United States District Court, D. Maryland
SPENCER P. HUDSON, Plaintiff,
PENNY PRITZKER, Secretary of the United States Department of Commerce Defendant.
PETER J. MESSITTE, District Judge.
Spencer P. Hudson, pro se, has brought claims against Penny Pritzker, the Secretary of the United States Department of Commerce (the "Agency"),  as a result of his removal as a Logistics Management Specialist from a division of the National Weather Service ("NWS") within the Agency. Although the Complaint contains no numbered counts, from all appearances it is an appeal of the decision of the Merit Systems Protection Board ("MSPB") sustaining the Agency's decision to remove him. Hudson also alleges that the Agency discriminated against him on the basis of race and in retaliation for his filing Equal Employment Opportunity ("EEO") complaints. Pritzker has moved to dismiss or, in the alternative, for summary judgment. For the reasons stated below, Pritzker's Motion to Dismiss or in the Alternative for Summary Judgment (Paper No. 22) will be GRANTED.
Hudson began working as a Logistics Management Specialist, GS-13, within the NWS, located in Silver Spring, Maryland, in November 2005. In September 2010, he was suspended for seven days for threatening a co-worker and shouting obscenities, as well as for failing to attend a scheduled meeting. Def.'s Mot. at Ex. 1, Tab 4S at 11 (Agency Response Record). In October 2010, Hudson's first-level supervisor, Eric Parr, noticed that several shipments on the Agency's FedEx account appeared to be unrelated to business purposes. Id., Tab 41 at 9. Specifically, several shipments were sent to Hudson's home address and others were to addresses with which NWS had no relationship.
Accordingly, on October 6 and 7, 2010, Parr inspected three packages, in the presence of a witness, waiting to be shipped on the Agency account but addressed to Hudson personally. Id. Each package contained articles of clothing, including shorts, jeans, shirts, a rain jacket, and a pair of sweat pants. Id. When confronted, Hudson acknowledged using the Agency's FedEx account when he was away from the office on business so as to minimize luggage. He claimed that the October 6-7, 2010 packages were sent because he had packed 800 pages of work-related documents in his personal luggage, leaving no space for clothing. Id. at 10. He could not produce, however, any of these 800 pages of documents. On November 10, 2010, Parr issued Hudson a Notice of Proposed Removal ("NPR I"), charging Hudson with 29 instances of Misuse of Government FedEx Account, from August 31, 2009 to October 7, 2010. Id., Tab 4q.
Along with the issuance of NPR I, Hudson was placed on administrative leave and instructed to return his government-issued laptop. The Agency reviewed that laptop as well as his government desktop computer for any further evidence of misconduct, ultimately discovering pornographic images on the desktop and referring the matter to the Office of Inspector General ("OIG"). Id., Tab 4m. OIG conducted its own forensic investigation of Hudson's governmentissued computers. OIG Agent John Pizzurro issued a report that concluded Hudson's desktop contained 601 images of adult pornography. Id.
Following Agent Pizzurro's report, on March 23, 2011, Parr issued a second Notice of Proposed Removal ("NPR II"). Id., Tab 41 at 1. NPR II replaced NPR I, and charged Hudson with (1) Misuse of Government Property (IT Resources); and (2) Misuse of Government Property (FedEx Account). Id. The matter was referred to Hudson's second-level supervisor, Deirdre Jones, Director of the Operations Division of NWS.
On April 20, 2011, Hudson filed a written response to NPR II. Id., Tab 4e. He argued that the pornographic materials were not "accessed, searched for, browsed for, navigated to, requested or received due to any internet keyword search, browse, keystroke, entered computer command or act of navigations initiated by me or by anyone on my behalf using any government issued resources." Id. at 2-6. Rather, Hudson suggested all of the pornographic material came as "unknown file attachments to electronic mail transmissions received unrequested and unsolicited." Id. With respect to use of the FedEx account, Hudson argued that he was authorized to use the account and that his shipments contained work-related materials. Id. at 8-21.
On May 4, 2011, Jones issued her decision to remove Hudson from employment. Id., Tab 4d. She stated that she did not find Hudson's assertions credible, and that either charge against him-standing alone-would justify removal. Jones noted further that, among other things, (1) the nexus between Hudson's job responsibilities and his misconduct; (2) the repeated and intentional nature of his misconduct; (3) his prior suspension in September 2010; and (4) the improbability of his rehabilitation all justified his removal. Id.
Hudson attacked his removal through separate avenues. On June 3, 2011, he filed an appeal to the MSPB, asserting as defenses that the removal was a result of: (1) retaliation for prior EEO activity; (2) race discrimination; (3) whistleblower retaliation; and (4) prohibited personnel practices. Id. at Ex. 2 (MSPB Appeal dated June 3, 2011). On June 14, 2011, Hudson also filed a complaint of discrimination, asserting essentially the same claims but also suggesting that his removal was the result of harmful procedural error. Id. at Ex. 3 (Initial MSPB Decision dated May 26, 2012). Specifically, he alleged that the Agency failed to provide him with the evidence on which it based its removal decision. Id. at 16.
Administrative Law Judge Anthony W. Cummings held a two-day hearing on March 19 and 20, 2012, regarding Hudson's appeal. After reviewing the evidence and hearing testimony from several Agency employees,  ALJ Cummings sustained Hudson's removal. See id. He concluded that removal was reasonable and that the Agency had established a nexus between the misconduct and the efficiency of the service. Id. at 11-12. In reaching his decision, ALJ Cummings rejected each of Hudson's affirmative defenses, concluding that Hudson "failed to establish evidence giving rise to an inference that the agency's removal action was due to illegal discrimination." Id. at 14. He also found that Hudson had failed to identify a protected disclosure that would have led to whistleblower retaliation. Id. at 15. Further, ALJ Cummings found decision-maker Jones's testimony "credible and undisputed" that Hudson's prior EEO activity was unknown to Jones until late in the process and ultimately did not influence her decision. Finally, ALJ Cummings found Jones's testimony credible that the Agency had in fact provided Hudson with the evidence upon which it relied in removing Hudson. Id. at 16.
On June 19, 2012, Hudson filed a petition for review of the Initial MSPB Decision. See Def.'s Mot. Ex. 5. On March 22, 2013, the MSPB issued its Final Order dismissing Hudson's petition and affirming the Initial Decision as the final order. See id. at ...