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Benton v. Burns

United States District Court, D. Maryland

February 7, 2017

LARAY J. BENTON, Plaintiff
v.
STEPHEN G. BURNS, CHAIRMAN, U.S. NUCLEAR REGULATORY COMMISSION Defendant

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

         Pro se Plaintiff Laray J. Benton brings suit against Stephen G. Burns, Chairman of the Nuclear Regulatory Commission (“NRC”) in his official capacity, [1] 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.[2]

         Pending before the Court is Benton's Motion for Summary Judgment and Sanctions, [3]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.

         I. FACTUAL AND PROCEDURAL HISTORY

         Benton 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.

         Problems 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.

         Benton 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.

         Due to 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.

         Benton's 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.

         Shortly 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.

         Benton 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.

         An MSPB 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.

         Separately, 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.

         The 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. 46-5.[4]

         At some 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.[5] ECF No. 41-1.

         In a 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.

         The 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.

         II. CLAIMS

         In his lengthy Amended Complaint, ECF No. 6, Benton makes dozens of claims based on purported violations of an array of statutes and common law doctrines.

         Appeals from Administrative Bodies

         In this case, Benton attempts to bring appeals from decisions in three different administrative proceedings. His arguments are interconnected and somewhat duplicative.

         First, 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.

         Separately, 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.

         Finally, 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 ...


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