United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
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,  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.
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.
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; therefore, in reviewing this motion, the
Court relies upon the adrninistrative record as introduced by
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.
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.
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].
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].
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
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].
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
Blanks Report, Def. Ex. F [Dkt. No. 51-6] at 5.
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.
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
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.
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.
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.
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.
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
Id. Dr. Blanks' evaluation indicated that
plaintiff exhibited eight of the nine symptoms, in that
 "sad" most of the time,  has lost interest
in most activities,  has gained thirty pounds in the past
six months,  has poor sleep,  has decreased energy, 
has expressed feelings of worthlessness,  has poor
concentration,  and has had recurrent thoughts of death
and/or suicidal ideation (but ...