed removal, and was ultimately terminated.
- Crowe filed EEO complaints alleging pre-termination discrimination (sexual orientation, race, retaliation) and later amended to include the termination; he then filed a mixed-case appeal with the MSPB limited to his termination alleging sexual-orientation discrimination.
- The EEO office retained the pre-termination claims and did not decide them within 180 days; the MSPB AJ sustained the termination after a hearing and rejected Crowe’s sexual-orientation affirmative-defense.
- The district court dismissed Crowe’s pre-termination Title VII claims for failure to exhaust before the MSPB, granted summary judgment to the Army on the sexual-orientation claim, and upheld the MSPB’s CSRA determination; Crowe appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crowe failed to exhaust pre-termination discrimination claims before the MSPB | Crowe: those pre-termination claims were not within MSPB jurisdiction and were properly pursued via the EEO process | Army: once termination (an appealable action) is in play, MSPB has pendent jurisdiction over factually related pre-termination claims, so they must be exhausted there | Court: MSPB lacks jurisdiction over non-appealable pre-termination actions; Crowe did not fail to exhaust those claims (vacated dismissal; remanded) |
| Whether Crowe exhausted other discrimination theories (race, sex, retaliation) as to the termination | Crowe: may press multiple discrimination theories in court even if he focused on sexual-orientation defense at MSPB | Army: issue-exhaustion requires all termination-based theories be raised before MSPB when termination is appealed there | Court: issue-exhaustion applies; Crowe only asserted sexual-orientation at MSPB, so other termination theories are unexhausted (affirmed) |
| Merits of Title VII sexual-orientation termination claim | Crowe: termination motivated by sexual-orientation discrimination | Army: articulated legitimate nondiscriminatory reasons (on-duty sex, gossip, confronting coworker); no evidence of decisionmakers’ animus | Court: summary judgment for Army; record lacks a genuine dispute of pretext or discriminatory motive (affirmed) |
| Review of MSPB CSRA decision (sufficiency of evidence supporting removal) | Crowe: MSPB failed to account properly for witness recantation and credibility issues | Army/MSPB: AJ reasonably credited corroborated testimony and discredited Crowe’s self-serving testimony; substantial evidence supports removal | Court: deferential review; substantial evidence supports the MSPB’s findings (affirmed) |
Key Cases Cited
- Kloeckner v. Solis, 568 U.S. 41 (2012) (describes MSPB jurisdiction over "particularly serious" personnel actions in mixed cases)
- Perry v. MSPB, 582 U.S. 420 (2017) (clarifies mixed-case review paths and limits on Federal Circuit review)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden-shifting framework for disparate-treatment claims)
- Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731 (2020) (held Title VII prohibits sexual-orientation discrimination)
- Woodford v. Ngo, 548 U.S. 81 (2006) (explains exhaustion doctrine in administrative contexts)
- Sloan v. West, 140 F.3d 1255 (9th Cir. 1998) (discusses MSPB jurisdictional limits in mixed-case context)
- McAdams v. Reno, 64 F.3d 1137 (8th Cir. 1995) (adopts a "factually relatedness" approach to MSPB exhaustion; expressly declined here)