MEMORANDUM OPINION
Plaintiff Paul Adair, pro se, was employed as a Trial Attorney by the United States Department of Labor, Office of the Solicitor, Division of Plan Benefits Security from 1995 to 2003. Plaintiff claims that defendant unlawfully discriminated against
I. BACKGROUND
Plaintiff, an African-American male, was employed as a trial attorney for the Plan Benefits Security Division (“PBSD”) of the Office of the Solicitor of Labor from April 1995 through March 29, 2003. Def.’s Statement of Material Facts (“Def.’s SMF”) ¶¶ 1-2. His principal responsibility at PBSD was conducting litigation under the Employees Retirement Income Security Act (“ERISA”) on behalf of the Secretary of Labor. Def.’s SMF ¶ 2. Dining his tenure at PBSD, one of the cases that Mr. Adair was assigned to was known as the “Employers Mutual” case. Def.’s SMF ¶ 3. Senior trial attorney William Scott was the supervising attorney assigned to the Employers Mutual case. Def.’s SMF ¶ 3.
In 2002, certain issues began to arise between Mr. Adair and Mr. Scott regarding Mr. Adair’s work on the Employers Mutual case. Specifically, on April 24, 2002, Mr. Scott sent Mr. Adair a detailed email directing plaintiff to make certain changes to a contempt motion that was to be filed in the case. See AR [Docket Entry 7-10 at 20], Email from Scott to Adair dated April 24, 2002; AR [Docket Entry 7-8 at 5-12], Declaration of G. William Scott dated July 3, 2003 (“2003 Scott Deck”) ¶ 4. By email dated April 29, 2002, Mr. Adair responded to Mr. Scott stating that he thought the motion was “fine.” AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Deck, Email from Adair to Scott dated April 29, 2002. Mr. Scott responded by renewing his request for Mr. Adair to make the suggested changes, explaining that without revision it was unclear what actions constituted contempt. AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Deck, Email from Scott to Adair dated May 1, 2002; 2003 Scott Deck ¶ 6. Mr. Scott also indicated that the motion should propose a remedy. By email dated May 2, 2002, Mr. Adair responded by stating that “[t]he proof is obvious” and “I would live [sic] the relief to the court.” AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Deck, Email from Adair to Scott dated May 2, 2002. Mr. Scott then, once again, explained his concerns with plaintiffs approach, and asked Mr. Adair to “finalize the motion papers today and give a copy to me[.]” AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Deck, Email from Scott to Adair dated May 2, 2002. Mr. Adair failed to revise the motion on May 2, 2002 as requested. 2003
In June 2002, Mr. Adair submitted a request for extended Annual Leave to Karen Handorf, Deputy Associate Solicitor for PBSD. See AR Tab 4gg(2), Ex. A to Declaration of Karen Handorf, Letter from Handorf to Adair dated July 5, 2002 (“Handorf Letter”). Ms. Handorf denied Mr. Adair’s leave request, citing Mr. Adair’s heavy workload and unfinished assignments for the Employers Mutual case. See Handorf Letter (“On June 17, 2002, you requested annual leave and this leave was denied because of your heavy workload. Specifically, for the Employers’ Mutual Case, you had not sent the contempt letter, had not revised and filed the default motions and had not submitted a discovery plan, as requested by your supervisor on that case.”). Mr. Adair then requested extended medical leave and was told that the request would be considered after medical documentation was provided. See Handorf Letter. On June 28, 2002, Mr. Adair left a prescription paper from his doctor on Ms. Handorfs chair, which states: “Paul Adair was seen and a treatment plan is provided for therapy.” See AR [Docket Entry 7-15 at 8], Prescription from Dr. William D. Lawson, M.D., Department of Psychiatry, Howard University Hospital; see also Handorf Letter. Ms. Handorf then informed Mr. Adair that the prescription paper was “inadequate to justify extended sick leave because it does not state that you will be unable to come to work because of medical treatment nor does it state that you are incapable of performing the duties of your job.” Handorf Letter. Ms. Handorf further advised Mr. Adair that “if your doctor is unwilling to provide a statement that you are not able to perform the duties of your job, we will consider a letter detailing the symptoms of your condition which we will then evaluate to determine whether to grant you extended sick leave.” Handorf Letter. Mr. Adair failed to produce any additional documentation from any health care professionals and returned to work. See AR Tab 4gg at 1, Declaration of Karen Handorf (“Handorf Deck”) ¶ 3.
On July 17, 2002, Mr. Scott sent an email to Mr. Adair (the “July 17th Email”), which instructed him to complete five assignments related to the Employers Mutual case with a deadline of July 23, 2002.
See
AR Tab 4cc2, Ex. A to Declaration of G. William Scott dated Nov. 13, 2002 (“2002 Scott Deck”), Email from Scott to Adair dated July 17, 2002. On July 23, 2002, Mr. Scott sent Mr. Adair an email, which stated: “Paul: I asked you to see me before you left today, but I see you have gone without doing so. Please tell me whether you have completed these tasks; today is the due date. There is a lot to do in this case.” AR [Docket Entry 7-15 at 11], Email from Scott to Adair dated July 23, 2002. After receiving no
On August 8, 2002, Mr. Adair met with his supervisor Leslie Perlman. They discussed, among other things, the assignments that Mr. Scott had given Mr. Adair on July 17, 2002. On August 9, 2002, Ms. Perlman sent Mr. Adair an email with the assignments contained in the July 17th Email, and stated: “Paul: As I told you yesterday, I am sending you the following assignments for the [Employers Mutual] case even though you told me yesterday that you would not do the assignments and would accept your punishment (short of a trip to the employment office). I urge you to reconsider your position. You must complete the assignments below on the schedule Bill proposed which has a [revised] deadline of August 19.” AR Tab 4cc3, Ex. B to 2002 Scott Decl., Email from Perlman to Adair dated Aug. 9, 2002. By email dated August 28, 2002, Mr. Scott sent an email to Mr. Adair asking if had performed any of the tasks assigned on July 17, 2002. AR Tab 4cc3, Ex. B to 2002 Scott Decl., Email from Scott to Adair dated Aug. 28, 2002. 3
On October 17, 2002, Elizabeth Hopkins, a supervisor at PBSD, asked Mr. Adair to attend a mid-year performance review (hereinafter, the “October 17th Meeting”). AR Tab 4ee, Declaration of Elizabeth Hopkins (“Hopkins Decl.”). In attendance at the October 17th Meeting were plaintiff, Ms. Hopkins, Mr. Scott, Ms. Perlman, and another supervisor, Risa Sandler. Def.’s SMF ¶ 11. During the meeting, after Ms. Perlman and Ms. Hopkins praised Mr. Adair for his performance on the cases that they were supervising, Mr. Scott raised his dissatisfaction with Mr. Adair’s performance on the Employers Mutual case. AR Tab 4dd, Declaration of Risa Sandler (“Sandler Deck”) ¶¶4, 5. While the details of the meeting are disputed, it is undisputed that at some point during the meeting Mr. Adair stated that he had
After the meeting, each of plaintiffs supervisors reported feeling shocked and upset.
See
Sandler Decl. ¶¶ 12-14 (“I was very alarmed by Mr. Adair’s demeanor and his comments. I was concerned that he might pose a danger to Mr. Scott or to others.... I was particularly alarmed by Mr. Adair’s comments mentioning killing and death. Although it appeared that his anger was directed primarily towards Mr. Scott, his comments mentioning killing and death were directed towards people in general.... Based on Mr. Adair’s conduct and remarks at the meeting, I am concerned that anyone in this office (or, for that matter, anyone in this building) could be a target of Mr. Adair’s anger.”); Perl-man Decl. ¶ 11 (“I was and continue to be seriously concerned about the safety of our employees where a coworker has said that he would rather see everyone dead than be disrespected. That statement upset me and made me feel that Mr. Adair might present a serious threat to Mr. Scott and others in this office.”).
5
Indeed, each of the supervisors sent an email to Timothy Hauser, Associate Solicitor at PBSD, expressing their concerns regarding plaintiffs behavior.
6
Mr. Scott also contacted
Soon thereafter, on November 14, 2002, Ms. Perlman sent Mr. Adair a notice of a proposal to remove him from his position as a trial attorney at PBSD (the “Notice of Proposed Removal”).
See
AR Tab 4bb, Notice of Proposed Removal. This seven-page notice informed Mr. Adair, among other things, that his proposed removal was based on the following charges: (1) “[m]aking statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace”; (2) “[f]ailure to follow instructions”; and (3) “[ijnsubordination.”
See generally
Notice of Proposed Removal; Def.’s SMF ¶ 19. The notice also contained detailed specifications setting forth the specific conduct that each charge was based upon. As is relevant to this case, the anxiety and disruption charge is based upon the statements that plaintiff made during the October 17th Meeting, including that he “had been feeling violent” and “would rather see everyone dead and the whole world destroyed” than be disrespected; the failure to follow instructions charge is based upon plaintiffs alleged failure to revise the contempt motion as requested and to complete the assignments contained in the July 17th Email; and the insubordination charge is based upon plaintiffs alleged statement to Ms. Perlman that he refused to work on the Employers Mutual case during their meeting on August 9, 2010, as well as a similar statement that he allegedly made during the October 17th Meeting.
8
See
On March 26, 2003, Mr. Hauser issued a memorandum upholding the Notice of Proposed Removal (the “Agency Decision”). Def.’s SMF ¶ 20; see AR Tab 4a, Agency Decision at 1 (“This memorandum constitutes my decision on the proposal to remove you from your position for making statements that resulted in anxiety and disruption in the workplace, insubordination, and failure to follow supervisors’ instructions.”). In his decision, Mr. Hauser found that the reasons set forth in the Notice of Proposed Removal were supported by a preponderance of the evidence, and that the severity of plaintiffs conduct warranted removal. See Agency Decision at 1; see also Agency Decision at 6 (“After consideration of all of the evidence, I conclude that it is appropriate to terminate your employment as proposed, particularly in light of the seriousness of the offenses and the sensitivity of your position.... PBSD cannot effectively discharge its responsibilities if employees refuse to follow the directions of their supervisors, and supervisors cannot do their jobs if they have to worry about the potential for unwarranted, provocative, and possibly dangerous responses when they issue proper directions to an employee.”). Accordingly, plaintiff was removed from federal service effective March 29, 2003. Def.’s SMF ¶ 21.
Plaintiff then appealed the Agency Decision to the MSPB on April 14, 2003, and the matter was referred to Administrative Judge Sherry Armstrong (the
“ALJ”).
Def.’s SMF ¶ 22. On August 11, 2003, Judge Armstrong issued a 48-page opinion (the “MSPB Decision”) upholding the Agency Decision and concluding that the agency-imposed penalty of termination “supports the efficiency of the service and was reasonable.” AR [Docket Entry 7-1 at 4-23, 7-2 at 1-25], MSPB Decision at 26; Def.’s SMF ¶ 24. Specifically, with regard to the agency’s charges, the ALJ found that: (1) “[t]he agency established
Plaintiff subsequently appealed Judge Armstrong’s opinion to the full MSPB. Def.’s SMF ¶ 25. This appeal was denied on May 13, 2004.
See Adair v. Dep’t of Labor,
Accordingly, on August 30, 2004, plaintiff filed suit in this Court alleging (i) race discrimination, (ii) sex discrimination, (iii) interference with and denial of family and medical leave, (iv) disability discrimination, and (v) violations of due process. He also sought review of the MSPB Decision. Thereafter, plaintiff voluntarily dismissed his claims for sex discrimination and interference with and denial of family and medical leave.
See
Pl.’s Opp’n Br. at 3 n. 2 (“Plaintiff is no longer pursuing a claim of gender discrimination.”); Order Dated March 16, 2006 (“[A]t plaintiffs request, it is FURTHER ORDERED that plaintiffs claim under the Family and Medical Leave Act is DISMISSED.”). Pending before the Court, therefore, are plaintiffs remaining discrimination claims, his allegation of due process violations, and his petition for review of the MSPB Decision.
10
Defen
II. STANDARD OF REVIEW
Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
See
Fed. R. Civ. P. 56;
Celotex Corp. v. Catrett,
The non-moving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial.
See
Fed. R. Civ. P. 56(e);
Celotex,
III. ANALYSIS
As noted above, defendant has moved for summary judgment as to plaintiffs race and disability discrimination claims on
A. Plaintiffs Discrimination Claims
1. Race Discrimination
i. Legal Framework
Discrimination claims under Title VII have traditionally been analyzed under the
McDonnell Douglas
burden shifting framework. The D.C. Circuit recently held, however, that when considering a motion for summary judgment in an employment discrimination ease, a district court need not consider whether a plaintiff has actually satisfied the elements of a prima facie case if the defendant has offered a legitimate, non-discriminatory reason for its actions.
Brady v. Office of the Sergeant at Arms,
“A plaintiff may show discrimination either directly or indirectly.”
Evans v. Holder,
ii. Analysis
In this case, defendant has proffered a legitimate, non-discriminatory reason for plaintiffs termination. Specifically, defendant asserts that “[p]laintiff s own conduct is the legitimate, non-discriminatory reason for Plaintiffs removal from federal service.” Def.’s Mot. for Summ. J. at 9. Citing the agency’s determination that plaintiff had (1) made statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace; (2) failed to complete certain assignments; and (3) acted insubordinately, defendant argues that “[e]ach of these [reasons] alone is a legitimate, non-discriminatory reason for Plaintiffs removal that is not pretextual and entitles Defendant to judgment as a matter of law[.]” Def.’s Mot. for Summ. J. at 9-10. The issue before the Court, therefore, is whether plaintiff has produced sufficient evidence for a reasonable jury to find that defendant’s asserted non-discriminatory reasons were not the actual reasons for the adverse employment action, and that the employer’s actions were discriminatory.
For the reasons discussed below, the Court finds that plaintiff has failed to meet this burden. Although plaintiff purports to provide the Court with both direct and indirect evidence of defendant’s alleged discriminatory intent and animus, plaintiffs “evidence” is provided in the form of either conclusory allegations or mischaracterizations of the record. Because “[s]elf-serving testimony does not create genuine issues of material fact,”
Fields v. Office of Johnson,
a. Plaintiffs “Direct Evidence”
As “direct evidence” of defendant’s alleged discrimination, plaintiff argues that he “was treated differently because of his race on the Employers Mutual case than two white male attorneys.” Pl.’s Opp’n Br. at 4 (explaining that “ ‘[a]n employer’s policy amounts to disparate treatment if it treats [blacks and whites] differently on its face’ ” (quoting
Frank v. United Airlines, Inc.,
While it is undoubtedly true that Mr. Scott gave Mr. Apt and Mr. Dolan the same assignments that he had previously assigned to plaintiff with different deadlines and conditions, what plaintiff fails to acknowledge is that Mr. Scott assigned the tasks to Mr. Apt and Mr. Dolan after plaintiff failed to complete the assignments within the time requested. Indeed, by email dated July 17, 2002, Mr. Scott gave Mr. Adair several assignments on the Employers Mutual case to be completed by
Paul: Please tell me whether you have done the assignments listed below. I have not reassigned these tasks. As you know, Peter [Dolan], Ben [Apt] and I are doing some of the work that was previously assigned to you, but we can’t do it all at this point given our other responsibilities. No one has informed me that you are on sick leave or annual leave. If you are simply refusing to do these tasks, please inform me. If you don’t respond to this e-mail, I will have no choice but to assume that you refuse to do this work. Please communicate with me!!
AR [Docket Entry 7-15 at 12]. It was not until July 29, 2002 — after plaintiff failed to respond to Mr. Scott’s July 26th email— that Mr. Scott asked Mr. Apt and Mr. Dolan to work on the assignments that he had originally given to plaintiff. See Ex. A to PL’s Mot. for Partial Summ. J., Email from Scott to Dolan and Apt dated July 29, 2002 (“This is modified version of an assignment to [plaintiff]. Peter: please do 1 and 4. Ben: please do 2 and 3.”). 11
Given the circumstances under which Mr. Scott gave the assignments to Mr. Dolan and Mr. Apt, the Court finds that no reasonable jury could find that Mr. Scott “used race to determine how much time to allot to the attorneys to complete the Employers Mutual tasks.” Pl.’s Opp’n Br. at 5. Nor is the Court persuaded, based on the evidence before the Court, that any reasonable jury could find that Mr. Adair’s race was the reason that Mr. Scott assigned different case responsibilities to plaintiff than he assigned to Mr. Apt and Mr. Dolan.
See, e.g.,
Pl.’s Opp’n Br. at 7-8 (arguing that from July-October 2002 he was deprived of “the desired assignments of depositions, meetings that required travel, [and] court appearances on Employers Mutual” because Mr. Scott “segregated the attorneys by race ... [thereby] depriving] him of the privileges and opportunities enjoyed by the white attorneys”).
12
Plaintiff, therefore, has failed to provide the Court with “direct evidence” of race discrimination.
Cf. Hawkins v. Holder,
b. Plaintiffs Evidence of Pretext
Plaintiff attempts to offer several reasons that defendant’s asserted non-discriminatory reason for his removal is unworthy of credence. Plaintiff begins by arguing that “[t]he facts and circumstances surrounding the October 17, 2002 meeting demonstrate that Defendant’s explanation for Plaintiffs termination is not credible.” Pl.’s Opp’n Br. at 11. In support of this assertion, plaintiff argues that the October 17th Meeting was not really a mid-year review, rather it was an “investigative meeting” where “Defendant intended to take some form of disciplinary action [on plaintiff].” Pl.’s Opp’n Br. at 11-13. Next, plaintiff argues that “[defendant’s actions after the [October 17th] meeting are also suspect and could give a jury reason to doubt Defendant’s motives and action.” PL’s Opp’n Br. at 13. Towards this end, plaintiff argues that Mr. Hauser’s termination decision was rendered in violation of the agency manual, explaining that Mr. Hauser (i) did not interview plaintiff about the October 17th Meeting; (ii) imposed a penalty of removal rather than progressive discipline; and (iii) ignored plaintiffs harassment complaint against Scott. PL’s Opp’n Br. at 18. Third, plaintiff argues that the Court can infer pretext due to the lack of objective evidence of “anxiety and disruption” at PBSD following the October 17th Meeting. PL’s Opp’n Br. at 19. The Court will explore these arguments in turn.
First, plaintiffs characterization of the October 17th Meeting as an investigatory meeting rather than a mid-year evaluation lacks evidentiary support.
See, e.g.,
Hopkins Decl. ¶ 1 (“On Thursday, October 17, 2002, I attended a mid-year review for Paul Adair with Risa Sandler, Leslie Perl-man and Bill Scott. I had told Paul earlier that day that the supervisors in our office wanted to do a review with him.”); Perl-man Deck ¶¶ 3, 4 (providing an overview of the performance review process at PBSD and explaining that “[o]n October 17, 2002, Risa Sandler, Liz Hopkins, William Scott and I met with Mr. Paul Adair to conduct his midyear review”).
13
Indeed, plaintiff himself concedes that his cases were reviewed at the meeting.
See
PL’s Opp’n Br. at 13 (arguing that defendant improperly combined a “planned interrogation with an actual review of other cases”). Second, and more importantly, plaintiff fails to ex
The Court also finds that plaintiffs complaints regarding Mr. Hauser fail to establish pretext. While plaintiff complains that Mr. Hauser did not contact him until 30 hours after the October 17th Meeting and argues that “neither Hauser nor any other agency representative interviewed Plaintiff between when he was suspended on October 18, 2002 and when he was terminated on March 26, 2003[,]” PL’s Opp’n Br. at 13-14, the record evidence demonstrates that Mr. Hauser made “repeated requests” to meet with plaintiff prior to rendering the Agency Decision. Agency Decision at 7;
see supra
n. 9. In addition, although plaintiff complains that Mr. Hauser “deviated from the agency’s policy of progressive discipline” and imposed a penalty that “exceeds the bounds of reasonableness and proportionality,” PL’s Opp’n Br. at 16-17, plaintiff fails to provide any evidence in support of this assertion. For example, plaintiff does not identify a similarly-situated employee of a different race upon whom the agency imposed a lesser penalty. Defendant, by contrast, submits the declaration of Mr. Hauser who explains: “The Department does not have a table of penalties and Mr. Adair’s termination is not inconsistent with any agency rules or policies for dealing with misconduct. I know of no conduct by any member of PBSD’s staff that is comparable to Mr. Adair’s statements at the October 17 meeting or to his flat refusal to continue work on Employers Mutual ... In my experience, Mr. Adair’s conduct at the October 17 meeting and its impact were unprecedented at PBSD.” AR [Docket Entry 7-8 at 22], Declaration of Timothy D. Hauser (“Hauser Deck”) ¶ 9. Finally, plaintiff argues that Mr. Hauser “completely ignored Plaintiffs harassment complaint against Scott.” PL’s Opp’n Br. at 18. Despite this bold assertion, plaintiff has failed to provide the Court with any evidence supporting the existence of such a harassment complaint, other than his own self-serving declaration. As the agency contends that no such claim was filed,
see
Agency Decision at 6,
15
the Court finds that plaintiff has failed to present a genuine issue of material fact regarding the existence of this complaint.
See Fields,
520 F.Supp.2d at
Lastly, plaintiff argues that the Court can infer pretext due to the lack of objective evidence of “anxiety and disruption” following the October 17th Meeting. Pl.’s Opp’n Br. at 19-24. The Court finds this argument unavailing. Despite plaintiffs assertion that his supervisors’ actions “after the October meeting show that they uniformly acted in ways that belie the charge that Plaintiff caused anxiety and disruption in the office,” Pl.’s Opp’n Br. at 20, the administrative record in this case demonstrates that his supervisors were clearly disturbed by the events that occurred at the October 17th Meeting.
See
Sandler Deck ¶¶ 12-14; Perlman Deck ¶ 11; Hopkins Deck ¶ 4; 2002 Scott Deck ¶¶ 21-22;
see also
Hauser Deck ¶ 4 (“Shortly after the October 17 meeting, I spoke separately with each of the supervisors, listened to their descriptions of the meeting and observed their reactions.... Based on my observations, the supervisors were genuinely and profoundly disturbed by Mr. Adair’s words and demeanor, his use of violent imagery, and his unsolicited statement that he had harbored violent feelings towards Mr. Scott. Immediately after the meeting, one of the supervisors, Risa Sandler, specifically requested that Mr. Adair be banned from the building, expressing concern for her own safety and the safety of others.... Even after Mr. Adair had been banned from the building, the supervisors continued to be upset and express their apprehension about the events on October 17.”). While plaintiff submitted the declarations of two co-workers, Diane Clinton and Delores Durham, in support of his assertion that “[njeither Durham nor Clinton discerned any evidence of anxiety or disruption in the office,” PL’s Opp’n Br. at 21, the Court finds that these declarations fail to create a genuine issue of material fact. First, neither Ms. Durham nor Ms. Clinton attended that portion of the October 17th Meeting where plaintiff made the statements that led to his supervisors’ anxiety and disruption.
16
Second, neither of the declarants directly addressed whether there was any “anxiety or disruption in the office” following the October 17th Meeting.
See
AR, Tab 31, Supp. Index of Exhibits, Exs. KK,
In sum, having closely reviewed the parties’ arguments as well as the administrative record in this case, the Court finds that plaintiff has failed to put forth competent evidence that would allow a reasonable jury to conclude that he was terminated on account of his race. To the contrary, there is substantial evidence in the record that plaintiff was terminated for, among other reasons, causing anxiety and disruption in the workplace as a result of his comments to his supervisors during the October 17th Meeting. Accordingly, the Court hereby GRANTS defendant’s motion for summary judgment as to plaintiffs race discrimination claim.
See, e.g., Evans,
2. Disability Discrimination
i. Legal Framework
To bring a claim for disability discrimination under the Rehabilitation Act a plaintiff must demonstrate that he is disabled within the meaning of the Act.
See Adams v. Rice,
Defendant argues that “[plaintiffs claims of clinical depression do not rise to the level of limitation of a major life activity and are unsubstantiated by the record.” Def.’s Mot. for Summ. J. at 18. This Court agrees. When plaintiff was asked by defendant to provide medical evidence of his purported disability, plaintiff provided only a prescription note from a doctor indicating that plaintiff was seen and a treatment plan was provided. AR [Docket Entry 7-15 at 8]. After plaintiff was notified by defendant that the prescription was “inadequate to justify extended sick leave because it does not state that you will be unable to come to work because of medical treatment nor does it state that you are incapable of performing the duties of your job,” Handorf Letter, plaintiff provided no additional medical documentation. Handorf Decl. ¶ 3. While plaintiff now avers that during 2001-2002 he “was having difficulty seeing and reading” as well as “difficulty caring for his person and [working],” Pl.’s Opp’n Br. at 25-26, plaintiffs self-serving statements are “simply too vague and eonclusory” for a reasonable jury to conclude that he was substantially limited in a major life activity.
Bonieskie v. Mukasey,
B. Non-Discrimination Claims
Because the Court has disposed of plaintiffs discrimination claims,
see supra
Section III.A, the Court must now review the non-discrimination components of plaintiffs mixed case before the MSPB. In a so-called “mixed case” — that is, one in which “an adverse personnel action subject to appeal to the MSPB [is] coupled with a claim that the action was motivated by discrimination,”
Butler v. West,
“The non-discrimination findings of the MSPB Administrative Judge are reversible only if they were arbitrary or capricious, obtained without lawful procedures, or were unsupported by substantial evidence.”
Willingham v. Gonzales,
Plaintiff argues that the MSPB Decision must be reversed for several reasons. Specifically, plaintiff contends that: (i) “[t]he MSPB’s findings that the tasks [contained in Reason 2, Specification 1 of the Agency Decision] were valid and outstanding as to Adair after July 29, 2002 must be set aside as clearly erroneous,” Pl.’s Mot. for Partial Summ. J. at 2; (ii) the MSPB’s finding that the failure to follow instructions charge and the insubordination charge were two separate charges was clearly erroneous, PL’s Mot. for Partial Summ. J. at 29; (iii) “[d]efendant’s stated reasons for terminating Plaintiffs employment are unsupported by substantial evidence,” Compl. ¶ 96; (iv) “[defendant's first charge fails because it accused Plaintiff of making threatening comments, but neither the deciding official nor the MSPB analyzed the charge under threat analysis as required by law,” Compl. ¶ 98; (v) “[pjlaintiffs termination was achieved without procedures required by law, rule, or regulation having been followed,” Compl. ¶ 99; (vi) “[djefendant and the MSPB acted arbitrarily and capriciously and abused their discretion in denying Plaintiff relevant discovery, witnesses, and other evidence necessary to exercise his constitutional and statutory rights to defend against the charges,” Compl. ¶ 100; (vii) “[defendant and the MSPB acted arbitrarily and capriciously and abused their discretion in denying Plaintiff information relevant and necessary to examine and, if possible, prove his discrimination claims,” Compl. ¶ 101; (viii) “[djefendant and the MSPB acted arbitrarily and capriciously and abused their discretion in denying Plaintiff the legal basis for requiring him to waive all of his privacy rights over his medical records and submit to a medical examination,” Compl. ¶ 102; (ix) “[t]he penalty of termination was grossly excessive, not in accordance with Agency standards, procedures, or history, and was imposed without consideration of all relevant factors,” Compl. ¶ 103; and (x) “[pjlaintiffs termination did not promote the efficiency of the service,” Compl. ¶ 93. Defendant, by contrast, argues that the MSPB Decision upholding plaintiffs removal was not arbitrary, capricious, or otherwise in derogation of the law and therefore should be upheld. The Court will explore these arguments in turn.
1. Reassignment of Tasks
A large portion of plaintiffs motion for partial summary judgment and supplemental motion for partial summary judgment are spent addressing his contention that the MSPB Decision is “clearly erroneous” because the assignments given to him by Mr. Scott on July 17, 2002 were — “[u]nbeknownst” to plaintiff — “reassigned” to two of his colleagues, Mr. Apt and Mr. Dolan, on July 29, 2002. PL’s Mot. for Partial Summ. J. at 24. It is plaintiffs position that “[t]he reassignment of July 29 ended [his] responsibility,” PL’s Mot. for Partial Summ. J. at 20, and that “[t]he MSPB’s findings that the tasks were valid and outstanding as to [him] after
There is no evidence to indicate that plaintiff was in any way absolved of his responsibility to complete the assignments given to him on July 17, 2002, simply because Mr. Scott reached out to additional attorneys to work on the same assignments. Indeed, to the contrary, evidence in the administrative record indicates that defendant repeatedly affirmed to plaintiff after July 29, 2002 that he was still responsible for the assignments contained in the July 17th Email. See, e.g., AR Tab 4cc2, Email from Scott to Adair dated Aug. 7, 2002 (“[P]lease do items 1, 2, and 4 of the July 17 assignment (attached below) by August 19.”); AR Tab 4cc3, Email from Perlman to Adair dated Aug. 9, 2002 (“I am sending you the following assignment for the EM case even though you told me yesterday that you would not do the assignments and would accept your punishment ... I urge you to reconsider your position. You must complete the assignments below on the schedule [Mr. Scott] proposed which has a deadline of August 19.”). 20 rpjjg Court therefore declines to set aside the MSPB’s finding that Mr. Adair’s tasks were valid and outstanding after July 29, 2002.
2. Merger of Tasks
Plaintiff also argues that the MSPB Decision upholding the agency’s determination that plaintiff both failed to follow instructions and acted insubordinately was legally erroneous. Plaintiff asserts that the failure to follow instructions charge and the insubordination charge “aris[e] out of the same nucleus of facts,” and must therefore be “merged into one [charge].” PL’s Mot. for Partial Summ. J. at 29. It is plaintiffs position that “[defendant created a second offense by merely repeating an order it claimed was not initially obeyed, which it cannot legally do.” PL’s Supp. Mot. for Partial Summ. J. at 7. The Court disagrees.
Despite plaintiffs protestations to the contrary,
see
PL’s Mot. for Partial Summ. J. at 27, 29, this is not a case in which defendant is seeking to discipline plaintiff “multiple times for the same claimed infraction.” PL’s Mot. for Partial Summ. J. at 4;
cf. Southers v. Veterans Admin.,
3. Substantial Evidence
More generally, plaintiff argues that defendant’s stated reasons for terminating his employment are unsupported by substantial evidence.
See
Compl. ¶¶ 96, 97. As noted above, in assessing whether the MSPB’s ruling was supported by substantial evidence, the Court is limited to determining “whether the agency ... could fairly and reasonably find the facts that it did[.]”
Willingham,
4. Threat Analysis
Plaintiff also contends that “[d]efendant’s first charge fails because it accused Plaintiff of making threatening comments, but neither the deciding official nor the MSPB analyzed the charge under threat analysis as required by law.” Comply 98. The Court disagrees. A review of the Notice of Proposed Removal indicates that plaintiff is charged with “[m]aking statements to supervisors and
[Plaintiff] argued that the agency failed to establish the factors utilized by the Board in evaluating an alleged threatening comment____In this case, however, the appellant was not charged with making a threat. Rather, he was charged with making statements that resulted in anxiety and disruption in the office. Although witnesses presented sworn or affirmed testimony that they perceived the appellant’s comments to be threatening against Mr. Scott or other agency employees, the agency did not charge the appellant with making a threat.
See
MSPB Decision at 15 (internal citations omitted). Because plaintiff was not charged with making threatening comments, the Court finds that the MSPB did not err in declining to analyze whether plaintiff satisfied the 5-part test set forth in
Metz v. Department of the Treasury,
5. Termination Achieved Without Procedures Required by Law
In his complaint, plaintiff also asserts that “[his] termination was achieved without procedures required by law, rule, or regulation having been followed.” Compl. ¶ 99. “To prove harmful procedural error, the [plaintiff] must prove that the agency committed an error in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.” MSPB Decision at 34 (citing 5 C.F.R. § 1201.56(e)(3)). “The burden is upon the [plaintiff] to show that the agency committed an error and that the error was harmful, ie., that it caused substantial prejudice to his rights.” MSPB Decision at 34. Although plaintiffs complaint fails to set forth specific procedural errors, in his motions for partial summary judgment plaintiff alleges the following: (i) “[defendant's denial of Plaintiffs right to union representation was a harmful procedural error,” Pl.’s Supp. Mot. for Partial Summ. J. at 8; (ii) “the presence of Scott at the meeting was an intentional provocation inasmuch as Adair had recently made a formal complaint against him for harassment,” Pl.’s Mot. for Partial Summ. J. at 5; and (iii) “[d]efendant also violated due process by allowing Hauser, who had shown a bias, to remain as the deciding official,” Pl.’s Mot. for Partial Summ. J. at 33. For the reasons discussed below, the Court finds that plaintiff has failed to establish that any of these purported “errors” constitute a harmful procedural error.
First, the Court finds that plaintiff has failed to establish that the agency committed any “error” with regards to plaintiffs alleged denial of his right to have a union representative at the October 17th Meeting. It is undisputed that plaintiff did not request a union representative at any point during the October 17th Meeting. The agency, therefore, cannot be found to have denied plaintiff his right to have a union
Second, the Court finds no evidence in the record to support plaintiffs assertion that Mr. Scott’s attendance at the October 17th Meeting was intended as “an intentional provocation” in response to plaintiffs purported “formal complaint against him for harassment[.]” Pl.’s Mot. for Partial Summ. J. at 5. Instead, as explained in the declaration of plaintiffs former supervisor, Leslie Perlman, “[w]hen [the agency] conduces] midyear and end of year performance reviews, it is [the agency’s] practice to have each counsel present, as well as each Senior Trial Attorney present who has worked with an attorney to give input.” Perlman Decl. ¶ 3. As Mr. Scott had supervised plaintiffs work during the rating period, it was consistent with agency policy for Mr. Scott to attend the October 17th Meeting, Perlman Decl. ¶ 2; plaintiff has produced no evidence to the contrary. Nor has plaintiff adduced any evidence — other than his own self-serving declaration — to support the existence of a harassment claim against Mr. Scott. The agency, as discussed above, vigorously disputes that any such complaint was ever filed. See supra n. 15. Moreover, even assuming that the agency committed error in allowing Mr. Scott to attend the October 17th Meeting, plaintiff has failed to demonstrate how his attendance substantially prejudiced plaintiffs procedural rights. This assertion of harmful error must therefore also fail.
Finally, plaintiff asserts that defendant erred “by allowing Hauser, who had shown a bias, to remain as the deciding official.” PL’s Mot. for Partial Summ. J. at 33. While it is “violative of due process to allow an individual’s basic rights to be determined by ... a biased decisionmaker,”
Svejda v. Dep’t of Interior,
6. MSPB’s Decisions Regarding Discovery, Witnesses, and Other Evidence
Plaintiff also alleges that the MSPB acted arbitrarily and capriciously and abused its discretion in denying him “relevant discovery, witnesses, and other evidence necessary to exercise his constitutional and statutory rights to defend against the charges!.]” Compl. ¶ 100. In his motions, plaintiff primarily focuses on the ALJ’s denial of his request to compel the appearance of Elizabeth Hopkins — one of plaintiffs former supervisors who attended the October 17th Meeting — at the administrative hearing. See, e.g., PL’s Supp. Mot. for Partial Summ. J. at 10-11. As a threshold matter, it is undisputed that the ALJ declined to compel the appearance of Ms. Hopkins because Ms. Hopkins was on vacation. See PL’s SMF ¶ 50. It is also undisputed that neither Ms. Hopkins nor any other witness testified at the administrative hearing because plaintiff withdrew his request for an administrative hearing after the ALJ issued her prehearing rulings. See AR Tab 26, Notice and Close of Record Order (“On June 20, 2003, the appellant notified this office in writing that he would not be participating in the hearing scheduled in this appeal for June 24, 2003. As grounds for his assertion, the appellant stated that he disagreed with witness rulings and the order of presentation regarding his affirmative defenses.... As the hearing in this matter was scheduled at the appellant’s request, his decision not to participate in the hearing effectively withdraws his hearing request.”). Although plaintiff argues that the MSPB “committed a harmful error and abused its discretion in refusing to compel [Ms. Hopkins’] testimony,” the Court finds that plaintiff waived his right to appeal the ALJ’s prehearing rulings by withdrawing his request for an administrative ruling.
Even assuming, however, that plaintiff did not waive his right to appeal the ALJ’s prehearing rulings, the Court is not persuaded that the MSPB abused its discretion in failing to compel Ms. Hopkins, who was on vacation, to attend the administrative hearing.
See Ayres v. Dep’t of Homeland Sec.,
In sum, upon close review of the administrative record in this case, the Court finds nothing to suggest that the ALJ abused her discretion with regards to discovery.
7. Information Relevant to Discrimination Claims
Plaintiff further alleges that “[d]efendant and the MSPB acted arbitrarily and capriciously and abused their discretion in denying Plaintiff information relevant and necessary to examine and, if possible, prove his discrimination claims.” Compl. ¶ 101. This argument appears to be aimed at defendant’s failure to disclose the fact that Mr. Scott asked two other trial attorneys, Mr. Apt and Mr. Dolan, to work on the assignments contained in the July 17th Email. See Pl.’s Mot. for Partial Summ. J. at 31-32 (“Defendant had an affirmative duty to disclose evidence that [plaintiff]’s work had been reassigned because [the ALJ] had to consider the evidence in determining whether [plaintiff] had failed to follow instructions or was insubordinate with respect to those assignments.”). For the reasons discussed above, see supra Section III.B.l, the Court finds that disclosure of this information would not have affected the outcome of the administrative proceedings. The Court, therefore, declines plaintiffs request to reverse the MSPB Decision based on defendant’s purported failure to timely disclose this evidence.
8. Medical Records and Medical Examination
Plaintiff further asserts that “[defendant and the MSPB acted arbitrarily and capriciously and abused their discretion in denying Plaintiff the legal basis for requiring him to waive all of his privacy rights over his medical records and submit to a medical examination.” Compl. ¶ 101. This contention lacks merit. The MSPB properly recognized that:
[T]he appellant was not removed for failing to consent to a medical examination nor did the agency require such an examination. Rather, the agency simply offered the examination in response to the appellant’s claim of a mental condition affecting his ability to perform his duties. The appellant had been previously advised of his right to submit medical documentation in conjunction with his leave requests. He failed to do so.... The appellant exercised his right to decline the examination. In rendering its final decision to remove the appellant, the agency did not penalize theappellant for his denial of the examination but did note that, absent the examination or other medical documentation from the appellant, the appellant failed to establish a mitigating factor based on a mental or physical condition.
MSPB Decision at 38-39. As the administrative record contains no evidence that the agency required plaintiff to “waive all of his privacy rights over his medical records and submit to a medical examination,” Compl. ¶ 101, the Court finds that the MSPB properly rejected plaintiffs claim of harmful error on this issue.
9. Reasonableness of the Penalty
Plaintiff also challenges the agency’s decision to terminate him, arguing that “[t]he penalty of termination was grossly excessive, not in accordance with Agency standards, procedures, or history, and was imposed without consideration of all relevant factors.” Compl. ¶ 103. The Court finds this argument unpersuasive. The Court “must defer to the agency’s determination of disciplinary action unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.”
Allen v. United States Postal Serv.,
10. Efficiency of the Service
Plaintiff also argues that his termination did not promote the efficiency of the service. Compl. ¶ 93. He argues that he “was an honored, respected, and productive employee ... [whose] annual performance standards and ratings over the course of his Agency career never fell below the second highest rating of highly efficient.” Compl. ¶ 93. Defendant, in response, argues that “[defendant's removal of [plaintiff] based on the three (3) independent charges of misconduct promotes the efficiency of the service.” Def.’s Reply Br. at 17.
An agency may take an adverse action against an employee “only for such cause as will promote the efficiency of the ser
First, there is substantial evidence to support the MSPB’s finding that the charged conduct occurred in this case. Indeed, with regards to the anxiety and disruption charge, plaintiff does not deny having made the statements in the October 17th Meeting that underlie that charge. The Court also finds that the insubordination charge and failure to follow instructions charge are supported by substantial evidence, as defendant submitted sworn declarations of agency officials in support of those charges as well as corroborating documentary evidence. Moreover, given the serious nature of the charges involved and its negative impact on PBSD as reflected in the sworn affidavits of plaintiffs former supervisors, the MSPB properly found that there was a sufficient nexus between that misconduct and the efficiency of the service. See Agency Decision at 6 (explaining how defendant’s conduct impeded PBSD’s ability to “effectively discharge its responsibilities”). Finally, as discussed above, see supra Section III.B.9, the ALJ’s finding that removal was a reasonable punishment is supported by substantial evidence. The Court, therefore, finds that the agency had ample justification for its finding that the efficiency of the agency would be improved by removing plaintiff from federal service.
11. Due Process Violations
In addition to the purported errors discussed above, plaintiff also asserts a claim for “violations of due process.”
See
Compl. ¶¶ 85-90. In his complaint, plaintiff asserts three purported due process violations: (i) defendant’s failure to produce certain discoverable information, Compl. ¶ 87; (ii) defendant’s failure to produce certain witnesses at the MSPB hearing, Compl. ¶ 88; and (iii) the vagueness of Specification One of the Insubordination Claim in the Agency’s Proposal of Removal, Compl. ¶89. As a threshold matter, the Court notes that “the Fifth Amendment ‘only requires that a person receive his ‘due’ process, not every procedural device that he may claim or desire.’ ”
Kropat v. FAA,
The Court also rejects plaintiffs claim that Specification One of the Insubordination Charge in the Notice of Proposed Removal was impermissibly vague. This specification states:
During the October 17, 2002 mid-year performance review meeting, I explicitly told you that you had not been taken off the Employers Mutual case. I told you that all of us are required to work on cases or assignments that we would rather not do, but that was part of our responsibility to the people whose interests we represent. You said that you were not going to work on the case. You said that we had already had that conversation in August 2002 when I told you that I was sending you an email telling you to do certain assignments for the case. You said that you had told me then, that you would not work on the case and you continue to refuse to work on the case.
Notice of Proposed Removal at 5. While plaintiff may not agree with the substance of the charge, the Court is not persuaded that the specification failed to provide plaintiff with sufficient notice of the facts underlying the specification. The Court, therefore, upholds the MSPB’s determination that this specification was “sufficiently specific to put the appellant on notice of the underlying facts so that he could fully respond to the agency’s charges.” MSPB Decision at 40.
In sum, the Court concludes that the MSPB Decision is clearly supported by the law, is not arbitrary or capricious, and was not obtained in violation of plaintiffs procedural rights. Indeed, the Court finds that the administrative record in this case provides ample support for the MSPB’s finding that the agency sustained the three charges of misconduct by a preponderance of the evidence, and — given the serious nature of the charges and their impact on the agency — that plaintiffs removal was appropriate. Accordingly, the decision of the MSPB is AFFIRMED, defendant’s request for summary judgment as to plaintiffs non-discrimination claims are GRANTED, and plaintiffs request for partial summary judgment on these claims is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS defendant’s motion for summary judgment and DENIES plaintiffs cross-motions for partial summary judgment. An appropriate Order accompanies this Memorandum Opinion.
Notes
. It is plaintiffs position that he "gave Scott a final draft” of the contempt motion. See Pi’s Response to Def.’s SMF ¶ 5. Plaintiff does not, however, address whether he made the suggestions requested by Mr. Scott. Instead, plaintiff states: "On September 30, 2002, Scott sent an email to Perlman that states in relevant part: 'Also attached is [Plaintiff’s] draft of the contempt motion which he prepared ... It is OK.' ” Pl.’s Response to Def.’s SMF V 5 (quoting AR Tab 13, Ex. W, p. 1). Upon review of the exhibit cited by plaintiff, however, this email states: “Also attached is [plaintiff’s] draft of the contempt motion which he prepared over his strenuous objection. It is OK, except that is [sic] does not state what remedy we want (and supporting authority) because [plaintiff] thinks it is inappropriate.” AR Tab 13, Ex. W, p. 1. As plaintiff does not dispute the accuracy of this email — and, indeed, relies upon it — plaintiff has not created a genuine issue of material fact regarding whether he made the changes to the contempt motion that Mr. Scott requested.
. There is a factual dispute regarding whether Mr. Adair completed the assignments. While Mr. Adair contends that he either completed or attempted to complete the assignments, he provides no evidence in support of this contention. The agency, by contrast, takes the position that the assignments remained incomplete as of the October 17th Meeting. See 2002 Scott Decl. ¶ 8 (explaining that as of the October 17th Meeting plaintiff "still ha[d] not done the work or offered [him] a valid excuse for his failure and refusal to do the work"). This factual dispute was closely analyzed by the MSPB. See AR [Docket Entry 7-1 at 4-23, 7-2 at 1-25], MSPB Decision at 17-24 (weighing the evidence and concluding that the agency established that plaintiff failed to complete 3 out of the 5 tasks as directed by Mr. Scott within the deadlines provided). This factual dispute, however, is immaterial to the Court's resolution of this case.
. While plaintiff later explained that he had been feeling violent towards himself, see 2002 Adair Decl. ¶ 30 (explaining that during the October 17th Meeting he did not indicate “toward whom [he] felt violent because [he] did not wish to disclose that [he] was at one point suicidal”), the sworn declarations of his supervisors at the meeting indicate that they thought plaintiff’s feelings of violence were directed at Mr. Scott. Indeed, during the October 17th Meeting Mr. Scott asked plaintiff if he was threatening him, to which plaintiff responded “No.” See 2002 Adair Decl. ¶ 30 (acknowledging that his ambiguous statement that he had "taken time off because [he] had felt violent ... caused Scott to ask ‘is that a threat?' explaining that he "quickly dispelled that idea by stating that [he] was talking about how [he] felt before [his] time off”).
. See also Hopkins Decl. ¶ 4 ("I was very upset and depressed by this encounter and literally had a splitting headache all afternoon. ... Paul’s angry comments and violent imagery were alarming. I am new to this office and have come close to thinking I made a mistake coming here, in large part because of the stress of this situation.”); 2002 Scott Decl. ¶¶ 21-22 (“After the October 17 meeting, I told Mr. Hauser that, based on Mr. Adair’s statements and behavior at the meeting, I did not feel comfortable or safe supervising Mr. Adair in any direct or indirect manner in the future. I was unable to concentrate on my work for the remainder of Thursday October 17 due to Mr. Adair’s statements and conduct at the meeting.”).
.See
AR Tab 4jj, Email from Perlman to Hauser dated Oct. 17, 2002 (“I am very concerned about [plaintiff’s] statements and believe that they must be taken seriously. [Mr. Scott] now agrees that it would be fruitless for him to continue to try to work with [plaintiff].”); AR Tab 4ii, Email from Sandler to Hauser dated Oct. 17, 2002 ("All in all, [plaintiff's] tone and attitude were very threatening. There is a possibility that he was putting on
. Plaintiff worked at home on Friday, October 18, 2002, "pursuant to his regular flextime schedule.” Pl.’s Supp. Mot. for Partial Summ. J. at 13.
. Il is Mr. Adair’s position that he "never flatly refused to do any work” on the Employers Mutual case. AR Tab 4d at 6 n. 1, Plaintiff’s Response to Notice of Proposed Removal. He avers that: “He asked to be removed from the [Employers Mutual] case, but he only refused to do those assignments he was incapable of doing for lack of information or because he was being asked to do an assignment that he considered to be a violation of the rules of practice or professional responsibility. As Perlman's August 9th e-mail notes, Adair also added a significant caveat. Adair stated his refusal would succumb to any risk of employment.... Thus, the presumption that he would not have done any future assignment is inaccurate.” AR Tab 4d at 6 n. 1. Plaintiff also denies stating that he refused to
. Plaintiff declined Mr. Hauser’s request to meet with him to discuss his written response or to provide an oral reply. See Agency Decision at 7 ("You have ... withdrawn your request to give an oral reply, and have declined my repeated requests that you provide such a reply.... Although you certainly have no obligation to meet with me personally to discuss your case, your decision means that I have been unable to question you about your responses to the Notice of Proposed Action or about any circumstances that you believe may be mitigating.”).
. It is unclear to the Court whether plaintiff now seeks to assert a retaliation claim. While plaintiff never pled a retaliation claim,
see generally
CompL, and indeed specifically stated during the course of this litigation that he was not asserting a retaliation claim,
see
Pl.’s Mot. for Partial Summ. J. at 26 n. 9 ("Plaintiff’s purpose is not to perfect a retaliation claim, but rather to show that he would have had a colorable claim .... ”), plaintiff now states that his "[c]omplaint encompasses two retaliation claims that would be pled specifically but for Defendant's withholding of evidence.” Pl.'s Mot. for Partial Summ. J. at 44. Because plaintiff never sought leave of the Court to assert a retaliation claim during the more than five years of active litigation in this case, the Court declines to entertain such a claim now. Accordingly, to the extent that plaintiff seeks leave to assert a retaliation claim in this case, his request is DENIED.
See also
Def.’s Reply Br. at 13 n. 17 (setting forth compelling reasons that “[s]hould the Court entertain [plaintiff's] purported retaliation claim, Defendant is entitled to judgment as a matter of law”). The Court will also note that plaintiff attempted to assert a retaliation claim, for the first time, in his closing submissions to the MSPB. The MSPB also declined to allow plaintiff to assert a retaliation claim,
. While the substance of the assignments was the same, Mr. Scott did not assign a specific deadline in his July 29, 2002 email to Mr. Dolan and Mr. Apt. Compare AR Tab 4cc2 with Ex. A to Pl.’s Mot. for Partial Summ. J.
. Moreover, to the extent that Mr. Adair is attempting to argue that he was “similarly situated’’ to Mr. Apt and Mr. Dolan, this argument must fail. "To show that another individual is similarly situated, Plaintiff must ‘demonstrate that all of the relevant aspects of their employment situation are nearly identical.’ ”
Smith v. Jackson,
. Plaintiffs argument appears to be based on an email that Mr. Scott sent Mr. Hauser on September 30, 2002 — two weeks before the October 17th Meeting. See PL’s Opp’n Br. at 11 (discussing Mr. Scott’s email dated September 30, 2002). In this email, Mr. Scott stated: "Since there was no mid-term meeting with [plaintiff], I am submitting my comments this way. [Plaintiff] did very little substantial work since February....” AR Tab 13, Ex. W, p. 1, Email from Scott to Hauser dated Sept. 30, 2002. While this email is evidence that a mid-year review had not occurred as of September 30, 2002, it does not allow a reasonable jury to infer that a midyear review was not subsequently held. To the contrary, the evidence in the administrative record demonstrates that such a meeting occurred on October 17, 2002. See, e.g., Hopkins Decl. at 1; Perlman Decl. ¶¶ 3, 4; see also AR Tab 4cc4, Ex. C. to 2002 Scott Deck, Email from Scott to Rouse dated October 18, 2002 ("On October 17, 2002, from about 11 am to about 12 p.m., we conducted a midyear performance appraisal of Trial Attorney Paul Adair.... The purpose of the meeting was for Mr. Adair’s supervisors to discuss his performance in the past six months with him and to suggest improvements he might make between now and the end of the performance period.”).
. Rather than demonstrating pretext, the purpose of this argument appears to be aimed at having the Court disregard the statements that plaintiff made at the meeting. See PL's Opp’n Br. at 11-13 (explaining that if he knew that defendant was planning to “accuse[] [him] of refusing to do certain tasks,” he would have sought to have a union representative attend the meeting; concluding that "[u]nder these unique circumstances and in light of the interests at stake, Defendant should be precluded from using the illegal meeting as a basis for her adverse action”). For the reasons discussed infra the Court finds that this argument lacks merit. See Section III.B.5 (concluding that the agency did not deprive plaintiff of his right to union representation because plaintiff did not request the presence of a union representative at any point before or during the October 17th Meeting).
. In the Agency Decision, Mr. Hauser acknowledged plaintiff’s "frequent demands to be taken off the [Employers Mutual] case and [his] flippant statement to me that [he] needfed] to get a restraining order against Mr. Scott.” Agency Decision at 6. Mr. Hauser further explained: "Although you now portray your statement as an expression of alarm about physical intimidation, in fact you made the comment in the context of complaining about Mr. Scott's repeated requests and efforts to get you to do your work. You were not expressing concern about your safety, but rather making a flamboyant statement of your right to be free from supervision on the Employers Mutual case. Mr. Scott has never threatened you physically, and you did not make any such complaint when you sought to be removed from the case.” Agency Decision at 6.
. Ms. Durham and Ms. Clinton were briefly summoned by plaintiff to serve as "witnesses” during the October 17th Meeting. See AR Tab 31, Supp. Index of Exhibits, Ex. MM, Declaration of Delores E. Durham ("Durham Deck”) ¶¶7-10 ("On October 17, 2002, when Mr. Paul Adair was having his mid-year review, he asked me and another co-worker, Diane Clinton, to come into that meeting. I was asked to acknowledge whether I recalled seeing a handwritten notation written by Mr. Bill Scott ('once again') on a document that Mr. Paul Adair had prepared. I indicated that I recalled seeing the notation on the document and stated that Mr. Scott's requested changes were minor. Shortly after acknowledging the notation on the document, I left the room.”); AR Tab 31, Supp. Index of Exhibits, Ex. KK, Declaration of Diane Clinton (“Clinton Deck”) ¶ 5 ("Paul Adair asked Delores Durham and I if we recalled him showing each of us a document with the words, ‘once again’ handwritten on it. I told him that I did ... Delores Durham also answered in the affirmative.... Paul Adair thanked us and apologized for having to involve us, and Delores Durham and I both left the Conference Room.”).
. Ms. Durham did, however, aver that "[s]ince [plaintiffs] departure, I have not noticed any significant changes in the office.” Durham Decl. ¶ 15.
. Significant changes to the American with Disabilities Act ("ADA”) and Rehabilitation Act took effect on January 1, 2009, after the events in this action took place.
See
ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008). Because the D.C. Circuit has held that "the Amendments do not apply retroactively,”
Lytes v. D.C. Water & Sewer Auth.,
. As a general matter, claims under the Rehabilitation Act are governed by the
McDonnell Douglas
burden-shifting framework.
McGill v. Munoz,
. See also AR Tab 7-10 at 22, Email from Scott to Adair dated July 30, 2002 (“Paul: As I have informed you several times before, you have not been taken off the Employers Mutual case. Your declared belief to the contrary has no basis in reality. Peter and Ben were brought in to help when you stopped working on the case and things had to be done in the case. You cannot unilaterally take yourself off a case, and no one has informed you that you were removed.... I ask that you please do the work I assigned to you and let us move on.”).
. For instance, in support of his claim that Mr. Hauser was a "biased” decisionmaker, plaintiff asserts that "[i]t was also Hauser’s personal decision not to take any action on Adair’s harassment complaint,
calling the idea of a white harassing a black 'flamboyant.'
” Pl.’s Mot. for Partial Summ. J. at 7-8 (citing AR, Tab 4a, Decision Regarding Proposed Removal, p. 6) (emphasis added);
see also
Pl.’s SMF ¶ 43 ("Hauser now describes the report