United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
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,
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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).
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).
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)).
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).
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.
The Hillshire Case Investigation and
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
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).
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).
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).
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).
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).
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).
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).
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).
The Inspector General Investigation
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).
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).
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).
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).
The Proposal to Remove
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.
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).
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
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
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).
Mr. Powell's Response to the Proposal to
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).
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).
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