Adair v. Chao

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
PAUL C. ADAIR, )
)
Plaintiff, )
) Civil Action No. 04-1469(EGS)
v. )
)
HILDA SOLIS, Secretary of the )
Department of Labor, )
)
Defendant.1 )
)

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

him on the basis of his race (African-American) and disability

(depression) in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.

Plaintiff also seeks review of the decision of the Merit System

Protection Board (“MSPB”) affirming his termination by defendant

for (i) failure to complete certain assignments,

(ii) insubordination, and (iii) making statements to supervisors

1
Pursuant to Federal Rule of Civil Procedure 25(d),
Hilda Solis, in her official capacity as Secretary of the
Department of Labor, is automatically substituted as the named
defendant.
and co-workers that resulted in anxiety and disruption in the

workplace. Plaintiff argues that the MSPB’s decision is

unsupported by substantial evidence, does not promote the

efficiency of the federal service, and was rendered in violation

of his due process rights. Defendant has moved for summary

judgment on all of plaintiff’s claims, and plaintiff has filed

cross-motions for summary judgment as to his non-discrimination

claims. Upon consideration of the motions, the responses and

replies thereto, the applicable law, the entire record, and for

the reasons set forth below the Court GRANTS defendant’s motion

for summary judgment and DENIES plaintiff’s cross-motions for

partial summary judgment.

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.

During 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.

2
 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 Decl.”) ¶ 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 Decl., 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

Decl., Email from Scott to Adair dated May 1, 2002; 2003 Scott

Decl. ¶ 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 Decl., Email from Adair to Scott dated

May 2, 2002. Mr. Scott then, once again, explained his concerns

with plaintiff’s approach, and asked Mr. Adair to “finalize the

motion papers today and give a copy to me[.]” AR [Docket Entry

3
7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Scott to

Adair dated May 2, 2002. Mr. Adair failed to revise the motion

on May 2, 2002 as requested. 2003 Scott Decl. ¶ 8.2

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,

2
It is plaintiff’s position that he “gave Scott a final
draft” of the contempt motion. See Pl.’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 ¶ 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.

4
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. Handorf’s 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 Decl.”) ¶ 3.

5
 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 Decl.”), 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 response, Mr. Scott sent another

follow-up email on July 26, 2002, which stated: “Paul: Please

tell me whether you have done the assignments listed below. I

have not reassigned these tasks. As you know, Peter, Ben 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], Email from Scott to Adair dated July 26, 2002. By emails

dated August 1, 2002, August 2, 2002, and August 7, 2002, Mr.

6
Scott extended the due date for the assignments contained in the

July 17th Email to August 19, 2010, and indicated that Mr. Adair

no longer needed to complete two of the five assignments. See AR

Tab 4cc2, Emails from Scott to Adair dated Aug. 1, 2002, Aug. 2,

2002, and Aug. 7, 2002.

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

3
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

7
 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

Decl.”) ¶¶ 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 been disrespected by Mr. Scott, and that he

“would rather see everyone dead and the whole world destroyed”

than suffer disrespect. See AR Tab 4aa, Declaration of Paul

Adair dated Dec. 6, 2002 (“2002 Adair Decl.”) ¶ 32 (“As the

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.

8
meeting drew to a close I said I felt strongly about dignity and

respect and that my ‘philosophy’ was that I ‘would rather see

everyone dead and the whole world destroyed’ than suffer

indignity and disrespect. I then said ‘that’s it.’”); see also

AR Tab 4ff, Declaration of Leslie Perlman (“Perlman Decl.”) ¶ 6;

Sandler Decl. ¶ 8; Hopkins Decl. ¶ 2; 2002 Scott Decl. ¶ 13. Mr.

Adair also stated that he had been “feeling violent,” and had

sought counseling as a result. Sandler Decl. ¶ 8; Perlman Decl.

¶ 10; Hopkins Decl. ¶ 2; see also 2002 Adair Decl. ¶ 30.4 When

asked if he could continue to work with Mr. Scott, Mr. Adair

likened it to finding a peaceful solution in the Middle East.

Sandler Decl. ¶ 10; Hopkins Decl. ¶ 2; 2002 Adair Decl. ¶ 31.

After the meeting, each of plaintiff’s 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.

4
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”).

9
. . . 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.”); Perlman 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 plaintiff’s behavior.6 Mr. Scott also

5
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.”).
6
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

10
contacted security at the Department of Labor. See AR Tab 4cc4,

Ex. C. to 2002 Scott Decl., Email from Scott to Robert Rouse

dated Oct. 18, 2002 (discussing the October 17th Meeting, and

concluding: “Mr. Adair’s statements made me uncomfortable and

afraid of what he might do, and I believe he intended to make me

feel that way. Please do what you can to preserve the safety of

the DOL employees around Mr. Adair.”). On October 18, 2002 –

after interviewing Mr. Scott, Ms. Perlman, Ms. Hopkins, and Ms.

Sandler – Mr. Hauser contacted Mr. Adair at his home,7 and

informed Mr. Adair that he was being placed on administrative

leave and was barred from the PBSD building. See AR Tab 4kk,

Email from Hauser to Adair dated Oct. 18, 2002 (“I am writing to

confirm our conversation. As I indicated, you are on

administrative leave and will not be allowed into the building.

I am concerned about the statements you made at the October 17

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 an act, but I don’t think so, and I don’t think we
should take any chances. I recommend consulting with the
appropriate human resources people concerning the possibility of
removing [plaintiff] from the premises immediately and revoking
his building pass on the ground that he is dangerous.”); AR Tab
4hh, Email from Scott to Hauser dated Oct. 17, 2002 (“I feel very
uncomfortable even if I don’t work with [plaintiff] again.”);
Email from Hopkins to Hauser dated October 18, 2002 (describing
plaintiff’s comments at the October 17th Meeting).
7
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.

11
meeting, and about the fear and disruption caused by those

statements.”).

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) “[i]nsubordination.” 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 plaintiff’s 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 plaintiff’s 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

12
similar statement that he allegedly made during the October 17th

Meeting.8 See Notice of Proposed Removal. Mr. Adair submitted a

32-page response to the agency’s notice, in which he argued,

among other things, that “the Notice fails to provide a just

basis for the proposed action, it does not promote efficient

operation of the Federal Service, and is disproportional to the

8
It 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 do any future work on the Employers Mutual case at the
October 17th Meeting; it is his position that during the meeting
he simply “reiterated [his] problems working on the case and also
wondered how useful [he] would be [on the case].” 2002 Adair
Decl. ¶ 32. The sworn declarations of his supervisors in
attendance at the meeting, however, dispute Mr. Adair’s account.
See, e.g., Perlman Decl. ¶ 6 (“I told Mr. Adair that he had not
been taken off the Employers Mutual case. . . . Mr. Adair became
incensed and said that he was not going to work on the case. Mr.
Adair angrily told Mr. Scott that he was incompetent and that he
wasn’t going to be taken down with Mr. Scott.”); Sandler Decl.
¶ 6 (“Mr. Adair stated that he would not work on the case because
Mr. Scott is disrespectful. He said that Mr. Scott called him
names, wrote disrespectful notes, sent him disrespectful emails
and made disrespectful comments in front of others. He said that
Mr. Scott is incompetent and he would not work for someone who is
incompetent. He said something like ‘I don’t want to go down
with him.’”). Given the issues before the Court, and the
procedural posture of the case, the Court finds this factual
dispute immaterial to the Court’s resolution of the case.

13
reasons alleged[.]” AR Tab 4d at 1.9

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 plaintiff’s 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

9
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.”).

14
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 its charge of making

statements to supervisors and co-workers that resulted in anxiety

and disruption in the workplace by preponderant evidence”;

(2) “[t]he agency established its charge of failure to follow

instructions by preponderant evidence”; and (3) “[t]he agency

established its charge of insubordination by preponderant

evidence.” MSPB Decision at 8-31. The ALJ also found that:

(i) plaintiff failed to establish an entitlement to sick leave or

leave under the FMLA due to his refusal to submit documentation

to the agency in support of his request; (ii) plaintiff failed to

15
establish race or gender discrimination as the agency had

proffered a legitimate, non-discriminatory reason for plaintiff’s

termination and there were no similarly-situated individuals that

were treated differently; (iii) plaintiff failed to establish

disability discrimination as he did not present any evidence to

establish that he had a physical or mental impairment that

substantially limited one or more major life activities; and

(iv) plaintiff failed to establish a harmful procedural error.

MSPB Decision at 3-8, 31-43.

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, 97 M.S.P.R. 605 (2004)

(concluding that the “administrative judge made no error in law

or regulation that affects the outcome,” and holding that “[t]he

initial decision of the administrative judge is final”).

Plaintiff then sought review of the MSPB Decision to the Equal

Employment Opportunity Commission (the “EEOC”). Def.’s SMF ¶ 26.

The EEOC also denied plaintiff’s appeal, finding that “the MSPB’s

decision constitutes a correct interpretation of the laws, rules,

regulations, and policies governing this matter and is supported

by the evidence in the record as a whole.” Def.’s SMF ¶ 26.

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

16
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 plaintiff’s request, it is FURTHER ORDERED

that plaintiff’s claim under the Family and Medical Leave Act is

DISMISSED.”). Pending before the Court, therefore, are

plaintiff’s remaining discrimination claims, his allegation of

due process violations, and his petition for review of the MSPB

Decision.10 Defendant has moved for summary judgment on all

10
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

17
claims, and plaintiff has filed a cross-motion as to his non-

discrimination claims. These motions are now ripe for

determination by the Court.

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, 477 U.S. 317,

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). “A fact is material if it ‘might affect the

outcome of the suit under the governing law,’ and a dispute about

a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’”

Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The

party seeking summary judgment bears the initial burden of

demonstrating an absence of genuine issues of material fact.

Celotex, 477 U.S. at 322. In determining whether a genuine issue

of material facts exists, the Court must view all facts in the

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, see MSPB Decision at 41 (“[I]t is my
determination that the appellant’s allegation of retaliation was
untimely raised and it should not be considered further.”), but
found that “even if the appellant’s untimely allegation regarding
retaliation was permitted, it would still fail.” Id.

18
light most favorable to the non-moving party. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986);

Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).

Likewise, in ruling on cross-motions for summary judgment, the

court shall grant summary judgment only if one of the moving

parties is entitled to judgment as a matter of law upon material

facts that are not genuinely disputed. St. Michael’s Med. Ctr.

v. Sebelius, 648 F. Supp. 2d 18, 25 (D.D.C. 2009) (citing Rhoads

v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)).

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, 477 U.S. at 324. If the

evidence favoring the non-moving party is “merely colorable, or

is not significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 250. Moreover, “although summary judgment

‘must be approached with special caution in discrimination cases,

a plaintiff is not relieved of [his] obligation to support [his]

allegations by affidavits or other competent evidence showing

that there is a genuine issue for trial.’” Bolden v. Winter, 602

F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home

Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)).

19
Summary judgment will be granted, therefore, if the plaintiff

fails to submit evidence that creates a genuine factual dispute

or entitlement to judgment as a matter of law. Wada v.

Tomlinson, 517 F. Supp. 2d 148, 181 (D.D.C. 2007); see also

Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special

caution “does not eliminate the use of summary judgment in

discrimination cases” (citing cases)).

III. ANALYSIS

As noted above, defendant has moved for summary judgment as

to plaintiff’s race and disability discrimination claims on the

grounds that it had legitimate, non-discriminatory reasons for

Mr. Adair’s claims for removal, and that Mr. Adair failed to

produce evidence that a discriminatory reason motivated

defendant’s decision or that defendant’s proffered reasons are a

pretext for discrimination. Defendant also seeks summary

judgment as to plaintiff’s alleged “due process violations,” and

argues that the MSPB Decision upholding plaintiff’s removal was

not arbitrary, capricious, or otherwise in derogation of the law

and therefore should be upheld. Plaintiff filed a cross-motion

for partial summary judgment as to his non-discrimination claims.

The Court will begin by addressing defendant’s motion for summary

judgment as to plaintiff’s discrimination claims.

20
 A. Plaintiff’s 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 case, 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, 520 F.3d 490, 494 (D.C. Cir. 2008).

Instead, “the district court must resolve one central question:

Has the employee produced sufficient evidence for a reasonable

jury to find that the employer’s asserted non-discriminatory

reason was not the actual reason and that the employer

intentionally discriminated against the employee on the basis of

race, color, religion, sex, or national origin?” Id. In other

words, a court must determine whether “all the evidence, taken

together, [is] insufficient to support a reasonable inference of

discrimination.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir.

2009) (citing Brady, 520 F.3d at 494-95); see also Holcomb v.

Powell, 433 F.3d 889, 896-97 (D.C. Cir. 2006) (“‘[T]he plaintiff

must show that a reasonable jury could conclude from all of the

21
evidence that the adverse employment decision was made for a

discriminatory reason.’” (quoting Lathram v. Snow, 336 F.3d 1085,

1088 (D.C. Cir. 2003))). “[A]ll of the evidence,” in turn, means

“any combination of (1) evidence establishing the plaintiff’s

prima facie case; (2) evidence the plaintiff presents to attack

the employer’s proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff, such as independent evidence of discriminatory

statements or attitudes on the part of the employer.” Holcomb,

433 F.3d at 897; see also Washington v. Chao, 577 F. Supp. 2d 27,

39 (D.D.C. 2008) (“[I]n all instances where a defendant has

asserted a legitimate, non-discriminatory reason for its conduct,

the Court shall evaluate all of the evidence in the record,

including that which would be used to establish a prima facie

case (but not for the purpose of evaluating whether a prima facie

case has been established), to address the ultimate question of

discrimination vel non.”).

“A plaintiff may show discrimination either directly or

indirectly.” Evans v. Holder, 618 F. Supp. 2d 1, 8 (D.D.C.

2009). Evidence is direct if it shows that a “‘discriminatory

reason more likely motivated the employer.’” Id. (quoting George

v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). Evidence is

indirect if it shows that “‘the employer’s proffered explanation

is unworthy of credence.’” Id. (quoting George, 407 F.3d at 413).

22
There are at least two ways to demonstrate that a

nondiscriminatory explanation is false. First, a plaintiff may

show that “the employer is making up or lying about the

underlying facts that formed the predicate for the employment

decision.” Brady, 520 F.3d at 495. Second, a plaintiff may show

that a similarly situated employee outside plaintiff’s protected

class was treated more favorably. Id.

ii. Analysis

In this case, defendant has proffered a legitimate, non-

discriminatory reason for plaintiff’s termination. Specifically,

defendant asserts that “[p]laintiff’s own conduct is the

legitimate, non-discriminatory reason for Plaintiff’s 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 Plaintiff’s 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

23
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,

plaintiff’s “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, 520 F. Supp. 2d

101, 105 (D.D.C. 2007), the Court finds that defendant is

entitled to summary judgment on plaintiff’s race discrimination

claim.

a. Plaintiff’s “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., 216 F.3d 845, 853 (9th Cir. 2000)) (alternations in

plaintiff’s brief)). Specifically, plaintiff contends that “[i]n

July 2002, supervisor William Scott gave Plaintiff and two

similarly white male attorneys, Benjamin Apt and Peter Dolan, the

24
same exact assignments[,]” however, “Scott treated Plaintiff

differently in the time given to complete the tasks, in the

amount of information and other support provided, and ultimately

in the investigation of the work performed on the tasks.” Pl.’s

Opp’n Br. at 4-5. As a result, plaintiff argues that

“[d]efendant blatantly 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. The Court finds that plaintiff’s

conclusory assertions are unsupported by the record.

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 July 23, 2002. See

AR Tab 4cc2. After plaintiff failed to notify Mr. Scott

regarding the status of the assignments, Mr. Scott sent plaintiff

the following email on July 26, 2002:

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

25
 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

11
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.

26
that required travel, [and] court appearances on Employers

Mutual” because Mr. Scott “segregated the attorneys by race . . .

[thereby] depriv[ing] 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, 597 F. Supp. 2d 4, 17 n.7

(D.D.C. 2009) (“[Plaintiff] asserts in her Opposition that [i]n

this case, [she] has direct evidence of discrimination.

[Plaintiff], however, is wrong as a legal matter. Direct

evidence ‘is evidence that, if believed by the fact finder,

proves the particular fact in question without any need for

inference.’” (internal citations omitted) (quoting Brown v.

Small, 437 F. Supp. 2d 125, 130 n.7 (D.D.C. 2006))). Accordingly,

the Court will address plaintiff’s indirect evidence of

12
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, 539 F. Supp. 2d 116, 135 (D.D.C.
2008). Therefore, when, as here, an employer states that it took
an adverse employment action due to the plaintiff’s misconduct,
the plaintiff’s comparator must have been charged with a
comparable offense and then treated less harshly than the
plaintiff. See Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir.
1999); Hanna v. Herman, 121 F. Supp. 2d 113, 120-21 (D.D.C.
2000). In this case, as neither Mr. Apt nor Mr. Nolan “failed to
complete assignments, refused to follow instructions, or made
statements that caused severe anxiety and disruption in the
workplace[,]” Def.’s Reply Br. at 9, neither individual can
serve as a similarly-situated comparator.

27
discrimination: that the employer’s asserted reason for

terminating him was pretextual.

b. Plaintiff’s Evidence of Pretext

Plaintiff attempts to offer several reasons that defendant’s

asserted nondiscriminatory 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 Plaintiff’s

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 “[d]efendant’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

plaintiff’s 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”

28
at PBSD following the October 17th Meeting. Pl.’s Opp’n Br. at

19. The Court will explore these arguments in turn.

First, plaintiff’s 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 Perlman and Bill Scott.

I had told Paul earlier that day that the supervisors in our

office wanted to do a review with him.”); Perlman Decl. ¶¶ 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

13
Plaintiff’s 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 mid-year 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 Decl.,
Email from Scott to Rouse dated October 18, 2002 (“On October 17,
2002, from about 11 am to about 12 pm, we conducted a mid-year
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

29
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 explain how the October

17th Meeting gives rise to an inference of pretext.14

The Court also finds that plaintiff’s 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

performance period.”).
14
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).

30
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 Decl.”) ¶ 9. Finally, plaintiff argues that Mr. Hauser

“completely ignored Plaintiff’s 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

31
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 105 (finding that the plaintiff had

failed to create a genuine issue of material fact that defendant

“made derogatory statements about black employees” where

plaintiff “offer[ed] no evidence to support these charges except

her own testimony”); see also Holcomb, 433 F.3d at 899 (finding

that summary judgment was properly granted where, although

plaintiff “recite[d] a litany of allegations purporting to show

unlawful animus on the part of [defendants],” the allegations

were either “conclusory” or “without evidentiary support”).

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 plaintiff’s

15
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]
need[ed] 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.

32
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 Decl. ¶¶ 12-14; Perlman Decl. ¶ 11; Hopkins Decl. ¶ 4;

2002 Scott Decl. ¶¶ 21-22; see also Hauser Decl. ¶ 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 “[n]either Durham nor Clinton discerned any

evidence of anxiety or disruption in the office,” Pl.’s Opp’n Br.

33
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, MM.17

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

16
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 Decl.”) ¶¶ 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 Decl.”) ¶ 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.”).
17
Ms. Durham did, however, aver that “[s]ince
[plaintiff’s] departure, I have not noticed any significant
changes in the office.” Durham Decl. ¶ 15.

34
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 plaintiff’s race discrimination

claim. See, e.g., Evans, 618 F. Supp. 2d at 14 (granting summary

judgment where there was “substantial evidence in the record that

Plaintiff performed poorly, compromised FBI security, and was

insubordinate”); see generally Brady, 520 F.3d at 495 (“If the

employer’s stated belief about the underlying facts is reasonable

in light of the evidence . . . there ordinarily is no basis for

permitting a jury to conclude that the employer is lying about

the underlying facts.”).

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, 531

F.3d 936, 943 (D.C. Cir. 2008).18 A person is disabled under the

18
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.,
572 F.3d 936, 938 (D.C. Cir. 2009), this Court will apply the

35
Rehabilitation Act if he “has a physical or mental impairment

which substantially limits one or more of [his] major life

activities; has a record of such an impairment; or is regarded as

having such an impairment.” 29 U.S.C. § 705(20)(B). As discussed

below, because plaintiff has proffered no evidence to demonstrate

that he is disabled within the meaning of the Act, the Court

finds that plaintiff cannot bring a disability claim.19

ii. Analysis

Defendant argues that “[p]laintiff’s 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

pre-amendment law to determine whether plaintiff is an
“individual with a disability.” Id. at 942.
19
As a general matter, claims under the Rehabilitation
Act are governed by the McDonnell Douglas burden-shifting
framework. McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000).
Therefore, when - as here - the defendant has proffered a
legitimate, non-discriminatory explanation for the plaintiff’s
termination, the Court generally applies Brady’s simplification
of the McDonnell Douglas framework. Franklin, 600 F. Supp. 2d at
74; see also Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d
13, 17 n.2 (D.C. Cir. 2009)(finding that the district court
correctly applied Brady’s summary judgment analysis to a
Rehabilitation Act claim). “But the question whether [plaintiff]
is disabled is a predicate to bringing a claim of
discrimination.” Ellis v. Georgetown Univ. Hosp., No. 08-1174,
2010 U.S. Dist. LEXIS 69028, at *10 n.4 (D.D.C. July 12, 2010)
(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 488-89,
494 (1999)); see also Mitchell v. Yates, 402 F. Supp. 2d 222, 228
(D.D.C. 2005) (“[P]laintiff’s complaint must adequately allege
facts sufficient to support the claim that he has a ‘disability’
within the meaning of the ADA, or else be subject to
dismissal.”). Accordingly, the Court must grant defendant’s
motion for summary judgment if Mr. Adair is not disabled. See
Ellis, 2010 U.S. Dist. LEXIS 69028, at *10 n.4.

36
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, plaintiff’s self-serving

statements are “simply too vague and conclusory” for a reasonable

jury to conclude that he was substantially limited in a major

life activity. Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 199

(D.D.C. 2008); see, e.g., Alexander v. Tomlinson, 507 F. Supp. 2d

2, 21-22 (D.D.C. 2007) (finding plaintiff’s affidavit which

described difficulties “eating, sleeping, and concentrating,” but

provided “no detail whatsoever regarding the nature or extent of

these difficulties,” as “plainly insufficient” to survive the

defendant’s motion for summary judgment); Thompson v. Rice, 422

F. Supp. 2d 158, 174 (D.D.C. 2006) (plaintiff’s assertion that

37
she was substantially limited in caring for herself and

performing certain tasks, such as basic household tasks, driving

long distances, and getting up in the morning, was insufficient

to survive summary judgment where plaintiff “provided little

evidence to substantiate this claim, or otherwise describe the

degree to which she is limited with any reasonable specificity”).

Accordingly, the Court hereby GRANTS defendant’s motion for

summary judgment as to plaintiff’s disability discrimination

claim.

B. Non-Discrimination Claims

Because the Court has disposed of plaintiff’s discrimination

claims, see supra Section III.A, the Court must now review the

non-discrimination components of plaintiff’s 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, 164 F.3d 634, 638 (D.C. Cir.

1999) (citations omitted) — the Court conducts a de novo review

of the plaintiff’s discrimination claims but must review the

non-discrimination claims exclusively on the administrative

record. 5 U.S.C. § 7703(c).

“The non-discrimination findings of the MSPB

Administrative Judge are reversible only if they were arbitrary

or capricious, obtained without lawful procedures, or were

38
unsupported by substantial evidence.” Willingham v. Gonzales,

391 F. Supp. 2d 52, 63 (D.D.C. 2005) (citing 5 U.S.C. § 7703(c));

see also Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001)

(“[W]e review the MSPB’s assessment deferentially, upsetting it

only if it was arbitrary and capricious or an abuse of

discretion, or if it was unsupported by substantial evidence.”).

“To show that the MSPB’s decision is not arbitrary and

capricious, defendant needs only to show that the decision has a

rational basis in the law.” Hanna, 121 F. Supp. 2d at 117

(internal citations omitted). “[I]n assessing whether the MSPB’s

ruling was supported by substantial evidence, a court is limited

to determining ‘whether the agency . . . could fairly and

reasonably find the facts that it did,’ and ‘an agency conclusion

may be supported by substantial evidence even though a plausible

alternative interpretation of the evidence would support a

contrary view.’” Willingham, 391 F. Supp. 2d at 63-64 (quoting

Robinson v. NTSB, 28 F.3d 210, 215 (D.C. Cir. 1994)).

Ultimately, “[t]he role of the courts in this area of federal

employment relations is strictly limited, and the MSPB’s decision

cannot be overturned if it is supported by such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Hanna, 121 F. Supp. 2d at 121 (internal citations

and quotation marks omitted).

39
 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 Plaintiff’s

employment are unsupported by substantial evidence,” Compl. ¶ 96;

(iv) “[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,” Compl. ¶ 98; (v) “[p]laintiff’s

termination was achieved without procedures required by law,

rule, or regulation having been followed,” Compl. ¶ 99; (vi)

“[d]efendant 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) “[d]efendant and the MSPB acted

arbitrarily and capriciously and abused their discretion in

denying Plaintiff information relevant and necessary to examine

40
and, if possible, prove his discrimination claims,” Compl. ¶

101; (viii) “[d]efendant 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) “[p]laintiff’s termination did

not promote the efficiency of the service,” Compl. ¶ 93.

Defendant, by contrast, argues that the MSPB Decision upholding

plaintiff’s 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 plaintiff’s 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

plaintiff’s position that “[t]he reassignment of July 29 ended

[his] responsibility,” Pl.’s Mot. for Partial Summ. J. at 20, and

41
that “[t]he MSPB’s findings that the tasks were valid and

outstanding as to [him] after July 29, 2002 must be set aside as

clearly erroneous.” Pl.’s Mot. for Partial Summ. J. at 2; see,

e.g., Pl.’s Mot. for Partial Summ. J. at 20 (“This then is not a

case of Adair refusing to work, but rather a case of Defendant

taking work from Adair. The reassignment of July 29 ended

Adair’s responsibility.”); Pl.’s Supp. Mot. for Partial Summ. J.

at 3-4 (“There is no genuine dispute that Scott reassigned the

work on July 29. . . . The Notice claims Plaintiff did not follow

instructions and was insubordinate for failing to obey deadlines

between August 1 and October 17, 2002, which cannot be true by

virtue of Scott’s email.”); Pl.’s Mot. for Partial Summ. J. at 2

(“To use a football analogy, Defendant claimed Adair fumbled, but

the July 29 email was a change of possession. Adair cannot be

charged with a fumble when he did not have possession. The

MSPB’s findings that the tasks were valid and outstanding as to

Adair after July 29, 2002 must be set aside as clearly

erroneous.”). The Court finds this argument baseless.

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

42
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 The 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

20
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.”).

43
of facts,” and must therefore be “merged into one [charge].”

Pl.’s Mot. for Partial Summ. J. at 29. It is plaintiff’s

position that “[d]efendant 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 plaintiff’s 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., 813 F.2d 1223 (Fed. Cir.

1987) (finding that the agency committed legal error in charging

the plaintiff with 19 charges of false testimony, when the

charges were based on a single interview in which “the agency

asked a total of 19 questions relating to whether [the plaintiff]

had attended the 9 a.m. class”). As evidenced by both the Agency

Decision and the MSPB Decision, defendant’s insubordination

charge is based on plaintiff’s purported statements that he

refused to continue working on the Employers Mutual case at the

October 17th Meeting and during a meeting with his supervisor on

August 8, 2002, while the failure to follow instructions charge

is based on plaintiff’s failure to complete certain tasks in the

Employers Mutual case - i.e., his failure to revise a contempt

motion in Spring 2002 and his failure to complete the specific

44
tasks contained in the July 17th Email prior to the October 17th

Meeting. See also Def.’s Response to Pl.’s Supp. SMF ¶ 35

(“[T]he charge of insubordination is not based upon Plaintiff’s

actual failure to perform work assignments, but rather, the

charge of insubordination is predicated on Plaintiff’s refusal to

perform the work assignments referenced in Scott’s July 17, 2002

and August 7, 2002 emails when directed to do so by both Scott

and Perlman.”). Given the different facts and evidence that

underlie the two charges, the Court finds that the MSPB’s

determination that the agency established both a failure to

follow instructions charge and an insubordination charge is not

legally erroneous. See also, e.g., Pedeleose v. Dep’t of Def.,

343 Fed. Appx. 605 (Fed. Cir. 2009) (finding substantial evidence

to support the agency’s charges of insubordination and failure to

follow instructions).

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, 391 F. Supp. 2d at 63 (internal quotation marks

omitted). Moreover, “an agency conclusion may be supported by

45
substantial evidence even though a plausible alternative

interpretation of the evidence would support a contrary view.”

Id. Having carefully reviewed the Agency Decision and the 48-

page MSPB Decision, the Court finds plaintiff’s argument

unavailing. The MSPB considered a great deal of evidence -

carefully analyzing each party’s declarations and exhibits – in

reaching its conclusions on each charge. Indeed, the MSPB, in

reaching its decision, discarded a specification that it found to

be procedurally defective. See MSPB Decision at 26-27

(concluding that specification 4 of charge 2 was “procedurally

defective and may not be sustained”). While plaintiff may be

displeased with how the MSPB weighed the evidence, he does not

identify any pertinent evidence that the MSPB wholly failed to

consider nor does he otherwise meet his burden to show that the

agency could not fairly and reasonably find the facts that it

did. Accordingly, the Court concludes that the MSPB’s affirmance

of the three charges was supported by substantial evidence.

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.” Compl. ¶

98. The Court disagrees. A review of the Notice of Proposed

Removal indicates that plaintiff is charged with “[m]aking

46
statements to supervisors and co-workers that resulted in anxiety

and disruption in the workplace,” not making threatening

comments. Notice of Proposed Removal at 1. Indeed, in rejecting

this argument, the MSPB persuasively explained:

[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, 780 F.2d 1001 (Fed. Cir. 1986), as

those factors need only be considered “in deciding whether an

employee threatened his supervisors or co-workers.” Id. at 1002;

see also, e.g., McCarty v. Dep’t of the Navy, 67 M.S.P.R. 177,

182-83 (1995) (finding that the administrative judge did not err

in failing to consider whether the appellant intended to make a

threatening statement under Metz because “so long as the agency

proves its charge of making statements that caused anxiety and

disruption in the workplace, and further proves that discipline

47
promotes the efficiency of the service and that the penalty of

removal is reasonable, its charge may be sustained”).

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(c)(3)). “The burden is upon the [plaintiff] to

show that the agency committed an error and that the error was

harmful, i.e., that it caused substantial prejudice to his

rights.” MSPB Decision at 34. Although plaintiff’s complaint

fails to set forth specific procedural errors, in his motions for

partial summary judgment plaintiff alleges the following:

(i) “[d]efendant’s denial of Plaintiff’s 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

48
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

plaintiff’s 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 representative present when none was requested. Cf. Nat’l

Labor Relations Bd. v. Weingarten, Inc., 420 U.S. 251, 256-57

(1975) (discussing how the Board’s recognition that “§ 7 [of the

National Labor Relations Act] creates a statutory right in an

employee to refuse to submit without union representation to an

interview which he reasonably fears may result in his

discipline,” but explaining that the Board “shaped the contours

and limits of this statutory right” by finding that the right

arises “only in situations where the employee requests

representation”; “In other words, the employee may forgo his

guaranteed right and, if he prefers, participate in an interview

unaccompanied by his union representative.”).

49
 Second, the Court finds no evidence in the record to support

plaintiff’s assertion that Mr. Scott’s attendance at the October

17th Meeting was intended as “an intentional provocation” in

response to plaintiff’s purported “formal complaint against him

for harassment[.]” Pl.’s Mot. for Partial Summ. J. at 5.

Instead, as explained in the declaration of plaintiff’s former

supervisor, Leslie Perlman, “[w]hen [the agency] conduct[s]

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

plaintiff’s 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 plaintiff’s procedural rights. This

assertion of harmful error must therefore also fail.

50
 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, 7 M.S.P.R. 108, 111 (1981) (citing Withrow v.

Lawkins, 421 U.S. 35, 58 (1975)), “there is no general

proscription of the appointment as a deciding official of a

person who is familiar with the facts of the case and has

expressed a predisposition contrary to the appellant’s

interests.” Id.; see also MSPB Decision at 40-41 (rejecting

plaintiff’s assertion that Mr. Hauser was improperly named as the

deciding official because “appellant has cited no authority for

his assertion that a deciding official must be completely removed

from the appellant’s situation”). In this case, after carefully

reviewing plaintiff’s litany of complaints regarding Mr. Hauser,

see, e.g., Pl.’s Opp’n Br. at 38-40, the Court finds no evidence

in the administrative record to support plaintiff’s assertions of

bias, other than his own self-serving declarations.21 Moreover,

21
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 of a white employee harassing a black employee
‘flamboyant.’”). A review of the page cited by plaintiff in the

51
“the evidence of record establishes that the deciding official

properly considered the relevant factors in determining that the

appellant’s removal was warranted by the evidence and supported

by the efficiency of the service.” MSPB Decision at 41.

Accordingly, the Court finds that the MSPB did not err in

upholding the selection of Mr. Hauser as deciding official in

this case, and finds no violation of plaintiff’s right to due

process in that respect.

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

administrative record, however, reveals the following statement
by Mr. Hauser: “Other examples [that you overreact too easily]
include your frequent demands to be taken off the [Employers
Mutual] case and your flippant statement to me that you needed to
get a restraining order against Mr. Scott. 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 (emphasis added). The Court has
found plaintiff’s motions to be replete with such
misrepresentations of the record. See, e.g., supra n.2.

52
appearance of Elizabeth Hopkins – one of plaintiff’s 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.

53
 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., 280

Fed. Appx. 991, 995 (Fed. Cir. 2008) (explaining that discovery

and evidentiary rulings “fall within the discretion of the Board

and its officials, and will not be overturned absent a clear and

harmful abuse of discretion”). While plaintiff proffers that he

wanted to question Ms. Hopkins regarding certain statements in

her declaration, see generally Hopkins Decl., as well as her

“comments to Scott during the [October 17th] meeting that he was

angry and should calm down,” Pl.’s Supp. Mot. for Partial Summ.

J. at 10-11, the Court finds that plaintiff has failed to

demonstrate how his inability to elicit testimony on those issues

imposed substantial harm or prejudice. See Johnson v. SSA, 276

Fed. Appx. 1014, 1018 (Fed. Cir. 2008) (“[Appellant’s] conclusory

allegations in his brief detailing various allegedly improper

decisions of the AJ regarding the scope of discovery fall far

short of demonstrating an abuse of discretion.”); Williams v.

McCausland, No. 90-7563, 1995 U.S. Dist. LEXIS 13341, at *56-67

(S.D.N.Y. Sept. 15, 1995) (rejecting the claim that the ALJ

abused her discretion by refusing to compel certain responses

requested by the plaintiff and allowing the plaintiff to subpoena

54
adverse witnesses where the plaintiff “fail[ed] to identify any

information that he was unable to obtain that would have affected

the outcome of the proceedings”).

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.1, the Court

finds that disclosure of this information would not have affected

the outcome of the administrative proceedings. The Court,

therefore, declines plaintiff’s request to reverse the MSPB

55
Decision based on defendant’s purported failure to timely

disclose this evidence.

8. Medical Records and Medical Examination

Plaintiff further asserts that “[d]efendant 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 the
appellant 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 plaintiff’s claim of harmful error on this

issue.

56
 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., 466 F.3d 1065, 1071 (Fed. Cir. 2006). Here, that

is not the case. The agency considered the relevant Douglas

factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06

(1981), and provided a thorough explanation of why the penalty of

removal was appropriate. See Agency Decision at 6-7. The agency

also expressly considered plaintiff’s “eight years of service”

and “past highly effective performance ratings” in determining

the proper penalty to be imposed. Agency Decision at 6.

Nevertheless, despite plaintiff’s past highly effective

performance, the agency found, among other things, that:

“[Plaintiff’s] express refusal to work on Employers Mutual,

coupled with [plaintiff’s] alarming statements, would effectively

make it difficult for any PBSD attorney to supervise [him], not

just on Employers Mutual, but on any case in which disagreements

57
might arise. 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.” Agency Decision at 6. After finding

that “the deciding official, Timothy Hauser, fully considered the

Douglas factors,” the MSPB upheld the agency’s penalty explaining

that “[t]he charges in this case are serious and clearly affected

the agency’s ability to accomplish its mission.” MSPB Decision

at 43-44. This Court agrees. Given the substantial evidence

supporting the agency’s charges in this case - and in particular,

evidence of the anxiety and disruption that resulted from the

October 17th Meeting – the MSPB’s determination that the

punishment was reasonable will not be disturbed.

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 “[d]efendant’s removal of [plaintiff] based on the three

58
(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

service.” 5 U.S.C. § 7513(a). “As the case law has developed,

courts have framed the ‘efficiency of the service’ issue in terms

of requiring a ‘nexus’ between . . . ‘the articulated grounds for

an adverse personnel action and either the employee’s ability to

accomplish his or her duties satisfactorily or some other

legitimate governmental interest promoting the ‘efficiency of the

service.’” Hanna, 121 F. Supp. 2d at 124 (quoting Yacovone v.

Bolger, 645 F.2d 1028, 1031 (D.C. Cir. 1981)). This requirement

has been translated into a three-part test in which the agency

must prove by a preponderance of the evidence that (1) the

charged conduct occurred; (2) there is a nexus between the

conduct and the efficiency of the service; and (3) the penalty

imposed is reasonable. Pope v. U.S. Postal Service, 114 F.3d

1144, 1147 (Fed. Cir. 1997). The Court finds that the agency

satisfied this test.

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

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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

plaintiff’s 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

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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, 162 F.3d 129, 132 (D.C. Cir. 1988)

(quoting Johnson v. United States, 628 F.2d 187, 194 (D.C. Cir.

1980)); see also Chang v. D.C. Dep’t of Regulatory & Consumer

Affairs, 604 F. Supp. 2d 57, 64 n.4 (D.D.C. 2009) (“If an

individual receives adequate notice and the opportunity to be

heard in a meaningful manner, [his] procedural due process rights

have not been violated, even though [he] believes the decision

that results from that opportunity to be heard to be incorrect.”

(citing American Towers, Inc. v. Williams, 146 F. Supp. 2d 27, 33

(D.D.C. 2001))). For the reasons discussed above, see supra

Sections III.B.1, III.B.6, the Court finds that defendant’s

purported failure to produce certain discoverable information as

well as defendant’s failure to produce certain witnesses at an

administrative hearing that plaintiff withdrew from does not

amount to a due process violation as plaintiff has failed to

demonstrate how these alleged deficiencies substantially

prejudiced his right to be heard in a meaningful manner. To the

contrary, this Court finds that plaintiff received a more than

adequate opportunity to present his case and engage in discovery.

See Def.’s Mot. for Summ. J. at 22-23 (“As noted throughout AJ

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Armstrong’s lengthy decision, Adair clearly set forth arguments,

attempted to rebut arguments and evidence by Defendant, and his

arguments received a thorough analysis by an impartial

adjudicator.”).

The Court also rejects plaintiff’s 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

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was not obtained in violation of plaintiff’s 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 plaintiff’s

removal was appropriate. Accordingly, the decision of the MSPB

is AFFIRMED, defendant’s request for summary judgment as to

plaintiff’s non-discrimination claims are GRANTED, and

plaintiff’s 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 plaintiff’s

cross-motions for partial summary judgment. An appropriate Order

accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
September 30, 2010

Notice to:
Paul C. Adair
1325 13th Street, NW
Apartment 52
Washington, DC 20005

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