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Cousin v. United States

United States District Court, E.D. Virginia, Alexandria Division

January 27, 2017

MICHAEL COUSIN, Plaintiff
v.
UNITED STATES OF AMERICA, et al. Defendants.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge

         I. BACKGROUND

         On April 4, 2016, Michael Cousin filed this employment discrimination action against the United States of America, the United States Department of Homeland Security, the Secretary of Homeland Security, [1] and other individual defendants in response to his removal from the federal service after being designated unfit for duty. Compl. [Dkt. No. 1]. Defendants have filed a Motion for Summary Judgment [Dkt. No. 51] to which plaintiff has responded. For the reasons that follow, the motion will be granted.

         II. PROCEDURAL HISTORY

         Plaintiff was formally removed from his position as a Customs and Border Patrol Officer ("CBPO") and from federal service effective December 15, 2012. Removal Letter, Def. Ex. P [Dkt. No. 51-16] at 1. He appealed the Customs and Border Patrol Agency's ("CBP" or 'the Agency") termination decision to the Merits Systems Protection Board ("MSPB"). An administrative judge conducted an evidentiary hearing regarding plaintiffs MSPB appeal on June 19, 2013, at which plaintiff was represented by counsel. After hearing the evidence presented, the administrative judge issued an initial decision affirming the removal. MSPB Order, [Dkt. No. 20-2] ¶ 5. The MSPB affirmed the decision of the administrative judge, id ¶ 1, and plaintiff then filed a petition with the Equal Opportunities Employment Commission ("EEOC"), seeking review of the Final Order of the MSPB as it pertained to his discrimination claim. EEOC Decision, [Dkt No. 20-3]. After briefly summarizing the facts, the EEOC affirmed that 'the MSPB's decision in the instant matter constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole." Id. at 3.

         Plaintiff timely filed his appeal of that decision in this court seeking de novo review. [Dkt. No. 1]. Plaintiffs complaint initially alleged claims against the Department of Homeland Security under the Rehabilitation Act as well as raising tort claims against the individual defendants. Id. With the exception of the Secretary of Homeland Security, all the individual defendants have been dismissed from this lawsuit, and the only remaining claim is the one arising under the Rehabilitation Act. Pending before the Court is the defendants' Motion for Summary Judgment. [Dkt. No. 51]. Plaintiff belatedly filed a response, [Dkt. No. 63], and appeared for oral argument. Although plaintiff objects to the defendants' characterization of the facts, he has not submitted evidence that creates a dispute of material fact sufficient to defeat summary judgment;[2] therefore, in reviewing this motion, the Court relies upon the adrninistrative record as introduced by the defendants.

         III. FACTUAL BACKGROUND

         It is undisputed that Cousin was an employee of the Agency for sixteen years (from July 1996 to December 2012) and most recently worked as a CBPO. Uncontest. Facts [Dkt. No. 52] ¶ 1. Cousin transferred to the Reston, Virginia site in 2007 after previously serving in the same role in St. Thomas, U.S. Virgin Islands. PI. Opp. at ¶ 4(b). In Reston, plaintiff was employed as a "targeter" at the Agency's National Targeting Center where his job entailed "[managing] and [coordinating] identification of potential terrorists and instruments of terror and [performing] layered enforcement activities relative to counter-terrorism." Uncontest. Facts [Dkt. No. 52] ¶ 1. This position was classified as a GS-13 and required plaintiff to maintain a top secret security clearance, satisfy medical standards, and carry a service weapon. PI. Opp. at ¶ 4(b); Uncontest. Facts [Dkt. No. 52] ¶l.

         Plaintiff alleges and defendants do not dispute that on Wednesday, January 18, 2012, he was approached by the acting watch commander, Chris Smith, who asked plaintiff how he was doing. PI. Opp. ¶ 4(b). Although the exact words used are somewhat in dispute, it is uncontested that plaintiff referenced suicide. Plaintiff asserts that he responded. "I would have been better off if I contemplated suicide, rather than contemplating a transfer to here." Id.; Cousin Tr. 24:3-6, Def. Ex. Q [Dkt. No. 51-17] ("I said I would have been better off if I had contemplated suicide rather than transferring in to this place with a smile and a joke."). The plaintiff contends that his comment was humorous, PI. Opp. at 5, but Smith-who had taken multiple suicide awareness trainings over the course of his career-did not interpret it as a joke. Uncontest. Facts [Dkt. No. 52] ¶ 2; Smith Tr., Def. Ex. B [Dkt. No. 51 -2] at 31:11 -22.[3]

         After Smith asked Cousin follow-up questions and heard his statements about his personal and professional frustrations, the chief watch commander, Smith, and another watch commander invited Cousin into a conference room to discuss his comment in private. Smith Tr., Def. Ex. B [Dkt. No. 51-2] at 12:8-12; 14:10-19. After the conversation, the chief watch commander set up a telephone call between plaintiff and the Employee Assistance Program (EAP). Then, Smith and two other officers-Wade Smith and Georgiana Raimos-followed plaintiff to his residence to retrieve his service weapon. Id. at 15:1-16:2; Id. at 23:5-7. As a result of the January 18, 2012 incident, Cousin was placed on light duty, his Top Secret security clearance was suspended, and he was not permitted to carry a firearm. Feb, 24, 2012 Letter, Def. Ex. D [Dkt. No. 51-4].

         Plaintiff does not dispute that at the time of the incident he had been working "all hours available, " so much so that as of the day of the incident, he was too high on the overtime list to take additional overtime hours. Cousin Tr., Def. Ex. C [Dkt. No. 51-3] at 11:16-22. His family, which included his wife, two step-children and one biological child, were living in Medellin, Columbia, his wife's home country. Id. at 12:3-14. His wife's distance and his attempts to adopt the two-step children and arrange for the family to be reunited in the United States were significant sources of stress at the time. Seth Evaluation, Def. Ex. N [Dkt. No. 51-14].

         On February 2, 2012, the Agency instructed plaintiff to report for a fitness for duty examination, which the plaintiff underwent on February 10, 2012. Feb, 24, 2012 Letter, Def. Ex. D [Dkt. No. 51-4]. Following that initial examination, the Agency "determined that consultation with a psychiatrist [was] required" and instructed plaintiff to report to Richard Blanks, M.D., for a psychiatric examination. Id.

         Fitness for duty examinations for Agency employees were conducted by private physicians. The Department of Homeland Security contracted with Comprehensive Health Services ("CHS"), which scheduled examinations, administered the paperwork, and provided a medical recommendation for fitness for duty evaluations to the Agency. David Shaler Aff., Def. Ex. E [Dkt. No. 51-5]. Under the contract, CHS "was required to ensure that examining physicians held current board certifications that were valid in the United States" and "[p]hysicians performing psychiatric consultation services were required to be certified by the American Board of Psychiatry and Neurology." Id. ¶¶ 13-14. The two mental health professionals who evaluated plaintiff for the defendants, Drs. Blanks and Prunier, were certified when they performed their evaluations. [Dkt. No. 50].[4]

         Dr. Blanks, a board certified forensic psychiatrist practicing at George Washington University Hospital, Blanks Tr., Def. Ex. G [Dkt. No. 51-7] at 76:8-12, interviewed plaintiff on March 5, 2012, for 1.5 hours. According to Dr. Blanks' description of the interview, plaintiff

reported many times that he "hates" his job. In particular, he stated that it is a "mindless and mind-numbing" position, and despite his efforts, he cannot get transferred out of the current position. He feels mat there are no "growth opportunities" in his job, he has tremendous "disdain" for his job, and he "committed suicide once by transferring into this job." ... He stated that management at his job is "corrupt" and they treat him and others in a very unfair manner. He reportedly cannot get a transfer due to their "corruption."

Blanks Report, Def. Ex. F [Dkt. No. 51-6] at 5.

         As to psychiatric history, plaintiff denied a history of mental health treatment but reported that he had twice sought help from the EAP. Id. at 6. "The first time, which was in late 2009 or early 2010, he sought it out because he 'hated' his job and he was very frustrated with his work. He reported that around that time, he intentionally was saying 'stupid' things at work in hopes of generating a 'stupid' reaction. For example, he reportedly told his managers that 'now is not a good time for me to have a weapon' just to arouse attention." Id. The second time was in November 2011. Id. "He stated that 'through my hate of my job and my distemper, I thought I developed an eating disorder.' He reported that he has gained over thirty pounds since August 2011 to the present time, " despite undergoing a bariatric sleeve procedure for obesity in February 2010. Id.

         With respect to current symptoms and activities of daily living, plaintiff reported to Dr. Blanks that he worked every day and, when not at work, sat around his house. Id. at 7.

In terms of his current symptoms, he reported poor sleep, increased appetite (with a thirty pound weight gain in the past six months), decreased energy, poor concentration and a loss of interest in activities that he used to find pleasurable. He described his mood as "sad" most of the timeMost concerning, he reported that he has "thoughts" that "life would be better without me." Although he indicated that he would never act on such thoughts of hurting himself, he did say several times that he is "not afraid to die."
He indicated that "I wish I drank more." When I asked him to explain that remark, he indicated that he thought that the excessive consumption of alcohol might stabilize his mood. He reported that he is not a social person and could not name any non-work friends (and even these individuals are colleagues and not friends). He has become more isolated and withdrawn, and wishes to be reunited with his family, although he cannot imagine a scenario where that will ever happen.

Id.

         In his assessment of plaintiff s mental status at the time of the interview, Dr. Blanks observed,

He was pleasant and cooperative Early in the interview, he asked if it would be OK for him to joke around with me. I explained that unnecessary joking around in this context would not be helpful, but he did so several times during the interview. He described his mood as "pretty good" and his affect was appropriate to the context. He denied any suicidal or homicidal thoughts, as well as any auditory or visual hallucinations His judgment and insight are poor.

Id.

         Dr. Blanks concluded that plaintiffs statements about self-harm, which plaintiff claimed were made to get a response out of his colleagues, "appear to be a manifestation of several different variables at once: 1) untreated depression, 2) inappropriate interpersonal skills (which include inappropriate jokes in a work context), 3) longstanding job frustration, and 4) frustration over being separated from his wife and children." Id. at 7-8. According to Dr. Blanks, because it was very difficult to tell which of these variables is the primary motivator for any particular statement, "such statements must be taken seriously and at face value." Id. at 8.

         In conjunction with his interview with Dr. Blanks, plaintiff completed a Minnesota Multiphasic Personality Inventory-2 (MMPI-2) questionnaire, which consisted of 567 questions that were blindly graded by Dr. Richard Frederick, a psychologist and nationally recognized expert in MMPI-2 assessment, Prunier Tr., Def. Ex. O [Dkt. No. 51-15] at 462:17-463:4. Dr. Frederick's report, which was quoted at length by Dr. Blanks, established that the test was a "valid assessment, " as plaintiffs responses were "consistent and reliable." Id., at 3. In the category of emotional control, plaintiff "appear[ed] to be significantly depressed, but he feels victimized and blames others, perhaps his workplace, for inducing the depressed feelings-----He is reporting much agitation-much anxiety, inability to concentrate or focus, constant rumination about failing." Id. As to behavioral control, Dr. Frederick wrote that plaintiff "does not appear particularly impulsive currently, and, although he had ample opportunity to endorse items related to suicidaliry, he did not." Id. With respect to mental control, "He is reporting a great deal of trouble with focus and concentration, but this seems related to tension and a constant seething of anger." Id. at 4. In summary, Fredericks concluded, "This individual is dejected and bitter----- He is seemingly incapable of dealing with anger, he turns it inward, and he has developed some significant dejection and depression." Id.

         Based on his review of the available documents, including "the objective findings of the MMPI-2, " and his 1.5 hour interview with plaintiff, Dr. Blanks concluded that plaintiff met the criteria for Major Depressive Disorder according to the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR" or "DSM"). Id. at 8. As Dr. Blanks explained,

The DSM requires that five (or more) of the following symptoms have been present during the same two week period and at least one of the symptoms is either a depressed mood or loss of interest or pleasure in activities: 1) depressed mood most of the day, nearly every day; 2) markedly diminished interest or pleasure in most activities most of the day; 3) significant changes in appetite resulting in significant weight gain or weight loss; 4) sleeping too much or too little nearly every day; 5) psychomotor agitation or retardation; 6) fatigue or loss of energy nearly every day; 7) feelings of worthlessness or excessive or inappropriate guilt nearly every day; 8) diminished ability to think or concentrate nearly every day; or 9) recurrent thoughts of death, recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide."

Id. Dr. Blanks' evaluation indicated that plaintiff exhibited eight of the nine symptoms, in that plaintiff was

[1] "sad" most of the time, [2] has lost interest in most activities, [3] has gained thirty pounds in the past six months, [4] has poor sleep, [6] has decreased energy, [7] has expressed feelings of worthlessness, [8] has poor concentration, [9] and has had recurrent thoughts of death and/or suicidal ideation (but ...

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