Powell v. National Labor Relations Board

          MEMORANDUM OPINION

          KAJ ON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

         This Merit Systems Protection Board administrative record review matter comes before the court on the Defendant National Labor Relations Board's and the Plaintiff Gregory Powell's cross-motions for summary judgment. (Doc. 26 and Doc. 29, respectively).

         The NLRB terminated Mr. Powell because he lost confidential witness statements, neglected to inform his supervisor of the loss, failed to follow his supervisor's instructions to document the matter, and attempted to deceive the official who investigated the incident. Mr. Powell appealed his termination to the MSPB, and the MSPB affirmed.

         In his amended complaint, Mr. Powell brings discrimination claims against the NLRB and a claim for an MSPB administrative record review. The court ordered briefing only on the administrative record review claim, which is the only claim currently before the court.

         In his motion for summary judgment, Mr. Powell urges this court to reverse the MSPB's decision because, according to Mr. Powell, the MSPB reached an arbitrary and capricious decision not supported by substantial evidence because the NLRB had no reason to terminate him.

         On the other hand, in its motion for summary judgment, the NLRB asks the court to sustain the MSPB decision because, according to the NLRB, Mr. Powell has not met his burden to show that the MSPB committed any reversible error in finding that the NLRB proved the charges against Mr. Powell by a preponderance of the evidence and assessed a reasonable penalty.

         The court will DENY Mr. Powell's motion for summary judgment and GRANT the NLRB's motion for summary judgment. As further explained below, substantial evidence supports the MSPB's conclusion that the NLRB proved the charges against Mr. Powell by a preponderance of the evidence, and the MSPB did not reach an arbitrary and capricious decision because it correctly found that the NLRB reasonably evaluated all relevant factors in deciding to terminate Mr. Powell.

         I. STANDARD OF REVIEW

         Though the parties style their motions as motions for summary judgment, they do not move the court to recognize the absence of any genuine dispute of material fact under Rule 56(a) of the Federal Rules of Civil Procedure. Instead, they ask the court to review the MSPB decision sustaining the NLRB's termination of Mr. Powell, so the standard for judicial review of an MSPB decision, not the Rule 56(a) standard of review, presently applies.

         The MSPB hears appeals from specified adverse employment actions taken by federal agencies. 5 U.S.C. § 7701. The MSPB will sustain the agency's decision if a preponderance of the evidence supports it. 5 U.S.C. § 7701(c)(1)(B). And the MSPB will reverse the agency's decision if it finds “harmful error in the application of the agency's procedures in arriving at such decision”; “that the decision was based on any prohibited personnel practice”; or “that the decision was not in accordance with law.” 5 U.S.C. § 7701(c)(2).

         An aggrieved plaintiff may obtain judicial review of an MSPB decision. 5 U.S.C. § 7703(a)(1). As Mr. Powell did, if the plaintiff brought discrimination claims and claims not based on discrimination-so-called “mixed” cases-before the MSPB, then the plaintiff may seek review in district court. 5 U.S.C. § 7703(b)(2); see Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002). The district court reviews the discrimination claims de novo. 5 U.S.C. § 7703(c). But the court reviews non-discrimination claims “on the record, ” and will set aside the MSPB decision “only if the ‘agency action, finding or conclusion' is 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.'” Kelliher, 313 F.3d at 1274 (quoting 5 U.S.C. § 7703(c)). The plaintiff bears the burden of showing that the MSPB committed one of these reversible errors. Harris v. Dep't of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

         Here, because the parties have not moved for summary judgment on Mr. Powell's discrimination claims, the court will conduct an “on the record” review. The record review standard is deferential. When determining whether the MSPB reached an arbitrary and capricious decision, the court “do[es] not substitute [its own] judgment for that of the agency but rather only seek[s] to ensure that the decision was reasonable and rational.” Kelliher, 313 F.3d at 1276 (citing Zukas v. Hinson, 124 F.3d 1407, 1409 (11th Cir. 1997)).

         The Eleventh Circuit has found that “‘[a]long the standard of review continuum, the arbitrary and capricious standard gives an appellate court the least latitude in finding grounds for reversal.'” Id. (quoting N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990)). And the court “must only ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.'” Id. (quoting Skinner, 903 F.2d at 1538).

         II. BACKGROUND

         To comprehensively review the MSPB decision, the court must track the events of Mr. Powell's alleged misconduct, the NLRB's investigation into that misconduct, the NLRB's proposed removal, the NLRB's decision to remove, and then the MSPB's review of that decision.

         A. The Hillshire Case Investigation and Affidavits

         Mr. Powell worked as a field attorney for the NLRB in the Birmingham, Alabama Resident Office from 1997 until his termination on September 24, 2013. As a field attorney, Mr. Powell investigated charges of unfair labor practices brought against private employers. (Doc. 25-1 at 2; Doc. 25-24 at 239-40).

         On November 7, 2012, Mr. Powell travelled to Florence, Alabama to investigate unfair labor practice charges against Hillshire Brands by taking affidavits from potential witnesses. He remained in Florence until November 10, 2012. (Doc. 25-8 at 1, 21-22).

         While in Florence, Mr. Powell stayed at a Hampton Inn. Mr. Powell kept all of his records, research, case law, draft affidavits, and predisposition statements in a large red plastic tub. He met with witnesses and drafted affidavits in his hotel room on a laptop computer. He often left documents laid out in his hotel room. After he finished typing an affidavit, he saved the affidavit to a USB drive, took the USB drive down to the Hampton Inn's business center, printed the affidavit from one of the Hampton Inn's computers, and had the witness sign the affidavit. (Doc. 25-8 at 24-29, 34).

         On November 9, 2012, Hillshire's attorney, Sandra Zubick, sent Mr. Powell an email stating that a man who refused to identify himself delivered unsigned affidavits to Hillshire's facility in Florence that appeared to have been taken in connection with Mr. Powell's investigation. Ms. Zubick wrote in the email that the man who delivered the affidavits claimed that he found them at a local hotel. (Doc. 25-8 at 22, 194).

         On November 14, 2012, after Mr. Powell returned to the Birmingham office, Mr. Powell sent Ms. Zubick a response email stating, “I find that a bit odd. But, forward them to me. What is the young man's name? Remember, if anyone from [Hillshire] management reads them (or an agent thereof), there may be possible violations of the [National Labor Relations Act].” (Doc. 25-8 at 194).

         Ms. Zubick sent the affidavits to Mr. Powell by mail. On November 15, 2012, three unsigned affidavits-one by Randy Hadley dated August 16, 2012, one by Tanya Rowlett dated November 7, 2012, and one by Brandy Page dated November 8, 2012-arrived on Mr. Powell's desk in the Birmingham office. (Doc. 25-8 at 197-208). Mr. Powell had interviewed Tanya Rowlett and Brandy Page in Florence, and he prepared Randy Hadley's affidavit before he traveled to Florence. (Doc. 25-8 at 26, 41). Ms. Zubick informed Mr. Powell that the affidavits were clearly visible because the man who delivered the affidavits did not deliver them in an envelope. (Doc. 25-8 at 195-96). Mr. Powell did not immediately report the loss of the affidavits to any other members of NLRB. (Doc. 25-8 at 30).

         The Resident Officer who supervised all investigations out of the Birmingham office, Belinda Bennett, assigned the Hillshire case to an NLRB attorney in Atlanta, Carla Wiley, to litigate. On February 8, 2013, Ms. Wiley sent an email to her supervisor, Mary Bulls, stating that Hillshire's attorney told her that he saw the affidavits delivered to Hillshire in November 2012, and that based on what Hillshire's attorney saw in the affidavits, Hillshire was not concerned about NLRB's claims. Ms. Bulls then reported the incident to Ms. Bennett and the Regional Director, Claude Harrell. (Doc. 25-8 at 283).

         Ms. Bennett called Mr. Powell to inquire about the affidavits. Mr. Powell told Ms. Bennet that Ms. Zubick told him that Hillshire received the affidavits and then mailed the affidavits back to him. (Doc. 25-8 at 30).

         On the morning of February 8, 2013, Ms. Bennett emailed Mr. Powell telling him to prepare a memo detailing the circumstances of the affidavits. That afternoon, Ms. Bennet emailed him again instructing him to prepare a memo because she “need[ed] to address these concerns right away.” (Doc. 25-8 at 277). Mr. Powell responded, “I have already responded. There will be no additional written responses. White employees don't have to write responses so why do African American men have to?” (Doc. 25-8 at 277). Ms. Bennett responded, “[w]hat are you talking about? What has race got to do with this? Confidential statements were compromised. We need to know what happened with the return of the affidavits by the company. This is not about race. Whether black or white I would be asking the same thing.” (Doc. 25-8 at 277). Ms. Bennett asked, “[w]hat is the extent of exposure for our witnesses? Which ones were exposed?” (Doc. 25-8 at 277). Mr. Powell responded, “[t]hese statements would have been seen in court anyway.” (Doc. 25-8 at 277).

         B. The Inspector General Investigation

         The NLRB Inspector General, David Berry, investigated the incident and interviewed Mr. Powell. During the interview, Mr. Powell told Mr. Berry that a witness arrived to Mr. Powell's hotel in Florence with a folder, was “definitely anti-union, ” “did not want to be there, ” and was “[m]ore than hostile.” (Doc. 25-8 at 143). She arrived to the hotel with a man who was also “really hostile” and “adamant on coming up to [Mr. Powell's] room, ” but the man did not go into Mr. Powell's room. (Id.). Mr. Powell interviewed the witness and took her affidavit in his hotel room. He then briefly left the witness alone in his hotel room while he used the bathroom. When Mr. Powell left to use the bathroom, the witness was reviewing her affidavit on Mr. Powell's computer. (Id. at 33-35, 143).

         Further, during the interview, Mr. Powell asserted that Ms. Bennett must have known about the affidavits on November 15, 2012, the day the Birmingham office received the affidavits by mail, because the affidavits were date-stamped received. According to Mr. Powell, the office mail policy required a clerk to date-stamp all incoming mail and then give the mail to Ms. Bennett before distributing the mail to the addressee. So, according to Mr. Powell, he had no reason to inform Ms. Bennett of the affidavits because she must have already seen them. (Doc. 25-8 at 137-38).

         But Mr. Berry then learned from internal emails and interviews with Ms. Bennet and another NLRB attorney that, in November 2012, the mail policy did not require the clerk to provide all incoming mail to Ms. Bennett. At that time, the clerk date-stamped the incoming mail and distributed it directly to the addressee. Because of Mr. Powell's conduct, the mail policy changed in March 2013, and thereafter required the clerk to circulate mail through Ms. Bennett. Another NLRB attorney told Mr. Berry that someone communicated the mail policy change at a staff meeting in March 2013 that Mr. Powell attended. (Doc. 25-8 at 247-52).

         Mr. Berry issued his Report of Investigation on May 30, 2013. (Doc. 25-8). In the Report, Mr. Berry concluded that reasonable cause existed to find that Mr. Powell allowed the improper disclosure of confidential information by losing the witness affidavits; failed to properly safeguard the Hillshire case file and report the loss of the affidavits; acted insubordinately when he refused to provide information about the affidavits when Ms. Bennet asked him to do so; and provided false and misleading information during his interview when he “attempt[ed] to shift the focus of the OIG investigation to [Ms. Bennet]” by alleging that she received the returned affidavits before he did. (Doc. 25-8 at 8-9).

         C. The Proposal to Remove

         Relying on Mr. Berry's Report of Investigation, the NLRB Assistant to the General Counsel, Elizabeth Tursell, proposed removing Mr. Powell from his position. (Doc. 25-6). Ms. Tursell brought four charges against Mr. Powell in the Proposal to Remove: (1) failure to safeguard agency property; (2) negligent performance of duties; (3) failure to follow supervisory instructions; and (4) lack of candor during the Inspector General investigation.

         Ms. Tursell charged Mr. Powell with failure to safeguard agency property because she found that he had no awareness at any given time of how many copies of each affidavit were in the agency file; spread out affidavits throughout his hotel room while working with witnesses; left a hostile witness alone in his hotel room; and used the printer at the hotel's business center instead of his own portable printer. She concluded that somebody most likely took the affidavits from Mr. Powell's hotel room. (Doc. 25-6 at 3).

         Ms. Tursell charged Mr. Powell with negligent performance of duties because Mr. Powell was not aware of the missing affidavits until Hillshire's counsel emailed him and he did not inform his supervisor about the incident. (Doc. 25-6 at 4-5).

         Ms. Tursell charged Mr. Powell with failure to follow supervisory instructions because he refused to follow Ms. Bennett's instructions to write a memo detailing the circumstances of the lost affidavits and the agency's exposure. (Doc. 25-6 at 6).

         And Ms. Tursell charged Mr. Powell with lack of candor during the investigation because he “deliberately distorted essential facts and circumstances critical to the investigation” when he testified that Ms. Bennett must have seen the affidavits in November 2012 under a mail policy that was not in effect until March 2013. (Doc. 25-6 at 8).

         D. Mr. Powell's Response to the Proposal to Remove

         Mr. Powell responded to the proposal to remove by written response on August 23, 2013, and by oral reply on August 26, 2013. (Doc. 25-11).

         In his written response, Mr. Powell asserted that the Inspector General's Report of Investigation completely failed to establish any evidence of wrongdoing because no one proved the actual origin of the affidavits. He asserted that “[s]everal lawyers and a field examiner were reassigned the same case and the incomplete affidavits in question could have been in any number of peoples [sic] possession, as well as having been taken from the unlocked office of Mr. Powell while he was not there.” (Doc. 25-11 at 30-31). He contended also that the affidavits could not have come from his hotel room because, as he told Mr. Berry during his interview, Mr. Powell completed one of the affidavits, Randy Hadley's affidavit, before his trip to Florence and did not take the affidavit to Florence. (Doc. 25-11 at 31).

         Mr. Powell also accused Mr. Berry of misrepresenting the record in his Report of Investigation. According to Mr. Powell, he never “agreed” with Mr. Berry's statement that the affidavits had to be taken from Mr. Powell's hotel room-though Mr. Powell did respond “uh-huh” when Mr. Berry asked him, “the most likely explanation is that it actually was someone in your room who secreted ...