as not having contained the typographical error, it finds plaintiff's motion to amend appropriately granted. Furthermore, the motion is granted without prejudice since plaintiff pursued his rights in a timely manner and therefore should not be penalized for an inadvertent error in pleading that has not prejudiced defendants.
In sum, defendants' Rule 12(c) motion is denied insofar as it seeks to dismiss the employment discrimination claims altogether. Instead, this court dismisses with prejudice plaintiff's claims under 42 U.S.C § 1983 and "other sections of the United States Code and Constitution" and grants plaintiff's motion to amend to state a cause of action for federal employment discrimination. The remainder of this opinion discusses defendants' motion for summary judgment on the discrimination claims and the MSPB appeal.
II. Motion for Summary Judgment
A. Discrimination in Federal Employment: "Mixed Cases"
Pursuant to the provisions of the Civil Service Reform Act of 1978, 5 U.S.C. §§ 7701 et seq. (the "CSRA"), qualified federal employees may appeal certain adverse employment decisions to the Merit Systems Protection Board. If a case is a "mixed case," in other words involves an appeal from an ordinary personnel action coupled with an allegation that the action was discriminatory, the CSRA sets forth special procedures for review by a federal court. 5 U.S.C. § 7702.
The MSPB is required to decide both the issue of discrimination and the merits of the action on appeal within 120 days of the date the appeal is filed. 5 U.S.C. § 7702(a)(1). The Board must sustain an Agency's decision in a "mixed case" if that decision is supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(2); 5 C.F.R. § 1201.56.
A petition for judicial review of an adverse MSPB decision in a "mixed case" must be filed within 30 days of receiving notice of the Board's decision unless the individual asks the Equal Employment Opportunity Commission to review the discrimination issue. 5 U.S.C. §§ 7703(b)(2), 7702(a)(3). While petitions for judicial review of MSPB actions are ordinarily filed in the Court of Appeals for the Federal Circuit and reviewed on the administrative record, 5 U.S.C. § 7703(b)(1), 7701(c)(1)-(3), in a "mixed case" judicial review of the final Board order lies in the district court. 5 U.S.C. § 7703(b)(2). The court must review the discrimination claim de novo, 5 U.S.C. § 7703(c), and the non-discrimination claim on the administrative record. Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 979 (D.C. Cir. 1988); Romain v. Shear, 799 F.2d 1416, 1421 (9th Cir. 1986), cert. denied, 481 U.S. 1050, 95 L. Ed. 2d 840, 107 S. Ct. 2183 (1987); Fineman v. United States Postal Service, 555 F. Supp. 1336, 1341 (S.D.N.Y. 1983). Bearing these principles in mind, this court turns first to plaintiff's discrimination claims and then to his appeal of the MSPB determination.
B. Employment Discrimination and Title VII
The well-known pattern of proof for employment discrimination claims brought under Title VII was established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The plaintiff-employee first must establish a prima facie case of discrimination. If the plaintiff carries this initial burden, the defendant-employer then must articulate a legitimate nondiscriminatory reason for the employment action. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination. It is worthwhile to note that "to a large extent . . . the strength or weakness of the inference of discrimination created by the employee's prima facie case defines the nature of the employee's rebuttal." Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985).
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. In determining whether to grant a motion for summary judgment, the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the initial burden of establishing the absence of a material issue of fact. Celotex v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986.) However, if the nonmoving party would bear the burden of proof on a claim at trial, the moving party may satisfy its burden by demonstrating an absence of evidence to support an essential element of such a claim. Id. at 325.
To defeat a motion for summary judgment, the nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Furthermore, a court is to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. Meiri, 759 F.2d at 997. Although discrimination claims often require determination of a party's intent normally not a subject for summary judgment the Second Circuit has recognized that "the salutary purposes of summary judgment . . . apply no less to discrimination cases than to commercial or other areas of litigation." Meiri, 759 F.2d at 998; see also Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Bearing these principles in mind, this court now examines Murray's discrimination claims.
1. Prima Facie Case
To state a prima facie case of discrimination, a plaintiff must show that he: (1) was a member of a protected class; (2) was qualified for the position from which was discharged; (3) was discharged; and (4) the discharge occurred in an inference of discrimination. Lopez v. Metropolitan Life Insurance Co., 930 F.2d 157, 161 (2d Cir.), cert. denied, 116 L. Ed. 2d 185, U.S. , 112 S. Ct. 228 (1991); Rosen, 928 F.2d at 532; Meiri, 759 F.2d at 995. Although plaintiff's burden of proof at this initial stage of a discrimination case is far from onerous, Dister v. Continental Group Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) ("The nature of a plaintiff's burden of proof at the prima facie stage is de minimus."), he nevertheless must provide some evidence -- direct or circumstantial -- to survive a motion for summary judgment.
Murray clearly satisfies the first and third requirements of proof, for he is an African American who was discharged from his place of employment. With respect to whether plaintiff was "qualified" for his position as a Special Agent of the FBI, defendants argue that the undisputed facts of this case demonstrate that Murray was not satisfying his "normal work requirements." See Richardson v. Sunmark Industries, Div. of Sun Oil Co., 560 F. Supp. 733, 736 (E.D.N.Y. 1983). More specifically, defendants cite Murray's eruptive and violent behavior on October 9, 1990, his failure to report both the vandalism and his subsequent police contact to his supervisors, and his denial under oath of any misbehavior as inconsistent with the satisfactory performance of the duties required of his position. See Lopez, 930 F.2d at 161. This court agrees that commencing on October 9, 1990 and continuing through November 9, 1990 plaintiff engaged in behavior that was inappropriate given his position as a law enforcement officer; however, it finds that this behavior is more appropriately considered as part of defendants' rebuttal rather than plaintiff's prima facie case. In this regard, reference to the facts and holdings of three cases -- Powell v. Syracuse University, 580 F.2d 1150, 1155 (2d Cir.), cert. denied, 439 U.S. 984, 58 L. Ed. 2d 656, 99 S. Ct. 576 (1978); Ombu v. Children's Television Workshop, 516 F. Supp. 1055, 1058 (S.D.N.Y. 1981); and Richardson, 560 F. Supp. at 733 -- is illustrative.
In Powell v. Syracuse University, 580 F.2d at 1150, plaintiff, formerly a visiting assistant professor of Architecture at Syracuse University, brought a Title VII action alleging that the University had refused to renew her contract of employment based on her race, color, and sex. Defendant countered by asserting that its employment decision rested on its faculty committee's evaluation of plaintiff's students' work, plaintiff's Master thesis, and plaintiff's educational experience. Id. at 1152. The district court found that plaintiff failed to establish a prima facie case of discrimination for two reasons: she failed to demonstrate that she was "qualified"; and she failed to show that other individuals possessing the same qualifications were hired in her stead. Id. at 1155. Although the Second Circuit affirmed the dismissal, it disagreed with the lower court's analysis, explaining as follows:
With respect to the first of the court's findings, we believe that the court's approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting considerations which are more appropriate to the employer's rebuttal phase to the earlier requirement that the employee demonstrate competence to perform the specified work. This is not merely of formal consequence, for it has the practical effect of requiring the employee to prove not merely that he possesses the basic skills necessary for the job, but rather that he is the best qualified candidate for the job, under the criteria suggested by the employer. . . . In this respect, we agree with the Seventh Circuit view that under McDonnell Douglas "the plaintiff need not show perfect performance or even average performance to satisfy this element. He need only show that his performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge him." . . . We agree with the Seventh Circuit that proof of competence sufficient to make out a prima facie case of discrimination was never intended to encompass proof of superiority or flawless performance. If an employer is dissatisfied with the performance of an employee, he can properly raise the issue in rebuttal of the plaintiff's showing.
Id at 1155 (quoting Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977)). The Powell court nevertheless found that defendant had established a legitimate nondiscriminatory reason for terminating plaintiff's employment. Id. at 1156-57.
In Ombu v. Children's Television Workshop, 516 F. Supp. 1055 (S.D.N.Y. 1981), also a Title VII action, a research assistant who had taken on a reduced-hour work week argued that he was discharged on the basis of his race and gender. Initially employed to research material for an established children's television program, plaintiff had worked a flexible schedule which allowed him to pursue his graduate education. Id. at 1057. Due to budget cuts, however, plaintiff was transferred to a position as research assistant for a newly created science magazine. Id. contrary to his employer's instructions, plaintiff continued to keep his reduced hours and, when the opportunity arose, refused to transfer back to his old and more flexible position. Id. at 1057-58. Defendant dismissed plaintiff, pointing to his insubordination and contending that his schedule detrimentally affected his performance and the development of a new magazine. Id. at 1058. Relying on Powell, the Ombu court explained as follows:
To establish that his discharge was due to racial or sexual discrimination, plaintiff must show, among other things, that he satisfied normal work requirements. Plaintiff has submitted evidence that the quality of the work he performed was generally satisfactory. Although some criticisms of his performance are noted, plaintiff need not show perfect or even average performance but only that his performance was of sufficient quality to merit continued employment.