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May 11, 1993

HENRY L. MURRAY, Plaintiff,

The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 Plaintiff Henry L. Murray, a former Special Agent of the Federal Bureau of Investigation ("FBI" or "Bureau"), alleges that the FBI terminated his employment on the basis of race in violation of 42 U.S.C. § 1983 and "other sections of the United States Code and Constitution" Plaintiff also seeks judicial review, pursuant to 5 U.S.C. § 7703, of the decision by the Merit Systems Protection Board ("MSPB" or "Board") affirming his dismissal. *fn1" Defendants have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or alternatively, for summary judgment pursuant to Rule 56. For the reasons provided below, defendants' motion for summary judgment is hereby granted and this action dismissed in its entirety.


 Plaintiff Henry L. Murray, a black male, was employed for twelve years by the FBI as a Special Agent assigned to the New York Field Office. *fn2" On August 3, 1990, following an extensive administrative investigation, the FBI removed Murray from its rolls on the grounds that his conduct was "totally unacceptable and incompatible with the standards expected of all employees." (A.R. 63) This determination arose out of an off-duty incident in which Murray vandalized an automobile parked in his leased spot and verbally abused a crowd of onlookers; although Murray initially denied under oath that he had engaged in this conduct, he confessed to the incident the following day. Plaintiff appealed his dismissal to the MSPB, and on December 14, 1990 the Board affirmed the FBI's decision to terminate plaintiff's employment. During the administrative investigation and course of the MSPB proceeding, plaintiff conceded the facts recounted below. He contends, however, that the sanction imposed upon him was disproportionate and discriminatory.

 I. The Administrative Investigation

 The FBI investigation of Special Agent Murray, which culminated in his August 1990 discharge, commenced as a result of an anonymous letter forwarded to FBI Headquarters on October 23, 1989 by the Assistant Director in Charge "ADIC") of the FBI's New York Office. This letter -- addressed to Director Sessions, the ADIC-New York, two United States Senators, and a United States Congressman -- complained of an incident in which Murray had smashed the windows of a vehicle parked in his leased parking space and, when confronted, threatened several observers with physical violence. (A.R. 254-55) *fn3" The author identified herself as someone who had a parking space near to Murray's.

 The FBI, pursuant to its normal practice and procedure, began an administrative investigation of these charges upon receipt of this letter. (A.R. 226-28, 259) FBI Special Agents conducted interviews of the witnesses to the October 9, 1989 events. (A.R. 237-41) They also interviewed Murray several times and eventually had him sign two sworn statements which are discussed in detail below. (A.R. 248, 252)

 The administrative investigation revealed that plaintiff indeed had been involved in an incident concerning his parking space. On October 9, 1989 Murray returned from work to his apartment complex in Forest Hills, New York, used his car to run a brief errand, and again returned to his building, this time to find an automobile improperly parked in his leased space. When faced with this same problem on prior occasions, plaintiff experienced difficulty in getting the violating vehicles removed and had his car stolen and ticketed as a result of having to park on the street. (A.R. 233; Tr. 111-12) On this particular occasion, plaintiff reacted to his frustration by taking a hammer and smashing the car's windshield and side window. (Sworn Statement of Henry L. Murray, dated November 9, 1989, at A.R. 220, 221) When the hammer slipped from his hand into the car, Murray used his feet to kick in the second side window. (A.R. 221) He then approached the building's doorman and told him to find the car's owner or Murray would "tear the f***ing thing up." (A.R. 221)

 When Murray returned to the vandalized vehicle, which was then surrounded by a crowd of people, he began shouting abusive remarks and threats. Two of the observers, who later turned out to be the car owner's son and grandson, approached plaintiff and one of the men screamed at him; plaintiff responded by urging that man to back off or Murray would "bash [his] f***king head in." (A.R. 221) The misparked vehicle was subsequently moved, and plaintiff parked his car in his space. (A.R. 222)

 The owner of the vandalized automobile, Barbara S. Brodie, flied a report regarding this incident with the New York City Police Department on October 9, 1989. (Stipulation P 3 at A.R. 1565) The owner's grandson filed a second police report on the same date, alleging that his father had been verbally threatened and harassed by plaintiff. (A.R. 1565) The police department subsequently closed these complaints without further investigation. (A.R. 248) No criminal charges were ever brought against plaintiff based on this incident.

 The FBI received the aforementioned anonymous letter in late October of 1989. On November 6, 1989, during an initial interview with agents conducting the administrative investigation referred to above, Murray acknowledged using threatening language when he saw a "mob" surrounding his parking space, but he denied that he had broken any automobile windows. (A.R. 231) The agents who interviewed him noted discrepancies between his account of the incident and the other witnesses' accounts, including that of a building security guard (A.R. 241); these discrepancies led the investigating agents to stress to Murray the importance of being candid. (A.R. 231, 238) The material gathered during this interview, conducted without attorneys present, was then used to prepare a sworn statement. (A.R. 233-36) On November 7, 1989 Murray reviewed the statement and made minor corrections to it but did not change the substance of his remarks; he then signed the statement which included the assertion, under oath, that he was not responsible for breaking the windows of the vehicle. (A.R. 235, 236) *fn4"

 The day after signing this sworn statement, plaintiff notified his supervisor and the investigating agents that he wished to make some changes in the statement. He thereafter executed a second sworn statement in which he admitted that he had smashed the car windows, made false statements to the police, and lied under oath. (A.R. 220; Stipulation PP 5, 6 at A.R. 1566) More specifically, he explained as follows:

I have asked to change my statement because I'm not just an outright liar. Since giving my statement I have had time to think about the incident. Everything I said in my first statement was correct except the fact that I denied responsibility for breaking the windows. In a way I think I am not totally responsible because the owner of the vehicle knew that they should not have parked in my leased space.
When I was first called into the Office to be interviewed for my statement, I was suddenly faced with the possibility of losing my job or perhaps losing my chance for an OP transfer. After twelve (12) years of serviced the loss of either of these heavily impacted on me. I now know I was wrong in my actions and have apologized for it.
I would also like to state that an interview I did yesterday (November 8, 1989) impacted upon by my conduct. I interviewed a young subject of an ITSP case. During this interview I knew that this individual was lying to me. At that time the realization that my conduct was not much better than this individual's hit me. It was at that point that I decided I needed to change my original statement.

 (A.R. 223) Plaintiff also advised that while he had not paid for any of the damage he had caused, "he was prepared to pay for the damage if required." (A.R. 222; Stipulation P 7 at A.R. 1566)

 On March 1, 1990 the FBI advised Murray by letter that it was considering his dismissal from the rolls of the Bureau based on five charges: (1) destruction of private property and unprofessional personal conduct in violation of FBI regulations, (2) lack of candor during an administrative inquiry; (3) failure to report contact with police in violation of FBI regulations; (4) acting in an unprofessional manner to police; and (5) failure to recognize the illegality of his actions and lack of remorse. (A.R. 18-21) Plaintiff, through counsel, responded to this letter by asserting that his conduct "though clearly improper, must be understood in light of a number of mitigating facts." (A.R. 115-30) He suggested that the appropriate punishment in his case "should be censure, probation, or at most a brief period of suspension." (A.R. 116)

 After considering the evidenced discussed above, James W. Greenleaf, FBI Associate Deputy Director of Administration, decided that the five charges against plaintiff had been substantiated by a preponderance of the evidence and ordered plaintiff's dismissal. By letter dated July 25, 1990, plaintiff was informed of his removal from the rolls of the FBI. (A.R. 16, 73) That letter stated:

There is never any justifiable reason for failing to be candid and forthright during an administrative inquiry. The fact that you came forward on your own accord a few days after the signed, sworn statement was executed and admitted to breaking the windows does not minimize the seriousness of your lack of candor. Your failure to be candid from the onset of the inquiry seriously diminishes your credibility as a Special Agent.
In reviewing your misconduct as it relates to the belief that you were justified in doing what you did, I have determined that prior to your April 27, 1990 letter, you never indicated any contrition for your actions in destroying the windows and have consistently held the belief that you were justified in your behavior toward the victims. The fact that you only indicated a willingness to offer restitution to these victims after being advised of your proposed dismissal from the rolls of the FBI indicates a mind-set that is incongruous with the standards demanded of Special Agents of the FBI.
Restitution in this matter is a moral responsibility that you have shirked for over eight months. I find it distressing that you appear to treat this obligation as a penalty that you must pay in order to retain your job.

 (A.R. 16-17) On August 3, 1990 plaintiff was removed from the rolls of FBI Special Agents for "conduct which is totally unacceptable and incompatible with the standards expected of all employees." (A.R. 63)

 II. The MSPB Proceeding

 On August 15, 1990 Murray appealed his dismissal to the MSPB, alleging that the punishment imposed upon him exceeded that imposed upon white and other non-black employees. (A.R. 11, 13) During the MSPB proceeding, in which plaintiff was represented by counsel, the parties agreed on and even stipulated to many facts, including those underlying the October 9, 1989 incident and during the resulting FBI administrative investigation. (Stipulation at A.R. 1565) The ...

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