The opinion of the court was delivered by: J. CURTIS JOYNER
Before the Court are the cross-motions for summary judgment of the parties pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. This case involves an action filed by plaintiff, Robert N. Cohen, who was removed from his position as a GS-12 contract specialist with defendant, General Services Administration. The case has a lengthy procedural history, which we have already fully discussed in a previous opinion. See Cohen v. Austin, 833 F. Supp. 512 (E.D. Pa. 1993) (denying an earlier motion for summary judgment filed by defendant). Suffice it to say that plaintiff has filed suit in this Court alleging violations of Title VII, 42 U.S.C. § 2000e-16(c), in that his removal and denial of his within-grade increase were prompted by religious discrimination, and that his removal was based on reprisal for engaging in prior protected activities. Pursuant to the Civil Service Reform Act, 5 U.S.C. § 7701 et seq., plaintiff also seeks review of the decision of the Merit Systems Protection Board ("MSPB"), which affirmed defendant's actions of removing him and denying his within-grade increase. Finally, plaintiff seeks review of the decision of the Equal Employment Opportunity Commission ("E.E.O.C."), which affirmed the MSPB's findings of no discrimination and reprisal.
A. Standard for a motion for summary judgment
In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). The court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512. While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).
In cases where the parties have filed cross-motions for summary judgment, each side essentially contends that no issue of material fact exists from its perspective. United States v. Hall, 730 F. Supp. 646, 648 (M.D. Pa. 1990). The court must, therefore, consider each motion for summary judgment separately. Id. Nor do the standards under which the court grants or denies summary judgment change because cross-motions are filed. Id. Each party still bears the initial burden of establishing a lack of genuine issues of material fact. Id. Such contradictory claims do not necessarily guarantee that if one party's motion is rejected, the other party's motion must be granted. See id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).
B. Standards under the Civil Service Reform Act
This Court has jurisdiction to hear plaintiff's claims because it is a "mixed case" of both discrimination and non-discrimination claims. Kean v. Stone, 926 F.2d 276 (3rd Cir. 1991); Gollis v. Garrett, 819 F. Supp. 446, 449 (E.D. Pa. 1993); Mayo v. Edwards, 562 F. Supp. 907, 908 (D.D.C. 1983), aff'd, 741 F.2d 441 (D.C. Cir. 1984). However, there are different standards of review with regard to mixed cases. For the non-discrimination claims (the denial of the within-grade increase and plaintiff's removal), the decision of the MSPB will be set aside if it is found to be: "1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule, or regulation having been followed; or 3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1980); Murray v. United States Dept. of Justice, 821 F. Supp. 94, 108 (E.D.N.Y. 1993), aff'd, 14 F.3d 591 (2nd Cir. 1993). Review of the MSPB decision is limited solely to the administrative record.
Murray, 821 F. Supp. at 108; Diaz v. United States Postal Serv., 668 F. Supp. 88, 91 (D.P.R. 1987), aff'd, 853 F.2d 5 (1st Cir. 1988). Further, judicial review of the MSPB's decision is very narrow. Romero v. Department of the Army, 708 F.2d 1561, 1563 (10th Cir. 1983). To determine if the decision is supported by substantial evidence, courts inquire whether the decision is supported "'by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Tilley v. Frank, 728 F. Supp. 1293, 1296 (E.D. La. 1990); Murray, 821 F. Supp. at 108. While the evidence need not be unequivocal, there must be more than a mere scintilla of evidence which must reasonably support the MSPB's findings. Henley v. United States, 379 F. Supp. 1044, 1049 (E.D. Pa. 1974). Under the arbitrary and capricious standard, courts will defer to the MSPB decision "unless the penalty is so harsh or dispropor-tionate to the offense as to be an abuse of discretion." Tilley, 728 F. Supp. at 1297. Reviewing courts should not generally inquire into the wisdom of the agency's personnel decisions or substitute its own judgment for that of the agency when considering personnel decisions because such decisions are usually within the competence and discretion of the executive officials. Diaz, 668 F. Supp. at 91 (citations omitted).
With regard to the discrimination claims, however, plaintiff is entitled to de novo review. 5 U.S.C. § 7703(c)(3) (1980); Rana v. United States, 812 F.2d 887, 890 (4th Cir. 1987). Thus, plaintiff is entitled to a review of the formal record as well as any new evidence that is presented to this Court. Rana, 812 F.2d at 890; Hodgson v. Department of the Air Force, 750 F. Supp. 1037, 1040 (D. Colo. 1990), aff'd, 999 F.2d 547 (10th Cir. 1993).
I. Review of the MSPB decision
Before addressing plaintiff's arguments, a brief discussion about performance standards is warranted. As a GS-12 contract specialist working for a governmental agency, plaintiff was bound by a set of performance standards which the agency used in evaluating his performance. See Wilson v. Department of Health and Human Serv., 770 F.2d 1048, 1050-1053 (Fed. Cir. 1985) (discussing performance appraisal system for federal employees). Plaintiff's performance standards were divided into five critical elements, each of which represented different tasks to be performed by plaintiff. For instance, critical element number one states "Analyzes requirements and plans procurements. Includes the following tasks: Reviews procurement requests . . . Identifies and resolves deficiencies in scope of work and specifications. Performs industry analysis. Develops the procurement plan." For each critical element, there are standards "which set forth the degree of proficiency necessary to achieve a given rating (e.g., minimally satisfactory, satisfactory, or outstanding)." Wilson, 770 F.2d at 1050. The purpose of these standards is "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position under the system." 5 U.S.C. § 4302(b)(1) (1977 & Supp. 1994).
A. Different performance standards
Plaintiff first argues that he is entitled to summary judgment because different performance standards were imposed on him than were imposed on other GS-12 contract specialists. Essentially, plaintiff argues that the agency action in providing him with different standards is arbitrary and capricious, that the MSPB erred by not considering this argument, and as such, the decision below is not supported by substantial evidence. However, plaintiff's first argument is without merit.
In analyzing this issue, we will only consider plaintiff's argument with regard to critical element number two of his performance standards. In so doing, we note that to sustain defendant's action, it only needs to be shown that plaintiff's performance was unacceptable with regard to one critical element. Robinson v. Department of Army, 50 M.S.P.R. 412, 421 (1991) (citing Wilson v. Department of the Navy, 29 M.S.P.R. 6, 8 (1985)). Since Administrative Judge Squire and the MSPB ultimately affirmed defendant's actions by concluding that plaintiff had failed in his performance only with regard to critical element number two, we only need to consider that critical element.
-- Solicitations are complete and conform to requirements of the FAR [Federal Acquisition Regulations] and GSAR [General Services Ascquisition Regulations]. Protests or audits do not later reveal defects in the solicitation package such that the package would not have been acceptable if the defects had been identified earlier. -- Solicitations are distributed to a sufficient number of prospective bidders to ensure competition. When possible, solicitations are left open longer than the 30-day minimum in order to increase competition. Procurements do not have to be re-solicited due to insufficient competition. -- Supports socioeconomic programs by using 8A contracts when practical. -- Procurements not set aside for small business are adequately justified when under management or third party review. -- Solicitations are completed within established time frames.
Apparently, when plaintiff received his "warning regarding unacceptable performance" letter on October 21, 1988, it included a set of revised performance standards to which plaintiff was held during his ninety day probationary performance improvement period. With regard to the second critical element, the following was included:
Expected performance : Solicitations are to be complete and in conformance with the FAR and GSAR. They are to be distributed to a sufficient number of prospective bidders so that they do not have to be re-solicited. Protests or administrative audits should not reveal any major solicitation defects, which would render the solicitation package unacceptable. Solicitations are to be completed within established time frames allowing for award within an acceptable variance to the anticipated award date provided by the funding office. You are also expected to use 8(a) contracts when practical. Contracts not set aside for small business must be properly justified for the management. All documentation must be self supporting and understandable to third party review. Technical errors discovered in the solicitation should be resolved in one or two days (unless excusably delayed by parties outside of this office).
Marginally acceptable performance : Minimally acceptable performance would be having the solicitation in for review (approximately) 105 days before award, in order to guarantee award on the anticipated target award date. There would be no mistakes that could result in a solicitation/award being nullified upon protest. The solicitation must be open at least 30 days. Technical errors should be resolved within five days. At the minimum, you should notify the cognzant [sic] engineer of any technical problems immediately and resolve the problem later.
Plaintiff bases much of his argument on the fact that defendant did not provide any documentary evidence regarding the performance standards of other GS-12 contract specialists within the branch in answer to his interrogatories. In the proceedings below, Administrative Judge Squire granted plaintiff's motion for sanctions for defendant's refusal to comply with the discovery requests, and as such, allowed plaintiff to take a negative inference from defendant's actions. Plaintiff now argues that if the performance standards of other GS-12's had been provided, they would have been different than the performance standards actually imposed on plaintiff. However, the evidence in the record does not support this conclusion, despite the negative inference.
Michael Grieco, one of plaintiff's supervisors, testified that when he gave plaintiff the October 21st warning letter, it included a performance improvement plan in it, which, included, among other things, the standards set out for marginally acceptable performance. Prior to that, the performance standards had only set out the standards for expected performance, which plaintiff was required to meet for satisfac-tory performance. R. 1712-13, 1736. In addition, the performance standards and critical elements that plaintiff received in October 1988 were identical to those of all other GS-12's in the branch, and all GS-12's received the revised performance standards within that same time frame. R. 196-97. He further testified that plaintiff's original performance standards were identical for all GS-12's, and that they were rewritten for all GS-12's sometime in the summer of 1988. R. 123, 1633-35. Bruce Zalut, another one of plaintiff's supervisors, also testified that the performance standards issued in September 1988 were identical for all of the GS-12's in the branch, and were rewritten because the Employee Relations Branch required them to be standardized. R. 2167-68. Finally, Louis Amorosi, another GS-12 employed by defendant, testified that his performance standards appeared to be the same as those received by plaintiff in September 1988. R. 995-97.
While the MSPB did not consider whether plaintiff's performance standards were different, and Judge Squire did not consider the negative inferences, we find there has been no prejudice to plaintiff because the above evidence shows that plaintiff's performance standards were identical to those of all other GS-12's. Aside from the negative inference, plaintiff has failed to produce any evidence that his performance standards were different from those of other GS-12's. Although we acknowledge that plaintiff could not produce any documentary evidence of this, he still could have produced some testimony by witnesses to rebut defendant's evidence. As stated by the Third Circuit, when drawing a negative inference, consideration of all evidence to the contrary must be made. Kline v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 877 F.2d 1175, 1180 (3rd Cir. 1989). Thus, even if Judge Squire had considered the negative inference, she would have had to weigh it against the above evidence. Given that defendant has presented evidence on this issue, and plaintiff has not produced any evidence, we cannot say Judge Squire's determination that the standards were the same is not supported by substantial evidence. As such, plaintiff's first ...