United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
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
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.
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.
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
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.
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.
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.