Deleon v. DVA ( 2021 )


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  • Case: 20-1199    Document: 61     Page: 1    Filed: 09/20/2021
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    CHRIS DELEON,
    Petitioner
    v.
    DEPARTMENT OF VETERANS AFFAIRS,
    Respondent
    ______________________
    2020-1199
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. DC-0714-19-0431-I-1.
    ______________________
    Decided: September 20, 2021
    ______________________
    DAVID BRANCH, Law Office of David A. Branch, Wash-
    ington, DC, for petitioner.
    GALINA I. FOMENKOVA, Commercial Litigation Branch,
    Civil Division, United States Department of Justice, for re-
    spondent. Also represented by JEFFREY B. CLARK, TARA K.
    HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
    ______________________
    Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
    Case: 20-1199    Document: 61      Page: 2    Filed: 09/20/2021
    2                                             DELEON   v. DVA
    REYNA, Circuit Judge.
    Petitioner Chris deLeon appeals a decision of the Merit
    Systems Protection Board, which sustained a charge of con-
    duct unbecoming a federal employee. The Board affirmed
    the United States Department of Veterans Affairs decision
    to remove him from employment with the federal service.
    For the reasons set forth in this opinion, we affirm the
    Board’s determinations.
    I. BACKGROUND
    On February 28, 2019, the Petitioner became em-
    broiled in an altercation at the Washington, DC Veterans
    Affairs Medical Center (VAMC). J.A. 9. At the time of the
    incident, he was a police officer whose statutory arrest au-
    thority had been temporarily suspended due to failure to
    meet certain weapon-certification requirements. J.A. 10,
    141. Based on the arrest-authority suspension and a prior
    injury, the Petitioner’s supervisors had assigned him du-
    ties as a security assistant. J.A. 2, 188. Robyn Hardy, the
    Chief of Police of the DC VAMC also moved the Petitioner
    to the security desk due to complaints from VA personnel
    about unauthorized entries into employee offices, including
    the Human Resources (HR) Office. J.A. 19–20. His pri-
    mary job as a security assistant was to check visitors’ iden-
    tifications at a VAMC entrance. J.A. 2.
    While checking identifications at the facility that day,
    he encountered Ms. Karen Dadey, a veteran visiting the
    VAMC for medical appointments. J.A. 2–3. Dadey con-
    tends that, upon entering the VAMC, the Petitioner asked
    for her identification. J.A. 2. She noticed that the Peti-
    tioner was not wearing a police badge or uniform and asked
    him, in turn, whether he was an employee. J.A. 2–3. The
    Petitioner did not respond and asked for her identification
    again. Id. When Dadey did not immediately provide her
    identification, the Petitioner asked her to step aside to al-
    low other visitors to pass. J.A. 11. After she entered the
    building, Dadey stopped at a police room and complained
    Case: 20-1199      Document: 61    Page: 3    Filed: 09/20/2021
    DELEON   v. DVA                                            3
    about her encounter with the Petitioner. J.A. 3. She al-
    leged that she felt as though she had been “detained.”
    J.A. 3, 16. She also indicated that the Petitioner could be
    a mental-health patient and expressed concern about the
    way other patients could be affected if they were similarly
    treated. J.A. 3, 11.
    Upon completing her medical appointments, Dadey left
    the building through the same VAMC entrance and waited
    for a shuttle bus. J.A. 3. She alleged that she noticed the
    Petitioner staring at her through the sliding doors and felt
    threatened. Id. Dadey reentered the facility and asked the
    Petitioner if he knew when the next shuttle would arrive.
    J.A. 3, 12. The Petitioner responded that he did not know.
    J.A. 12. Dadey also asked the Petitioner if anyone had spo-
    ken to him about their earlier interaction and reiterated
    that he should be wearing a badge and uniform. J.A. 3.
    Dadey alleged that the Petitioner then became angry, and
    she took out her phone in an attempt to take his photo-
    graph. Id. The Petitioner warned Dadey that taking pho-
    tographs or recording video in the VAMC was a violation of
    agency policy. J.A. 7, 97. The Petitioner’s assertion, how-
    ever, was not true and contravened the Division Chief of
    the Department of Veterans Affairs (VA), who previously
    noted the lack of policies or regulations that prohibited the
    taking of photographs, digital images, and video or audio
    recordings on VA premises. See J.A. 206–08.
    The Petitioner and Dadey dispute the fine details of the
    altercation that ultimately ensued. Dadey testified that
    she believed the Petitioner was likely a patient imperson-
    ating an officer. J.A. 15. She alleged that the Petitioner
    lunged at her, grabbed her right arm, shoved her into the
    wall, and demanded she delete any pictures she may have
    taken of him. J.A. 3–4. Dadey testified that, after the Pe-
    titioner “slammed” her into the wall, she informed him she
    had not taken any pictures of him. J.A. 16. She testified
    that she felt angry and violated by the Petitioner’s alleged
    actions. J.A. 16. According to Dadey, the Petitioner ranted
    Case: 20-1199     Document: 61     Page: 4    Filed: 09/20/2021
    4                                              DELEON   v. DVA
    that she did not “have the right to tell [him] what to wear,
    [or] what to put on his body when [he] leave[s] the house.”
    Id. Dadey also testified that the Petitioner was “unstable
    and acting crazy.” J.A. 17.
    The Petitioner alleged that Dadey cornered him be-
    tween his podium and the wall and positioned herself ap-
    proximately one foot away from him. J.A. 10, 12. He
    testified that, when Dadey held up her phone so as to take
    a picture, he “feared for his safety,” grasped her arm, and
    called for assistance with a “disruptive visitor.” J.A. 7. The
    Petitioner testified that he grabbed her forearm believing
    “she could have used [the] phone as a weapon.” J.A. 13.
    However, when an officer from the Metropolitan Police De-
    partment arrived at the scene and interviewed the Peti-
    tioner, he did not mention that he was afraid of Dadey
    during the altercation. J.A. 15. On the witness stand, the
    Petitioner provided further testimony that Dadey was “try-
    ing to get away from him” as he attempted to control the
    situation. J.A. 13. The Petitioner contends that his actions
    were consistent with the scope of his job duties and the pur-
    ported policy against taking photographs at the VAMC.
    J.A. 7, 14.
    On March 18, 2019, following an internal investigation,
    Hardy proposed the Petitioner’s removal from federal ser-
    vice based on a single charge of conduct unbecoming of a
    VA employee. J.A. 1, 9. The VAMC Executive Director
    subsequently consulted with the VA’s HR Office and the
    Office of General Counsel. J.A. 22. On April 8, 2019, the
    Director sustained the charge and issued a decision to re-
    move the Petitioner effective April 10, 2019. J.A. 8–9. Con-
    sidering the evidence, the Director explained that the
    Petitioner knew his arrest authority had been suspended
    prior to the incident, but he nevertheless engaged in “phys-
    ical contact with a patient” when he lacked the authority
    to do so. J.A. 8. The Director discussed several factors out-
    lined in Douglas v. Veterans Administration, 
    5 M.S.P.B. 313
     (1981), including loss of confidence in the Petitioner’s
    Case: 20-1199      Document: 61    Page: 5    Filed: 09/20/2021
    DELEON   v. DVA                                            5
    ability to perform his job and consideration of lesser penal-
    ties. J.A. 8.
    The Petitioner filed a timely appeal with the Merit Sys-
    tems Protection Board (Board) on April 9, 2019. 
    Id.
     The
    Administrative Judge (AJ) held a hearing, listened to tes-
    timony, and reviewed the surveillance video of the incident.
    See J.A. 10. After reviewing the evidence, the AJ issued an
    Initial Decision finding that the VA “prove[d] by substan-
    tial evidence that the [Petitioner] engaged in the charged
    misconduct.” J.A. 29. The AJ noted that the surveillance-
    video evidence contradicted the Petitioner’s testimony that
    Dadey stood close to him with her phone next to his face or
    had provoked him into action. J.A. 30. The AJ also deter-
    mined that Dadey had not cornered him and “he could have
    moved away from [her] without incident.” 
    Id.
     The AJ
    found “it was inherently improbable that the [Petitioner]
    feared for his safety.” 
    Id.
     Rather, it was “more likely that
    the [Petitioner] feared [Dadey] would report him as she
    told him she had done earlier in the day.” J.A. 30–31.
    With respect to the Petitioner’s claim that he believed
    Dadey would use her phone as a weapon, the AJ found the
    Petitioner’s testimony “inherently improbable” and “incon-
    sistent with his prior statements.” J.A. 31. Regardless of
    whether the Petitioner believed Dadey posed a threat to
    him, the AJ found such belief to be “insufficient to justify
    [the] aggressive response.” 
    Id.
     Accordingly, the AJ deter-
    mined that the Petitioner’s actions were “improper and
    constituted conduct unbecoming a VA employee.” 
    Id.
    Next, the AJ discussed the penalty imposed. The AJ
    noted that the Board lacks authority to mitigate the pen-
    alty following a finding that the charged misconduct is sup-
    ported by substantial evidence. J.A. 36 (citing 
    38 U.S.C. § 714
    (d)(2)(B)). Thus, pursuant to the § 714 statutory man-
    date, the AJ determined that an evaluation of any Douglas
    factors was unnecessary, including consideration of the Pe-
    titioner’s argument that the VA treated him differently
    Case: 20-1199     Document: 61     Page: 6    Filed: 09/20/2021
    6                                              DELEON   v. DVA
    than another officer involved in a similar physical alterca-
    tion, whom the Petitioner claimed is a comparator. J.A. 36.
    Despite deciding that there was no need to apply any
    Douglas factors, the AJ evaluated the comparator claim. In
    so doing, the AJ determined that the Petitioner could not
    prevail because the alleged comparator officer had “re-
    tained his law enforcement authority while the [Peti-
    tioner]’s was suspended.” Id. Furthermore, unlike the
    Petitioner, the alleged comparator had “attempted to
    deescalate the situation and only made physical contact
    with the patient after the patient struck the officer.” Id.
    In contrast, the AJ found that the Petitioner had initiated
    physical contact with Dadey and noted the lack of evidence
    to support efforts to deescalate the confrontation. J.A. 37.
    Moreover, unlike in this case, the patient in the comparator
    case had not formally “pursued a complaint” as Dadey did.
    J.A. 35, 37. Accordingly, the AJ determined that weighing
    the comparator claim would not alter the outcome because
    the alleged comparator and the Petitioner were not simi-
    larly situated. Id.
    Ultimately, the AJ found that the VA’s decision to re-
    move the Petitioner from his post was supported by sub-
    stantial evidence and, on that basis, sustained the charge
    of misconduct unbecoming a VA employee. Id. The Peti-
    tioner did not appeal the AJ’s findings to the full Board
    and, thus, the AJ’s determination became the Board’s deci-
    sion. The Petitioner now appeals. We have jurisdiction
    under 
    5 U.S.C. § 7703
    (b)(1)(A) and 
    28 U.S.C. § 1295
    (a)(9).
    II. STANDARD OF REVIEW
    We review Board decisions under the statutory con-
    straints set forth in 
    5 U.S.C. § 7703
    (c). Beck v. Dep’t of the
    Navy, 
    997 F.3d 1171
    , 1181–82 (Fed. Cir. 2021). We must
    affirm unless the Board’s decision is “(1) arbitrary, capri-
    cious, an abuse of discretion, or otherwise not in accordance
    with law; (2) obtained without adherence to procedures re-
    quired by law, rule, or regulation; or (3) unsupported by
    Case: 20-1199      Document: 61     Page: 7    Filed: 09/20/2021
    DELEON   v. DVA                                              7
    substantial evidence.” 
    5 U.S.C. § 7703
    (c). An agency
    abuses its discretion when it renders a decision “based on
    an erroneous interpretation of the law, on factual findings
    that are not supported by substantial evidence, or repre-
    sents an unreasonable judgment in weighing relevant fac-
    tors.” Star Fruits S.N.C. v. United States, 
    393 F.3d 1277
    ,
    1281 (Fed. Cir. 2005) (citation omitted). “Substantial evi-
    dence ‘means such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.’” In re
    Bayer Aktiengesellschaft, 
    488 F.3d 960
    , 964 (Fed.
    Cir. 2007) (quoting Consol. Edison Co. v. NLRB, 
    305 U.S. 197
    , 229 (1938)).
    III. DISCUSSION
    The Petitioner raises a single issue in his opening brief,
    namely, that the AJ erred in determining the alleged com-
    parator officer and the Petitioner were not similarly situ-
    ated. Pet’r’s Br. 8–9. 1 The VA, in response, makes two
    primary arguments: (1) § 714(d)(2)(B) unambiguously pre-
    cludes the AJ from mitigating the penalty imposed for the
    Petitioner’s misconduct, thereby rendering analysis of any
    Douglas factors superfluous; and (2) the AJ’s conclusion
    that the Petitioner and the alleged comparator are not sim-
    ilarly situated is supported by substantial evidence.
    Resp’t’s Br. 8–11.
    We first underscore this court’s recent decision in Con-
    nor v. Department of Veterans Affairs, _ F.4th _, 
    2021 WL 1
        To the extent the Petitioner argues, in his reply
    brief, that the AJ erred in concluding the Board lacks au-
    thority to mitigate the VA’s penalty under § 714(d)(2)(B),
    see Pet’r’s Reply Br. 3–4, we conclude that the Petitioner
    has forfeited such argument. See United States v. Olano,
    
    507 U.S. 725
    , 731 (1993) (noting that a party may forfeit an
    argument by failing to timely assert it).
    Case: 20-1199    Document: 61      Page: 8    Filed: 09/20/2021
    8                                             DELEON   v. DVA
    3556910 (Fed. Cir. 2021), which addresses and forecloses
    the VA’s § 714(d)(2)(B) arguments.
    Section 714 prescribes that “if the decision of the [VA]
    Secretary is supported by substantial evidence, the admin-
    istrative judge shall not mitigate the penalty prescribed by
    the Secretary.” 
    38 U.S.C.A. § 714
    (d)(2)(B). In interpreting
    this statutory provision, Connor held that Ҥ 714 precludes
    the Board only from mitigating the agency’s chosen pen-
    alty. It does not alter the penalty review with respect to
    the Douglas factors.” Connor, 
    2021 WL 3556910
    , at *5 (in-
    ternal citation omitted). The court emphasized that the en-
    actment of § 714 did not change the proper legal standard
    and, thus, “the VA and Board must continue to apply the
    relevant Douglas factors in considering the reasonableness
    of the penalty in VA disciplinary[-]action cases.” Id. Thus,
    the Board’s determination that it lacks authority to review
    the VA’s penalty and consider the Douglas factors under
    § 714(d)(2)(B) is incorrect in view of Connor.
    This court’s recent decision in Rodríguez v. Department
    of Veterans Affairs, _ F.4th _, 
    2021 WL 3556562
     (Fed.
    Cir. 2021) is also instructive. Rodríguez held that an AJ’s
    conclusion that substantial evidence is both the level of
    proof required of the agency and the Board’s standard of
    review constitutes legal error. Rodríguez, 
    2021 WL 3556562
    , at *8. We conclude that the AJ in this case also
    legally erred by applying substantial evidence as the
    agency’s burden of proof. 2 See J.A. 29.
    Notwithstanding the Board’s erroneous determina-
    tions as to the scope of § 714 and the burden of proof appli-
    cable, we conclude that the AJ’s comparator findings in the
    alternative are adequately supported by substantial evi-
    dence because the alleged comparator is not similarly
    2 The error, however, is not dispositive given the AJ’s
    comparator findings, as explained below.
    Case: 20-1199      Document: 61    Page: 9    Filed: 09/20/2021
    DELEON   v. DVA                                             9
    situated to the Petitioner. See J.A. 37. The alleged com-
    parator retained his law-enforcement authority, attempted
    to deescalate the conflict, and did not initiate physical con-
    tact during the altercation. See J.A. 36–37. The Petitioner,
    on the other hand, lacked law-enforcement authority to de-
    tain or subdue anyone, did not exercise prudent restraint
    to control the situation, and initiated a physical altercation
    with a veteran that was neither appropriate nor justified
    under the circumstances. We therefore conclude that the
    AJ correctly identified fundamental distinctions in the al-
    leged comparator’s case that materially distinguish it from
    the facts of this record. And we discern no reason to disturb
    the Board’s assessment regarding the credibility of the Pe-
    titioner’s inconsistent testimony or reweigh the Douglas-
    factor evaluation of the Board’s comparator findings. 3 The
    Board’s decisions to sustain the charge of misconduct and
    affirm the Petitioner’s removal from employment with the
    federal service are supported by substantial evidence.
    IV. CONCLUSION
    For the reasons set forth in this opinion, we affirm the
    Board’s decision upholding the Petitioner’s removal from
    federal service under 
    38 U.S.C. § 714
    (d)(2)(B). We do not
    reach the forfeited arguments in the Petitioner’s reply
    brief.
    AFFIRMED
    No costs.
    3   We note that the Petitioner’s opening brief only al-
    leged that the Board erred in its comparator findings and,
    thus, we limit our analysis to that argument.