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Andreas-Myers v. National Aeronautics and Space Administration

United States District Court, D. Maryland, Southern Division

April 28, 2017



          GEORGE J. HAZEL United States District Judge.

         Pursuant to the Administrative Procedures Act ("APA"). 5 U.S.C. § 701. et seq., Sasha Andreas-Myers files this Petition for Judicial Review and Injunctive Relief against the National Aeronautics and Space Administrative ("NASA") and R. Andrew Falcon, in his official capacity as Chief Counsel for the Goddard Space Flight Center (collectively. "Respondents" or "NASA"). regarding NASA's final decision denying Andreas-Myers" request to depose NASA employee Armando J. Radich. Now pending before the Court is Respondents" Motion for Summary Judgment. ECF No. 6. No hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the following reasons. Respondents" Motion for Summary Judgment is granted.

         I. BACKGROUND[1]

         In or around 2006, Andreas-Myers ("Petitioner") filed a complaint with California's Department of Fair Employment and Housing against her employer Northrup Grumman ("Northrup"), alleging sex discrimination and sexual harassment in the workplace. ECF No. 1 ¶ 6. Petitioner and Northrup subsequently entered into a confidential settlement agreement and Petitioner agreed to resign from her position with Northrup. Id.

         In 2013. NASA's Goddard Space Flight Center ("Goddard") sought to increase staffing at two California facilities where components for the James Webb Space Telescope ("JWST")[2]were being built. ECF No. 5-1 at 11, [3] Armando J. Radich. in his role as the Chief Safety and Mission Assurance Officer for the JWST project, submitted the request for additional mission assurance personnel. Id. at 10-11. When Goddard wants to increase staffing at a remote location, it has the option to obtain support services from contractors. Id. at 11. The process to obtain support services is outlined in the Audits. Assessments and Assurances Services ("A3") contract. Id.

         Following the protocols dictated by the A3 contract. Radich submitted a request to add a new staff member at each of two facilities located in California, one in Redondo Beach, run by Northrup through a contract it had with the Jet Propulsion Lab ("JPL"). and another in Moorpark. California, Id. Radich identified the necessary skills and experience required for the position and SQA Services ("SQA"), a sub-contractor on the A3 contract in charge of staffing, sent him two resumes to review, Id.

         Radich reviewed the two resumes and placed one individual at the Moorpark location, based on his or her qualifications. Id. He considered placing Petitioner at the Northrup facility in Redondo Beach but his decision was "put on hold when JPL informed [him] that it planned on approaching the staffing need differently at that location." Id. at 12. According to Radich, JPL declined oversight by Goddard, or any another third party, and decided to use "its own employees and colleagues at [Northrup]." Id. JPL and Goddard are working jointly to build the JWST but neither field center has authority over the other; thus. Radich agreed with JPL's staffing decision. Id. at 11-12. Because there was "no longer any need to staff the Redondo Beach location with a contractor mission assurance representative, no other candidate was given [the] position." Id. at 12.

         On or around August 8. 2013. SQA stated to Petitioner that someone at Northrup had told NASA that Plaintiff had left Northrup in a "negative manner." Id. at 26. Subsequently, on August 16. 2013. SQA notified Petitioner that the position had "dissolved" because Northrup would not allow her onto its facility. Id.

         Shortly thereafter. Petitioner IIled a lawsuit against both Northrup and SQA in Los Angeles Superior Court, alleging that Northrup made defamatory statements to Radich regarding the circumstances of her former employment with Northrup and that she was not allowed on Northrup's premises, which, together, led to her rejection from the mission assurance position at the JPL/Northrup facility. ECF No. 1 ¶ 11. The claims against each defendant took separate tracks, with Petitioner's claims against Northrup proceeding through arbitration while her claims against SQA continued through motions practice in court. Id. ¶ 12.

         In March 2015. NASA received and granted a request from an attorney representing Northrup to have Radich submit a sworn declaration concerning his role in the decision not to hire Petitioner. ECF No. 6-1 at 5.[4] After receiving Radich's declaration. Petitioner decided to settle her claims against SQA. but she continued to prosecute her claims against Northrup. ECF No. 1 ¶ 14.

         On March 15. 2016. at the request of Petitioner's attorney, the Baltimore County Circuit Court issued a subpoena ordering Radich to appear at a deposition. ECF No. 5-1 at 14. On March 21, 2016. an attorney from NASA's Office of the Chief Counsel objected to the subpoena. saying, in relevant part, that Petitioner's request failed to specify "the information sought and its relevance to the proceeding in connection with which it is requested." Id. at 19.

         On April 5. 2016, Petitioner responded with a more detailed explanation of her need to depose Radich. Id. at 25. Specifically, she explained that they had recently deposed Ed Snider, an SQA employee, who had contacted Petitioner about the mission assurance position with NASA. Id. at 26. His testimony, and associated documentary evidence, demonstrated that someone at Northrup had told NASA that Petitioner had left Northrup in a "negative manner." Id. Snider further testified that he learned from Nancy Hendrick, a Honeywell employee also involved in staffing, that Petitioner was not allowed on Northrup's facilities. Id. Snider also testified that Hendrick learned that information from someone at NASA, who he believed was Radich. Id. Petitioner explained that Hendrick was already scheduled to be deposed, and. based on Snider's testimony, they expected her to state that Radich was the NASA employee who had heard the defamatory statements from Northrup. Id.

         Petitioner slated that Radich's testimony would be "the last part of the circuit connecting Plaintiffs denial of employment and Northrup's defamatory statement" and would "'reveal the identity of the person at Northrup Grumman that spoke about Plaintiff in such a negative manner." Id. at 27. Petitioner also addressed NASA's alternative proposal, suggested over a phone call, that Radich could potentially respond to additional questions in a declaration "in light of the travel required of him. and his important daily role in the construction of the [.ISWT]." Id. Petitioner stated that she would be open to such an arrangement if Hendrick did not identify Radich as her source at NASA, but otherwise, "his live testimony would be essential and necessary." Id.

         On April 7. 2016. NASA issued a final decision regarding Petitioner's request to depose Radich. Id. at 5-6. Relying on their internal regulations regarding requests for information, the Chief Counsel decided that Radich could not be deposed because "[c]ompliance with the request would demand too many hours away from Mr. Radich's job as the Chief Safety and Mission Assurance Officer for the [JWSTJ. the largest and most important project at [Goddard]." and would "further involve the Agency in litigation wholly unrelated to NASA's mission." Id. at 5.

         The Chief Counsel also considered the fact that "Mr. Radich has already provided answers to the information sought by the deposition." Id. Specifically, NASA noted that in his declaration Radich stated that. "I was not told any negative information about [Petitioner] from anyone at [Northrup]. I was never told about the circumstances regarding the prior employment oi" [Petitioner] with [Northrup], or the reasons why her employment ended. I also was never told anything about whether [Petitioner] was eligible for future employment with [Northrup] or whether she could work on [Northrup's] premises." Id. at 5-6.

         NASA indicated that if. after Hendrick's deposition. Petitioner had additional questions for Radich. it would be "willing to consider a request for additional answers by way of a declaration." Id. at 6.

         On June 17. 2016. Petitioner sent NASA another letter, reiterating its request to depose Radich. Id. at 31-34. In her letter. Petitioner argued that it was "disingenuous, arbitrary and capricious" for NASA to state that it did not want to be involved in this litigation, in light of their prior cooperation with a previous request for a declaration from Radich. Id. at 32. She also argued that, having deposed Hendrick. the veracity of Radich's prior declaration was now in dispute. Id. Specifically, she stated that Hendrick testified about a telephone conversation where Radich told Hendrick "words to the effect that (a) Mr. Radich had learned from his counterpart at Northrup....that [Petitioner's] prior employment ended in a negative manner or in a manner that was involuntary on the part of [Petitioner], (b) that [Petitioner] would not be allowed onto [Northrup's] facility and (c) most importantly, that because of these two pieces of information told to Mr. Radich by ]Northrup]. [Petitioner] was no longer a suitable candidate for the contemplated work." Id. at 33.

         Petitioner argued that these opposing narratives presented a "quandary" that would be "awkward to explain away" and implied that Radich had been "less than truthful when it suit[ed] the short-term needs and interests ...

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