United States District Court, D. Maryland
LARAY J. BENTON, Plaintiff
STEPHEN G. BURNS, CHAIRMAN, U.S. NUCLEAR REGULATORY COMMISSION Defendant
J. MESSITTE, UNITED STATES DISTRICT JUDGE
se Plaintiff Laray J. Benton brings suit against Stephen
G. Burns, Chairman of the Nuclear Regulatory Commission
(“NRC”) in his official capacity,  alleging
violations the Civil Service Reform Act, 5 U.S.C. § 4303
(1990)(“CSRA”); Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e et seq.
(2000)(“Title VII”), and the Whistleblower
Protection Act of 1989 (“WPA”), 5 U.S.C. §
1201 (2000). Benton appeals orders issued by the Merit
Systems Protection Board (MSPB) and the Equal Opportunity
Employment Commission (“EEOC”) as to those
claims. He also brings for the first time in this Court
numerous claims of violations of the U.S. Constitution, the
Maryland Declaration of Rights, Federal criminal law as well
as state statutory and common law.
before the Court is Benton's Motion for Summary Judgment
and Sanctions, ECF No. 6 at 16, and Burns's Notice of
Cross-Motion for Summary Judgment. ECF No. 30. For the
reasons that follow, Benton's Motion is DENIED and
Burns's Motion is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
was employed by the NRC as a Reactor Engineer in the Accident
Dose Branch. ECF No. 30-1 at 2. A Reactor Engineer evaluates
accidents at nuclear plants. Id.
with Benton's professional performance began as far back
as 2009. ECF No. 6-2 at 113- 119. As a result, his
supervisors declined to recommend him for two positions in
the NRC's Graduate Fellowship Program, first in FY 2009
and then in FY 2010. ECF No. 6 at 21.
received a “minimally successful” performance
evaluation in 2010. ECF No. 6-1 at 28. That evaluation was
the subject of a grievance filed before agency officials on
Benton's behalf by the National Treasury Employees Union
(“NTEU”), of which Benton was a member. ECF No.
46 at 25. The grievance was adjudicated pursuant to the
negotiated procedure and the Agency found against Benton. ECF
No. 6-1 at 38. After the adjudication and Benton's
mid-year review, his supervisor gave him a Performance
Deficiency Notice (“PDN”) on May 11, 2011, which
formally notified Benton of the deficiencies in his work,
specifically that his “performance [was] deficient in
the areas of evaluation and analysis of technical issues
related to [his] assigned licensing reviews and special
tasks.” ECF No. 6-1 at 54.
continued poor performance, Benton's supervisor issued a
formal “Notice of Unacceptable Performance and
Performance Improvement Requirements Memorandum, ”
(“PIRM”) informing him that his performance with
respect to Critical Element 2 of his performance plan,
entitled “Technical Analysis and Problem Solving,
” was unacceptable. ECF 6-2, at 57-68. The PIRM gave
Benton from November 22, 2011 to March 20, 2012 to achieve
“minimum success” with respect to five specific
tasks. Id. It also provided for a weekly meeting
between Benton and his supervisor and specified that
Benton's failure to improve could result in demotion,
reassignment or removal. Id. at 60.
superiors did not see sufficient improvement in Benton's
work in the allotted time and on May 9, 2012, his supervisor
issued a written Proposal to Remove [Benton] from the Federal
Service (“Proposal”). ECF No. 6-1 at 62. Benton
availed himself of the opportunity to submit both written and
oral responses under agency procedures, but eventually a
senior NRC official issued a Decision to Remove Memorandum
(“Removal”). ECF. No. 6-2, at 46.
after the Proposal issued, but before the Removal did, Benton
sent an email to his supervisor including the following quote
from Psalms: “. . . [L]et the angel of the LORD chase
them [that fight against me]. Let their way be dark and
slippery and let the angel of the LORD persecute them.”
ECF No. 30-6 at 3. Benton's supervisor became concerned
and notified his managers, as well as the security office and
the Office of the Chief Human Capital Officer. Benton's
manager and a representative of the Office of the Chief Human
Capital Officer met with Benton, and scheduled an appointment
for him to speak with a counselor, which he did not keep and
did not reschedule. ECF No. 30-1 at 4.
appealed his removal to the MSPB, asserting multiple claims.
ECF No. 6-2 at 123. As part of the appeal, NRC counsel
submitted a copy of Benton's 2010 performance evaluation,
which found him only “minimally successful.”
See ECF No. 6-1 at 1. Subsequently, it was
discovered that the version of the performance review
submitted by Agency counsel was not the official performance
review included in Benton's official personnel file. ECF
No. 30-9 at 32.
Administrative Law Judge (“ALJ”) affirmed
Benton's removal. ECF No. 31-10. He appealed to the full
MSPB board, which denied his Petition for Review. ECF No.
31-2. Benton then appealed that denial to the U.S. District
Court for the District of Columbia, which transferred the
case to this Court - the U.S. District Court for the District
of Maryland. ECF No. 8.
Benton filed a discrimination complaint with the NRC's
Office of Small Business and Civil Rights on June 21, 2012
alleging discrimination based on his race (African American)
and gender (male) with respect to his non-selection for
certain positions, his performance appraisal, awards, time
and attendance, training, among other issues. ECF No. 31-3
Benton also alleged non-sexual harassment and reprisal in his
removal, “increased surveillance of [his] time and
attendance, ” and “continuous denial of technical
training requests.” Id.
NRC's Office of Small Business and Civil Rights
(“EEO Office”), which investigates Equal
Employment Opportunity (EEO) discrimination claims,
acknowledged receipt of Benton's complaint and issued a
letter accepting seven of the nine alleged instances of
discrimination for investigation in September 2012. ECF No.
31-5 at 3. On May 30, 2013, Benton moved to add religious
discrimination claims to his EEO case. ECF No.
point, it appears the EEO Office issued a final order, which
Benton appealed to the Equal Opportunity Employment
Commission (“EEOC”), though neither the order nor
the appeal is in the record. On March 18, 2016, the EEOC
dismissed with prejudice Benton's entire claim, stating
that “the Complainant's District Court filing makes
the same allegations of employment discrimination as his
administrative formal complaint. ECF No. 41-1.
third administrative proceeding initiated in 2013, Benton
filed an individual right of action appeal before the MSPB,
alleging that the NRC had taken various actions against him
in retaliation for whistleblowing activity. ECF No. 46-1 at
2. Benton alleged eleven instances of retaliation: (1) that
the Agency had submitted an “altered” version of
his FY 2010 performance appraisal; (2) that the Agency had
changed his performance elements and standards; (3) that the
Agency had given him false performance appraisals; (4) that
the Agency had unfairly criticized his use of biblical quotes
in his email messages; (5) that the Agency had ordered him to
take a psychiatric examination; (6) that the Agency had
denied his training requests; (7) that the Agency had
unfairly scrutinized his time and attendance; (8) that the
Agency did not select him for the Agency's Graduate
Fellowship Program; (9) that the Agency hard removed him from
employment; and (10) that the Agency had issued him a PDN and
a PIRM. ECF No. 30-1 at 8, ECF No. 31-8.
MSPB's initial decision dismissed Benton's claims for
lack of jurisdiction, which Benton appealed, ECF No 31-11,
and which the full Board affirmed. Benton appealed that
denial to the Federal Circuit, which recently dismissed the
appeal and remanded the action to the MSPB, finding that the
MSPB's Judgment was not final, hence non-appealable. ECF
No. 31-13; ECF No. 57-2 at 4.
lengthy Amended Complaint, ECF No. 6, Benton makes dozens of
claims based on purported violations of an array of statutes
and common law doctrines.
from Administrative Bodies
case, Benton attempts to bring appeals from decisions in
three different administrative proceedings. His arguments are
interconnected and somewhat duplicative.
he appeals the Final Order of the Merit Systems Protection
Board (“MSPB I”) with respect to the lawfulness
of his removal. ECF No. 31-2.
Benton filed a complaint with the EEO Office at the NRC on
June 21, 2012. That case was dismissed by EEOC ALJ Charles
Shubow on March 23, 2016 because Benton had brought a civil
action “raising the same claims as in th[e]
complaint.” ECF No 41-1. Though Benton's claims
were still pending at the EEOC when the present action was
filed on February 5, 2015, he seems to have brought identical
claims in the present action as well.
Benton brings claims stemming from a complaint he made to the
Office of Special Counsel (“OSC”), alleging
violations of the Whistleblower Protection Act, which he
eventually brought as an individual right of action to the
MSPB (“MSPB II”). ECF No. 31-10. After the OSC
terminated its inquiry into Benton's allegations, he
appealed the case to the MSPB, which dismissed it for lack of
jurisdiction. ECF No. 46-1 ...