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Liu v. Shurtleff

United States District Court, D. Maryland

January 3, 2020

XUNXIAN LIU, Plaintiff,
v.
DAVID SHURTLEFF, EVELYN CUSSON Defendants.

          MEMORANDUM OPINION AND ORDER

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

         This action stems from Plaintiff Xunxian Liu's termination from the National Center for Complementary and Integrative Health (“NCCIH”) in August 2015. Following his termination, Plaintiff filed an appeal with the Merit Systems Protection Board (“MSPB”), which was denied, and then filed a complaint in this Court, which was dismissed on summary judgment and affirmed on appeal. Xunxian Liu v. Mary Catherine Bushnell (“Liu v. Bushnell I”), No. TDC-17-1398, 2018 WL 3093974 (D. Md. June 22, 2018), aff'd sub nom. Xunxian Liu v. Azar, 742 Fed.Appx. 748 (4th Cir. 2018). Undeterred, Plaintiff, proceeding without counsel, filed the instant action in the Circuit Court for Montgomery County, Maryland which was removed to this Court. ECF No. 1. Plaintiff argues that his former supervisors, Drs. Mary Catherine Bushnell and David Shurtleff, violated his due process rights and committed fraud in connection with his termination, and that Assistant United States Attorney Evelyn Cusson violated his “victim right” and committed fraud in the course of her representation of the defendants in Liu v. Bushnell I. ECF No. 1-6 (“Compl.”). Pending is Defendants' Motion to Dismiss, ECF No. 29.[1] Because the issues alleged in the Complaint already were decided in Liu v. Bushnell I, Plaintiff's claims are barred by collateral estoppel and Defendants' Motion to Dismiss is granted.[2]

         Background

         Plaintiff was employed as a biologist at NCCIH, part of the National Institutes of Health (“NIH”), within the Department of Health and Human Services. Compl. at 1.[3] During the relevant period, Dr. Bushnell was Plaintiff's first-line supervisor and Dr. Shurtleff was Plaintiff's second-line supervisor. Id. at 2-3. On May 21, 2015, Dr. Bushnell placed Plaintiff on a 60-day Performance Improvement Plan (“PIP”). Id. at 2; PIP, Compl. Ex. D at 30. In a July 13, 2015 memorandum to Plaintiff, which was copied to Dr. Shurtleff, Dr. Bushnell recommended Plaintiff's removal from federal service for failing to improve during the PIP period. Notice of Proposed Removal, Compl. Ex. G at 45. Notably, this memorandum stated that Dr. Bushnell notified Plaintiff of his unacceptable performance on May 8, 2015, before issuing the PIP. Id. On August 31, 2015, Dr. Shurtleff removed Plaintiff from federal service. Removal, Compl. Ex. I at 79. The deficiencies in Plaintiff's job performance before and during the PIP period, including plagiarism, unauthorized spending of federal funds, and difficulty working with others, were described in detail by Judge Chuang in Liu v. Bushnell I, 2018 WL 3093974 at *1-*5, and need not be repeated here.

         Plaintiff appealed his termination to the MSPB. He claimed that he was not properly removed from federal service, that his removal was the product of illegal discrimination and a hostile work environment based on race, national origin, color, age, and sex, and that he suffered retaliation. MSPB Initial Decision at 4-5, 11-12, ECF No. 29-2. Plaintiff was represented by counsel and extensive discovery took place. After a three-day hearing, including testimony from Dr. Bushnell, an Administrative Judge affirmed Plaintiff's removal. Id. at 5, 15.

         During closing arguments at the hearing, Plaintiff asserted that Dr. Bushnell did not provide him notice of his deficient performance in May 2015 prior to placing him on a PIP. Id. at 8. The Administrative Judge rejected this argument:

In his closing argument, [Plaintiff] argued that Dr. Bushnell placed [him] on a PIP in May, 2015, despite offering him no notice of alleged unsatisfactory y [sic] performance. At [the] hearing, [Plaintiff] testified that Dr. Bushnell never told him that his performance was unsatisfactory before being placed on a PIP. I find this statement to be misleading, and the claim to be without merit. As stated above, Dr. Bushnell testified at length during the hearing that [Plaintiff] was cautioned about his poor performance on numerous occasions between January, 2015 and May, 2015. . . . Based on the evidence in the record and testimony presented at [the] hearing, I find that the agency has demonstrated by substantial evidence that it determined [Plaintiff's] performance to be unacceptable in one or more critical elements of his position, and warned him of his performance inadequacies during his appraisal period.

Id. at 8-9. In the findings of fact, the Administrative Judge also stated that “[o]n May 8, 2015, [Plaintiff's] supervisor, Dr. M. Catherine Bushnell notified [Plaintiff] that she had determined that he was performing unacceptably.” Id. at 2.

         Plaintiff, proceeding without counsel, then filed his claims in this Court in Liu v. Bushnell I. Judge Chuang construed his complaint as stating claims for race, color, national origin, and sex discrimination, and retaliation, under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17 (2012); age discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (2012); and perjury under federal and state law. Liu v. Bushnell I, 2018 WL 3093974 at *1, *6. The defendants were represented in that case by AUSA Cusson. The Title VII and ADEA claims were the same as those asserted before the MSPB. The perjury claims were based on the alleged false statement made by Dr. Bushnell in the Notice of Proposed Removal and before the MSPB that she met with Plaintiff on May 8, 2015 to notify him of his deficient performance prior to placing him on a PIP, which the MSPB Administrative Judge also considered and rejected.

         After he filed his complaint in Liu v. Bushnell I, Plaintiff sent a letter to the United States Attorney General, reporting Dr. Bushnell's alleged perjury and seeking her criminal prosecution. See Compl. at 4; Letter dated June 5, 2017, Compl. Ex. M at 110. The Department of Justice sent Plaintiff a response on June 5, 2017 indicating that it would follow up, if necessary, within 60 business days. Letter dated June 5, 2017, Compl. Ex. M at 110.

         On June 22, 2017, Plaintiff emailed Lisa Council at NIH/NCCIH regarding his complaint in Liu v. Bushnell I. Ms. Council referred Plaintiff to AUSA Cusson, as counsel for the defendants in that case. Presuming that AUSA Cusson also was responsible for investigating his perjury claim that he sent to the Attorney General, Plaintiff filed a motion to recuse AUSA Cusson from her representation of the defendants in Liu v. Bushnell I. Motion for Recusal, Compl. Ex. R at 126. The defendants opposed the motion and filed a Motion to Dismiss or in the alternative Motion for Summary Judgment.

         The Court found in favor of the defendants on both motions. The Court denied Plaintiff's motion to recuse AUSA Cusson based on Ms. Cusson's disavowal of any involvement in investigating Plaintiff's claims of perjury and Plaintiff's pure speculation to the contrary. Liu v. Bushnell, 2018 WL 3093974 at *13. The Court construed the defendants' Motion to Dismiss or in the alternative Motion for Summary Judgment as a motion for summary judgment. In doing so, the Court considered Plaintiff's claim that Dr. Bushnell committed perjury and found that it did not warrant additional discovery that would preclude consideration of the defendants' motion as one for summary judgment. Id. at *7. The Court explained that Plaintiff “already had the opportunity to cross-examine Dr. Bushnell about any meeting on May 8, 2015 as part of the MSPB hearing” and did not present a persuasive reason for further discovery. Id. After considering the record before it, the Court granted summary judgment for Defendants on Plaintiff's Title VII, ADEA, and perjury claims. Id. at *13.

         On October 2, 2018, Plaintiff filed the instant complaint in the Circuit Court for Montgomery County, Maryland. Plaintiff alleges the same issues already litigated in Liu v. Bushnell I. Specifically, Plaintiff alleges that Dr. Bushnell did not properly inform him of his inadequate job performance before issuing a PIP and that Dr. Bushnell committed fraud when she asserted in the memorandum regarding his proposed removal that she met with Plaintiff on May 8, 2015. Compl. at 2, 4. Plaintiff alleges that Dr. Shurtleff adopted Dr. Bushnell's false statement and perpetuated the alleged fraud in terminating Plaintiff's employment. Id. at 3. Finally, Plaintiff alleges that AUSA Cusson committed fraud by representing the defendants in Liu v. Bushnell I while also allegedly investigating Plaintiff's complaint of perjury. Id. at 5-6.

         Standard ...


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