United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Motion for Summary Judgment [Docket No. 108] filed by defendant the Chemical Safety and Hazard Investigation Board ("CSB"); Plaintiff's Motion to Strike Material Filed in Support of Defendant's Motion for Summary Judgment [Docket No. 124] filed by plaintiff Francisco Altamirano; and Plaintiff's Motion to Strike New Arguments Contained in Defendant's Reply in Support of Motion for Summary Judgment; or, in the Alternative, Motion for Leave to File Surreply Brief [Docket No. 126]. This case arises out of the termination of Mr. Altamirano's employment by the CSB.
The following facts are undisputed unless otherwise indicated. Plaintiff is "Hispanic or Latino" and was born on January 29, 1954. Docket No. 116 at 10, ¶ 12; Docket No. 125 at 5. The CSB is a federal agency that investigates chemical accidents. Docket No. 108 at 2, ¶ 1; Docket No. 116 at 1, ¶ 1. The CSB employs Chemical Incident Investigators to travel to and investigate accident sites. Id. As of the filing of defendant's motion for summary judgment, the CSB had forty-one employees. Docket No. 108 at 2, ¶ 1; Docket No. 116 at 1, ¶ 1. Plaintiff was employed as a Chemical Incident Investigator from July 2002 through November 2009. Docket No. 108 at 2, ¶ 2; Docket No. 116 at 1, ¶ 2. His responsibilities included traveling to accident sites, interviewing witnesses, gathering evidence, and writing reports. Id.
On July 16, 2002, plaintiff was issued a government travel charge card through Citibank to cover his work-related travel expenses. Docket No. 108 at 2, ¶ 3; Docket No. 116 at 1, ¶ 3. Government travel charge cards must be used for "expenses directly related to  official travel" and may not be used "for personal reasons while on official travel." 41 C.F.R. §§ 301-51.6, 51.7. Plaintiff did not read the "set-up form" that he signed when he received his SP1 card because he was "pressed for time." Docket No. 116 at 12, ¶ 20; Docket No. 125 at 5. He participated in an ethics training in 2007 which listed, as one of the first three employee responsibilities, "[p]ay all charges by the statement due date, regardless of reimbursement by the agency." Docket No. 108 at 15, ¶ 79(g); Docket No. 116 at 7, ¶ 79(g); Docket No. 108-25 at 1, ¶ 6; Docket No. 108-25 at 42. He watched a "Travel Refresher 2008" presentation in April 2008, but was "dog tired" at the time and "therefore did not pay attention to the materials in those slides." Docket No. 116 at 12, ¶ 20; Docket No. 125 at 5. Plaintiff testified at an administrative hearing that, in the first six months of his employment with the CSB, a senior investigator named John Murphy told him that, with respect to the travel charge card, "[a]s long as you pay the bill, Cisco, you're responsible to pay the bill, everything would be okay." Docket No. 116-3 at 10 (Altamirano testimony at Merit Systems Protection Board ("MSPB") hearing, at 188, l.15 to 189, l.25).
Anna Brown is the CSB's Director of Administration. Docket No. 108 at 3, ¶ 8; Docket No. 116 at 2, ¶ 8. Since September 29, 2006, Ms. Brown has overseen the CSB's government travel charge card program. Docket No. 108 at 3, ¶ 9; Docket No. 116 at 2, ¶ 9; Docket No. 125 at 2, ¶ 9. On October 1, 2006, the CSB became a customer of the Bureau of Public Debt ("BPD") with respect to the travel charge card program. Docket No. 108 at 3, ¶ 10; Docket No. 116 at 2, ¶ 10; Docket No. 108-4 at 4-5 (Pamela Enlow dep., at 44, l.21 to 45, l.22). On March 4, 2009, the BPD sent Ms. Brown a report for delinquent SP2 cardholders, which included plaintiff. Docket No. 108 at 3, ¶ 11; Docket No. 116 at 2, ¶ 11; see Docket No. 125-1 at 2-3. On March 9, 2009, the BPD sent Ms. Brown a report for delinquent SP1 cardholders, which included plaintiff. Docket No. 108 at 3, ¶ 13; Docket No. 116 at 2, ¶ 13. Plaintiff was the only employee listed on both the March 4 and March 9 spreadsheets, Docket No. 108 at 4, ¶ 14; Docket No. 116 at 2, ¶ 14, and had the highest current balance due on both spreadsheets. Docket No. 108 at 4, ¶ 15; Docket No. 116 at 2, ¶ 15. On the March 4, 2009 spreadsheet, plaintiff's current balance was $4, 916.29 ($908.56 of which was thirty days past due) and the next highest balance was $1, 049.76. Docket No. 125-1 at 2. On the March 9, 2009 spreadsheet, plaintiff's current balance was $3, 949.55 ($3, 498.55 of which was ninety days past due). The only other balance listed was $403.13 for another individual. Docket No. 108-6 at 2. Plaintiff incurred the charges listed in the delinquency report during the second half of 2008 and the first two months of 2009. Docket No. 116 at 12, ¶ 19; Docket No. 125 at 5.
After receiving the spreadsheets, Ms. Brown requested transaction data from BPD itemizing plaintiff's charges. Docket No. 108 at 4, ¶ 16; Docket No. 116 at 2, ¶ 16; see also Docket No. 116-1 at 4 (Brown testimony at MSPB hearing, at 100, ll.15-19) ("I contacted Bureau of Public Debt myself to find out exactly why both accounts were late and asked for detail listing of all of the transactions for the SP1 and the SP2 card for Mr. Altamirano."). On March 10, 2009, BPD sent Ms. Brown "itemized transaction details for Plaintiff's SP1 account from September 2005 through November 2008." Docket No. 108-1 at 2, ¶ 10. Docket No. 108-7. On March 12, 2009, BPD sent Ms. Brown "itemized transaction details for plaintiff's SP2 account for the period running from December 2008 through February 2009." Docket No. 108-1 at 2, ¶ 11. Ms. Brown reviewed the itemized transaction details with Elizabeth Robinson, CSB's Director of Financial Operations, and noticed that there were charges that did not appear to be connected with work-related travel. Docket No. 108 at 4-5, ¶¶ 21-22; Docket No. 116 at 2-3, ¶¶ 21-22. Ms. Brown informed John Lau, CSB's Director of Human Resources, of the unusual charges. Docket No. 108 at 5, ¶¶ 23-24; Docket No. 116 at 3, ¶¶ 23-24.
On March 19, 2009, plaintiff was put on administrative leave. Docket No. 108-21 at 1. In March 2009, the CSB contracted with Marilyn Mattingly, a private investigator, to investigate plaintiff's use of his travel charge card. Docket No. 108 at 5, ¶¶ 29-30; Docket No. 116 at 3, ¶¶ 29-30. On April 17, 2009, Mr. Lau requested a copy of Ms. Mattingly's draft findings and, on April 23, 2009, he sent her comments on the draft. Docket No. 116-10. In those comments, Mr. Lau (1) pointed out several typos in the draft; (2) noted that evidentiary citations were missing; (3) suggested a change to the formatting; (4) informed Ms. Mattingly that SP1 and SP2 cards carry a facial warning that they are only intended for government use; (5) informed Ms. Mattingly that there was no evidence that plaintiff had received a copy of the Cardholder Account Agreement at the time he signed the set-up form for his SP1 card; and (6) asked whether there was evidence regarding CSB employee knowledge of Administrative Resource Center travel policies. Id. at 1-3. Ms. Mattingly responded to Mr. Lau, thanking him for the comments and stating her intention to incorporate them into her final report. Id. at 1. Ms. Mattingly provided a final report to CSB in July 2009. Docket No. 108 at 5, ¶ 32; Docket No. 116 at 3, ¶ 32.
At some point after plaintiff was put on leave, plaintiff's supervisor, Don Holmstrom, made a request to Mr. Lau that plaintiff's computer be searched for missing CSB investigative files and for evidence related to plaintiff's contention that he had been told by other employees that it was permissible to use a travel charge card for non-work-related expenses. Docket No. 108 at 7, ¶¶ 42-43; Docket No. 116 at 4, ¶¶ 42-43; see also Docket No. 108-16 at 2 (Lau dep., at 28, ll.10-18). On May 4, 2009, plaintiff told Mr. Holmstrom that the videos and photographs he had taken "during the Silver Eagle tank 105 inspection" could be found on his camera memory stick or in his camera bag. Docket No. 116-14. In June 2009, the CSB contracted with Sensei Enterprises, Inc. ("Sensei") to conduct a forensic analysis of plaintiff's computer. Docket No. 108 at 7, ¶ 45; Docket No. 116 at 4, ¶ 45. On June 18, 2009, Mr. Lau requested that Sensei "sort [plaintiff's] internet history for review by category of site" and "look for evidence of any mass file deletions around" March 19, 2009. Docket No. 116-16 at 2. Mr. Lau testified that, following the forensic analysis, he reviewed some of the files from plaintiff's computer and found "sexually oriented, sexually explicit photos" and a "sexually explicit email." Docket No. 108-2 at 10 (Lau testimony at MSPB hearing, at 57, ll.3-25). On August 21, 2009, Mr. Lau sent Ms. Robinson a Performance Work Statement for computer forensic analysis to be performed by Sensei that refers to "additional examination of laptop personal computer" and "additional investigative support." Docket No. 116-17 at 3.
Ms. Robinson also requested data from BPD regarding the travel card usage of six employees other than plaintiff. Docket No. 108-19 at 1, ¶ 2. Ms. Robinson selected the six other employees because they also appeared on the February 2009 delinquency report. Id. at ¶ 3. Ms. Robinson compared the charge card data to records indicating the dates of the employees' work-related travel during the period running from January 1, 2008 through March 13, 2009. Id. at ¶¶ 5-6. Ms. Robinson found that only one of the six employees had used his or her card at a time when not on official travel, spending $3.04 at a coffee shop. Id. at 2, ¶ 7.
On July 10, 2009, Ms. Enlow, a BPD employee, sent Ms. Brown a spreadsheet containing detailed transaction information for the CSB delinquency reports dating back to January 2007; Ms. Brown forwarded the spreadsheet to Mr. Lau. Docket No. 116 at 10, ¶ 13; Docket No. 125 at 6, ¶ 13. Ms. Enlow's email states that the spreadsheet "provides the detail in the delinquency reports that [BPD has] provided to CSB since January 2007." Docket No. 116-7 at 1. Although Ms. Enlow later testified at her deposition that it was not BPD's policy to automatically send all delinquency information to the CSB, a factfinder drawing all reasonable inferences in favor of plaintiff could conclude, based on the text of the email, that the CSB had previously received the information in the spreadsheet. See Docket No. 116-2 at 8 (Enlow dep., at 68, ll.6-21). The spreadsheet lists delinquencies for twenty-three employees. Docket No. 108-20; see also Docket No. 116 at 10-11, ¶ 15. The individual identified as Male 6 was delinquent in his account payments seven times between January 2007 and July 2009; Male 6 has the largest number of delinquencies on the spreadsheet. See Docket No. 108-20. According to the spreadsheet, plaintiff's average past due balance was $1, 985.76, which is three times higher than any other listed employee. See id. Plaintiff's accumulated past due balance for that time frame was $29, 786.44, which is seven times higher than the employee with the next highest accumulated balance. See id.
On July 29, 2009, Mr. Lau sent plaintiff a Proposal to Remove, recommending removal on the basis that plaintiff had used his government travel charge cards for personal expenses, had failed to timely pay the charges, and had used his government-issued electronic equipment to send, receive, and view sexually explicit material. Docket No. 108-17. Mr. Lau also found that plaintiff lacked candor insofar as plaintiff stated in an affidavit that he believed he was allowed to use his government travel charge card for personal expenses. Id. at 6.
In preparing the Proposal to Remove, Mr. Lau relied on Ms. Robinson's finding that, in a review of other charge card usage, there was only one other incident of misuse, namely, the $3.04 charge at a coffee shop. Docket No. 108 at 12, ¶ 68; Docket No. 116 at 6, ¶ 68. At the time, the only late payments of which Mr. Lau was aware were those listed on the July 10, 2009 spreadsheet. Docket No. 108 at 12, ¶ 69; Docket No. 116 at 6, ¶ 69; see Docket No. 108-20. Mr. Lau was not aware of allegations that other CSB employees were sending, receiving, or storing sexually explicit material on government-issued electronic devices. Docket No. 108 at 13, ¶ 71; Docket No. 116 at 6, ¶ 71. The CSB had not previously searched anyone else's electronic equipment for such material. Docket No. 116 at 6, ¶ 71; Docket No. 125 at 4.
Mr. Lau gave plaintiff a copy of the documentation supporting the Proposal to Remove. Docket No. 108 at 13, ¶ 73; Docket No. 116 at 6, ¶ 73. The Proposal to Remove stated that plaintiff could submit an oral or written response along with supporting evidence. Docket No. 108 at 13, ¶ 74; Docket No. 116 at 6, ¶ 74. Plaintiff responded, through his attorney, on September 4, 2009 and October 19, 2009. Docket No. 108 at 13, ¶ 75; Docket No. 116 at 6, ¶ 75. Plaintiff did not dispute that he made the identified charges using his government travel charge card on dates when he was not traveling for work. Docket No. 108 at 13, ¶ 76; Docket No. 116 at 7, ¶ 76. Plaintiff did not dispute sending two sexually explicit emails, but denied inviting the receipt of the other inappropriate sexual material found on his computer and cellular telephone. Docket No. 108 at 13, ¶ 77; Docket No. 116 at 7, ¶ 77.
John Bresland, Chairman of the CSB, reviewed the Proposal to Remove and asked Mr. Lau to address certain issues that plaintiff raised in response. Docket No. 108 at 14, ¶ 79; Docket No. 116 at 7, ¶ 79; Docket No. 108-22 at 1, ¶ 4. Mr. Lau prepared an affidavit for Mr. Bresland addressing the following issues:
(1) Whether there was evidence that CSB employees are permitted to use their travel charge cards for non-work-related purchases: Mr. Lau stated that the practice is not allowed and submitted an affidavit from Ms. Robinson in support of this conclusion. Docket No. 108-25 at 4 and Docket No. 108-26 at 1-4.
(2) Whether there was evidence that plaintiff invited the sexually explicit emails he received: Mr. Lau stated that plaintiff explicitly invited these communications by asking a woman with whom he was corresponding to send him additional stories about herself and by signing up for an online personal service through his work account. Docket No. 108-25 at 4-5.
(3) Whether there was evidence that another CSB employee told plaintiff in 2002 that he could use his travel card to pay for personal expenses as long as plaintiff paid the balance himself: Mr. Lau stated that there was no evidence in the record that such a conversation had occurred and, if it had, there was evidence that plaintiff had since received information to the contrary through training sessions. Docket No. 108-25 at 5-6.
(4) Whether there was evidence that plaintiff was specifically informed that there was a problem with his travel card before March 2009: Mr. Lau stated that plaintiff had not previously been informed of any specific problems. Docket No. 108-25 at 7-8.
(5) Whether Citibank allows for a thirty-seven day grace period to pay off the balance on each statement: Mr. Lau stated that Citibank does not. Docket No. 108-25 at 8.
(6) Whether there was evidence that plaintiff invited individuals to send him the inappropriate photographs and videos found on his laptop: Mr. Lau stated that plaintiff had affirmatively viewed or downloaded some of these photographs and videos and that he had sent emails asking someone to send photographs of herself. Docket No. 108-25 at 8.
(7) Whether plaintiff participated in travel training at the CSB in 2006: Mr. Lau stated that plaintiff had completed relevant training sessions in 2006, 2007, and 2008. Docket No. 108-25 at 8-9.
In addition to the materials mentioned above, Mr. Bresland considered Mr. Lau's and Ms. Robinson's ...