Exum v. Department of Homeland Security , 446 F. App'x 282 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BARBARA EXUM,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2011-3037
__________________________
Petition for review of an arbitrator’s decision by John
M. Donoghue.
__________________________
Decided: October 20, 2011
__________________________
BARBARA J. EXUM, of New York, New York, pro se.
NELSON R. RICHARDS, Trial Attorney, Commercial
Litigation Branch, Classification Unit, United States
Department of Justice, of Washington, DC, for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN E. WHITE, JR., Assistant Director.
__________________________
EXUM v. DHS 2
Before LINN, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Barbara Exum appeals from the October 7, 2010 arbi-
tration award affirming her removal by the Department
of Homeland Security from her position as an immigra-
tion services officer. Because the arbitrator’s award was
supported by substantial evidence, was not arbitrary and
capricious, and was in accordance with the law, we af-
firm.
I
Ms. Exum worked as an immigration services officer
(“ISO”) at the Department of Homeland Security’s U.S.
Citizenship and Immigration Services office (“Agency”).
In this capacity, she adjudicated applications of aliens
seeking to become lawful permanent residents. In par-
ticular, she was responsible for performing research,
conducting investigations, and rendering final decisions
on applications. Federal regulations require that immi-
grations officers such as Ms. Exum interview the appli-
cants. See 8 C.F.R. § 245.6. Applicants are instructed to
bring certain documents with them to the interviews.
Ms. Exum’s employment problems originated because
she refused to conduct interviews of certain applicants
who failed to bring proper documentation with them to
the interviews (e.g., birth certificates, divorce decrees,
etc.). On several occasions, Ms. Exum’s supervisors
instructed her to perform these interviews and obtain the
missing documentation through a request for evidence
(“RFE”), a procedural device that permits an ISO to
obtain documentation outside the interview process. See
8 C.F.R. § 103.2(b)(8)(ii),(iii). Ms. Exum, however, refused
to comply with these instructions, and, as a result, was
3 EXUM v. DHS
terminated. The Agency’s termination letter listed five
specific instances where Ms. Exum disobeyed her supervi-
sor’s instructions, all relating to her refusals to conduct
interviews.
After the first three instances of disobedience (re-
ferred to as “Specifications 1-3”), which all occurred in the
fall of 2008, Ms. Exum was placed on a “performance
improvement period.” This process involved explaining to
Ms. Exum in a letter why the conduct outlined in Specifi-
cations 1-3 was unacceptable. Ms. Exum refused to sign
the letter, and she failed to attend any of the counseling
sessions proposed in the letter.
A week after being placed on the performance im-
provement plan, Ms. Exum refused to interview an appli-
cant who had not brought an original copy of his birth
certificate to the interview. Noting that it was snowing
and that the applicant lived over three hours away from
the field office, the supervisor instructed Ms. Exum to
conduct the interview and issue a RFE. Ms. Exum re-
fused. This incident formed the basis for Specification 4.
Regarding Specification 5, Ms. Exum once again refused
to interview an applicant and issue a RFE.
The Agency issued a proposed termination letter to
Ms. Exum on February 11, 2009. The Agency then termi-
nated her employment on March 18, 2009 after an oral
hearing. Ms. Exum challenged this decision before an
arbitrator, but the arbitrator sustained the Agency’s
decision and denied her grievance. Ms. Exum appealed.
II
Ms. Exum’s grievance is based upon removal, which is
an adverse action under 5 U.S.C. § 7512(1). Under 5
EXUM v. DHS 4
U.S.C. § 7121(f), an arbitrator’s decision regarding an
adverse action listed in § 7512 is reviewed “in the same
manner and under the same conditions as if the matter
had been decided by the [Merit Systems Protection]
Board.”
We have jurisdiction to review the Board’s final deci-
sions under 28 U.S.C. § 1295(a)(9). Our scope of review
for a Board decision, however, is limited. We may only set
aside such a decision if it was “(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) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c);
see Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381
(Fed. Cir. 2004). “[T]he arbitrary and capricious standard
is extremely narrow . . . and allows the Board wide lati-
tude in fulfilling its obligation to review agency discipli-
nary actions.” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-
7 (2001). “It is not for the Federal Circuit to substitute its
own judgment for that of the Board.” Id. at 7.
To take an adverse action against an employee, an
agency must (1) “establish by preponderant evidence that
the charged conduct occurred,” (2) “show a nexus between
that conduct and the efficiency of the service,” and (3)
“demonstrate that the penalty imposed was reasonable in
light of the relevant factors set forth in Douglas v. Veter-
ans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 307-08 (1981).”
Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir.
2009). Also, there is no requirement that an arbitrator
explicitly mention these adverse action elements in his
decision. See O’Neill v. Dep’t of Hous. and Urban Dev.,
220 F.3d 1354, 1364 (Fed. Cir. 2000) (finding of nexus
between charged conduct and efficiency of service need
not be explicit); Girani v. Fed. Aviation Admin., 924 F.2d
5 EXUM v. DHS
237, 242 n.10 (Fed. Cir. 1991) (“an arbitrator has no duty
to make a specific finding that a removal under § 7513(a)
is for the ‘efficiency of the service’”). For the reasons
provided below, we hold that the arbitrator’s analysis
satisfies all three adverse action elements.
Regarding the first adverse action element, the record
shows that Ms. Exum, on five separate occasions, refused
to follow her supervisors’ instructions to complete inter-
views. As the arbitrator explained, “[i]t is not a question
of whether Ms. Exum actually completed scheduled
interviews. It is clear that she did not.” As a result, Ms.
Exum “directly disobey[ed] orders of her supervisors.”
Thus, the arbitrator’s finding that the charged conduct
occurred is supported by substantial evidence, which
means the first adverse action element is met.
Regarding the second adverse action element, a suffi-
cient nexus exists between an employee’s conduct and the
efficiency of the service when the conduct occurred in part
at work. See Parker v. U.S. Postal Serv., 819 F.2d 1113,
1116 (Fed. Cir. 1987). Here, the record shows that the
incidents underlying Specifications 1-5 occurred while Ms.
Exum was working. Additionally, the failure to follow
instructions affects an agency’s ability to carry out its
mission and is clearly connected to the efficiency of the
service. Blevins v. Dep’t of the Army, 26 M.S.P.R. 101, 104
(1985), aff’d, 790 F.2d 95 (Fed. Cir. 1986). Therefore, the
arbitrator’s finding that Ms. Exum ignored her supervi-
sors’ instructions also demonstrates a sufficient nexus.
Thus, the second adverse action element is met.
Next, we address the third adverse action element:
the reasonableness of the Agency’s decision to remove Ms.
Exum from her position as an ISO. Ms. Exum argues
that the Agency incorrectly relied on three past discipli-
EXUM v. DHS 6
nary actions (besides Specifications 1-5) in removing her.
Specifically, Ms. Exum argues that the Agency failed to
appropriately analyze these three prior disciplinary
actions under the required Bolling standard. See Bolling
v. Dep’t of the Air Force, 8 M.S.P.B. 658 (1981). Ms. Exum
also points out that one of these three prior actions, a
fourteen-day suspension, was overturned on appeal after
the Agency made its decision but before the arbitrator
made his.
While the deciding official at the Agency did mention
the three prior disciplinary actions in considering the
Douglas factors and the propriety of the removal penalty,
the arbitrator properly focused his analysis on Specifica-
tions 1-5: “[t]he underlying problem of persistent insubor-
dination, on its own, has been clearly established.” 1
Because the arbitrator was entitled to “wide latitude in
fulfilling [his] obligation to review agency disciplinary
actions,” Gregory, 534 U.S. at 6-7, we do not consider his
actions to be arbitrary, unsupported by substantial evi-
dence, or not in accordance with law. See Quinton v. Dep’t
of Transp., 808 F.2d 826, 829 (Fed. Cir. 1986) (Affirming
the removal penalty where the Merit Systems Protection
1 We interpret this statement to mean that the in-
subordination conduct listed in Specifications 1-5 is
clearly established and is sufficient on its own to support
removal. This interpretation is appropriate, in our view,
because the statement (1) is contained in the arbitrator’s
“Discussion” section, which focuses entirely on the inci-
dents contained in Specifications 1-5; (2) is immediately
preceded by the arbitrator’s conclusion that the reversal
of the fourteen-day suspension was insufficient to negate
the termination decision; and (3) references “insubordina-
tion,” which is how the deciding official characterizes the
behavior listed in Specifications 1-5. The interpretation
that we adopt was proposed by the Government in its
brief, and Ms. Exum did not object in her reply.
7 EXUM v. DHS
Board (“MSPB”) relied on only two of the seven charges
considered by the deciding official because those two
charges “provide[d] a sufficient basis for upholding the
removal” and because “the MSPB considered the Douglas
factors in relation to the two sustained charges.”).
Ms. Exum argues that her conduct does not warrant
the extreme penalty of removal, and that this penalty is
unreasonably harsh under Douglas. We disagree. In
analyzing the incidents covered by Specifications 1-5, the
arbitrator, while not organizing his analysis explicitly by
Douglas factors, clearly considered and applied the rele-
vant factors. In particular, the arbitrator explained that
after Ms. Exum’s first three failures to follow instructions
(see Specifications 1-3), she still violated her supervisors’
orders two more times (see Specifications 4-5). The record
also shows that Ms. Exum failed to attend any of the
counseling sessions provided during the improvement
period. According to the arbitrator, the Agency’s willing-
ness try the improvement period “demonstrated an at-
tempt to salvage an otherwise useful ISO” and shows that
“[m]anagement did not resort to the ultimate penalty in
the first instance.”
Additionally, the arbitrator saw no purpose for pro-
gressive discipline or additional training, explaining that
“Ms. Exum showed no willingness to conform to Agency
expectations.” Indeed, even the Union acknowledged that
Ms. Exum was “stubborn and inflexible.” This analysis
invokes at least the following Douglas factors: “the clarity
of notice to the employee of the rule violated,” “the poten-
tial for the employee’s rehabilitation,” and “the adequacy
and effectiveness of alternative sanctions to deter such
conduct in the future.” The arbitrator also discussed in
his opinion the “the nature and seriousness” of Ms.
EXUM v. DHS 8
Exum’s offense, as well as her “job level and type of
employment,” two more Douglas factors.
Accordingly, we conclude that the arbitrator reasona-
bly found from his Douglas factor analysis that Ms.
Exum’s “persistent insubordination” warranted termina-
tion. Indeed, this finding was based solely on the conduct
outlined in Specifications 1-5. For these reasons, the
third adverse action element is met. 2
The fact that not all of the Douglas factors were sub-
stantively covered in the arbitrator’s decision does not
warrant reversal. Indeed, the Douglas factors need not
“be applied mechanically,” nor must every irrelevant
factor be considered in every case, or explicitly stated to
be irrelevant. Nagel v. Dep’t of Health & Human Servs.,
707 F.2d 1384, 1386 (Fed. Cir. 1983); see also Farrell v.
Dep’t of the Interior, 314 F.3d 584, 594 (Fed. Cir. 2002)
(This court does not require an arbitrator to consider each
and every one of the twelve Douglas factors “mechanisti-
cally by [a] preordained formula.”) (internal quotation
marks omitted); Kumferman v. Dep’t of the Navy, 785
F.2d 286, 291 (Fed. Cir. 1986) (“It is not reversible error if
2 Worth noting, even if the incidents covered by
Specifications 1-5 are considered “first-time offenses,”
removal is within the permissible range of penalties
under the penalty table utilized by the Agency.
We also note that the deciding official performed a
thorough Douglas analysis. While this official relied on
the three prior disciplinary actions in considering some of
the factors, she analyzed others without any considera-
tion of this prior conduct (e.g., “the nature and serious-
ness of the offense,” “the employee’s job level and type of
employment,” “the effect of the offense on the employee’s
ability to perform satisfactorily,” and “mitigating circum-
stances surrounding the offense”).
9 EXUM v. DHS
the Board fails expressly to discuss all of the Douglas
factors.”).
In sum, all three adverse action elements are met.
Therefore, the arbitrator’s decision to uphold the Agency’s
removal penalty was supported by substantial evidence,
was not arbitrary and capricious, and was in accordance
with the law.
Additionally, Ms. Exum argues (1) that she did not
follow her supervisors’ instructions because she felt doing
so would require her to violate the law, and (2) that she
had the discretion within her position to act independ-
ently, regardless of the instructions. These arguments
have no merit. First, the two types of actions ordered by
the supervisors (i.e., interviewing the applicants and
issuing an RFE) were authorized by federal regulations.
See 8 C.F.R. § 245.6; 8 C.F.R. § 103.2(b)(8)(ii), (iii). More-
over, an inter-office memorandum generated by the
Agency states that while federal regulations “clearly
require[] applicants and petitioners to file complete
applications,” the option to deny these applications will be
“exercise[d] . . . judiciously.” Under these laws and poli-
cies, all of which Ms. Exum would have been privy to, it is
clear that the instructions she received from her supervi-
sors would not require her to break the law.
Second, regarding Ms. Exum’s discretion argument,
the arbitrator relied on two memoranda (the Yates and
Neufeld memos) to conclude that the Agency’s policy
required Ms. Exum to obey her supervisor. Moreover, our
law states that “Government employees . . . may not
refuse to do work merely because of disagreements with
management . . . [and failure] to perform their duties . . .
[is done] at the risk of being insubordinate.” Dep’t of
EXUM v. DHS 10
Health & Human Servs., 707 F.2d 1384, 1387 (Fed. Cir.
1983). Therefore, we reject Ms. Exum’s argument.
We have considered Ms. Exum’s remaining arguments
and reject those, as well.
III
For these reasons, the arbitrator’s decision is af-
firmed.
COSTS
Each party shall bear its own costs.
AFFIRMED