Jolly v. Army , 711 F. App'x 620 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAURIE JOLLY,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2017-1919
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0013-I-1.
______________________
Decided: September 11, 2017
______________________
LAURIE JOLLY, Evans, GA, pro se.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., DOUGLAS K.
MICKLE.
______________________
Before DYK, LINN, and HUGHES, Circuit Judges.
2 JOLLY v. ARMY
PER CURIAM.
Laurie Jolly petitions for review of a final decision of
the Merit Systems Protection Board (“Board”). Jolly was
removed from employment at the Army for engaging in
conduct unbecoming a federal employee by making men-
acing remarks. The Board denied Jolly’s appeal. We
affirm.
BACKGROUND
Jolly was a Health Systems Administrator at the
Dwight D. Eisenhower Army Medical Center (“Army
Medical Center”), in Fort Gordon, Georgia. Around 2014,
Jolly began having difficulties with her work schedule.
Jolly contends that she was entitled “to select her starting
and end time each day, which she was free to change,”
while her supervisors deemed her to have fixed working
hours. S.A. 20.
On May 2, 2014, Jolly met with Yolanda Kelly, Chief
of Medical Expense Reporting System at Army Medical
Center, to discuss this issue. According to Kelly, during
that meeting, Jolly stated that she felt “she was being
singled out, . . . intimidated and threatened,” and asked
Kelly “if she had heard about the [recent] Camp Lejeune
and Fort Hood shootings.” S.A. 23. Jolly then stated that
“her supervisor, and Col. Barrow, her second line supervi-
sor, needed to be careful, to leave her alone and not to
mess with her.” Id. Finally, Jolly stated that she had
already written a letter to her Congressman about this
issue. In that letter, Jolly attached a newspaper article
about the Fort Hood shooting, and wrote that “[w]e need
help stopping the violence. . . . If they do this to me, who
else do you think they are doing this to[]? . . . Thoughtless
actions (or in-actions) taken by military leaders are often
where the deadly tragedies begin.” S.A. 21.
JOLLY v. ARMY 3
Kelly described Jolly’s demeanor as “visibly shaken[]
and very nervous.” S.A. 5. Based on this meeting, Kelly
felt very concerned “because she . . . perceive[d] a threat,”
id., and alerted her own supervisor, Jolly’s supervisors,
and the police.
On May 5, 2014, Jolly returned to Kelly’s office to
explain what she had said. According to Kelly, Jolly
stated that “her family was bleeding because of the issues
with her pay.” S.A. 3. Kelly viewed Jolly’s demeanor at
this meeting to be “serious and very resolved.” Id. This
again alarmed Kelly, and she contacted security.
On June 16, 2014, the Army notified Jolly that it was
proposing her removal for conduct unbecoming a federal
employee, for making “inflammatory and/or menacing
comments which reasonably placed fellow employees in
fear.” S.A. 21. The proposal stated that Jolly’s “comments
implied violence towards those individuals causing [Jolly]
frustration at work,” and that these statements “seemed
to be less emotional and exhibited a . . . resolve,” especial-
ly since Jolly had “repeated the same verbiage in a writ-
ten statement to a legislative official.” S.A. 21–22.
Jolly responded to her proposed removal by contend-
ing, inter alia, that her comments were rhetorical and not
threats. After considering Jolly’s response and the rele-
vant Douglas factors, the deciding official, Barrow, deter-
mined to remove Jolly, effective September 11, 2014.
Jolly petitioned the Board for review, arguing that her
statements were misconstrued, that there were mitigating
Douglas factors to be considered, and that her due process
rights were violated because the deciding official was not
impartial as Barrow was Jolly’s supervisor and a target of
the alleged remarks.
The Administrative Judge (“AJ”) found that, based on
Kelly’s testimony and the letter sent to Jolly’s Congress-
4 JOLLY v. ARMY
man, Jolly’s “comments were inflammatory and/or menac-
ing and . . . they reasonably placed fellow employees in
fear.” S.A. 25. The AJ thus sustained the Army’s charges.
The AJ also found that the deciding official “properly and
thoroughly considered all of the relevant Douglas factors
when she concluded that removal was . . . appropriate.”
S.A. 26. Finally, the Board found that Barrow’s serving as
the deciding official did not violate Jolly’s due process
rights.
Jolly petitioned for review of this initial decision,
which the Board denied. The Board affirmed the AJ’s
initial decision.
Jolly petitions for review. We have jurisdiction under
28 U.S.C. § 1295(a)(9). 1
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
1 Jolly initially appealed the Board’s final order as a
mixed-case involving discrimination claims in the South-
ern District of Georgia on May 13, 2016. See Jolly v. Dep’t
of the Army, No. 1:16-cv-00065-JRH-BKE (S.D. Ga. May
13, 2016), Dkt. No. 1. Jolly then abandoned her discrimi-
nation claims and sought vacatur and transfer of this case
to the Federal Circuit, where she is afforded the benefit of
her district court filing date. See Jolly v. Dep’t of the
Army, No. 1:16-cv-00065-JRH-BKE (S.D. Ga. Apr. 12,
2017), Dkt. No. 19. Thus, Jolly’s petition is timely despite
being docketed in our court beyond the 60-day limit for
review.
JOLLY v. ARMY 5
In her petition for review, Jolly argues that the
Board’s findings were based only on “conjecture” and not
supported by substantial evidence. Appellant Br. 1.
We conclude that substantial evidence supports the
Board’s determination. The Board found that “the appel-
lant did not dispute that she mentioned bloodshed and
the recent shootings at other military installations during
her meeting with Ms. Kelly. She also did not dispute that
she asked whether more blood needed to be shed before
things changed.” S.A. 23. Based on testimony from Kelly
and Jolly’s supervisors, as well as cross-examination of
Jolly, the Board found Jolly’s “comments about bloodshed
and the shootings at other military installations implied
violence towards the two management officials whom she
blamed for her problems at work.” S.A. 24. Thus, the
Board concluded that “while the appellant tries to mini-
mize her statements,” S.A. 24, the Army had “established
by a preponderance of the evidence that the appellant
engaged in conduct that was unbecoming a federal em-
ployee,” S.A. 25.
Jolly interprets what she had said as merely express-
ing “concerns of being subjected to unfair labor practices.”
Appellant Br. 26. Thus, Jolly contends that Kelly’s and
Barrow’s interpretation of her comments, that Jolly
implied “a desire to . . . cause harm,” was incorrect. Id. at
27. The Board heard testimony with respect to these two
competing interpretations and favored the Army. See S.A.
24. “[F]avoring the testimony of [the] supervisor . . . over”
the petitioner’s is a “[c]redibility determination . . . within
the discretion of the Board and, in general, such evalua-
tions are virtually unreviewable on appeal.” Bruce v. Dep’t
of Veterans Affairs, 307 F. App’x 442, 445 (Fed. Cir. 2009)
(per curiam) (citation and quotation marks omitted).
Jolly also argues in her petition for review that the
Board failed to provide an “honest assessment” of the
6 JOLLY v. ARMY
relevant Douglas factors. Appellant Br. 24. We find no
error in the Board’s conclusions.
Where an employee makes “threats . . . against her
supervisor [that are] unprofessional and inappropriate,
and . . . they adversely affect[] the work atmosphere,” the
penalty of removal is “within the permissible range of
reasonableness.” Harrison v. Dep’t of Agr., 411 F. App’x
312, 315–16 (Fed. Cir. 2010) (per curiam). In such remov-
al actions, the “AJ need not consider every one of the 12
Douglas factors;” rather, it is sufficient, for example, for
the AJ to address “the nature and seriousness of the . . .
charges[,] . . . petitioner’s past disciplinary and perfor-
mance records, and the deleterious effect of his course of
misconduct.” Webster v. Dep’t of Army, 911 F.2d 679, 686
(Fed. Cir. 1990).
Here, the Board found that the deciding official had
“properly and thoroughly considered all of the relevant
Douglas factors when she concluded that removal was an
appropriate and reasonable penalty.” S.A. 26. Specifically,
the Board found that “[w]hile [the deciding official] recog-
nized the appellant’s 22 years of civilian service, her
length of service did not outweigh the seriousness of the
misconduct[,] . . . the fact that [the deciding official] had
lost confidence in the appellant[,] . . . [and] the sensitive
nature of her threat.” Id. The Board also found that Jolly
“fail[ed] to take responsibility for the misconduct” and
that she “lack[ed] . . . remorse.” S.A. 27. Therefore, sub-
stantial evidence supports the Board’s conclusion in this
respect as well.
Finally, Jolly argues in her petition for review that
her due process rights were violated because the deciding
official for her termination, Barrow, was “at the center of
a contentious relationship with” Jolly and was the alleged
target of Jolly’s remarks. Appellant Br. 23. Moreover,
Jolly argues that Barrow improperly served as both the
JOLLY v. ARMY 7
proposing official and deciding official for her removal. We
do not view these facts as establishing a violation of due
process.
First, “[a]t the pre-termination stage, it is not a viola-
tion of due process when the proposing and deciding roles
are performed by the same person. The law does not
presume that a supervisor who proposes to remove an
employee is incapable of changing his or her mind upon
hearing the employee’s side of the case.” DeSarno v. Dep’t
of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).
Second, the standards of impartiality applicable to
post-termination adjudications do not apply in the context
of pre-termination hearings. “Nothing . . . limits the
deciding official to being a neutral arbiter or requires that
the deciding official be unfamiliar with the individual, the
facts of the case, or the employee’s prior conduct” during
the pre-termination hearing. Norris v. S.E.C., 675 F.3d
1349, 1354 (Fed. Cir. 2012). We agree with the reasoning
in McDaniels v. Flick, 59 F.3d 446 (3d Cir. 1995), where
the Third Circuit adopted the rule that an impartial
decision-maker at the pre-termination stage is not need-
ed, citing to Fifth, Sixth, Ninth, and Eleventh Circuit
precedents, because
[u]sually, an employment termination decision is
made initially by the employee’s direct supervisor
. . . —a sensible approach given that such person
often is already familiar with the employee[] . . . .
Yet, these individuals are also likely targets for
claims of bias or improper motive simply because
of their positions. . . . [T]o require . . . an impartial
pretermination hearing in every instance would
as a practical matter require that termination de-
cisions initially be made by an outside party ra-
ther than the employer as charges of bias always
could be made following an in-house discharge.
8 JOLLY v. ARMY
Id. at 458–60.
We have considered the petitioner’s remaining argu-
ments and find them without merit.
AFFIRMED
COSTS
No costs.