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Harold v. Barnhart
Citations: 450 F. Supp. 2d 544; 2006 WL 2433727Docket: Civil Action No. 05-5841
Court: District Court, E.D. Pennsylvania; August 17, 2006; Federal District Court
Denise S. Harold, a former employee of the Social Security Administration (SSA), filed a lawsuit against Joanne Barnhart, the SSA Commissioner, seeking judicial review of her termination from the Office of General Counsel in Philadelphia. Harold alleges violations of her rights under the Fifth Amendment, claiming breaches of the Self-Incrimination and Due Process Clauses, and contends her termination was unsupported by substantial evidence and racially motivated, thus violating Title VII of the Civil Rights Act. Jurisdiction is established under 28 U.S.C. § 1331 and 5 U.S.C. § 7703(b)(2). The court is considering the defendant's motions to dismiss Harold's Fifth Amendment and Title VII claims and seeks summary judgment based on the administrative record. Harold opposes these motions and cross-moves for summary judgment on all claims except for Title VII. The court's ruling denies Harold’s motion while partially granting and denying the defendant’s motions. Background details reveal that Harold, an African American female IT specialist, was accused by a coworker of falsely signing a time and attendance roster for another employee. An SSA Inspector General agent investigated the claim, during which Harold provided handwriting samples but refused to write in cursive, citing it was not her customary practice. Despite her cooperation, an SSA official later claimed Harold failed to cooperate. Following the investigation, the coworker was terminated, and Harold testified in support of the coworker during an appeal to the Merit Systems Protection Board (MSPB), where the coworker's termination was upheld, but no conclusion was drawn regarding who had signed the timesheet. On March 11, 2004, the plaintiff confronted co-workers Maria Mengel and Tammy Mouzon regarding their testimony during an investigation, leading to allegations from them that she intimidated them. The plaintiff asserts she remained calm, while the co-workers claim she was yelling. Following this incident, supervisor Smith informed the plaintiff of the complaints and initiated her proposed removal on November 9, 2004, citing several reasons: signing in for Pace on October 28, 2003; refusing to provide handwriting samples; denying guilt during the investigation; and confronting witnesses. On the same day, the plaintiff's access to confidential records was restricted, and her confidential duties were reassigned on November 12, 2004. The plaintiff hired Joseph Ponisciak from AFGE Local 2006 for representation. On November 17, 2004, Ponisciak requested all documents supporting the proposed removal, receiving eleven documents on November 23, but was not informed that Agent Petro had indicated the handwriting analysis was likely "undetermined." A declaration from Petro, stating the plaintiff refused to write in cursive as requested, was provided on December 2, 2004. On December 1, Ponisciak denied the SSA's allegations, arguing insufficient evidence and highlighting that the handwriting analysis could not determine authorship. On January 5, 2005, the SSA presented a "Last Chance Agreement" (LCA) allowing the plaintiff to remain in a lower-grade position with a long-term suspension, contingent on her acknowledging the misconduct and waiving her appeal rights. She was not asked to waive her Fifth Amendment rights, and the LCA did not clarify if her acknowledgment could be used in future criminal proceedings. The plaintiff rejected the LCA and was officially terminated on January 7, 2005. She appealed to the MSPB, challenging the evidence and asserting defenses of retaliation and violations of due process and self-incrimination, as well as race discrimination. After a hearing, the MSPB upheld her termination on May 2, 2005, and the full panel affirmed this decision on October 4, 2005. To date, there have been no criminal charges against the plaintiff regarding the alleged misconduct. She filed this lawsuit on November 7, 2005. On January 27, 2006, the defendant filed a motion for summary judgment to uphold the MSPB's termination of the plaintiff and sought to dismiss the plaintiff's claims of constitutional and race discrimination for failure to state a claim. The plaintiff responded with an amended complaint, and on March 13, 2006, the defendant renewed her motions. The plaintiff opposed these motions on March 28, 2006, filing a cross-motion for summary judgment on all claims except race discrimination, for which she requested to proceed to discovery. No discovery has yet occurred. Judicial review of MSPB termination decisions, under 5 U.S.C. § 7703(c), is limited to the administrative record and must affirm unless the decisions are arbitrary, capricious, or not supported by substantial evidence. Substantial evidence is defined as relevant evidence adequate to support a conclusion, requiring more than a mere scintilla but less than a preponderance of the evidence, and is assessed based on the entire administrative record. On legal questions, review is plenary. Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim if, accepting the alleged facts as true, no reasonable reading supports relief. The plaintiff's appeal to the MSPB included claims of: 1) lack of substantial evidence supporting the termination, 2) constitutional violations during the termination process, 3) application of collateral estoppel/res judicata, and 4) race discrimination. Summary judgment for the defendant is deemed appropriate regarding the substantial evidence claims, while the constitutional and collateral estoppel/res judicata claims will be dismissed for failing to state a claim. The race discrimination claim under Title VII will advance to discovery. The assessment of substantial evidence indicated that the administrative judge (AJ) had sufficient evidence to justify affirming the plaintiff's removal, which included charges of misconduct such as signing in for another employee, failing to provide requested handwriting samples, making false statements, and confronting witnesses involved in an internal investigation. Each of these charges was supported by substantial evidence. Plaintiff signed in for Pace on October 28, 2003, with sufficient circumstantial evidence supporting this conclusion. Testimony from co-worker Johann Sharp, deemed "unbiased and extremely credible" by the Administrative Judge (AJ), indicated that she observed the plaintiff at the sign-in desk at 6:00 a.m. writing on the timesheet, although Pace was not present until approximately 6:20 a.m. Sharp's supervisor, Eric Kressman, corroborated this by noting discrepancies in Pace's sign-in signature and confirming that security footage showed Pace entering the building at 6:18 a.m. These testimonies, along with documentary evidence, provided substantial support for the AJ's conclusion that the plaintiff signed in for Pace. The plaintiff failed to provide handwriting exemplars requested by Agent Petro on March 10, 2004. Despite being asked three times to write in cursive, the plaintiff refused, admitting this during her testimony. The AJ found no evidence of the plaintiff's inability to write in cursive, as she practiced cursive writing after her meeting with Petro. This failure to provide exemplars was substantiated by ample evidence. Additionally, the plaintiff falsely denied signing in for Pace in a written statement to Agent Petro and during her testimony at Pace's MSPB hearing. Since substantial evidence proved that the plaintiff did sign in for Pace, the AJ affirmed that her denials were false. On March 11, 2004, the plaintiff confronted Tammy Mouzon and Maria Mengel regarding their statements in an internal investigation of the Pace sign-in incident. The administrative judge (AJ) found that it was largely undisputed that the plaintiff expressed her dissatisfaction with their statements, which constituted the charged misconduct of confronting internal investigation witnesses. The plaintiff's admission of this conduct sufficed to uphold the charge, regardless of her claimed lack of intent to intimidate. The AJ affirmed that the misconduct was supported by substantial evidence. Additionally, the AJ determined that the plaintiff's removal was not retaliatory for her testimony in the Pace hearing. To establish retaliation under the Civil Service Reform Act, the plaintiff needed to demonstrate a genuine nexus between her testimony and her termination. The AJ found that the plaintiff failed to prove this connection, relying on credible testimony from official Calvert, who stated that the grounds for removal included providing false testimony, which he deemed a serious ethical issue, not an act of retaliation. The AJ noted that the plaintiff did not indicate any personal issues with the officials involved in her termination. The plaintiff's argument that the timeline of events surrounding her termination indicated retaliation was deemed insufficient. The timeline included events occurring both before and after her testimony, but the AJ concluded that a reasonable inference alone could not overturn the decision. Thus, the AJ's findings of misconduct and the lack of retaliation were affirmed based on substantial evidence. To oppose the defendant's summary judgment motion, the plaintiff must demonstrate that the Administrative Judge (AJ) erred in finding no substantial evidence supporting the decision. The timeline presented by the plaintiff does not effectively counter Calvert's assertion that no retaliatory motive influenced her termination, which the AJ found credible—a determination that is largely unchallengeable. Consequently, Calvert's testimony remains intact and supports the AJ's conclusion that the plaintiff was not terminated in retaliation for her testimony at the Pace hearing. Regarding the constitutional claims under the Fifth Amendment (Counts I and II), the plaintiff alleges her termination infringed upon the Self-Incrimination and Due Process Clauses. The court reviews the legal sufficiency of these claims de novo. Even accepting the plaintiff's allegations as true, the court finds her self-incrimination claim unsubstantiated. The plaintiff argues that the Last Chance Agreement presented by the agency coerced her into choosing between job loss and self-incrimination without immunity from prosecution. She references Supreme Court cases (Gardner v. Broderick, Uniformed Sanitation Men Association v. Commissioner of Sanitation, and Lefkowitz v. Turley) that dealt with public employees compelled to waive immunity while being investigated. However, the circumstances of these cases differ significantly from hers, as those plaintiffs were terminated solely for refusing to waive immunity, whereas the plaintiff has not established that her termination stemmed from a similar coercive environment. Thus, her case does not align with the principles established in the cited Supreme Court cases, failing to demonstrate a violation of her Fifth Amendment rights. The complaint acknowledges that the agency proposed the plaintiff's removal due to her having falsely signed in for a co-worker, establishing that the removal was for cause and not related to her assertion of Fifth Amendment rights. It is noted that no Fifth Amendment activity occurred prior to the initiation of termination proceedings, rendering the agency's actions unaffected by the plaintiff's later claims. The court emphasizes the need to consider the context of the events rather than focusing solely on favorable aspects for the plaintiff, asserting that the removal was not a penalty for invoking the Fifth Amendment. The self-incrimination privilege must be applied in a way that safeguards its core purpose, which the plaintiff failed to demonstrate in her case, resulting in the dismissal of her claim under the Self-Incrimination Clause. Additionally, the plaintiff's due process claim, alleging violations during the investigation and termination process, is also dismissed. While it is acknowledged that she had a protected interest in her employment under the Civil Service Reform Act, the court explains that to trigger due process protections, the plaintiff must show deprivation of that interest. Due process in public employment requires notice of charges, an explanation of evidence, and an opportunity to present a defense. The plaintiff contends that the timing of the disclosure of two pieces of evidence—an oral report and a handwriting analysis report—compromised her due process rights. However, the court finds that her allegations do not sufficiently state a claim for due process violation. Plaintiff contends that two pieces of evidence provided during an internal investigation were crucial for her defense against charges that ultimately led to her termination. However, she does not establish a valid due process claim, as the communications were not ex parte; they occurred before any formal charges were made, meaning she had no due process rights at that time. Regarding her claims of res judicata and collateral estoppel, the plaintiff argues that the government should be barred from disputing whether she signed in for an individual named Pace on October 28, 2003, due to the lack of a definitive finding in a prior proceeding. This argument fails because res judicata does not apply, as different parties were involved in the Pace hearing, and the issues litigated were distinct. Similarly, collateral estoppel is not applicable since the issues in the two actions are not identical; the earlier hearing did not address the plaintiff's personal responsibility for signing in for Pace. Lastly, in her Title VII claim, the plaintiff alleges that her termination was racially motivated, asserting that the defendant has a systemic practice of using disciplinary actions against African-American employees to replace them with non-African-Americans. The court finds that her allegations constitute a valid claim of race discrimination, thus denying the defendant's motion to dismiss this claim. Plaintiff claims racial discrimination, alleging that she and three other African American employees were replaced by a Caucasian individual and that she was treated less favorably than a similarly situated Caucasian male who falsified timesheet entries but received only a counseling memorandum instead of a thorough investigation. Defendant contends the claim should be dismissed for lack of sufficient comparators of different race receiving more favorable treatment. However, the court clarifies that the plaintiff's burden at this stage is simply to provide fair notice of her claims, not to establish a prima facie case. It references the Supreme Court's ruling in Swierkiewicz v. Sorema N.A., which emphasized that the prima facie standard is evidentiary, not a pleading requirement. The court finds that the Amended Complaint adequately notifies the defendant of the racial animus behind the termination and the factual basis for the discrimination claim, allowing the claim to proceed under Title VII. The court also concludes that the termination was backed by substantial evidence and dismisses claims of self-incrimination, due process violations, and the applicability of collateral estoppel or res judicata. The plaintiff's discrimination allegations survive the motion to dismiss, with the court granting the defendant's motions in part and denying them in part, specifically allowing Count VI to proceed. The order was issued on August 17, 2006. An administrative body established by the Civil Service Reform Act of 1978, the Merit Systems Protection Board (MSPB) adjudicates federal employee appeals. Appeals from MSPB decisions typically go to the Federal Circuit, except for "mixed" cases involving both discrimination and nondiscrimination claims, which must be brought in district court, as established in Kean v. Stone. The plaintiff's Fifth Amendment claims are presented as independent claims for relief rather than as a review of the MSPB's decision, without a specified cause of action; however, no objections were raised by the defendant. A Bivens action allows for claims against federal actors for rights violations under federal law. Since the plaintiff seeks only declaratory and injunctive relief regarding these claims, jurisdiction is maintained despite the Civil Service Reform Act's constraints. The facts remain undisputed except where noted. During the hearing, Agent Petro inadequately explained the term "undetermined" in relation to handwriting analysis, which indicates neither a definitive match nor a failure to match. The MSPB's final decision will be based on the Administrative Judge's (AJ) ruling, as the full panel approved it. The plaintiff’s attempts to disregard testimony from Sharp are unsubstantiated. The plaintiff argues Sharp's testimony lacks reliability based on a different AJ’s findings from another case, which is deemed irrelevant. The AJ from the previous case did not conclude Sharp’s testimony was incredible; rather, it was found to be credible and significant regarding Pace's absence from work, contradicting the plaintiff's characterization of the findings. Plaintiff contends that Sharp's account contradicts physical laws, but photographic evidence supports Sharp's testimony, making it plausible. The plaintiff's argument that her refusal to comply with directives was justified by her usual method of writing is rejected, as the Administrative Judge (AJ) found substantial evidence to uphold the agency's decision. The plaintiff claims her withdrawal of personal friendship from co-workers did not affect service efficiency, but the charge against her was related to confronting witnesses in an internal misconduct investigation, which is relevant to efficiency. The plaintiff argues the agency acted with retaliatory intent by citing her false testimony as grounds for removal, but termination for false testimony is not unlawful. The suggestion that the agency had not decided on her termination as of July 8, 2004, is based on a vague email from Calvert, yet this does not directly address the decision. The plaintiff challenges Sharp's credibility, but since Sharp did not testify on retaliation and was not mentioned in that context by the AJ, these arguments are disregarded. Finally, the plaintiff appears to present Fifth Amendment claims as separate relief requests instead of seeking a review of the MSPB's denial. Plaintiff's claim for declaratory and injunctive relief is grounded in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, asserting that the defendant violated her rights under federal law. The potential misconduct of the plaintiff could involve several federal criminal statutes, including making false statements and witness tampering. The Gardner line of cases, reaffirmed in Chavez v. Martinez, indicates that Fifth Amendment rights for government contractors are similar to those of public employees. Incriminating testimony may be compelled in non-criminal contexts without it being used against the individual in a subsequent criminal case. Although the plaintiff has not explicitly framed her claim as a procedural due process violation, her arguments align with such analysis, suggesting she lacked sufficient notice of charges leading to her removal. However, the administrative record shows she was informed of crucial evidence, including a declaration regarding her handwriting and the results of a handwriting analysis, prior to her termination. This evidence indicates the plaintiff had adequate notice to respond, making any attempt to reconstruct her due process claim futile. Lastly, there is uncertainty regarding whether the MSPB must follow doctrines of collateral estoppel and res judicata in this instance, referencing Duvall v. Attorney General of the United States for further consideration. Federal courts do not have the authority to impose procedural rules on administrative agencies, as demonstrated in the case where collateral estoppel was not applicable to the Immigration and Naturalization Service regarding the relitigation of a petitioner’s immigration status. Neither party engaged with this issue, leading to the conclusion that the Federal Circuit’s application of collateral estoppel and res judicata to Merit Systems Protection Board (MSPB) actions will be followed. The case cited by the defendant, which involved a motion for summary judgment, was deemed irrelevant to the current motion to dismiss. In employment discrimination cases, the McDonnell Douglas framework establishes a three-step burden-shifting process. Initially, the plaintiff must present a prima facie case of discrimination, demonstrating membership in a protected class, qualification for the position, suffering an adverse employment action, and that the circumstances suggest intentional discrimination—such as more favorable treatment of a similarly situated individual outside the protected class. If successful, the burden shifts to the defendant to provide a legitimate business reason for the adverse action. If the defendant meets this burden, the onus shifts back to the plaintiff to prove that this reason is a pretext for discrimination. A valid Title VII claim can exist even if the agency found substantial evidence of the plaintiff’s misconduct, as demonstrated in McDonald v. Santa Fe Trail Transportation Co., where a plaintiff admitted to misconduct yet successfully claimed racial discrimination when another employee of a different race was treated more favorably. The Civil Rights Act prohibits racial discrimination in employment without exceptions, asserting that while misconduct may justify termination, it does not excuse discriminatory practices.