Purifoy v. DVA , 838 F.3d 1367 ( 2016 )


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  •   United States Court of Appeals
    for the Federal Circuit
    ______________________
    LAMONTE L. PURIFOY,
    Petitioner
    v.
    DEPARTMENT OF VETERANS AFFAIRS,
    Respondent
    ______________________
    2015-3196
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. CH-0752-14-0185-I-1.
    ______________________
    Decided: October 4, 2016
    ______________________
    PHILIP CHARLES STERNHELL, Quinn Emanuel Ur-
    quhart & Sullivan, LLP, Washington, DC, argued for
    petitioner.
    ALEXIS J. ECHOLS, Commercial Litigation Branch,
    Civil Division, United States Department of Justice,
    Washington, DC, argued for respondent. Also represented
    by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT
    D. AUSTIN.
    ______________________
    2                                           PURIFOY   v. DVA
    Before O’MALLEY, LINN, and STOLL, Circuit Judges.
    STOLL, Circuit Judge.
    Lamonte L. Purifoy appeals a final order by the Merit
    Systems Protection Board affirming the Agency’s decision
    to remove him from his position over two charges of
    extended unauthorized absence. The Board’s order re-
    versed an administrative judge’s reinstatement of
    Mr. Purifoy following a 40-day suspension. Because the
    Board’s analysis improperly omitted relevant Douglas
    factors and discarded the AJ’s credibility determinations
    without an adequate rationale, we vacate the Board’s
    judgment and remand for further proceedings consistent
    with this opinion.
    BACKGROUND
    In 2013, Mr. Purifoy missed two days of work as a
    housekeeping aid in a VA medical center in Milwaukee,
    Wisconsin without authorization. Later that same week,
    he sought treatment for substance abuse from the VA
    facility where he worked. He was admitted and trans-
    ferred to Madison, Wisconsin for treatment. While Mr.
    Purifoy verbally informed his VA supervisor that he
    would miss work, he did not fill out leave paperwork. Nor
    did he inform his parole officer that he would miss upcom-
    ing supervision visits. After Mr. Purifoy missed these
    visits, his parole officer issued a warrant for his arrest.
    Mr. Purifoy contacted his parole officer by phone and
    explained that he had been admitted to a VA medical
    center for substance abuse treatment, but she refused to
    withdraw the warrant and told Mr. Purifoy to report to
    Milwaukee Secure Detention Facility (“MSDF”) of the
    Wisconsin Department of Corrections.
    Mr. Purifoy agreed to enter a substance abuse treat-
    ment at MSDF as an alternative to revocation of his
    parole. He entered the program, but was terminated after
    an altercation with another inmate. After his involve-
    PURIFOY   v. DVA                                         3
    ment in the substance abuse treatment program ended,
    he remained as an inmate at MSDF for 38 more days.
    Following his release on November 4, 2013, Mr. Purifoy
    returned to work. Shortly afterwards, the Agency re-
    moved him from employment as a penalty for his unex-
    cused absences.
    I.
    The Agency first sent Mr. Purifoy a notice of proposed
    removal, drafted on July 29, 2013, while he was still at
    MSDF. The Agency charged him with one count of ex-
    tended unauthorized absence beginning April 4, 2013.
    Mr. Purifoy responded, and the Agency rescinded the first
    notice letter. It then issued a second notice on October 8,
    2013, with two counts of unauthorized absence. The first
    charge concerned Mr. Purifoy’s absence from April 4 to 5,
    2013, and the second charge concerned his absence due to
    his incarceration at MSDF, starting on May 7, 2013, and
    continuing through October 8, 2013.
    On October 29, 2013, the Agency issued a decision
    removing Mr. Purifoy from his position effective Novem-
    ber 15, 2013. Mr. Purifoy appealed the removal decision
    to the Merit Systems Protection Board.
    II.
    An AJ held an in-person hearing to review Mr. Puri-
    foy’s case. See Purifoy v. Dep’t of Veterans Affairs,
    No. CH-0752-14-0185-I-1, 
    2014 WL 6387880
     (M.S.P.B.
    Nov. 13, 2014). Over the course of the day-long hearing,
    Mr. Purifoy not only testified, but also litigated the case
    pro se, cross-examining the government’s four witnesses.
    The AJ sustained the Agency’s first charge against
    Mr. Purifoy—his failure to report to work on April 4 and
    5, 2013—in full. But she sustained the second charge—
    his absence while at MSDF—only in part. J.A. 14.
    On the second charge—Mr. Purifoy’s six-month ab-
    sence from May 7, 2013 until his return to work on No-
    4                                              PURIFOY   v. DVA
    vember 7, 2013—the AJ found that the Agency had failed
    to prove that Mr. Purifoy’s absences while at MSDF prior
    to termination from the treatment program were unex-
    cused. The AJ explained that Mr. Purifoy had “signed an
    agreement consenting to enter a substance abuse treat-
    ment program at MSDF as an alternative to revocation of
    his parole.” J.A. 16. She found that “the primary purpose
    of his stay at MSDF was to undergo substance abuse
    treatment.” J.A. 17. Moreover, the AJ found that Mr.
    Purifoy had notified his supervisor at the VA on several
    occasions that he would be absent for treatment. After
    his first absence on April 4 and 5, Mr. Purifoy called his
    third level supervisor to inform him that he would be in
    Madison, Wisconsin for treatment, and that he would be
    absent from work. 
    Id.
     His supervisor replied with verbal
    approval of his leave request. As the AJ explained, the
    supervisor “told the appellant to ‘go take care of that,’ but
    that the appellant ‘had something’ coming for the two
    days he did not call in to report he would be absent.” J.A.
    12. Then, when Mr. Purifoy entered MSDF, he again told
    one of his supervisors that he would be absent. His
    supervisor testified that he responded, “I’m familiar with
    that. Take care of yourself. You need to take care of
    yourself first, . . . but you also need to see your supervisor
    and fill out the proper paperwork.” J.A. 727. Mr. Purifoy
    did not submit leave paperwork with his employer. Even
    so, the AJ found that the Agency failed to prove that
    Mr. Purifoy’s absences while seeking treatment at MSDF
    were unexcused. In turn, the AJ found that the Agency’s
    charge of unexcused absence for six months was not
    wholly supported by substantial evidence.
    The AJ also found that the Agency successfully proved
    part of its second charge: the 38 days after Mr. Purifoy’s
    treatment program was terminated. J.A. 14–18. The AJ
    explained that, following an altercation with another
    inmate, MSDF terminated Mr. Purifoy’s treatment and
    sentenced him to a disciplinary separation. J.A. 12.
    PURIFOY   v. DVA                                          5
    Mr. Purifoy remained at MSDF for 38 days after termina-
    tion. J.A. 17. As such, the AJ found that the Agency had
    sustained its charge of unexcused absence for those 38
    days.
    The AJ next analyzed the Agency’s penalty in light of
    the mitigation factors set out in Douglas v. Veterans
    Administration, 
    5 M.S.P.R. 280
    , 307–08 (1981), to deter-
    mine if Mr. Purifoy’s removal was reasonable. The AJ
    determined the penalty to be unreasonable and reduced it
    to a 40-day suspension.
    The Agency had argued that the severity of Mr. Puri-
    foy’s conduct and his past disciplinary record justified
    removal, but the AJ found that, to the contrary, both of
    those factors mitigated in favor of Mr. Purifoy. The AJ
    explained that Mr. Purifoy’s absence “was less severe
    than the six months absence the Agency had originally
    charged,” and that this was his first disciplinary offense.
    J.A. 19.
    The AJ examined the remaining Douglas factors and
    found that each weighed in favor of mitigation. The AJ
    found that Mr. Purifoy’s duties as a housekeeping aid did
    not involve supervision or fiduciary duties, or place him in
    a prominent public role. She also noted that his work
    performance was rated as excellent and worthy of a
    performance award. The AJ further found that appellant
    was not on clear notice that his absence would result in
    severe discipline. The AJ additionally found that Mr.
    Purifoy’s potential for rehabilitation was high, as he went
    to great lengths to notify his Agency of his whereabouts
    and, since his release from MSDF, had continued to
    participate in treatment for substance abuse without
    relapse. Finally, the AJ commented that “[i]t is ironic
    that the appellant’s enrollment, with the agency’s bless-
    ing, in a substance abuse program conducted by the
    agency ultimately led to his removal by the agency.”
    J.A. 20. The AJ thus determined that, in light of the
    6                                           PURIFOY   v. DVA
    reduced charge and the mitigating factors concerning
    Mr. Purifoy’s absence, the maximum reasonable penalty
    in light of the sustained charges was a 40-day suspension.
    J.A. 21.
    III.
    The government petitioned the Board for review. The
    Board reversed the AJ and reinstated the Agency’s origi-
    nal penalty of removal. Purifoy v. Dep’t of Veterans Af-
    fairs, No. CH-0752-14-0185-I-1, 
    2015 WL 3630677
    (M.S.P.B. June 11, 2015). The Board first reviewed the
    two charges the Agency brought against Mr. Purifoy and
    left the AJ’s judgment undisturbed, even though it did not
    affirmatively agree with the AJ’s reduction of the second
    charge down from six months to 38 days. It explained
    that “the penalty of removal was appropriate even if the
    second charge was proven only in part.” Id. at ¶ 6.
    The Board then analyzed some, but not all, of the
    Douglas factors. It found that, contrary to the findings of
    the AJ, most of the factors weighed against Mr. Purifoy.
    It disagreed with the AJ about the seriousness of the
    charge, finding that the 40-day absence “remain[ed] a
    serious charge,” even though the charge was reduced from
    the original charge brought by the Agency. Id. at ¶ 8. It
    also found that Mr. Purifoy’s absence weighed against
    mitigation, even though he lacked a disciplinary record.
    It reversed the AJ’s finding that Mr. Purifoy was not on
    clear notice that his continued absence from work would
    result in severe discipline, finding instead that
    Mr. Purifoy’s third-level supervisor sufficiently notified
    him that his absence from work would result in severe
    discipline. And it found that “the agency’s chosen penal-
    ty, which is entitled to deference, is also consistent with
    the table of penalties.” Id. at ¶ 10. The Board also con-
    sidered Mr. Purifoy’s job performance and “s[aw] no
    reason to disturb the administrative judge’s findings
    concerning [Mr. Purifoy’s] brief, but good, work history.”
    PURIFOY   v. DVA                                           7
    Id. at ¶ 11. The Board further noted that Mr. Purifoy’s
    seeking treatment for a disabling condition had been
    considered to be a mitigating factor. But the Board
    agreed with the Agency that “this factor was not signifi-
    cantly mitigating as the appellant was not fully pursuing
    rehabilitation for his problem.” Id. at ¶ 11. The Board
    thus found that the Agency’s penalty of removal was
    reasonable and reversed the AJ’s decision.
    Mr. Purifoy appealed to this court. We have jurisdic-
    tion under 
    28 U.S.C. § 1295
    (a)(9).
    DISCUSSION
    We review a final decision of the Board to determine
    whether it is “(1) arbitrary, capricious, an abuse of discre-
    tion, 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); Malloy v. U.S. Postal Serv.,
    
    578 F.3d 1351
    , 1356 (Fed. Cir. 2009).
    Agencies taking an adverse action against an employ-
    ee bear the burden to establish that an employee’s
    charged conduct occurred, that it affected the efficiency of
    the service, and that “the penalty imposed was reasonable
    in light of the relevant factors set forth in Douglas.”
    Malloy, 
    578 F.3d at
    1356 (citing 5 M.S.P.R. at 307–08).
    The Douglas factors are a non-exhaustive set of consider-
    ations that the Board must independently assess when
    relevant to determine whether a penalty was reasonable.
    Id.
    Neither party challenges the sustained charges on
    appeal. Mr. Purifoy argues, however, that the Board’s
    treatment of the mitigation analysis under the Douglas
    factors was inadequate. We agree. Even though the
    Board was required to consider each relevant Douglas
    factor, it failed to properly consider two factors relevant
    here. Specifically, the Board (1) did not consider the
    8                                             PURIFOY   v. DVA
    adequacy and effectiveness of alternative sanctions to
    deter similar misconduct in the future, and the Board
    (2) erred in its analysis of the potential for the employee’s
    rehabilitation. See Douglas, 5 M.S.P.R. at 305–06.
    Turning to the alternative sanctions factor, the Board
    did not address this factor in the context of the lesser
    sustained 40-day absence. It should have done so. The
    Board is tasked with independently considering “the
    adequacy and effectiveness of alternative sanctions to
    deter such conduct in the future by the employee or
    others.” Id. at 306. While the Board noted that the
    Agency’s penalty fell within the range of penalties provid-
    ed in the table of penalties (i.e., 14-day suspension to
    removal), it did not discuss the adequacy of lesser sanc-
    tions for the 40-day absence. Although we have repeated-
    ly recognized that the Board need not consider all the
    Douglas factors, it must consider the relevant ones. Nagel
    v. Dep’t of Health & Human Servs., 
    707 F.2d 1384
    , 1386–
    87 (Fed. Cir. 1983). The factor is plainly relevant here, as
    the AJ had determined that the Agency’s removal of
    Mr. Purifoy was too severe, and that a 40-day suspension
    would adequately punish his absence and deter similar
    conduct in the future. Additionally, the Agency chose the
    penalty of removal based on charges of a six-month ab-
    sence. After the AJ reduced the six-month charge to 40
    days, the Board should have evaluated this Douglas factor
    before sustaining the Agency’s action. The Board thus
    erred when it did not consider whether lesser sanctions
    would have been adequate in Mr. Purifoy’s case.
    Turning to the rehabilitation factor, we determine
    that the Board erred by substituting its own finding for
    the AJ’s opposite one without adequate rationale. The AJ
    had found that Mr. Purifoy’s potential for rehabilitation
    was high:
    The record further reflects the fact that [Mr. Puri-
    foy] cares about his job and has a good potential
    PURIFOY   v. DVA                                          9
    for rehabilitation. He went to great lengths and
    took all available measures to notify his agency of
    his whereabouts. And though he did not complete
    the program at MSDF, he has continued to partic-
    ipate in treatment and has not suffered a relapse.
    J.A. 20.    The AJ made these findings in view of
    Mr. Purifoy’s live testimony and his extensive pro se
    cross-examination of the government’s witnesses. The AJ
    heard Mr. Purifoy testify under oath that he attends
    Alcoholics Anonymous meetings three days a week and
    that he has not suffered relapse since his removal.
    J.A. 816. Not only did the AJ observe Mr. Purifoy on the
    stand, but also the AJ had ample opportunity to observe
    Mr. Purifoy and his condition when he cross-examined
    witnesses, including his parole officer, his supervisor, and
    the Medical Center Director at the VA Medical Center in
    Milwaukee, Wisconsin.
    Although the Board noted that it “s[aw] no reason to
    disturb the administrative judge’s findings concerning the
    appellant’s brief, but good, work history,” it nevertheless
    reversed the AJ’s ultimate finding on Mr. Purifoy’s poten-
    tial for rehabilitation. The Board found that this factor
    weighed against mitigation because, in the Board’s view
    of the paper record, Mr. Purifoy was “not fully pursuing
    rehabilitation for his problem.”        Purifoy, 
    2015 WL 3630677
    , ¶ 11. But this bare conclusion gives insufficient
    consideration of, and deference to, the AJ’s findings.
    “The MSPB must afford special deference to the pre-
    siding official’s findings respecting credibility where the
    presiding official relies expressly or by necessary implica-
    tion on the demeanor of the witnesses.” Jackson v. Veter-
    ans Admin., 
    768 F.2d 1325
    , 1331 (Fed. Cir. 1985). As we
    recognized in Haebe v. Department of Justice, “the MSPB
    is not free to overturn an administrative judge’s demean-
    or-based credibility findings merely because it disagrees
    with those findings.” 
    288 F.3d 1288
    , 1299 (Fed. Cir.
    10                                            PURIFOY   v. DVA
    2002). This requirement “derived from the substantial
    evidence standard expressed by the Supreme Court in
    Universal Camera v. National Labor Relations Board,” 
    Id.
    (citing 
    340 U.S. 474
    , 487–88 (1951)), where the Court
    recognized that “evidence supporting a conclusion may be
    less substantial when an impartial, experienced [adminis-
    trative judge] who has observed the witnesses and lived
    with the case has drawn conclusions different from the
    Board’s.” Universal Camera, 
    340 U.S. at 496
    .
    The government contends that this rule does not ap-
    ply here because nothing in the AJ’s opinion suggests that
    her credibility determinations were based on demeanor.
    But our case law requires deference not only when an AJ’s
    credibility determinations explicitly rely on demeanor but
    also when they do so “by necessary implication.” Jackson,
    
    768 F.2d at 1331
    . Even if demeanor is not explicitly
    discussed, assessing a witness’s credibility involves con-
    sideration of various factors, including a witness’s de-
    meanor. 1
    The AJ’s findings about Mr. Purifoy’s propensity for
    rehabilitation are necessarily intertwined with issues of
    credibility and an analysis of his demeanor at trial, and
    they deserved deference from the Board. See Haebe, 
    288 F.3d at 1299
    . The AJ necessarily made demeanor-based
    credibility findings in assessing, for example, the credibil-
    ity of Mr. Purifoy’s testimony that he attends AA meet-
    ings three times per week and has been sober for one year
    and five months, from the time of his first two-day ab-
    1  For example, model civil jury instructions list de-
    meanor as one of many factors for a jury to consider in
    determining the credibility of witnesses.        E.g. Sixth
    Circuit Pattern Jury Inst. 1.07 (instructing a jury to: “Ask
    yourself how the witness acted while testifying. Did the
    witness appear honest? Or did the witness appear to be
    lying?”).
    PURIFOY   v. DVA                                        11
    sence through the time of his hearing. Indeed, the AJ’s
    findings that Mr. Purifoy “cares about his job and has a
    good potential for rehabilitation,” and that “he has con-
    tinued to participate in treatment and has not suffered a
    relapse,” J.A. 20, are findings based, at least in part, on
    Mr. Purifoy’s credibility and demeanor as both a witness
    and an advocate at the hearing. The Board must afford
    these findings “special deference.” By dismissing the AJ’s
    findings without explanation, the Board failed to afford
    these findings the “special deference” required by law.
    Jackson, 
    768 F.2d at 1331
    .
    Mr. Purifoy also challenges the Board’s analysis with
    respect to two other Douglas factors: 1) the nature and
    seriousness of Mr. Purifoy’s offense, and 2) the clarity
    with which Mr. Purifoy was properly on notice of any
    rules he violated or warned about the conduct in question.
    We see no legal error in the Board’s analysis of these
    factors. Nor do we find the Board’s conclusion on these
    factors unsupported by substantial evidence. Neverthe-
    less, as “[s]election of an appropriate penalty
    must . . . involve a responsible balancing of the relevant
    factors in the individual case,” we encourage the Board to
    revisit its analysis of these factors alongside all other
    relevant Douglas factors on remand.          See Douglas,
    5 M.S.P.R. at 306.
    CONCLUSION
    Accordingly, we vacate the decision of the Board and
    remand for the Board to consider Mr. Purifoy’s case in
    light of the relevant Douglas factors, consistent with this
    opinion.
    VACATED AND REMANDED
    

Document Info

Docket Number: 15-3196

Citation Numbers: 838 F.3d 1367

Filed Date: 10/4/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

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