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Murphy v. McCarthy

United States District Court, N.D. Alabama, Northeastern Division

December 19, 2017

AMY MURPHY, Plaintiff,
RYAN McCARTHY, in his capacity as Secretary of the United States Department of the Army, Defendant.



         This “mixed-case appeal” is before the court on Plaintiff's petition for judicial review of the final decision of the United States Merit Systems Protection Board (“MSPB”). The petition has been fully briefed. (Docs. # 55, 61, 64). After careful review, and for the following reasons, the MSPB's decision is due to be affirmed.

         I. Background

         On October 10, 2010, Plaintiff Amy Murphy (“Plaintiff” or “Murphy”) began working as a NH-III Program Analyst in the Targets Management Office (“TMO”) for the Project Manager for Instrumentation, Targets and Threats Simulators at the U.S. Army Program Executive Office for Simulation, Training and Instrumentation (the “Agency”) at Redstone Arsenal (“Redstone”) in Alabama. (A.R. Vol. 1, Tab 5 at p. 4; see A.R. Vol. 3, Tab 30 at p. 1). Plaintiff's position required that she maintain security clearance and that she obtain Level III Acquisition Certification, as mandated by the Defense Acquisition Workforce Improvement Act (“DAWIA”), within twenty-four months from her start date.[1] (A.R. Vol. 1, Tab 5 at p. 4, 12, 16, 19, 35, 38-55; see A.R. Vol. 3, Tab 30 at p. 2). Plaintiff's immediate supervisor at Redstone was Arnatta Poole (“Poole”), the Business Manager of the Redstone TMO, and her secondary supervisor was Bruce Truog (“Truog”), the Deputy Director and Chief of Operations at the TMO in Redstone. (A.R. Vol. 4[2] at p. 8, 10, 20, 266).

         Dr. Regina Doody-Lundy (“Dr. Doody”), a board-certified psychiatrist, has treated Murphy since 2010 for bipolar disorder. (A.R. Vol. 4 at p. 175, 191). Due to her disorder, Murphy is often depressed and experiences racing thoughts, concentration problems, distractibility, sleeping problems, and spending sprees. (Id. at p. 184, 230). Murphy alleges that, after she informed Poole about her bipolar disorder in October 2011, she began to have negative interactions with Poole that caused her significant stress. (Id. at p. 186, 275-76). In February 2012, Dr. Doody requested that Murphy be granted leave under the Family and Medical Leave Act (“FMLA”) and that the Agency change Murphy's supervisor. (A.R. Vol. 1, Tab 12 at 47; A.R. Vol. 3, Tab 29 at p. 5; A.R. Vol. 4 at p. 186-87, 202). Dr. Doody sent these requests to Poole. (A.R. Vol. 4 at 187-88).

         In April 2012, the Agency extended Murphy's time to obtain her required Level III Acquisition Certification by six months, making her new deadline April 26, 2013. (A.R. Vol. 1, Tab 5 at p. 5, 19). On May 25, 2012, Murphy signed a memorandum acknowledging the April 26, 2013 deadline to acquire the Level III Acquisition Certification. (Id. at p. 26, 27). In early 2013, Dr. Doody again requested that Murphy be granted FMLA leave and that her supervisor be changed. (A.R. Vol. 3, Tab 29 at p. 5; A.R. Vol. 4 at 202). Murphy's security clearance was suspended on April 8, 2013, and she was placed on administrative leave. (A.R. Vol. 1, Tab 5 at p. 21; A.R. Vol. 4 at p. 247). In attempt to find an equivalent position for Murphy, in September 2013 a Redstone Human Resources Specialist circulated an email requesting a continuous job search at Redstone for a program analyst position that did not require security clearance. (A.R. Vol. 1, Tab 5 at p. 23; A.R. Vol. 4 at p. 248, 251, 261-62).

         On October 17, 2013, Poole sent Murphy a Notice of Proposed to Removal, explaining that Murphy's proposed removal was due to her failure to satisfy a condition of employment -she had failed to obtain a Level III Acquisition Certification. (A.R. Vol. 1, Tab 5 at p. 19-21). On December 10, 2013, Truog rendered a decision that sustained the charges against Plaintiff, removed her from federal service, and specified reconsideration and appeal rights. (Id. at p. 12-14). Through counsel, Murphy filed a timely appeal of her removal with the MSPB. (A.R. Vol. 1, Tab 1).

         On October 29, 2014, the Administrative Law Judge (“ALJ”) rendered an initial decision (Docket Number AT-0752-14-0358-I-1) affirming the Agency's action. (A.R. Vol. 3, Tab 30). Specifically, the ALJ found that: (1) the Agency established that Murphy failed to meet a condition of employment; (2) although Murphy was a disabled person, she failed to establish that she was a “qualified individual with a disability;” (3) Murphy failed to establish that the Agency committed harmful procedural error; and (4) the Agency established that the penalty of removal was reasonable. (Id.). The ALJ's decision became final on December 3, 2014. (Id.).

         Plaintiff timely filed her Complaint on December 30, 2014, alleging four claims: (1) disability discrimination under the Rehabilitation Act, 29 U.S.C. § 791; (2) disability discrimination (based upon a failure to reassign her); (3) disability discrimination (claiming Defendant had a bad-faith interactive process); and (4) judicial review of the MSPB's final decision (which Plaintiff contends should be vacated). (Doc. # 1). On April 8, 2015, the court dismissed Plaintiff's first claim (premised on the suspension of her security clearance) for lack of subject matter jurisdiction under Department of Navy v. Egan, 484 U.S. 518 (1988), and Hill v. White, 321 F.3d 1334 (11th Cir. 2003). (Doc. # 15). On August 12, 2016, the court dismissed Plaintiff's second and third claims for lack of subject matter jurisdiction. (Docs. # 47, 48). The court concluded that Plaintiff did not satisfy her administrative remedies and, further, that her third claim was not a stand-alone claim. (Id.). After the court received the administrative record from the MSPB, the court ordered the parties to submit briefs on Plaintiff's fourth claim. (Doc. # 49). The court reviews the MSPB's final decision, in turn.

         II. Standard of Review

         “The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., establishes a framework for evaluating personnel actions taken against federal employees.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). Under the CSRA, an employee has a right to appeal a federal agency's decision to take a serious personnel action, [3] such as removal from employment, to the MSPB. Id. “When an employee complains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on discrimination, she is said (by pertinent regulation) to have brought a ‘mixed case.'” Id. (citing 29 CFR § 1614.302). If, as in this case, “the MSPB decides against the employee on the merits of a mixed case, [5 U.S.C. § 7703(b)(2)] instructs her to seek review in federal district court . . . .” Perry v. Merit Sys. Prot. Bd., 137 S.Ct. 1975, 1981 (2017).

         In a mixed-case appeal, the court reviews discrimination claims de novo and nondiscrimination claims based on an arbitrary and capricious standard. See 5 U.S.C. § 7703(c); see also Kelliher v. Veneman, 313 F.3d 1270, 1274-75 (11th Cir. 2002). The court reviews nondiscrimination claims, such as the MSPB's affirmation of a termination, based on the administrative record and sets aside any agency action, findings, or conclusions found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Kelliher, 313 F.3d at 1274. Furthermore, in reviewing the MSPB's decision, the court may not substitute its judgment for that of the agency; rather, the court's role is to ensure that the decision is reasonable, rational, and did not involve a clear error in judgment. Baker v. Sec'y, U.S. Dep't of Transp., 452 F. App'x 934, 937 (11th Cir. 2012).

         In this case, the court has already reviewed and dismissed Plaintiff's discrimination claims. (Docs. # 15, 47, 48). As such, the court now reviews Plaintiff's nondiscrimination claims using the arbitrary and capricious standard. See 5 U.S.C. § 7703(c); see also Kelliher, 313 F.3d at 1274-75.

         III. ...

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