SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH I N THE UN I TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

JOHN ST ANTON,

Plaintiff,

vs. WILLIAM REUKA UF ,

Def endant. ) ) ) ) ) ) ) ) ) Civil Action No. 10-c v-633 (RL W)

MEMORAN DUM OP INION 1 Presently befor e the Court ar e the f ollowing motions: (1) De fenda nt’s Motion to Dism iss or in the Alternative, for Summary J udg ment (Doc . 13); (2) Plaintiff’s Motion for Summary J udg ment (Doc . 18); and (3) Plaintiff’s Motion to Amend Compl aint (Doc . 19.) F or the re asons set forth be low, the Court finds that Def endant’ s Motion is due to be grante d and Plaintiff’s Motions are due to be denied.

I. F ACTS J ohn Stanton, who is pro se, bring s this action ag ainst Wi lliam Reukauf, in his officia l capa city as Associate Special Counsel of the United States Off ice of Special Counsel (“ OSC”). Stanton asks this C ourt to compel the OSC to investiga te his alleg ation that cer

tain prohibited

This is a summary

opinion intended for the pa rties and those pe rsons familiar w ith the 1 fac ts and arguments set forth in the plea dings; not intended f or publication in the off

icial repor ters. Pag e 1 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH personne l prac tices (“ PPP ’) led to his termination fr om employ ment with the Gover

nment Printing Off

ice ( “GPO”)

. See 5 U.S.C. §§ 1214; 2302(b). Stanton was a probationary civil

serva nt when he w as terminate d, without notice, from his employ ment with GPO. The re ason g iven for his ter

mination was Stanton’s “inappropr iate comments to more tha n one fe male employ ee.” (Doc . 18-2, Pl.’s SOF # 1.) Stanton challeng ed the dismissal by filing a complaint (MA-10- 0665) with the OSC raisingthree claims: discrimination based on conduc t that did not affec t job perfor mance , discrimination based on a g e and r ace , and obstruction of the rig ht to compete for employ ment. (Doc . 13-1, De f.’s SOF # 2.). After the OSC made a pr eliminary deter mination to terminate 1 further inquiry into St anton’s complaint, Stanton filed a r esponse in which he included an additional claim alleg ing the GPO violated fe dera l merit sy stem fairne ss principles by terminatinghim because of his non-union status. Ultimately , the OSC sent a final de termination letter a ddressinghis three or igina l alleg ations and closed his c ase. Stanton re sponded via letter challeng ing the dismiss al. Reukauf treated the letter

as a r equest for

rec onsideration, but re fused to reope n the ca se. Stanton then filed the instant law suit and the OSC ag ree d to reope n his case, this time including the additional claim Stanton added r eg ardinghis merit sy stems fairne ss alleg ation. Duringsever al communications betwe en Stanton and an O SC attorney about the re -opene d case ,

Stanton does not dispute Defe ndant’s Statement of Material F acts Not in Ge nuine 1 Dispute. Rather, Stanton conte nds Defe ndant’s undisputed fa cts are “insig nificant a nd immaterial fa cts . . . .” (D oc. 15, Pl.’s Resp. to Def.’ s MSJ at 6.) Pag e 2 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH Stanton raised one f

inal additional alleg ation. ( See Doc. 18- 1, Pl.’s SJ Br . at 6-7.) As a re sult 2 of testimony

by his supervisor duringa wor kers c ompensation hea

ring , Stanton challeng ed his supervisor’ s relianc e on hea rsay evidenc e to support the ter mination decision. In its second preliminary

deter mination letter, the OSC indicated it ag ain intended to close Stanton’s orig inal complaint and adde d that he nee ded to file a new c omplaint with respect to the he arsa y alleg ation. After

Stanton’s response, the OSC made a sec ond final dete rmination to close his

case , including the three orig inal claims and the me rit sy stems fairne ss alleg ation. Stanton eventually

filed a se cond OSC complaint (MA-2271) over the alleg ed hea rsay violation, but the OSC ultimately dismiss ed the c omplaint. (Doc. 30-1, O ct. 19, 2011 Fina l Deter mination ltr.) In the pre sent ac tion, St anton see ks a writ of ma ndamus, 28 U.S.C. § 1361, to compel the OSC to i nvestig ate his PPP alleg ations consistent with the OSC’s obligation to investigate ce rtain complaints by

individuals employ ed with the fe dera l gove rnment. See5 U.S.C. §§ 1214; 2302.

II. SUMMARY

JUDG MENT STANDARD Summary judgme nt is appropriate when the movingparty demonstrates that there is no g enuine issue a s to any

materia l fac t and that the moving party is entitled to judgment as a matter of law. See M

oore v. H artman, 571 F.3d 62, 66 ( D.C. Cir. 2009) (citingFe d. R. Civ. P . 56(c) ); Anderson v. Liberty Lobby, I nc . , 477 U.S. 242, 247 (1986)). Ag enuine issue of materia l fac t exis ts if the evidenc e, viewe d in the light most favor able to the non- movant, “is such that a

For ease of re fer ence , the Court will cite to the rec ord by ref ere ncingboth the primary 2 CM/ECF docket number

and the sub-numbe r, e.g. ., 18-4, 18-5.

Pag e 3 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH

rea sonable jury

could re turn a ve rdict for the nonmoving pa

rty .” Anderson , 477 U.S. at 248. A non-moving party , howeve r, must provide more tha n “a sc intill a of e vidence ” in support of its position; the quantum of e vidence must be such that a jury could re asonably

find for the nonmoving pa

rty
. Id. at 252. Her e, both par

ties have move d for summary judgme nt. Thus, the Court must analy ze the Def endant’ s motion whil e viewingthe fa cts in the light most favor able to the Stanton, and, alternatively , analy

ze Stanton’s moti on while viewingthe fa cts in the light most favor able to the Def endant. See J

ohnson v. District of Columbia , 528 F.3d 969, 973- 78 (D.C. Cir. 2008).

III. ANALYSIS A

. OSC In vestigations & Standards of Review The OSC has a statutory

obligation to “ investigate [alleg ations of prohibited per sonnel prac tices] to the ex tent nece ssary to determine whether

there are rea sonable grounds to believe that a prohibited pe rsonnel pra ctice ha s occur red, e x ists, or is to be taken.” 5 U.S.C. § 1214(a)

. A fe dera l probationary

employ ee who disag ree s with the manner in whic h the OSC resolved his complaint will ge nera lly

have no statutory

rig ht to seek judicial re view of the OSC’s actions. See Castle v. Rubin , 78 F.3d 654, 658 ( D.C. Cir. 1996); Borrell v. United States. Int.’l Commc ’n Agenc y, 682 F.2d 981, 987 ( D.C. Cir. 1982). Despite this absenc e of statutory authority for judicial revie w in most OSC actions, the Court of Appe als for the District of Columbia Circuit has held that the United States District Court has authority to issue a writ of manda

mus if the OSC viol ated its statutory duty to investigate the ag g rieve d employ ee’ s complaint. W eber v. United States , 209 F.3d 756, 759 ( D.C. Cir. 2000). Pag e 4 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH Under the Mandamus Act, “[t] he district courts shall have ori gi n al jurisdiction of any action in t h e n at u re o f mandamus to compel an office r or employ ee of

the United States or a

ny ag ency there of t o perf

orm a duty owed to the plaintiff.” 28 U.S.C. § 1361. Pursuant to this act, a district court may g rant mandamus relief if “(1) the plaintiff has a clea r rig ht to r elief; (2) the defe ndant has a clea r duty to act; and (3) there i s n o o ther adequate reme dy available to the plaintiff.” Power v. Barnhart , 292 F.3d 781, 784 (D.C. Cir. 2002) (quoting Northern States Power Co. v. U.S. De p't of Energy , 128 F.3d 754, 758 ( D.C. Cir. 1997)). In re M edicareReimbursem ent Litigat ion , 414 F.3d 7, 10 ( D.C. Cir. 2005). “Manda mus is a drastic [remedy], t o be invoked only in ext raor dinary

situations.” Allied Chemical Corp. v. Daiflon, Inc

. , 449 U.S. 33, 34 (1980). The ref ore, Stanton “ha s the burden of showing that [hi s] right to issuance of the writ is clea

r and indisputable.” Power v. Barnhart , 292 F.3d 781, 784 ( D.C. Cir. 2002) (citations and inter nal quotations marks omitted).

B. Claim s Raised in S tanton’s OSC com plain ts 1. Discrimination based on c onduct that does not adve rsely aff ect pe rfor mance : reta liation for re fusing to join the union. Stanton alleg es that GPO terminate d him because he re fused to join the union. Stanton alleg es that he w as ostrac ized and “openly despised” by

his co-wor

kers be cause he wa s the only non-union member. ( Doc. 18, Pl.’s SJ Br . at 1.) He also alleg es that at the time of his termination his supervisor re minded Stanton that he was “ not a member of the union.” ( Doc. 18, Pl.’s SJ Br . at 2.) Ac cordingto Stanton, retaliation for non-union status violates 28 U.S.C. § 2302(b)( 10) which pr ohibits “discrimint[ ing] for or ag ainst any

employ ee or

applicant f

or employ ment on the basis of c onduct which doe s not adverse ly aff ect the pe rfor

mance of the employ ee or

applicant or

the per formanc e of othe rs.” 5 U.S.C. § 2302(b)( 10)

Pag e 5 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH In response to this allegation, the OSC relied on sever al Merit Sy stems Protection Boa rd

case s and explained that the cited PPP, S ection 2302(b) (10), ha s been inter prete d to protect employ ees a g ainst repr isals for non-job re lated, off -duty conduct. ( Doc. 18- 4, J an. 13, 2010 PreDeter mination letter at 1.) The OSC further e x plained that eve n if the cited PPP did applyto onduty conduct, the O SC di d not believe the r easons g iven for Stanton’s ter mination were a pre -text for his non-union member ship and, if they wer e pre text ual Stanton could pursue his cla ims with the National L abor Relations Boar d. (Doc . 18-6, Oc tober 22, 2010 Pre- deter mination letter at 3; Doc. 18- 5, Marc h 9, 2010 Final De termination letter at 1.) Stanton raises four

challeng es to the OSC’s dismiss al of this claim, as we ll as his other claims. First, he challeng es the OSC’s fa ilure to assume the truth of the alleg ations raised in his complaint, but the law does not re quire the O SC t o do so. See 5 U.S.C. § 1214. Next he asserts the OSC failed to e x erc ise its authority to undertake an investig ation into his claims. This argument fails bec ause the re is nothing in the rec ord which sug g ests that the OSC failed to investigate Stanton claims “to the extent nece ssary to determine whether

there are

rea sonable g rounds to believe that a prohibited per sonnel prac tice” oc curr ed. 5 U.S.C. § 1214(a)

. In undertaking this oblig ation, “[i] t is for the OSC to determine, in the fir st instance, whe ther a prohibited personne l prac tice has oc curr ed . . . .” Cutts v. Fowler , 692 F.2d 138, 140 ( D.C. Cir. 1982) (c iting W

ren v. M erit Systems Protec tion Board , 681 F.2d 867 ( D.C. Cir.1982)). Onc e such a de termination is made, judicial re view is “limited, at most, to ins uring[t here was] compliance with the statutory require ment that the OSC perfor m an ade quate inquiry .” Carducci v. Re gan, 714 F.2d 171, 175 ( D.C. Cir. 1983) (citation and inter nal quotation marks omitted). Pag e 6 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH The leg islative history

of the OSC implementing statute sug g ests that such an inquiry involves a duty to “investig ate or

to scree n to some deg ree employ ee c omplaints which alleg e prohibited personne l prac tices.” See W ren , 681 F.2d at 876 n. 9 (citation to leg islative history omitted) (empha sis added). Stanton points to nothing which mig ht indicate the OSC failed to mee t this duty

. Stanton nex t challeng es the OSC’s re sponses bec ause, in his opinion, they did not sufficie ntly

state the leg al re asoningor the fa ctual deta ils underly ing its conc lusions consistent with 5 U.S.C. S ection 1214 (a )(2) (A). This argument fails bec ause the OSC did provide the 3 leg al basis for its conc lusion about his non-union retaliation claim. Additionally , inasmuch as the OSC determined the f acts a lleg ed by

Stanton did not s upport a violation of the PPP in question, there is no e vidence the OSC “asce rtained” any fac ts and, there fore , it is unclear how any duty to report “ asce rtained” fac ts could have be en trig g ere d. See 5 U.S.C. § 1214 (a)(2) (A). Finally , Stanton challeng es the leg al conc lusions reac hed by the OSC in int erpr eting the applicable PPP . Be cause judicial revie w is limi ted to deter mining whe ther the O SC m et its duty to investigate the alleg ed PPP, t he instant Court cannot unde rtake a substantive or me rits based revie w of OSC conduct. See B orrel v. United States Int'l Communications Agency , 682 F.2d 981, 988 (D.C. Cir. 1982); W ren v. M erit Systems Protec tion Board , 681 F.2d 867, 875 & n. 9 (D.C. Cir.1982); Carson v. United Sates Office of Spec ial Counsel, No. Civ.A. 04-0315 PL F,

“I f the Spec ial Counsel terminates any investigation under par ag raph ( 1), the Spec ial 3 Counsel shall prepar e . . . a written statement notifying the [complainant] of-- a summary of rele vant fa cts asce rtained by the Special Counsel, includingthe fa cts that support, and the f acts that do not support, the alleg ations of such pe rson; [and] the re asons for te rminating the investigation.” 5 U.S.C. § 1214 (a)(2) (A). Pag e 7 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH 2006 WL785292, * 5 (D.D.C. Mar ch 27, 2006). Acc ording ly , Stanton has not established any “cle ar r ight to re lief” or

a “c lear duty to act” by the Def endant be y ond what has a lrea dy occur red. See M

edicareReimbursem ent Litigat ion , 414 F.3d at 10. Additionally , inasmuch as Stanton had r ights to pursue his non-union member related claims with the NL RB, he f ails to meet the third eleme nt of the mandamus require ment: absenc e of a

nother a dequate reme dy

. See id. As such, no re lief is available in this C ourt for Stanton’s complaint about his alleg ed re taliatory discharg e. 4

Stanton also cited to his non-union status in support of the merit sy stems principals 4 violation claim he adde d to his original OSC complaint. ( See Def .’s SOF # 4- 5, 7-8, 12.) This claim, which the O SC considered whe n it re-ope ned his ca se, involves an a lleg ed violation of 5 U.S.C. § 7102 which prohibits reprisals ag ainst employ ees f or joining or

ref using to join a labor union. Accor ding to Stanton, any such re prisals violate the followingPPP found in 5 U.S.C. § 2302(b)( 12) which pr ohibits federa l officials fr om: “ tak[ing] or fail[ing] to take any other personne l action if the takingof or f ailure to take such ac tion violates any law, rule , or re g ulation implementing, or

direc tly conce rning , the merit sy stem principles conta ined in section 2301 of this ti tle.” 5 U.S.C. § 2302 (b)(12) . Section 2301 provides, inter alia , that: (1) employ ees should be tre ated e quitably

with reg ard to ra ce, a g e, priva cy and constitutional rig hts; (2) employ ees should be reta ined base d on the ade quacy of their pe rfor

mance and allowe d an opportunity corr ect pe rfor

mance defic iencies; a

nd (3) e mploy ees should be pr otected a g ainst arbitra ry action or coe rcion for

partisan political purpose s. 5 U.S.C.A. §§ 2301 (b)( 2), (6) , (8). The OSC responde d that Stanton had not provided any evidenc e that his termination was based on his fa ilure to join the union; specifica lly , there was no e vidence that the mention of Stanton’s non-union status at the time of his termination was a ny thing other

than the super

visor’s “mer e re fer ence conce rning[S tanton’s] lega l rig hts.” (Doc . 18-6, Oc t 22, 2010 Preliminary Investig ation letter at 3-4.) F inally , explained the OSC, S tanton failed to provide any evidenc e that his termination violated regulations relatingto termination of probationary employ ees. ( See id . at 4.) For the same r easons Stanton was not e ntitled to mandamus relief f or his first claim related to his non-union claim, Stanton is l ikewise not entitled to mandamus re lief with respe ct to this additional claim. Pag e 8 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH 2. Ag e and Ra ce D iscrimination Claims Next, S tanton claims his termination violated the 5 U.S.C. § 2302(b)(1) , which prohibits, inter alia , discrimination based on ra ce a nd ag e. I n its first pre-de termination letter, the O SC cited its defe rra l policy

as the ba sis for dec lining to pursue his c laim: Since proce dures for investigating disc ri m i n ati on complaints have alre ady been established in the ag encie s and the Equal Employ ment Opportunity Commi ssion, the Special Counsel w ill norma lly avoid duplicating those proce dures and will de fer to those proce dures r ather

than initiating an inde pendent investig ation. 5 C.F.R. § 1801.1 (cited in Doc . 18-4, Jan. 13, 2010 Pre-deter mination letter at 2). Ac cordingto Stanton, however , he re asonably relied on O SC authority

to investigate discrimination complaints, so he held bac k on contac ting “ the EEOC as he awa ited an OSC response to his repor t, and by the time OSC responded it was too late to e lect an E EOC instead of a n OSC

reme dy .” (D oc. 18-1, Pl.’s SJ Br . at 4.) In a subseque nt letter, the OSC pointed out that the OSC complaint form and OSC website spec ifically

war n those with discrimination alleg ations to contact the a g ency ’s EEO office immediately

beca use the OSC complaint does not relieve ag g rieve d parties of the obligation to file an EEO c omplaint within t he time-limits prescribe d by the EEOC re g ulations. (Doc . 18-6, Oc t. 22, 2010 Pre-dete rmination letter at 2) . Be cause Stanton had adequa te notice of this poli cy

prior to expiration of the EEOC filing deadline, the OSC ex plained, Stanton had provided no fa cts that might justify deviation from the E EO def err al policy . ( See Doc. 18- 5, Marc h 9, 2010 Final De termination letter; Doc . 23-1, F eb 2, 2011, F inal Deter mination ltr at 1.) 5 Although the rec ord does not appe ar to c ontain a copy of the OSC form, the c urre nt 5 form found on the OSC website contains the followingwar ning: Pag e 9 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH Given this undisputed evidence , Stanton has not established any rig ht to mandamus relief

. He ha s not directed the Court to any authority which pre vents the OSC from exercisingits discretion to def

er some of

its investigative f

unctions to another a g ency , particula rly wher e such a def err al is acc ompanied by

a cle ar w arningto employ ees e x plaining why and how they

need to prese rve the ir rights. I n the abse nce of a “c lear rig ht to relief” and with no “c lear duty to act” on the par t of the OSC, Stanton does not meet he re quirements for a mandamus order.

3. Wil lful obstruction of right to compete for employ ment Stanton alleg es that his termination violated 5 U.S.C. § 2302(b)(4) which re stricts ag ency

Be fore filling out this Offic e of Special Counsel (OSC) form, please rea d the following information ab out: (1) the require d complaint format; (2) the scope of OSC’s jurisdiction; and (3) cer tain OSC poli cies. . . . . Def err al of Certain Complaints Involving Discrimination. Although OSC is authorized to i n v es t i g ate discrimination based upon rac e, color, relig ion, sex, national orig in, ag e, or handica pping condition, as well as repr isal for filing an EEO complaint, OSC g ener ally defe rs such alleg ations to a g ency proce dures e stablished under regulations issued by the Equal E m p loy ment Opportunity Commi ssion (EEOC). 5 C.F.R. § 1810.1. I f y ou wish to repor t alleg ations of discrimination based upon rac e, color, relig ion, sex, nat i onal orig in, ag e, or handica pping condition, or repr isal for filingan EEO c omplaint, y ou should contact y our ag ency ’s EEO of fice immediately

. There are specific time li m i t s for filing such complaints. Filing a complaint with OSC will not relieve y ou of the obligation to file a complaint with the ag ency ’s EEO office within the time presc ribed by EEOC regulations ( at 29 C.F.R. Part 1614). Note: This defe rra l policy does not apply

to discrimination claims outside the jurisdiction of the EEOC, such a s complaints alleg ing disc rimination based upon marital status or political af filiation. United States Off

ice of Special Counsel Complaint Form (OSC-11): http:// www.osc .g ov/documents/forms/osc11.pdf ( emphasis adde d). Pag e 10 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH employ ees f

rom “de ceiv[ing] or willfully obstruct[ing] any

person with re spect to such pe rson’s rig ht to compete for

employ ment.” The OSC determined that this provision did not apply to Stanton because he wa s not applying or competingfor a

nother position. (Doc. 18- 4, October 22, 2010, Pre-de termination ltr. at 2.) Additionally , the OSC pointed out that manag ers have “maximum discretion to re tain or re move” pr obationary employ ees a

nd the manag er’ s cited

rea son for Stanton’s termination did not violate any civil service regulations. See 5 C.F. R. §§ 315.803, 804 (cited in Doc . 18-4, Jan. 13, 2010 Pre-deter mination ltr. at 2.) As with his non-union status retaliation claim, her e Stanton challeng es the OSC’s leg al conclusions. As discussed a bove, the instant Court does not have authority to reviewthose leg al conclusions; thus he is not entitled to mandamus relief.

4. Consideration of stateme nts not based on per sonal knowledg e Finally , in his second OSC complaint (MA-11-2271) , Stanton claimed that his termination violated 5 U.S.C. § 2302(b)(2) , which prohibits ag ency officia ls from “solicit[i ng ] or consider[ing ] any

rec ommendation or statement, or al or wr itten, with respec t to any individual who re quests or is under c onsideration for any personne l action unless such re commendation or statement is based on the persona l knowledg e or r ecor ds of the per son furnishing it . . . .” Acc ordingto Stanton, his supervisor a dmitted violating this provision during a worke rs compensation hearingat which he testified that he r elied on fa ctors other than per sonal knowledg e in makingthe termination dec ision. ( SeeDocs. 25 - 28, Stanton Af fidavits; Doc. 28- 1, J uly 15, 2011 Pre De termination letter at 1; Doc. 25-2, He aringTransc ript at 21-23.) Pag e 11 of 12SUMMARY MEMORANDUM OPI NI ON; DO NO T PUBL I SH In response , the OSC ex plained that the F eder al Circuit has interpr eted the c ited PPP , Section 2302(b)( 2), as pr ohibiting political or par tisan influence from outsiders, like Membe rs of Congr ess, in the context of personne l decisions. (Doc . 28-1, Jul y 15, 2011 Pre De termination letter at 2.) Moreove r, ac cordingto the OSC, in t he abse nce of outside politi cal or

partisan influence , prec edent ha s established that a de ciding officia l who relies on he arsa y statements does not violate the c ited provision when takingpersonne l actions. See Fike v . I.R.S. , 10 M.S.P .R. 113, 117 (1982) (c ited in Doc. 28-1, July 15, 2011 Pre De termination letter a t 2). As an initial matter, this issue is not technically befor e the instant Court bec ause it wa s not raised in Stanton’s complaint. Rather, Stanton included this cla im in his curr ently pending Motion to Amend his complaint. (Doc. 19.) Inasmuch a s Stanton is not entitled to mandaums relief simply beca use he disagree s with the OSC’s cited leg al authority , his moti on to amend will be denie d.

IV. CONCLUSION For the re asons set for

th above, e ven viewingthe fa cts in the light most favor able to Stanton, he is not entitl ed to mandamus re lief. Ac cording ly , by separ ate or der, D efe ndant’s motion will be g rante d, Stanton’s motions will denied and this ac tion will be dism issed, with prejudice

SO ORDERED. Fe bruar y 6, 2012

___________________________ Robert L . Wil kins United States District J udg e Pag e 12 of 12