Emanuele v. Department of Transportation , 436 F. App'x 988 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
SARAH EMANUELE,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________
2011-3047
__________________________
Petition for review of an arbitrator’s decision by Mi-
chael E. Zobrak.
__________________________
Decided: July 22, 2011
__________________________
SARAH EMANUELE, of Cornwall, New York, pro se.
LARTEASE M. TIFFITH, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
__________________________
2 EMANUELE v. TRANSPORTATION
Before BRYSON, LINN, and O’MALLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN.
Dissenting opinion filed by Circuit Judge O’MALLEY.
LINN, Circuit Judge.
Sarah Emanuele (“Emanuele”) appeals the decision of
Arbitrator Michael E. Zobrak, upholding a 25-day suspen-
sion from her position as an Air Traffic Controller Special-
ist at the Federal Aviation Administration (“agency”) for
making inaccurate statements on a pre-employment
medical questionnaire. Because substantial evidence
supports the arbitrator’s decision, this court affirms.
BACKGROUND
Emanuele was employed as an Air Traffic Controller
Specialist with the agency in Memphis, Tennessee. As
part of the pre-employment process, Emanuele was re-
quired to complete a medical history questionnaire, FAA
Form 8500 (“the Form”), which the agency uses to deter-
mine whether the applicant may work in a safety sensi-
tive position. Question 18 on the form, titled “Medical
History,” asked: “HAVE YOU EVER IN YOUR LIFE
BEEN DIAGNOSED WITH, HAD, OR DO YOU
PRESENTLY HAVE ANY OF THE FOLLOWING?
Answer ‘yes’ or ‘no’ for every condition listed below.”
Condition b. listed “Dizziness or fainting spell” and in-
cluded check boxes for yes or no. In her 2007 and 2008
forms, Emanuele had checked “no.”
On January 7, 2009, Emanuele requested acceptance
into the Voluntary Leave Transfer Program, through
which “the unused accrued leave of one agency officer or
employee may be transferred for use by another agency
officer or employee who needs such leave because of a
medical emergency.” 5 C.F.R. § 630.901. To support her
claim of a medical emergency, Emanuele submitted the
letter of her physician, Dr. Rekha Pillai, describing an
EMANUELE v. TRANSPORTATION 3
office visit of December 18, 2008. In that letter, Dr. Pillai
diagnosed Emanuele with “[s]evere vertigo, possibly
secondary labyrinthitis.” She also stated the following:
[Emanuele] notes that she has had inter-
mittent bouts of vertigo since she was 18
years old, which was the first time she de-
veloped the symptom. It was associated
with sinus infection. The second attack
was at age 21 when she had flu-like symp-
toms and at 23 she had been on a cruise
and returned and developed severe ver-
tigo. Her next attack was at age 25. Since
then, she has not had any vertigo, except
in summer of this year when she devel-
oped severe colitis related to clindamycin.
J.App’x at 72a.
On February 3, 2010, the agency proposed to suspend
Emanuele for 30 days for “[failing] to provide complete
and accurate information on FAA Forms 8500-8” and,
unrelatedly, for making an irresponsible statement.
Emanuele appealed the agency’s decision through the
National Air Traffic Controllers Association (“union”),
alleging that Emanuele’s suspension violated the collec-
tive bargaining agreement and the law. The union and
the agency agreed to arbitration.
The arbitrator affirmed the agency’s decision on the
non-disclosure basis, but reversed the irresponsible
statement basis. The arbitrator therefore reduced the
suspension to 25 days.
Emanuele appealed and we have jurisdiction under 5
U.S.C. §§ 7121(f) and 7703. Johnson v. Dep’t Vet. Affairs,
625 F.3d 1373, 1376 (Fed. Cir. 2010).
DISCUSSION
This court reviews an arbitrator’s decision under the
same standard of review as appeals from the Merit Sys-
4 EMANUELE v. TRANSPORTATION
tems Protection Board, affirming unless the arbitrator’s
decision 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.” Id. (quoting 5 U.S.C. § 7703(c)(1)-(3)). As the
appeal here involves only matters of fact, this court
applies the substantial evidence standard.
The arbitrator affirmed the agency’s determination
primarily on the basis of Dr. Pillai’s original report detail-
ing Emanuele’s pre-employment history of vertigo, and
Emanuele’s failure to disclose such history on the Form.
It is undisputed that Emanuele indicated on the Form
that she had never in her life had dizziness or fainting
spells prior to 2008. Because the agency’s charge does not
require an intent element, this dispute centers around
whether she did indeed experience dizziness or fainting
spells prior to 2008.
Dr. Pillai’s December 18, 2008 report provides evi-
dence that Emanuele did in fact experience vertigo prior
to filling out the Form. 1 As the arbitrator determined,
“[t]here is no question that Dr. Pillai reported [that
Emanuele] had incidents of vertigo at the age of 18, 21, 23
and 25,” J.App’x at 9a, all of which were prior to her
filling out the Form in 2007. The arbitrator further
determined that it was more likely that Emanuele did
indeed experience vertigo before 2008 because when first
1 Doctor Pillai’s report did not appear to draw any
distinction between Emanuele’s earlier bouts of vertigo,
which she alluded to only in shorthand form, and her
current bout of vertigo, which she described in more
detail. Accordingly, there is little reason to attach any
real significance to her reference to “dizziness” in connec-
tion with the 2008 instance and not in connection with
her previous incidents.
EMANUELE v. TRANSPORTATION 5
confronted with the inconsistency between Dr. Pillai’s
report and her representation in the Form, she did not
argue that Dr. Pillai had made a mistake. Instead, she
contended that dizziness and vertigo are different things
so there was no need to report her vertigo in answer to a
question that asked only about dizziness.
Emanuele disputes the initial report on three bases.
First, she argues that vertigo is not dizziness, citing
Taber’s Cyclopedic Medical Dictionary, which states that
“Vertigo is sometimes inaccurately used as a synonym for
dizziness” (emphasis added). As the agency correctly
concluded in its letter to Emanuele, “one could have
dizziness without having vertigo,” but it is “highly
unlikely that one could have vertigo without some form of
dizziness.” There is substantial evidence in the record to
support the determination implicit in the Arbitrator’s
decision that vertigo is accompanied by dizziness. For
example, Tim Nelson, the official who signed the Proposal
of Suspension and Decision Letter, testified as follows in
regards to Emanuele’s response:
Q: Now, she has something that she’s ad-
mitted as part of her response that details
vertigo, correct?
A: Correct.
Q: In her definition, do you see the word
“dizziness”?
A: No, I do not.
Q: Have you looked up other definitions?
A: I did research on the Internet. I’ve re-
searched in medical dictionaries. Had
conversations with the flight surgeon con-
cerning vertigo. Every definition I read
has dizziness in it, or wording that would
imply dizziness.
6 EMANUELE v. TRANSPORTATION
Q: What about this definition [in
Emanuele’s response]?
A: False feeling of motion is [sic] that the
room is spinning, or off balance; may re-
sult in falling. It’s not saying “dizzy”, but
that’s dizzy to me.
J.App’x at 19a(63:3-21). See also J.App’x at 17a(56:8-24)
(“Q: In your experience or understanding, is it possible to
have vertigo without some form of dizziness? A: No,
sire.”); J.App’x at 30a(140:9-18) (“Q: Just because dizzi-
ness is not synonymous with vertigo, does that mean that
dizziness is not a symptom of vertigo? A: In all the read-
ing that I did, in the encyclopedia and the Internet,
dizziness was more often than not listed as a symptom.
And if it wasn’t listed under the name ‘dizziness’, there
were conditions that described what I would assume as to
being dizzy.”). Moreover, while Taber’s Cyclopedic Medi-
cal Dictionary says that vertigo and dizziness are not
identical, it also describes vertigo as including: “The
sensation of moving around in space (subjective vertigo)
or of having objects move about the person (objective
vertigo).” J.App’x at 123a. This definition provides
substantial evidence for the Arbitrator’s finding that
Emanuele’s history of vertigo included sensations that
should have been reported on a form asking about “Dizzi-
ness or fainting spell[s].”
Second, Emanuele argues that Dr. Pillai submitted
what appear to be two nearly identical addenda to the
record, both dated June 22, 2009, which override the
original report. One reads as follows:
Ms. Sarah Emanuele has written a letter
to me concerned about what she thinks is
incorrect history. She states that she did
not have attacks of vertigo since she was
18 years old. She apparently had the flu
and she has had sinus infections since
EMANUELE v. TRANSPORTATION 7
then. I am unsure if she states that these
were not associated with vertigo or she felt
that the vertigo was related to the sinus
infection and was not an independent
symptom. She states that she developed
vertigo four days after she became ill with
colitis. . . . She also states that she did not
have vomiting with her vertigo, and on her
return visit, she states that she had some
dizziness and visual blurring but no ver-
tigo. These corrections are being added to
her medical records.
The second addendum omits “I am unsure . . . was not an
independent symptom.” The arbitrator gave the addenda
“[l]ittle weight,” concluding that the earlier report was
more credible, and that the “wording found in the adden-
dums reveals that the physician was merely reporting
what [Emanuele] had recently told her. Those later
comments reflect [Emanuele’s] position offered in an
effort to deflect the impact of Dr. Pillai’s initial reporting.”
While the medical history in the first report was made
with an eye towards an accurate diagnosis, the latter
report was not so intentioned. Moreover, the addenda do
not indicate Dr. Pillai’s acknowledgment that he made a
mistake in the initial report, and are written to suggest
disbelief—i.e. Emanuele is “concerned about what she
thinks is incorrect history.” While it is certainly possible
that Dr. Pillai was simply mistaken in the first report,
this court may not substitute its own judgment for that of
the arbitrator, and the arbitrator’s decision to rely on the
earlier rather than the later report is supported by sub-
stantial evidence.
Third, Emanuele argues that Dr. Pillai made other
mistakes in her initial report which cast doubt on the
veracity of the remaining statements of Emanuele’s
medical history. While they may cast some doubt, the
8 EMANUELE v. TRANSPORTATION
mistakes do not negate the significance of the initial
report as substantial evidence.
Emanuele makes several more arguments apart from
contesting Dr. Pillai’s initial report. First, she argues
that it has been definitively established that she does not
have “meniers disease,” which she represents is “the only
persistent chronic lifelong medical condition that causes
frequent attacks of vertigo.” However, the agency’s
charge could be sustained if Emanuele had suffered even
a single instance of dizziness or vertigo prior to her repre-
sentation on the Form that she had never suffered dizzi-
ness. Moreover, meniers disease is not the only possible
cause of dizziness.
Second, Emanuele argues that she was never pro-
vided instructions in filling out the form. It is unclear
why this fact should reveal a lack of substantial evidence
for the arbitrator’s decision. More importantly, no in-
structions appear to be necessary in light of the unambi-
guous nature of the form: “HAVE YOU EVER IN YOUR
LIFE BEEN DIAGNOSED WITH, HAD, OR DO YOU
PRESENTLY HAVE ANY OF THE FOLLOWING?
Answer ‘yes’ or ‘no’ for every condition listed below.”
Third, Emanuele argues that the arbitrator errone-
ously found a nexus between her failure to disclose infor-
mation and the efficiency of the service. As support, she
argues that vertigo is not a disqualifying medical condi-
tion because she later reported it and did not lose her
medical clearance. This argument is meritless. The
arbitrator determined that “the proper completion of the
medical forms used by the Agency for air traffic control-
lers is of the utmost importance. The inability to perform
the duties even if due to medical reasons can endanger
the safety of the flying public.” The Form is intended as a
means of evaluating an applicant’s fitness for safety
sensitive positions. Even if vertigo is not always a dis-
qualifying medical condition, the agency’s ability to prop-
erly evaluate an applicant’s fitness based on accurate
EMANUELE v. TRANSPORTATION 9
information about the applicant’s physical and medical
condition certainly impacts the efficiency of the service.
Moreover, there is substantial evidence to support the
nexus between an air traffic controller’s vertigo, which (as
noted by Dr. Pillai) makes Emanuele more dizzy when she
is “looking at moving objects,” and her ability to effec-
tively perform her duties.
Fourth, Emanuele argues that the arbitrator failed to
consider the Douglas factors in determining the proper
penalty. See Douglas v. Vet. Admin., 5 M.S.P.B. 313(1981). We note that Emanuele has not herself analyzed
the Douglas factors as they apply to her case. Moreover,
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). The agency, in its notice of suspension “considered
the nature and seriousness of the offense,” noted that the
“lack of disclosure brings your trustworthiness and integ-
rity into question,” determined that Emanuele’s actions
“created a situation in which management had to modify
assignments, and adjust work schedules,” and found that
Emanuele had received notice “of the importance of
providing accurate information on government forms.” In
addition, the agency considered the mitigating factor of
Emanuele’s emotional distress. Though the agency’s
Table of Penalties provided for a 60-day suspension,
Emanuele was only given a 30-day suspension, which was
thereafter reduced by the arbitrator. Emanuele has no
cause to complain that the penalty was not appropriate to
her misconduct.
Finally, Emanuele makes a number of miscellaneous
arguments, including contesting the agency’s delay in
implementing her suspension, and contesting the agency’s
failure to give her notice of the potential penalties for
failure to disclose all relevant information. We have
considered these arguments and find them meritless.
10 EMANUELE v. TRANSPORTATION
CONCLUSION
For the reasons stated above, this court affirms
Emanuele’s 25-day suspension for failing to provide
complete and accurate information on a medical disclo-
sure form.
AFFIRMED
COSTS
Each party shall bear its own costs.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SARAH EMANUELE,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
__________________________
2011-3047
__________________________
Petition for review of an arbitrator’s decision by Mi-
chael E. Zobrak.
__________________________
O’MALLEY, Circuit Judge, dissenting.
In its review of the arbitrator’s decision, the majority
finds that, as a factual matter, “it is highly unlikely that
one could have vertigo without some form of dizziness.”
Maj. Op. at 5. The arbitrator, however, made no such
finding. Though the parties vigorously debated the rela-
tionship between vertigo and dizziness – an issue central
to the propriety of Ms. Emanuele’s suspension – the
arbitrator left this fact dispute unaddressed. Because it is
neither our role as a circuit court, nor within our jurisdic-
tional competence, to resolve such fact disputes in the
first instance, I must, respectfully, dissent. See Church of
Scientology v. United States Postal Serv., 700 F.2d 486,
EMANUELE v. TRANSPORTATION 2
490 (9th Cir. 1983) (remanding with instructions to
“resolve the factual issues raised by the parties” because
appellate courts do “not have the jurisdictional compe-
tence to resolve factual disputes”).
As the majority notes, this case turns on whether Ms.
Emanuele experienced dizziness or fainting spells prior to
2008. One of Ms. Emanuele’s primary arguments before
the arbitrator was that the agency failed to prove that she
experienced dizziness because having a history of vertigo
does not mean she had a history of dizziness. The agency
pointed to no direct evidence that Ms. Emanuele had
dizziness. Instead, its theory was that, because Dr. Pillai
reported a history of vertigo, one could infer that Ms.
Emanuele had dizziness. Thus, to sustain the charge, the
arbitrator needed to find that the agency proved, by
preponderant evidence, that, because Ms. Emanuele had
vertigo, she also had dizziness. The arbitrator made no
such finding. Instead, he apparently presumed that
“vertigo” and “dizziness” are one in the same. 1 See, e.g.,
Arbitrator’s Decision at 9 (“Grievant has been less than
agreeable in releasing medical documentation and failed
to offer credible evidence that would support that she did
1 Another possibility is that the arbitrator’s decision
was premised on a misreading of Dr. Pillai’s report. The
arbitrator appears to have interpreted the report as
stating that Ms. Emanuele had a history of both vertigo
and dizziness. See Arbitrator’s Decision at 4 (“Dr. Pillai
described the Grievant’s medical history as containing
bouts of vertigo, dizziness, blurred vision and nausea.”).
Ms. Emanuele, however, disputes this interpretation of
Dr. Pillai’s December 18, 2008 report, and the section of
the report titled “HISTORY of PRESENT ILLNESS”
describes prior bouts of vertigo, but not dizziness. JE2 at
11. Dr. Pillai’s report references dizziness only in a
section describing Ms. Emanuele’s symptoms in December
2008, which was well after Ms. Emanuele’s purported
misrepresentations. Id.3 EMANUELE v. TRANSPORTATION
not have a history of vertigo/dizziness as initially reported
by Dr. Pillai.”). Consequently, he never resolved the
factual dispute regarding the relationship between vertigo
and dizziness.
Ms. Emanuele renews this argument on appeal, and
the majority opinion addresses it as follows:
[Ms. Emanuele] argues that vertigo is not dizzi-
ness, citing Taber’s Cyclopedic Medical Diction-
ary, that states that “Vertigo is sometimes
inaccurately used as a synonym for dizziness.” As
the agency correctly concluded in its letter to
Emanuele, “one could have dizziness without ver-
tigo,” but it is “highly unlikely that one could have
vertigo without some form of dizziness.” There is
substantial evidence in the record to support the
determination implicit in the arbitrator’s decision
that vertigo is accompanied by dizziness.
Maj. Op. at 5 (citing JE4 (Agency’s April 2, 2010 Decision
Letter)). The factual “determination” referred to by the
majority, however, was made “implicitly” only in the
sense that the agency could not prevail unless it per-
suaded the arbitrator to resolve the fact dispute raised by
Ms. Emanuele in its favor. Because the arbitrator upheld
Ms. Emanuele’s suspension, the majority concludes that
the arbitrator must have determined that “vertigo is
accompanied by dizziness.” As explained above, however,
the arbitrator failed to acknowledge – let alone settle –
the fact dispute regarding the relationship between
vertigo and dizziness. Thus, because the arbitrator did
not resolve this fact in the agency’s favor, the majority
takes it upon itself to do so, and justifies its fact-finding
by gleaning an “implicit” factual determination from the
arbitrator’s ultimate legal conclusion. In doing so, more-
over, the principal authority the majority cites for the
EMANUELE v. TRANSPORTATION 4
relationship between vertigo and dizziness – a relation-
ship that the agency was required to prove – is Tim
Nelson, the agency official who proposed Ms. Emanuele’s
suspension and made the ultimate decision to suspend
her. Mr. Nelson’s statements, however, do not demon-
strate that, as an empirical matter, it is “highly unlikely
that one could have vertigo without some form of dizzi-
ness.” Rather, he simply stated that, based on a medical
dictionary’s definition of vertigo and “a simple internet
search,” “[he] f[ou]nd it highly unlikely that one could
have vertigo without some form of dizziness.” JE4 at 1.
As Ms. Emanuele points out, however, this conclusion is
based on a misquotation of the definition of vertigo.
While Mr. Nelson quoted Taber’s Cyclopedic Medical
Dictionary for the proposition that vertigo is “[s]ometimes
used as a synonym for dizziness, lightheadedness, and
giddiness,” the actual dictionary entry states that: “Ver-
tigo is sometimes inaccurately used as a synonym for
dizziness, lightheadedness, or giddiness.” See Taber’s
Cyclopedic Medical Dictionary at 2327.
Based on its own factual finding that “it is highly
unlikely that one could have vertigo without some form of
dizziness” – a finding premised upon agency statements
made without medical support – the majority affirms the
arbitrator’s decision upholding Ms. Emanuele’s suspen-
sion. “[W]e are a court of review,” however, “not of first
view.” See Cutter v. Wilkinson, 544 U.S. 709, 719 (2005).
Because the arbitrator never addressed the parties’
dispute over the relationship between vertigo and dizzi-
ness, and it is not our role, as circuit judges, to engage in
fact-finding, I would remand the case to permit the arbi-
trator to consider the question in the first instance.