                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



REGINALD A. BLUE,

       Plaintiff,
               v.                                         Civil Action No. 10-762 (JEB)
BOB PERCIASEPE, Acting Administrator,
U.S. Environmental Protection Agency,

       Defendant.


                                 MEMORANDUM OPINION

       Pro se Plaintiff Reginald Blue is a black man who worked as a law-enforcement officer

for the Environmental Protection Agency from 1992 to 2008. See Compl., ¶¶ 8, 12. In 2010, he

brought this suit alleging that he had been repeatedly subject to racial discrimination while

employed at the Agency and was later fired for complaining about that discrimination, both in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. Defendant previously

filed a Partial Motion for Judgment on the Pleadings or, in the alternative, for Summary

Judgment, which this Court granted as to all but three of Blue’s claims, leaving him with only:

(1) a claim of race-based discrimination related to his non-selection for a job in August 2008; (2)

a claim of retaliation based on his termination in December 2008; and (3) an appeal from the

Merit Systems Protection Board’s decision affirming his termination. See Blue v. Jackson (Blue

I), 860 F. Supp. 2d 67, 69 (D.D.C. 2012). Defendant has now filed a Motion for Summary

Judgment as to those three surviving claims. Because no reasonable jury could find that Blue

was either discriminated or retaliated against, and because the MSPB’s affirmance of the EPA’s

decision to terminate him was not arbitrary or capricious, the Court will grant Defendant’s


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Motion.

I.     Background

       Viewing the facts in the light most favorable to Blue, at all times relevant to this Motion,

he worked as the Associate Special-Agent-in-Charge of the Operations Branch of the EPA’s

Criminal Investigations Division. See Compl., ¶¶ 5, 12. That job made him a law-enforcement

officer with responsibilities such as: (1) carrying a firearm; (2) investigating environmental

crimes; (3) maintaining his credibility and his ability to execute sworn affidavits in support of

arrest and search warrants; and (4) maintaining his credibility and his ability to provide sworn

testimony in litigation concerning investigations. See Mot., Declaration of Ella R. (Becky)

Barnes, ¶ 18.

       Blue’s first remaining claim alleges race discrimination in his non-selection for the

position of Assistant Director of CID’s Investigations Branch in August 2008. See Opp. to MJP

at 2; Blue I, 860 F. Supp. 2d at 69-70, 75. Blue claims that he was the best candidate for the

Assistant Director job and that he was passed over because he is black. He applied for the

position in June 2008 and made the “best qualified list” of individuals who would be considered

for the job, along with Daniel Horgan (a white man) and two other individuals, a black woman

and a white man. See Barnes Decl., ¶¶ 3-4. According to Blue’s pleadings, he received a higher

score in the competition to make that list than Horgan, who ultimately got the job, but Blue has

not pointed to any evidence that might support this assertion. See Opp. at 10; Pl. Resp. to Def.

Statement of Undisputed Material Facts (SUMF), ¶ 31.

       The EPA used a “panel process” to decide whom to promote from the four candidates on

the best-qualified list. See Barnes Decl., ¶ 5. A panel of CID officers evaluated each of the

candidates and then recommended one to Ellen Stough, the Deputy Director for the EPA’s



                                                 2
Office of Criminal Enforcement, Forensics, and Training (OCEFT), who made the final

selection. See id., ¶¶ 8-9; Mot., Exh. K (Affidavit of Ellen Stough) at 1. The panel had five

members: Ella Barnes (CID Director), Douglas Parker (CID Deputy Director), David Dillon

(Special-Agent-in-Charge, Philadelphia Area Office CID), Mark Measer (CID Associate

Director), and Carlos Rivera (CID Special-Agent-in-Charge of Technology). See Barnes Decl., ¶

5. As Director and Deputy Director, Barnes and Parker were in the chain of command of every

candidate, but none of the other three panelists served or had ever served in the chain of

command of any of the candidates. See id.

       On July 30, 2008, the panel interviewed each of the four candidates and then scored them

based on their application materials, responses to an essay assignment, interview performances,

and references. See id., ¶ 6; see also Mot., Exhs. L-P (affidavits of panel members). The final

vote was unanimous: Horgan was ranked by every panel member as the best candidate of the

four, with an overall “score” of 397, and Blue was ranked by every panel member as the worst,

with a score of 251.5. See Mot., Exh. B (Panel Materials) at 33; Barnes Decl., ¶ 8. Blue

disputes that the panelists assigned these scores, which the government has backed with both

documentary evidence and Barnes’s declaration, but he has once again failed to provide any

proof to support his allegation. See Pl. Resp. to Def. SUMF, ¶ 11. Barnes conveyed the panel’s

endorsement to Stough, who on August 14, 2008, “relied solely” on that recommendation in

choosing Horgan as the new Assistant Director for the Investigations Branch. See Stough Aff. at

2.

       That choice led to Blue’s second remaining claim, which alleges retaliation in the form of

termination after he challenged his non-selection for the Assistant Director position. See

Compl., ¶¶ 41-42; Blue I, 860 F. Supp. 2d at 69-70. On September 2, 2008, Blue informed the



                                                 3
Office of Civil Rights that he had been passed over for the Assistant Director job on account of

his race, and on September 29 he filed a formal complaint to that effect. See Mot., Exh. I

(Declaration of Glorida J. Gladden) at 1. A few months later, on December 17, Blue was

terminated from the EPA. See Barnes Decl., ¶ 26; Mot., Exh. H (Decision on Proposed

Removal). Blue claims that he was fired as punishment for exercising his protected right to file

an Equal Employment Opportunity complaint.

       But there is much more to this story, stretching back to over six months before Blue even

applied for the Assistant Director position. On November 21, 2007, Blue’s wife showed up at a

New Jersey hospital suffering from injuries that she claimed Blue had inflicted while sexually

assaulting her in their home. See Mot., Exh. D (Personnel Integrity and Qualifications

Assessment (PIQA) Report) at 15-20. The hospital called the police, who brought her to the

station, where she described the incident in two recorded interviews and disclosed that Blue had

also sexually assaulted her on November 9, 2007. See id.

       Blue was subsequently arrested and charged with criminal sexual contact in violation of

New Jersey law. See id. at 7-8. When Blue’s superiors at CID discovered that he had been

arrested, they required him to surrender his firearm. See Barnes Decl., ¶ 13. A few months later,

in April 2008, the New Jersey authorities notified CID that they would not be prosecuting a

criminal case against Blue. See id., ¶¶ 14-16. The CID and OCEFT higher-ups then decided that

they should conduct their own internal investigation into the incident, a task assigned to the

PIQA unit. See id. PIQA reviewed the police records, conducted interviews concerning the

assault allegations, and, in July 2008, submitted a final report on the matter to Stough and

Barnes. See id.; Barnes Decl., ¶ 16.




                                                 4
       Barnes, the EPA official responsible for proposing disciplinary action against Blue,

reviewed the PIQA report and concluded that Blue had twice sexually assaulted his wife the year

prior and that he had been “less than candid” in his testimony to PIQA investigators regarding

those events. See Barnes Decl., ¶¶ 16-17. Because Blue’s job regularly required him to carry a

weapon and to provide sworn testimony, Barnes decided to begin the process to propose his

termination. See id., ¶ 18. In July 2008, before Blue even interviewed for the Assistant Director

position, she asked an OCEFT attorney to prepare a draft Notice of Proposed Removal, which

was completed on August 21, 2008. See id., ¶¶ 19-20. By that point, according to Barnes, she

had decided to go forward with the proposed removal. See id. On September 25, Barnes met

with Blue and explained that because of the alleged assaults and his subsequent lack of candor,

he could either voluntarily resign his position or be removed. See id., ¶ 22. Blue declined her

offer to resign; consequently, on October 10, Barnes issued the Notice of Proposed Removal,

which Stough approved two months later, culminating in Blue’s termination. See id., ¶¶ 23-24,

26.

       Blue subsequently challenged his termination before the MSPB, but his appeal was

denied on April 12, 2010. See Administrative Record (AR) 966-969. He then filed this suit,

alleging that he had been racially discriminated and retaliated against by the EPA on a number of

occasions throughout his career there. See Blue I, 860 F. Supp. 2d at 72-78. Defendant moved

for judgment on the pleadings, and this Court granted that motion as to all the claims that Blue

had failed to administratively exhaust, leaving only the claims now at issue. Id. at 67.

II.    Legal Standard

       Blue’s first two claims are evaluated under the familiar summary-judgment standard.

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to



                                                 5
any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v. Powell, 433

F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive

outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A

dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at

248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed

must support the assertion” by “citing to particular parts of materials in the record” or “showing

that the materials cited do not establish the absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

       When a motion for summary judgment is under consideration, “[t]he evidence of the

nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.”

Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998). On a motion for summary

judgment, the Court must “eschew making credibility determinations or weighing the evidence.”

Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

       The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, 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 Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is

required to provide evidence that would permit a reasonable jury to find in its favor. Laningham

v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant's evidence is “merely




                                                  6
colorable” or “not significantly probative,” summary judgment may be granted. Liberty Lobby,

477 U.S. at 249–50.

       Blue’s third claim, which relates to the MSPB, must be analyzed under the standard for

Administrative Procedure Act suits. The APA “sets forth the full extent of judicial authority to

review executive agency action for procedural correctness.” F.C.C. v. Fox Television Stations,

Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action,

findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A).

III.   Analysis

       Title VII claims of race discrimination or retaliation that are based upon circumstantial

evidence, such as Blue’s, ordinarily proceed in three steps. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-05 (1973); Kersey v. Washington Metr. Transit Auth., 586 F.3d 13,

16-17 (D.C. Cir. 2009). First, the plaintiff carries the initial burden of establishing a prima facie

case of racial discrimination or retaliation by a preponderance of the evidence. See Texas Dept.

of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Kersey, 586 F.3d at 17. Next, the

defendant has the burden to rebut that prima facie case with evidence of “a legitimate,

nondiscriminatory [or nonretaliatory] reason for its actions.” Kersey, 586 F.3d at 17 (quoting

Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142 (2000) (internal quotation marks

omitted) (alteration in original)). “This burden is one of production, not persuasion; it can

involve no credibility assessment.” Reeves, 530 U.S. at 142 (internal quotation marks omitted).

Finally, if the defendant has produced such evidence, then the plaintiff must show by a

preponderance of the evidence that “the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination [or retaliation].” Id. at 143 (internal quotation



                                                  7
marks omitted). In other words, the plaintiff must prove “that the employer’s asserted non-

discriminatory [or non-retaliatory] reason was not the actual reason and that the employer

intentionally discriminated [or retaliated] against the employee.” Brady v. Office of the Sergeant

at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

       The three-step process differs slightly at the summary-judgment stage. At this point in

the proceedings, if the defendant can offer a legitimate reason for the challenged action, then

district courts may skip over the first step of the analysis, since in such circumstances “the prima

facie case is a largely unnecessary sideshow.” Id. For Blue’s discrimination and retaliation

claims, therefore, the Court will ask whether the EPA has “asserted a legitimate, non-

discriminatory [or non-retaliatory] reason” for its actions. Id. at 493; see also Moran v. U.S.

Capitol Police Bd., 887 F. Supp. 2d 23, 31 (D.D.C. 2012) (applying Brady framework to

retaliation claim). If the Court finds that the EPA has provided such reasons, then the only

remaining question will be whether Blue has produced enough evidence for a reasonable jury to

find that those reasons were merely pretexts for what was actually race discrimination or

retaliation. See Brady, 520 F.3d at 494. After separately discussing Blue’s discrimination and

retaliation claims, the Court will conclude by analyzing his claim concerning the MSPB

decision.

       A. Race Discrimination in Non-Selection

       The EPA asserts that Stough passed over Blue for the Assistant Director job not because

he is black, but because she “relied solely” on the recommendation of the selection panel, which

unanimously ranked Horgan as the best candidate for the position and Blue as the worst. See

Stough Aff. at 2. The use of such panels is common in both business and government, and a

defendant’s reliance on a panel’s recommendation suffices as a legitimate “non-discriminatory



                                                 8
reason” for declining to promote a particular candidate. See Fischbach v. District of Columbia

Dept. of Corrections, 86 F.3d 1180, 1182 (D.C. Cir. 1996); see also Obi v. Anne Arundel

County, Md., 28 Fed. Appx. 333, 335 (4th Cir. 2002); Mason v. Geithner, 811 F. Supp. 2d 128,

203 (D.D.C. 2011). The EPA, therefore, has met its burden of production.

        That brings the Court to the question of whether Blue could hope to convince a jury that

Stough’s reliance on the recommendation of the selection panel was merely a veil for intentional

race discrimination against him. In other cases involving selection panels, plaintiffs have alleged

discrimination based on the composition of the panel, see Lewis v. City of Boston, 321 F.3d 207,

217 (1st Cir. 2003), the panel’s scoring criteria, see Moore v. Illinois Dept. of Public Health, No.

98-6498, 2000 WL 1499439, at *4 (N.D. Ill. Oct. 6, 2000); Mitchell v. Utah State Tax Comm’n,

26 F. Supp. 2d 1321, 1325 (D. Utah 1998), or the exercise of outside influence on the panel by a

prejudiced party. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). The best Blue

can muster, however, is the conclusory assertion that the EPA “has a long history of putting

panels together with only Caucasians or people similar to them,” Opp. at 10-11, but he provides

no evidence to back up this claim or even to suggest that the selection panel in his case was in

fact composed only of white members. Instead, Blue’s only evidence of discrimination is that,

according to him, he was better suited for the Assistant Director position than was Horgan. See

id. at 10-16.

        Blue is correct that the promotion of a less qualified candidate may indicate that the

defendant’s stated reason for the non-selection was merely a pretext for discrimination. See

Fischbach, 86 F.3d at 1183; Parker v. Sec’y, U.S. Dept. of Hous. and Urban Dev., 891 F.2d 316,

322 (D.C. Cir. 1989). It is important to remember, however, that the Court does not serve as “a

super-personnel department” that reexamines the EPA’s employment decisions. Holcomb v.



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Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). For Blue to prove discrimination on this basis, he

would have to convince a jury that the EPA’s decision to promote Horgan over him was an error

“too obvious to be unintentional.” Fischbach, 86 F.3d at 1183; see also Ramey v. Bowsher, 915

F.2d 731, 735 (D.C. Cir. 1990). In other words, the difference in their qualifications must have

been “great enough to be inherently indicative of discrimination.” Jackson v. Gonzales, 496 F.3d

703, 707 (D.C. Cir. 2007) (internal quotation marks omitted). Only then could a jury

“legitimately infer that the employer consciously selected a less-qualified candidate – something

that employers do not usually do, unless some other strong consideration, such as discrimination,

enters into the picture.” Id. (internal quotation marks omitted). By contrast, “[i]n a close case, a

reasonable [jury] would usually assume that the employer is more capable of assessing the

significance of small differences in the qualifications of the candidates, or that the employer

simply made a judgment call.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir.

1998).

         In this case, no reasonable jury could find that Blue was such an obviously superior

candidate that the EPA must have discriminated against him when it chose Horgan for the

Assistant Director position. In fact, Blue does not point to any record evidence for his

qualifications, but given that he is pro se and these facts are largely undisputed, the Court will

consider them. First, Blue emphasizes that he has an undergraduate degree in Criminal Justice

and that he earned 36 credits toward a Masters in Public Administration, while Horgan only has

an undergraduate degree in science. See Opp. at 12. This difference in credentials, however, is

hardly significant. Blue also recounts his record at the EPA, which included several rounds as

the lead case agent in investigations that culminated in guilty verdicts, a number of awards,

positive evaluations from his supervisors, and other professional achievements, while



                                                 10
disparaging Horgan for his alleged participation in the “McWane case,” which Blue says

involved prosecutorial misconduct and did not produce a guilty verdict. See Opp. at 12-16.

Once again, however, these assertions, even if supported by evidence, offer him no succor. This

is because Horgan himself has led an impressive career, including a stint in the Peace Corps,

time in the Arizona Attorney General’s Office, and almost two decades in CID, where he worked

on a number of significant environmental cases. See Mot., Exh. P (Douglas Parker Witness

Affidavit) at 2. Indeed, every panel member ranked Horgan the most suited for the Assistant

Director job, and Blue the least, of the four candidates. See Mot., Exh. B (Panel Materials) at 33;

Barnes Decl., ¶ 8.

       The difference in qualifications between Blue and Horgan, if any, is therefore not nearly

so extreme that a reasonable jury could conclude that the EPA passed Blue over for the Assistant

Director position because he is black. Compare Aka, 156 F.3d at 1295-99 (jury could infer

discrimination where plaintiff passed over for pharmacy technician position had master’s degree

with concentration in health-service management and had spent two decades working at the

pharmacy, while candidate ultimately hired by defendant had not graduated college and had

spent two months volunteering part-time at the pharmacy) with Bailey v. Washington Metr. Area

Transit Auth., 810 F. Supp. 2d 295, 305-06 (D.D.C. 2011) (jury could not infer discrimination

where plaintiff passed over for human-resources-supervisor position had college degree,

certificate in human resources, and nearly twenty years of experience in human resources, while

candidate ultimately hired by defendant had college degree, no certificate, and twenty-two years

of experience in human resources).




                                                11
       Because there is no genuine issue of material fact as to whether the EPA’s non-selection

of Blue for the Assistant Director job was due to racial animus, the Court will grant Defendant’s

Motion as to the race-discrimination claim.

       B. Retaliation for EEO Complaint

       The EPA asserts that it terminated Blue’s employment because it had concluded that he

twice sexually assaulted his wife and then dissembled when PIQA interviewed him about the

matter, conduct incompatible with his role as a law-enforcement officer who both carried a

firearm and needed to maintain his credibility. Under Brady’s framework, this easily constitutes

a legitimate, non-discriminatory reason for the firing, see Brady, 520 F.3d at 494, leaving Blue to

show evidence of pretext.

       Blue argues that a jury could infer that the EPA’s stated reason for firing him was a

pretext for retaliation because he was informed of his termination just a few weeks after his

September 2008 EEO complaint regarding his non-selection for the Assistant Director position.

While this temporal proximity might raise some eyebrows, the EPA points out that Barnes

commenced the termination process for Blue in July 2008, months before he first approached the

Office of Civil Rights about his non-selection. A reasonable jury could thus not conclude that

the concurrence of the two events was design, rather than happenstance. See Sewell v. Chao,

532 F. Supp. 2d 126, 139 (D.D.C. 2008) (“[T]emporal proximity ... standing alone ... is

insufficient to discredit defendant’s proffered explanation.”), aff’d sub nom. Sewell v. Hugler,

No. 08–5079, 2009 WL 585660 (D.C. Cir. Feb. 25, 2009). Indeed, “[e]mployers need not

suspend previously planned [actions] upon discovering that [an employee has engaged in a

protected activity], and their proceeding along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality.” Clark Cnty Sch. Dist. v. Breeden,



                                                12
532 U.S. 268, 272 (2001). Blue has thus not created a material dispute of fact that would permit

him to get to a jury.

       Blue alternatively challenges the legitimacy of the EPA’s proffered reason for his

termination by contending that “[n]either Ms. Barnes, her attorney, supervisors, investigators

[sic] were eye witnesses to any events that happen[ed] in the Plaintiff’s home in November

2007,” Opp. at 9, and that the police reports recounting his wife’s statements about the incidents

are inadmissible hearsay. See Fed. R. Evid. 802. He concludes that the Court may not consider

a justification based on those facts.

       While the hearsay rule does bar the Court from considering the November 2007 police

reports for the truth of Blue’s wife’s allegations, the rule does not prevent the Court from using

those reports and the declarations of EPA officials to establish that Blue’s wife made such

claims, that the police recorded them, and that the EPA believed them to be true. See Fed. R.

Evid. 801(c)(2) (hearsay is an out-of-court statement “offer[ed] in evidence to prove the truth of

the matter asserted in the statement”). The remainder of Blue’s argument comes down to his

insistence that he never sexually assaulted his wife. Whether that is true or not is irrelevant; all

that matters for the success of his retaliation claim is whether the EPA believed – rightly or

wrongly – that he had assaulted his wife and terminated him on that basis. Given the Agency’s

careful investigation into the matter, no jury could believe that this was not the actual cause for

its termination decision. Blue has provided absolutely no evidence, let alone an argument, that

could persuade a jury that the EPA fired him for any reason other than its belief that he had

sexually abused his wife and then lied to PIQA about it.

       The Court will thus grant Defendant’s Motion as to Blue’s retaliation claim.




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       C. MSPB Appeal

       As a final matter, it appears, although not with any clarity, that Blue also seeks to appeal

the MSPB decision upholding the EPA’s decision to fire him. See Compl. at 2-3. Defendant has

filed a “Supplemental Memorandum” in support of its Motion for Summary Judgment seeking

dismissal of Blue’s appeal from the MSPB decision, see ECF No. 47 (June 28, 2013), which

Blue’s Supplemental Opposition counters only by claiming that Defendant has articulated the

wrong standard of review for such a matter, and then also, confusingly, referring to the “entire

action” as a “Title VII claim.” See Opp. to Supp. Memo. at 1. In any event, again construing a

pro se plaintiff’s pleadings liberally, the Court will assume that Blue intended to challenge the

MSPB decision, especially since the arguments in his main Opposition brief, insisting that he

never sexually assaulted his wife, make more sense in that context.

       Challenges to MSPB decisions are ordinarily heard in the Court of Appeals for the

Federal Circuit, see 5 U.S.C. § 7703(b)(1), but “mixed cases” involving a challenged

employment action that is also alleged to have been discriminatory or retaliatory under Title VII

may instead be appealed to federal district court. See Williams v. Dept. of the Army, 715 F.2d

1485, 1489-91 (Fed. Cir. 1983); 5 U.S.C. §§ 7702, 7703(b)(2) & (c). In a “mixed case,” the

Court reviews the MSPB only for whether its decision was “arbitrary or capricious, obtained

without compliance with lawful procedures, unsupported by substantial evidence[,] or otherwise

not in accordance with law.” Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988).

       In order to uphold the EPA’s decision to terminate Blue, the MPSB had to find the

following four points by a preponderance of the evidence:

               (1) That the EPA had proved its charge of conduct unbecoming a
               law enforcement officer;
               (2) That the EPA had proved its charge of lack of candor;



                                                14
               (3) That the EPA had proved a nexus between any proven
               misconduct and the efficiency of the service; and
               (4) That the EPA had proved that its chosen penalty of removal
               was within the bounds of reasonableness.

See AR 492; 5 U.S.C. §§ 7701(c)(1)(B), 7513(a). Blue also raised an affirmative defense

alleging retaliation, which he had to establish by a preponderance of the evidence. See 5 C.F.R.

§ 1201.56(a)(2)(iii). The Administrative Judge assigned to the case relied on a set of stipulated

facts agreed to by both sides, as well as documentary evidence and witness testimony. See AR

403, 488-565. He ultimately concluded that the EPA had met its burden on all four points and

that Blue had failed to establish his affirmative defense. See AR 416, 418, 421-22, 423, 424.

The Judge therefore affirmed the Agency’s decision to terminate Blue. See AR 402-429.

       Having examined the Administrative Judge’s decision, the Court concludes that it was

based on substantial evidence on the record and that it was not arbitrary, capricious, or contrary

to law. As to the first issue, whether the EPA established that Blue had engaged in conduct

unbecoming of an officer by sexually assaulting his wife, the Administrative Judge credited

Blue’s wife’s version of the events – recounted in two recorded interviews with the police – over

Blue’s. See AR 410-11. Although she subsequently recanted her allegations, the Judge found

that her initial recitation was more persuasive than the milder narrative she provided months

later. See AR 413. Given that this is not a criminal case prosecuted under a reasonable-doubt

standard, the Judge’s conclusion had more than enough evidence to support it.

       On the second point, whether the EPA had proved that Blue had not been candid with

PIQA, the Administrative Judge found that Blue’s responses to the investigators’ questions were

either incomplete or not fully truthful. See AR 418. This conclusion rested on the broad,

flexible definition of “lack of candor” used in MSPB hearings, “whose contours and elements

depend upon the particular context and conduct involved…[and which] may involve a failure to

                                                15
disclose something that, in the circumstances, should have been disclosed in order to make the

given statement accurate and complete.” Ludlum v. Dept. of Justice, 278 F.3d 1280, 1284 (Fed.

Cir. 2002). The Administrative Judge’s finding on this point follows logically from his earlier

decision to credit Blue’s wife’s initial reports to the police, since Blue’s statements to PIQA

investigators – denying that he assaulted his wife or that she was even upset on the nights of the

alleged attacks, see AR 491 – are impossible to reconcile with her descriptions of those events.

Like the first point, then, the Judge’s conclusion on this issue was hardly arbitrary or capricious.

       Third, the Administrative Judge found that the EPA had established the required nexus

between Blue’s misconduct and the efficiency of the service. See AR 421. “Nexus” in this

context means a “connection between the employee’s off duty misconduct and the employee’s

job-related responsibilities,” White v. U.S. Postal Service, 768 F.2d 334, 335-36 (Fed. Cir.

1985), and may be established in one of three ways: (1) “a rebuttable presumption … that may

arise in certain egregious circumstances based on the nature and gravity of the misconduct”; (2)

“a showing … that the misconduct affects the employee’s or his co-workers’ job performance, or

management’s trust and confidence in the employee’s job performance”; or (3) “a showing …

that the misconduct interfered with or adversely affected the agency’s mission.” Kruger v. Dept.

of Justice, 32 M.S.P.R. 71, 74 (1987). The Administrative Judge relied on the second approach,

finding that Blue’s attack on his wife and his subsequent lack of candor made him less

trustworthy to carry a firearm and to carry out his duties as a law-enforcement officer. See AR

421. Given Blue’s important responsibilities as an Associate Special-Agent-in-Charge at the

EPA, this conclusion was plainly reasonable and supported by the evidence.

       Fourth, the Administrative Judge found that the EPA’s decision to terminate Blue did not

exceed the bounds of reasonableness, meaning that the EPA considered all the relevant



                                                 16
mitigating factors and that the punishment selected for his misconduct was not so excessive that

it would be an abuse of discretion, arbitrary, capricious, or unreasonable. See AR 424; Douglas

v. Veterans Admin., 5 M.S.P.R. 280, 302, 306 (1981). The Judge noted the high standard to

which law-enforcement officers like Blue are held and also emphasized the problem posed by

Blue’s lack of candor in the PIQA investigation, especially given that he had to maintain his

credibility so that he could provide sworn testimony in future investigations. See AR 251-56,

424, 523; see also Giglio v. United States, 405 U.S. 150, 154 (1972) (prosecution must turn over

evidence in its possession that could be used to impeach the credibility of a witness); Mike v.

Ryan, 711 F.3d 998, 1011 (9th Cir. 2013) (Giglio applies to evidence of a law-enforcement

officer’s misconduct in an unrelated case); United States v. Kiszewski, 877 F.2d 210, 216 (2d

Cir. 1989) (same). Although the sanction of termination is certainly severe, the Judge’s decision

to affirm it was supported by the evidence and was not arbitrary or capricious.

       Finally, the Judge found that Blue had not established his affirmative defense of

retaliation. See AR 422. To prove retaliation for filing an EEO complaint, Blue had to show (1)

that he engaged in protected activity; (2) that the EPA knew of the protected activity; (3) that his

termination could, under the circumstances, have been retaliation; and (4) that there was a

genuine nexus between the alleged retaliation and the termination. See Hunter v. Dept. of

Justice, 110 M.S.P.R. 219 ¶ 8 (2008). The Administrative Judge noted that Blue’s only

evidence for retaliation was the coincidence of his filing of the EEO complaint a month before

the notice of proposed removal for him was issued, but that in fact the EPA had begun the

process of terminating Blue long before he ever contacted the Office of Civil Rights. See AR

420-23. As this Court has also found no issue of retaliation under these circumstances, see

Section III.B, supra, it would be hard pressed to reverse the MSPB’s identical conclusion.



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       In sum, the Administrative Judge’s decision to uphold the EPA’s termination of Blue was

supported by sufficient evidence in the record and was not arbitrary, capricious, or an abuse of

discretion. The Court must affirm it.

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order that will grant

Defendant’s Motion for Summary Judgment. A separate Order consistent with this Opinion will

be issued this day.




                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge
Date: September 27, 2013




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