Blue v. Perciasepe

970 F.Supp.2d 34

Reginald A. Blue, Plaintiff,

v.Bob Perciasepe, Acting Administrator, U.S. Environmental Protection Agency, Defendant.

Civil Action No. 10–762 (JEB)

United States District Court, District of Columbia.

September 27, 2013

Reginald A. Blue, Marlton, NJ, pro se.

Mary Elizabeth Stratton, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Pro se Plaintiff Reginald Blue is a black man who worked as a law-enforcement officer for the Environmental Protection Agency from 1992 to 2008. See Compl., ¶¶ 8, 12. In 2010, he brought this suit alleging that he had been repeatedly subject to racial discrimination while employed at the Agency and was later fired for complaining about that discrimination, both in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Defendant previously filed a Partial Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment, which this Court granted as to all but three of Blue's claims, leaving him with only: (1) a claim of race-based discrimination related to his non-selection for a job in August 2008; (2) a claim of retaliation based on his termination in December 2008; and (3) an appeal from the Merit Systems Protection Board's decision affirming his termination. SeeBlue v. Jackson (Blue I), 860 F.Supp.2d 67, 69 (D.D.C.2012). Defendant has now filed a Motion for Summary Judgment as to those three surviving claims. Because no reasonable jury could find that Blue was either discriminated or retaliated against, and because the MSPB's affirmance of the EPA's decision to terminate him was not arbitrary or capricious, the Court will grant Defendant's Motion.

I. Background

Viewing the facts in the light most favorable to Blue, at all times relevant to this Motion, he worked as the Associate Special–Agent–in–Charge of the Operations Branch of the EPA's Criminal Investigations Division. See Compl., ¶¶ 5, 12. That job made him a law-enforcement officer with responsibilities such as: (1) carrying a firearm; (2) investigating environmental crimes; (3) maintaining his credibility and his ability to execute sworn affidavits in support of arrest and search warrants; and (4) maintaining his credibility and his ability to provide sworn testimony in litigation concerning investigations. See Mot., Declaration of Ella R. (Becky) Barnes, ¶ 18.

Blue's first remaining claim alleges race discrimination in his non-selection for the position of Assistant Director of CID's Investigations Branch in August 2008. See Opp. to MJP at 2; Blue I, 860 F.Supp.2d at 69–70, 75. Blue claims that he was the best candidate for the Assistant Director job and that he was passed over because he is black. He applied for the position in June 2008 and made the “best qualified list” of individuals who would be considered for the job, along with Daniel Horgan (a white man) and two other individuals, a black woman and a white man. See Barnes Decl., ¶¶ 3–4. According to Blue's pleadings, he received a higher score in the competition to make that list than Horgan, who ultimately got the job, but Blue has not pointed to any evidence that might support this assertion. See Opp. at 10; Pl. Resp. to Def. Statement of Undisputed Material Facts (SUMF), ¶ 31.

The EPA used a “panel process” to decide whom to promote from the four candidates on the best-qualified list. See Barnes Decl., ¶ 5. A panel of CID officers evaluated each of the candidates and then recommended one to Ellen Stough, the Deputy Director for the EPA's Office of Criminal Enforcement, Forensics, and Training (OCEFT), who made the final selection. See id., ¶¶ 8–9; Mot., Exh. K (Affidavit of Ellen Stough) at 1. The panel had five members: Ella Barnes (CID Director), Douglas Parker (CID Deputy Director), David Dillon (Special–Agent–in–Charge, Philadelphia Area Office CID), Mark Measer (CID Associate Director), and Carlos Rivera (CID Special–Agent–in–Charge of Technology). See Barnes Decl., ¶ 5. As Director and Deputy Director, Barnes and Parker were in the chain of command of every candidate, but none of the other three panelists served or had ever served in the chain of command of any of the candidates. Seeid.

On July 30, 2008, the panel interviewed each of the four candidates and then scored them based on their application materials, responses to an essay assignment, interview performances, and references. See id., ¶ 6; see also Mot., Exhs. L–P (affidavits of panel members). The final vote was unanimous: Horgan was ranked by every panel member as the best candidate of the four, with an overall “score” of 397, and Blue was ranked by every panel member as the worst, with a score of 251.5. See Mot., Exh. B (Panel Materials) at 33; Barnes Decl., ¶ 8. Blue disputes that the panelists assigned these scores, which the government has backed with both documentary evidence and Barnes's declaration, but he has once again failed to provide any proof to support his allegation. See Pl. Resp. to Def. SUMF, ¶ 11. Barnes conveyed the panel's endorsement to Stough, who on August 14, 2008, “relied solely” on that recommendation in choosing Horgan as the new Assistant Director for the Investigations Branch. See Stough Aff. at 2.

That choice led to Blue's second remaining claim, which alleges retaliation in the form of termination after he challenged his non-selection for the Assistant Director position. See Compl., ¶¶ 41–42; Blue I, 860 F.Supp.2d at 69–70. On September 2, 2008, Blue informed the Office of Civil Rights that he had been passed over for the Assistant Director job on account of his race, and on September 29 he filed a formal complaint to that effect. See Mot., Exh. I (Declaration of Glorida J. Gladden) at 1. A few months later, on December 17, Blue was terminated from the EPA. See Barnes Decl., ¶ 26; Mot., Exh. H (Decision on Proposed Removal). Blue claims that he was fired as punishment for exercising his protected right to file an Equal Employment Opportunity complaint.

But there is much more to this story, stretching back to over six months before Blue even applied for the Assistant Director position. On November 21, 2007, Blue's wife showed up at a New Jersey hospital suffering from injuries that she claimed Blue had inflicted while sexually assaulting her in their home. See Mot., Exh. D (Personnel Integrity and Qualifications Assessment (PIQA) Report) at 15–20. The hospital called the police, who brought her to the station, where she described the incident in two recorded interviews and disclosed that Blue had also sexually assaulted her on November 9, 2007. Seeid.

Blue was subsequently arrested and charged with criminal sexual contact in violation of New Jersey law. See id. at 7–8. When Blue's superiors at CID discovered that he had been arrested, they required him to surrender his firearm. See Barnes Decl., ¶ 13. A few months later, in April 2008, the New Jersey authorities notified CID that they would not be prosecuting a criminal case against Blue. See id., ¶¶ 14–16. The CID and OCEFT higher-ups then decided that they should conduct their own internal investigation into the incident, a task assigned to the PIQA unit. Seeid. PIQA reviewed the police records, conducted interviews concerning the assault allegations, and, in July 2008, submitted a final report on the matter to Stough and Barnes. Seeid.; Barnes Decl., ¶ 16.

Barnes, the EPA official responsible for proposing disciplinary action against Blue, reviewed the PIQA report and concluded that Blue had twice sexually assaulted his wife the year prior and that he had been “less than candid” in his testimony to PIQA investigators regarding those events. See Barnes Decl., ¶¶ 16–17. Because Blue's job regularly required him to carry a weapon and to provide sworn testimony, Barnes decided to begin the process to propose his termination. See id., ¶ 18. In July 2008, before Blue even interviewed for the Assistant Director position, she asked an OCEFT attorney to prepare a draft Notice of Proposed Removal, which was completed on August 21, 2008. See id., ¶¶ 19–20. By that point, according to Barnes, she had decided to go forward with the proposed removal. Seeid. On September 25, Barnes met with Blue and explained that because of the alleged assaults and his subsequent lack of candor, he could either voluntarily resign his position or be removed. See id., ¶ 22. Blue declined her offer to resign; consequently, on October 10, Barnes issued the Notice of Proposed Removal, which Stough approved two months later, culminating in Blue's termination. See id., ¶¶ 23–24, 26.

Blue subsequently challenged his termination before the MSPB, but his appeal was denied on April 12, 2010. See Administrative Record (AR) 966–969. He then filed this suit, alleging that he had been racially discriminated and retaliated against by the EPA on a number of occasions throughout his career there. SeeBlue I, 860 F.Supp.2d at 72–78. Defendant moved for judgment on the pleadings, and this Court granted that motion as to all the claims that Blue had failed to administratively exhaust, leaving only the claims now at issue. Id. at 67.

II. Legal Standard

Blue's first two claims are evaluated under the familiar summary-judgment standard. Summary judgment may be granted 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); see alsoAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. SeeLiberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. SeeScott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d...