Lockwood v. DVA ( 2018 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD J. LOCKWOOD,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-1489
______________________
Petition for review of an arbitrator’s decision in FMCS
No. 16-54073-7 by Charles G. Griffin.
______________________
Decided: February 21, 2018
______________________
STEPHEN E. JONES, Law Offices of Stephen E. Jones,
P.C., Dallas, TX, argued for petitioner.
SEAN SIEKKINEN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.
______________________
Before TARANTO, BRYSON, and STOLL, Circuit Judges.
2 LOCKWOOD v. DVA
BRYSON, Circuit Judge.
Edward J. Lockwood petitions for review of an arbi-
tration decision sustaining his indefinite suspension from
employment with the Department of Veterans Affairs
(“VA”). Because the arbitrator’s decision is supported by
substantial evidence and is in accordance with law, we
affirm.
I
Mr. Lockwood is employed as a firefighter at the VA
Medical Center near Alexandria, Louisiana. In July 2014,
the VA police began an investigation into allegations that
Mr. Lockwood was stalking female employees at the
hospital facility.
As part of the investigation, a VA police officer filed a
series of police investigative reports in October 2014. In
the initial report, dated October 2, 2014, the officer re-
counted statements made by five individuals who report-
ed that Mr. Lockwood had followed female employees
around the medical campus; had entered an employee’s
vehicle uninvited; had engaged in unwanted physical
contact with one employee; and had “followed other em-
ployees off campus to their residences” and “followed
other female employees around town.” Some of the wom-
en stated that Mr. Lockwood had made them feel uneasy
and unsafe.
A follow-up report dated October 7, 2014, described
additional allegations of stalking, including a statement
from one employee that Mr. Lockwood’s constant presence
had caused her anxiety and fear. She added that she
could not work late when needed “due to the fact that he
is constantly around and watching her.” In another
report, the officer described an incident that he personally
observed in which Mr. Lockwood sprinted toward an
employee and then followed a few paces behind her before
LOCKWOOD v. DVA 3
abruptly leaving the area when he noticed the police
officer’s presence.
On October 15, 2014, two officers from the VA police
department notified Mr. Lockwood that there was a
warrant for his arrest and transported him to the local
sheriff’s office where he was booked on three counts of
stalking. The VA police then turned their file over to the
district attorney’s office. The district attorney later
charged Mr. Lockwood with four counts of stalking in
violation of Louisiana Revised Statute 14:40.2. 1 The VA
did not take any adverse employment action against Mr.
Lockwood at that time.
In December 2015, a new allegation of stalking by Mr.
Lockwood prompted a review of Mr. Lockwood’s actions,
which ultimately led to his suspension. On December 18,
2015, he was placed on paid administrative leave. Then,
on January 12, 2016, the VA sent Mr. Lockwood a notice
proposing to suspend him indefinitely “until the comple-
tion of the pending . . . judicial proceedings associated
with the conduct referenced in paragraph 2.”
Paragraph 2 of the notice stated the basis for the pro-
posed indefinite suspension:
In July of 2014, the VA Police received several
complaints from female employees of the Alexan-
dria VA Healthcare System (AVAHCS) alleging
that you were stalking them on VA property. The
VA Police investigated the allegations and on Oc-
tober 15, 2014, you were arrested by the AVAHCS
1 The Louisiana statute defines stalking, in perti-
nent part, as the “intentional and repeated following or
harassing of another person that would cause a reasona-
ble person to feel alarmed or to suffer emotional distress.”
A first conviction is punishable by a fine and term of
imprisonment of 30 days to one year.
4 LOCKWOOD v. DVA
Police Department and were transported to the
Rapides Parish Sheriff’s Office where you were
booked on three (3) counts of stalking. Following
that arrest, you were charged with another count
of stalking in connection with a fourth female em-
ployee at the Alexandria VA Health Care System.
On October 21, 2014, you were formally charged
with four counts of stalking under Louisiana Re-
vised Statute 14:40.2, which is punishable by a
mandatory prison sentence. Based on the infor-
mation contained in the VA Police Investigative
File, your subsequent arrest, and the nature of
the charges pending against you, the Agency has
reasonable cause to believe that you may have
committed a crime for which a sentence of impris-
onment may be imposed.
The notice continued: “Based on the seriousness of
the offense and the incompatibility of the charges with
your official duties . . . the alleged charges interfere with
or adversely affect the Agency’s mission as a whole. . . .
Your continued presence at this facility poses a threat to
its orderly operation.” The proposed suspension was also
supported by a memorandum from the Interim Health
Care System Director, which addressed the 12 “Douglas
factors” bearing on the choice of penalty. 2 The memoran-
dum concluded that Mr. Lockwood posed a “continued
threat to female employees,” that he “has had numerous
counselings,” that his conduct has “apparently spanned
several years,” that the potential for his rehabilitation
2 In Douglas v. Veterans Administration, 5 M.S.P.R.
280 (1981), the Merit Systems Protection Board listed 12
factors to “be considered in determining the appropriate
penalty for the subject employee.” Tartaglia v. Dep’t of
Veterans Affairs, 858 F.3d 1405, 1408 (Fed. Cir. 2017).
LOCKWOOD v. DVA 5
was “seemingly poor,” and that he could not operate
effectively as a firefighter under these circumstances.
The notice of proposed indefinite suspension was is-
sued pursuant to 5 U.S.C. § 7513. Under that statute, an
agency may impose a serious penalty, such as indefinite
suspension, “only for such cause as will promote the
efficiency of the service.” Id. § 7513(a). When a discipli-
nary action is proposed, an employee is normally entitled
to 30 days’ advance written notice “stating the specific
reasons for the proposed action.” Id. § 7513(b)(1). How-
ever, a proviso commonly referred to as the “crime provi-
sion” permits the agency to shorten that notice period
when “there is reasonable cause to believe the employee
has committed a crime for which a sentence of imprison-
ment may be imposed.” Id.; see 5 C.F.R. § 752.404(d)(1).
In this case, the VA invoked the crime provision and
reduced the length of the written notice period from the
normal 30-day period and provided him with the statuto-
ry minimum of seven days to respond to the charges. See
5 U.S.C. § 7513(b)(2).
Mr. Lockwood orally responded to the notice on Janu-
ary 20, 2016. Two days later, the VA sustained the pro-
posed indefinite suspension, effective January 27, 2016.
The suspension was set to last “until the completion of the
law enforcement investigation and any related judicial
proceedings pertaining to this conduct.”
After an unsuccessful grievance proceeding, Mr.
Lockwood invoked his right to arbitration. Following a
hearing on August 18, 2016, the arbitrator upheld the
suspension. In his opinion, the arbitrator rejected each of
Mr. Lockwood’s challenges to the agency’s decision.
First, the arbitrator rejected Mr. Lockwood’s conten-
tion that it was improper for the agency to invoke the
crime provision, which reduced his written notice period
to less than 30 days. The arbitrator found that the agen-
cy had satisfied the statutory requirement for invoking
6 LOCKWOOD v. DVA
the crime provision by showing that there was “reasona-
ble cause to believe” that Mr. Lockwood had “committed a
crime for which a sentence of imprisonment may be
imposed.” In particular, the arbitrator found that the
agency had met the “reasonable cause” requirement based
on “the 2014 VA police investigation, the recent stalking
allegation,” and the fact that Mr. Lockwood was “awaiting
trial on stalking charges.”
Second, the arbitrator rejected Mr. Lockwood’s argu-
ments that the VA failed to specify a condition subsequent
that would terminate the suspension, since the suspen-
sion by its terms was set to end upon the completion of
law enforcement and judicial proceedings in the stalking
case. Third, the arbitrator ruled that the agency had
shown that there was a nexus between Mr. Lockwood’s
misconduct and the efficiency of the service, as required
by 5 U.S.C. § 7513(a). Finally, the arbitrator concluded
that an indefinite suspension pending the resolution of
the charges against Mr. Lockwood was the only reasona-
ble penalty under the circumstances.
II
This court reviews the decisions of arbitrators in fed-
eral employment disputes “in the same manner and under
the same conditions as if the matter had been decided by
the [Merit Systems Protection] Board.” 5 U.S.C. § 7121(f).
An arbitrator’s decision must be affirmed unless it was
not supported by substantial evidence, obtained without
following procedures required by law, rule, or regulation,
or was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 7703(c);
Martin v. Dep’t of Veterans Affairs, 412 F.3d 1258, 1264
(Fed. Cir. 2005).
Mr. Lockwood raises three arguments on appeal, none
of which is persuasive.
LOCKWOOD v. DVA 7
A
First, Mr. Lockwood argues that the evidence cited by
the VA was insufficient to satisfy the “reasonable cause”
requirement for invoking the crime provision. Specifical-
ly, he contends that it was unreasonable for the VA to rely
on the witness statements in the police reports, his arrest
(purportedly pursuant to an arrest warrant), and the
charges in the criminal information signed by an assis-
tant district attorney. He focuses in particular on the fact
that a copy of the arrest warrant was not in the record
and that, in any event, there was no evidence to suggest
that an arrest warrant “would have been based on any-
thing other than the one-sided, internal DVA police
investigation.”
In support of his challenge to the arbitrator’s “reason-
able cause” finding, Mr. Lockwood relies on this court’s
decision in Dunnington v. Department of Justice, 956 F.2d
1151 (Fed. Cir. 1992). In that case, the Department of
Justice proposed to indefinitely suspend Mr. Dunnington
based on four criminal complaints and arrest warrants
that were supported by statements from the complaining
witnesses. Id. at 1153, 1156. The Dunnington court held
that this evidence was adequate to find reasonable cause
to invoke the crime provision, but it cautioned that “the
mere fact of an arrest by the police is not, in and of itself,
sufficient to provide reasonable cause under § 7513(b)(1).”
Id. at 1157. The court further noted that arrest warrants
are typically issued ex parte, “based on information from
confidential informers, or other sources not subject to
testing for credibility,” and therefore “it is incumbent
upon the agency when an arrest warrant is a major part
of the case to assure itself that the surrounding facts are
sufficient to justify summary action by the agency.” Id.
However, the court noted that “a formal judicial determi-
nation made following a preliminary hearing, or an in-
dictment following an investigation and grand jury
proceedings, would provide . . . more than enough evi-
8 LOCKWOOD v. DVA
dence of possible misconduct to meet the threshold re-
quirement of reasonable cause to suspend.” Id.
Based on that language from Dunnington, Mr. Lock-
wood argues that the VA acted improperly by relying on
the VA investigation and the representation by the VA
police that he was arrested pursuant to a warrant. At
oral argument, Mr. Lockwood contended that “something
more than the internal police investigation was required”
and that Dunnington requires a third party to “objectively
look[] at the facts to say that there was a probable cause
determination.”
Dunnington does not support Mr. Lockwood’s argu-
ment. The Dunnington court was concerned about an
agency basing its reasonable cause determination exclu-
sively on fact-finding by third parties: “The problem
arises when an employee is arrested, with or without a
warrant, or charged with a crime by indictment or infor-
mation, with or without arrest. Here, the agency is not
itself the fact-finder, but the activities of third parties . . .
provide the agency with the factual record for its analy-
sis.” 956 F.2d at 1156. The Dunnington court noted that
it was preferable for the agency to conduct its own inves-
tigation and satisfy itself that reasonable cause exists:
“Obviously, the best evidence of reasonable cause will be
that determined by the agency after an appropriate
investigation of the facts and circumstances of the alleged
misconduct.” Id. at 1157.
That is precisely what the VA did in this case. The
VA police office received multiple allegations of unlawful
activity and conducted a three-month investigation in-
volving numerous witnesses and including observations
by a VA police officer. Following that investigation, Mr.
Lockwood was arrested and formally charged by the
district attorney’s office. Rather than relying solely on
the fact-finding of the prosecutor’s office, the VA found
reasonable cause based upon its own investigation.
LOCKWOOD v. DVA 9
Moreover, Mr. Lockwood’s argument that the evidence
should be discounted because it is “ex parte” and “one-
sided,” is unpersuasive: an indictment returned by a
grand jury is both ex parte and one-sided, but it provides
“more than enough evidence of possible misconduct to
meet the threshold requirement of reasonable cause.”
Dunnington, 956 F.2d at 1157.
Subsequent cases confirm that the VA’s evidence met
the reasonable cause threshold. For example, in Smart v.
Merit Systems Protection Board, 342 F. App’x 595 (Fed.
Cir. 2009), this court suggested that a criminal infor-
mation, standing alone, could be the basis for invoking
the crime provision. Id. at 598. In Pararas-Carayannis v.
Department of Commerce, 9 F.3d 955 (Fed. Cir. 1993), this
court upheld the agency’s invocation of the crime provi-
sion based on a criminal charge, an affidavit from the
investigating officer, and a criminal indictment. Id. at
956, 958; see id. at 958 (“This was not a case of an agency
suspension based merely on an arrest.”); see also Senyszyn
v. Dep’t of Treasury, 200 F. App’x 990, 992 (Fed. Cir. 2006)
(“The deciding official considered the criminal complaint
and the accompanying sworn statement detailing the
charges against Mr. Senyszyn. This was all the agency
was required to do.”). Here, the VA’s extensive investiga-
tion, the arrest, and the criminal charges provided rea-
sonable cause sufficient to satisfy the crime provision.
See Cooke v. Soc. Sec. Admin., 125 F. App’x 274, 277 & n.2
(Fed. Cir. 2004) (affirming application of the crime provi-
sion after the agency conducted an initial investigation
that led to a criminal complaint). The arbitrator did not
abuse his discretion in sustaining the VA’s finding that
there was reasonable cause to invoke the crime provi-
sion. 3
3 Mr. Lockwood argues that “[i]n the absence of an
actual warrant, the [VA’s] reliance on a mere assertion
10 LOCKWOOD v. DVA
B
Mr. Lockwood next contends that in finding that the
VA had reasonable cause to believe that Mr. Lockwood
had committed a crime punishable by imprisonment, the
arbitrator improperly relied on evidence not included in
the January 12, 2016, proposal notice. Mr. Lockwood
notes that the proposal notice only addressed the stalking
incidents from 2014 and the investigation and criminal
charges that stemmed from those incidents. It was error,
he contends, for the arbitrator to refer to the December
2015 stalking allegation in the course of finding that the
agency had reasonable cause to place Mr. Lockwood on
indefinite suspension.
In support of his position, Mr. Lockwood cites O’Keefe
v. U.S. Postal Service, 318 F.3d 1310 (Fed. Cir. 2002). In
that case, the Merit Systems Protection Board upheld an
agency’s removal action and based its decision in part on
evidence outside the scope of the notice of proposed re-
moval. Id. at 1312–13. This court reversed, holding that
“[o]nly the charge and specifications set out in the Notice
may be used to justify punishment because due process
requires that an employee be given notice of the charges
that a warrant existed is unreasonable.” He adds that
“[t]here was no evidence then, nor is there any now, that
Mr. Lockwood was arrested pursuant to a judicial war-
rant.” However, there is no applicable evidentiary rule
prohibiting the agency from relying on a police report to
establish the existence of a warrant. See Kewley v. Dep’t
of Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir.
1998) (hearsay rule inapplicable in Merit Systems Protec-
tion Board proceedings). In any event, this argument is
beside the point, as neither the notice of proposed indefi-
nite suspension nor the arbitrator’s opinion relied on the
existence of a warrant in addressing the issue of reasona-
ble cause.
LOCKWOOD v. DVA 11
against him in sufficient detail to allow the employee to
make an informed reply.” Id. at 1315. The court added
that “[b]y accusing O’Keefe of specific misdeeds that were
not within the scope of the Notice of Proposed Removal,
the Board has exceeded the scope of its review of the
agency’s decision.” Id.
This case differs from O’Keefe in two important re-
spects. First, O’Keefe involved a failure to give the em-
ployee notice of the charges on which his removal was
based. In this case, by contrast, Mr. Lockwood was given
notice of the 2014 stalking allegations, which were the
charges that formed the basis for the VA’s decision to
suspend him. As the VA explained in response to Mr.
Lockwood’s grievance, the December 2015 “allegation of
on-duty misconduct by Mr. Lockwood prompted a review
of the employee’s actions.” Thus, the VA considered the
December 2015 allegation, but only “[i]n conjunction with
Mr. Lockwood’s arrest and charges,” and only in further
support of its conclusion that there was reasonable cause
to believe that Mr. Lockwood had committed a crime for
which a sentence of imprisonment could be imposed.
Mr. Lockwood’s argument that O’Keefe is like this
case conflates two separate statutory provisions. First,
the statute at issue in O’Keefe allows an agency to sus-
pend an employee for more than 14 days only if the agen-
cy can prove the charged misconduct and only if the
penalty proposed “will promote the efficiency of the ser-
vice.” 5 U.S.C. § 7513(a). Second, and separately, the
statute at issue in this case allows an agency to initiate
such a suspension without providing at least 30 days’
written notice only if the agency has reasonable cause to
believe the employee has committed an imprisonable
crime. Id. § 7513(b)(1). The former addresses what is
required to sustain a suspension, while the latter ad-
dresses what is required to waive the 30-day notice re-
quirement. See Perez v. Dep’t of Justice, 480 F.3d 1309,
1311 (Fed. Cir. 2007).
12 LOCKWOOD v. DVA
The O’Keefe case requires advance written notice of
the charges that are used to support the disciplinary
action under section 7513(a). However, O’Keefe does not
require advance written notice of every piece of evidence
addressed by an agency in assessing those charges, Pope
v. U.S. Postal Serv., 114 F.3d 1144, 1148 (Fed. Cir. 1997),
and nothing in O’Keefe suggests that an employee must be
given advance notice of every piece of evidence referred to
by the Merit Systems Protection Board or an arbitrator in
reviewing an agency’s decision to invoke the crime provi-
sion under section 7513(b)(1).
Second, quite apart from the December 2015 allega-
tion, the evidentiary basis for the arbitrator’s decision
sustaining the agency’s finding of reasonable cause to
believe Mr. Lockwood had committed a crime is compel-
ling. As the arbitrator pointed out, that evidence includes
the multiple incidents of stalking detailed in the 2014
police reports; the formal criminal charges brought
against Mr. Lockwood; and the fact that those charges
were still pending at the time the agency made its rea-
sonable cause determination. The December 2015 stalk-
ing allegation, which did not result in criminal charges,
was of far less significance for the reasonable cause de-
termination than the 2014 allegations. Thus, unlike in
O’Keefe, where the improperly considered evidence was
critical to the removal decision, any impropriety in the
arbitrator’s reference to the 2015 stalking allegation was
harmless error.
C
Finally, Mr. Lockwood argues that in sustaining the
agency’s “reasonable cause” determination, the arbitrator
improperly relied on the fact that Mr. Lockwood “was
awaiting trial on stalking charges.” He contends that
there was no evidence in the record to show that he was
awaiting trial in January 2016.
LOCKWOOD v. DVA 13
The record is to the contrary. The suspension notice
of January 22, 2016, directed Mr. Lockwood to inform the
agency “upon the completion of the law enforcement
investigation and any related judicial proceedings” con-
cerning the charged conduct, and Mr. Lockwood did not
suggest in response that those proceedings had concluded.
In fact, the summary of Mr. Lockwood’s oral response to
the notice of proposed indefinite suspension reflects that
on January 20, 2016, Mr. Lockwood acknowledged that
two of the four charges against him remained pending. In
addition, the deciding official noted in his Douglas factors
memorandum that as of January 22, 2016, two of the
charges against Mr. Lockwood had been dismissed, but he
was still awaiting trial on the remaining charges. There
was thus ample evidence in the record from which the
arbitrator could find that as of the time of his suspension,
Mr. Lockwood was still awaiting trial on at least some of
the stalking charges.
No costs.
AFFIRMED