United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
“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
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. (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 at p. 8, 10, 20, 266).
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).
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).
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).
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.
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,
Standard of Review
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,
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).
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).
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.