C. ASHLEY ROYAL, District Judge.
This action arises from Defendant Secretary of the Air Force Deborah Lee James's termination of Plaintiff Larry Brooks's employment on October 22, 2011. Plaintiff seeks review by this Court of a Merit System Protection Board's Final Order,
Plaintiff, an African-American male, worked for Defendant at Robins Air Force Base as a Sheet Metal Mechanic Supervisor for twenty-eight years until his termination on October 22, 2011. Defendant terminated Plaintiff after his subordinate Sara Stringer filed a charge against him for inappropriate conduct.
On March 9, 2011, Plaintiff claimed Sara Stringer had been standing in the hallway for about 20 to 30 minutes after her break time, and he told her she needed to return to her work site.
In late March/early April, Ellen Griffith, Plaintiff's supervisor and director of the 402d Commodities Maintenance Group at Robins Air Force Base commenced an investigation regarding Stringer's allegations. In her allegations, Stringer claimed Plaintiff said 6 inappropriate comments to her:
After investigating the allegations, interviewing witnesses, and meeting with Plaintiff, Griffith notified Plaintiff on October 14, 2011, that he would be terminated effective October 22, 2011.
In his meeting with Griffith, Plaintiff claimed George Pierce had a "vendetta against him" and although Stringer told him everything was "okay between them," Pierce pursued further action. Plaintiff also asked that he be allowed to retire instead of being terminated. This request, however, was denied; Defendant told Plaintiff he was not eligible for retirement.
Griffith said that in making her decision to terminate Plaintiff, she weighed his length of service, his record, and his past performance with the nature and seriousness of Stringer's allegations. She found that not only were Plaintiff's comments inappropriate, but that urging Stringer not to go to Pierce was a "vale [sic] threat as far as almost extortion."
On November 18, 2011, Plaintiff appealed his removal to the Merit Systems Protection Board ("MSPB"), claiming his termination was disproportionately severe, and he was treated differently from similarly situated employees based on his age and race. After conducting a hearing on the matter, the administrative judge ("AJ") affirmed Plaintiff's termination, finding Plaintiff failed to prove race and age discrimination.
On April 18, 2012, Plaintiff filed a petition for review with the MSPB requesting reconsideration of the AJ's decision. Plaintiff alleged the agency failed to prove inappropriate conduct; the AJ's credibility determinations were improper; the AJ improperly denied certain witness requests; and the AJ erred in ruling against Plaintiff's affirmative defenses of race and age discrimination. On September 27, 2012, the MSPB denied Plaintiff's petition and affirmed the AJ's decision. The MSPB concluded Plaintiff's arguments were "mere disagreement" with the AJ's findings and credibility determinations. Additionally, the MSPB found no abuse of discretion in the AJ's denial of Plaintiff's witness requests and concurred with the AJ that Plaintiff failed to prove race and age discrimination.
On November 27, 2012, Plaintiff petitioned the Court of Appeals for the Federal Circuit to review the MSPB's decision, again alleging error in the AJ's credibility determinations and findings that Plaintiff's conduct supported termination. On December 13, 2012, Plaintiff agreed to abandon any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition in any court.
Originally, the Federal Circuit dismissed Plaintiff's petition on procedural grounds, but then the court reopened the case to determine jurisdiction. The court found that, in accordance with Kloeckner v. Solis,
MSPB decisions are subject to judicial review under 5 U.S.C. § 7703.
As an initial matter, the Court notes Plaintiff has failed to raise any cognizable arguments as to his age discrimination claim or review of the MSPB decision. Fundamentally, it is a litigant's duty to suitably frame an issue for judicial review, and a district court need not consider an argument that is "not fairly presented."
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if the movant "shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law."
On summary judgment, the Court must view the evidence and all justifiable inferences in the light most favorable to the nonmoving party; the Court may not make credibility determinations or weigh the evidence.
To establish a prima facie case of discriminatory discharge, Plaintiff must produce circumstantial evidence showing he (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly situated individual outside his protected class or was replaced by a person outside of his protected class.
Defendant concedes, for purposes of summary judgment, that Plaintiff satisfies the first three elements of his prima facie case. The dispute here centers on whether Plaintiff has presented similarly situated comparators who engaged in similar misconduct but were treated more favorably than Plaintiff. The Court finds Plaintiff has failed to present sufficiently similar comparators to maintain a prima facie case.
"When a plaintiff alleges discriminatory discipline, to determine whether employees are similarly situated, [the Court must] evaluate whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways."
A proper comparator is an employee outside of the plaintiff's protected class who is similarly situated to the plaintiff "in all relevant respects."
Here, Plaintiff presents five white employees as comparators: Brian McAnally; Louis L. Ragan, Paul R. Harrell, Joe Rick Vance, and H.S. Cash. Plaintiff claims all of these men held a similar position, were in the same division, were accused of the same or similar misconduct, but, unlike Plaintiff, were allowed to retire. Plaintiff's arguments are unpersuasive—these men are not sufficiently similar for Plaintiff to satisfy his prima facie case of discriminatory termination.
Defendant terminated Plaintiff because of his inappropriate comments to Stringer, his attempt to convince her not to report his inappropriate conduct, and his previous suspension. Plaintiff's proposed comparators were neither involved in nor accused of "nearly identical" misconduct as Plaintiff nor under the same decision maker.
Plaintiff presents Brian McAnally as a comparator. McAnally was accused of inappropriate conduct and falsification of records in 2006. Unlike Plaintiff, however, McAnally was allowed to voluntarily retire in lieu of termination. However, the Court finds McAnally is not sufficiently similar to be a proper comparator. Although McAnally held the same position as Plaintiff, a sheet metal mechanic supervisor, McAnally retired in 2006, five years before Plaintiff, and had a different decision maker than Plaintiff.
Plaintiff also presents Louis L. Ragan who was accused of failure to fulfill his management responsibilities by failing to record and affect details in accordance with established procedures, and who, unlike Plaintiff, was allowed to voluntarily retire in lieu of termination. However, the Court finds Ragan is not sufficiently similar to be a proper comparator. Unlike Plaintiff, Ragan was an industrial production manager, not a sheet metal mechanic supervisor; there is no evidence he had a previous disciplinary record; the action taken against him occurred in 2004, and he was under a different decision maker.
Plaintiff additionally proffers Paul R. Harrell, Joe Rick Vance, and H.S. Cash as comparators. Although Harrell and Vance had the same position as Plaintiff, they are not sufficiently similar to be proper comparators. Harrell was accused of "misuse of a government computer" in 2002 and retired ten years later in 2012.
Finally, Plaintiff argues that Cash, Ragan, Harrell, and Vance were accused of inappropriate conduct, like Plaintiff, despite the fact there is no reference to these accusations in their personnel records.
Therefore, because Plaintiff has failed to point to a similarly situated white comparator who was disciplined less harshly, Plaintiff cannot establish his prima facie case of discrimination, and Defendant is entitled to summary judgment.
Even if Plaintiff established his prima facie case of discrimination, Defendant is still entitled to summary judgment because Plaintiff cannot show Defendant's legitimate, nondiscriminatory reasons for Plaintiff's termination are merely pretext for race discrimination. Defendant's legitimate reasons for termination-Plaintiff's inappropriate conduct towards Ms. Stringer, his attempt to convince her not to report his conduct, and his previous suspension—are all reasons "that might motivate a reasonable employer,"
Because Defendant has met its burden, Plaintiff must present sufficient evidence to create a genuine issue of material fact that Defendant's proffered legitimate reasons for termination are merely pretext for race discrimination. To establish pretext, a "plaintiff must demonstrate that the proffered reason was not the true reason for the employment decision. . . . [The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."
Plaintiff shows neither that Defendant's proffered reasons for termination are unworthy of credence nor that a discriminatory reason motivated his termination. The record reveals no "weaknesses, implausibilities, inconsistencies, or contradictions" in Defendants' rationale for Plaintiff's termination,
While Plaintiff may have felt his termination was unfair, this Court does not sit as a "super-personnel department," and it does not review the wisdom of an employer's business decisions, no matter how mistaken or unfair they may seem, as long as the action was not for a prohibited discriminatory reason.
For the reasons set forth above, Defendant's Motion for Summary Judgment [Doc. 16] is hereby
