Burks v. Railroad Retirement Board , 485 F. App'x 429 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN BURKS,
Petitioner,
v.
RAILROAD RETIREMENT BOARD,
Respondent.
__________________________
2011-3196
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752100197-I-1.
__________________________
Decided: June 12, 2012
___________________________
JOHN BURKS, of Gladstone, Missouri, pro se.
DOUGLAS T. HOFFMAN, Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
BURKS v. RAILROAD RETIREMENT BOARD 2
Before LOURIE, DYK, and WALLACH, Circuit Judges.
PER CURIAM.
John Burks (“Burks”) petitions for review of a decision
of the Merit Systems Protection Board (“Board”), which
affirmed a decision of the Railroad Retirement Board
(“the agency”) to remove Burks from his position. Burks
v. R.R. Ret. Bd., No. CH-0752-10-0197-I-1 (M.S.P.B. June
2, 2011) (“Final Order”); Burks v. R.R. Ret. Bd., No. CH-
0752-10-0197-I-1 (M.S.P.B. July 23, 2010) (“Initial Deci-
sion”). We affirm.
BACKGROUND
Burks was employed by the agency as an Information
Technology Specialist. The agency removed Burks based
on two charges: (1) failure to follow supervisory instruc-
tions and (2) making an unauthorized configuration
change to the data communication network.
The first charge was based on an incident on May 29,
2009. Burks’s supervisor had sent an e-mail to Burks and
three co-workers on May 28 asking about user-reported
network problems. On Friday, May 29, while off-duty,
Burks sent two e-mails in response, suggesting that he
might be able to fix the problem. His supervisor replied:
John,
We are trying to resolve this situation as soon as
possible. The core and firewall passwords are not
in the envelope [where Burks had been instructed
to leave them]. Please call Roger [one of Burks’s
co-workers] with the access information. Roger’s
number is . . . .
Resp’t’s App. 88. Burks responded to say that he had
already made a change, that he was in court, and that
“[t]his will have to wait until Monday [June 1] if it is not
3 BURKS v. RAILROAD RETIREMENT BOARD
already resolved.” Id. Burks did not follow his supervi-
sor’s instruction to call his co-worker with the access
information.
The second charge was based on an incident on June
15, 2009, and was related to the agency’s transition from
Sprint to a new internet service provider (“ISP”), Qwest.
The first attempt to transition, on May 22, was canceled
by Burks. After two meetings of agency engineers, includ-
ing a conference call involving Qwest engineers, Burks’s
supervisor approved a plan to transition both e-mail and
internet service at the same time on June 12. Burks
repeatedly objected to this plan, and on June 11, he told
his supervisor that he would only move the e-mail ser-
vices to the new ISP on June 12. After a long discussion,
Burks agreed to migrate both e-mail and internet, and he
successfully led this transition to Qwest on Friday, June
12. On Monday, June 15, Burks e-mailed a co-worker to
say that he was going to change the system back to
Sprint, and the co-worker responded: “Please don’t do
that. We should leave everything on Qwest . . . . Every-
thing is working now.” Id. 109. Nevertheless, Burks
changed some or all of the network back to Sprint, caus-
ing a number of network problems for agency employees.
Based on these charges, the agency removed Burks,
effective November 20, 2009. The removal notice stated
that the deciding official considered Burks’s high ratings
and lack of disciplinary record, but that the “seriousness
of [his] misconduct on June 15, 2009,” and “failure to even
recognize the problem with [his] behavior” made removal
appropriate. Id. at 137-38. In a later affidavit for the
Board, the deciding official confirmed that “[t]he second
charge is the most serious and [he] would have sustained
the proposal to remove based on the charge related to his
June 15, 2009 actions alone.” Id. at 192.
BURKS v. RAILROAD RETIREMENT BOARD 4
Burks appealed his removal to the Board, challenging
both charges and alleging discrimination, procedural
errors, and reprisal under 5 U.S.C. § 2302(b)(9). Burks
withdrew his initial request for a hearing, and the case
was decided on the written record. The administrative
judge (“AJ”) found that the agency had proven both
charges by a preponderance of the evidence. The AJ also
found that Burks had failed to carry his burden of proving
his discrimination and reprisal claims, and that the
agency had not committed harmful procedural error.
Finally, the AJ concluded that the agency adequately
considered the Douglas factors and properly exercised its
discretion in selecting the penalty of removal. See Initial
Decision, slip op. at 24-26 (citing Douglas v. Veterans
Admin., 5 M.S.P.R. 280 (1981)). The full Board declined
to review the AJ’s decision, which thus became the final
decision of the Board. Final Order, slip op. at 7.
The Board’s Final Order informed Burks that he could
appeal the Board’s decision within 30 days of receipt to
the Equal Employment Opportunity Commission
(“EEOC”) or a U.S. district court, or alternatively, if he
did not want review of his discrimination claims, that he
could appeal the decision within 60 days of receipt to this
court. Id. at 7-8. Burks timely appealed to this court.
DISCUSSION
I
Before reaching the merits of this appeal, we first ad-
dress the agency’s argument that we lack jurisdiction
because Burks first filed a petition with the EEOC. In
general, we have jurisdiction over appeals from final
orders of the Board under 28 U.S.C. § 1295(a)(9). In a
“mixed case” such as Burks’s, in which it is alleged that a
personnel action at issue before the MSPB is based on
5 BURKS v. RAILROAD RETIREMENT BOARD
prohibited discrimination, the Board’s decision is “judi-
cially reviewable” as of
(A) the date of issuance of the decision if the em-
ployee or applicant does not file a petition with
the [EEOC] under subsection (b)(1) of this section,
or
(B) the date the [EEOC] determines not to con-
sider the decision under subsection (b)(2) of this
section.
5 U.S.C. § 7702(a)(3). Subsection (b)(1) states that an
employee may petition the EEOC “within 30 days after
notice of the decision of the Board,” and subsection (b)(2)
states that the EEOC “shall, within 30 days after the date
of the petition, determine whether to consider the deci-
sion.” Id. § 7702(b)(1)-(2).
The Board’s final order issued on June 2, 2011, and
was apparently received by Burks shortly thereafter. On
July 26, 2011, after the 30-day deadline of subsection
(b)(1), the EEOC received a petition for review from
Burks, which included a handwritten note asking the
petition to be accepted as timely because he had sent two
earlier petitions to the wrong address. Both parties agree
that the petition was untimely. On July 27, 2011, a
separate petition for review was received and filed by this
court. Burks’s EEOC appeal was closed, in response to
his requests, on October 6, 2011. The agency argues that
as of July 27, when Burks filed his Federal Circuit appeal,
his case was not “judicially reviewable” under 5 U.S.C.
§ 7702(a)(3) because Burks had filed a petition with the
EEOC, and the EEOC had not “determine[d] not to con-
sider the decision.”
We disagree. An EEOC petition would bar judicial
review only if the employee “file[s] a petition . . . under
BURKS v. RAILROAD RETIREMENT BOARD 6
subsection (b)(1),” and subsection (b)(1) states that a
petition may be filed “within 30 days.” Id. § 7702(a)(3)(A),
(b)(1). In Cloer v. Secretary of Health and Human Ser-
vices, 675 F.3d 1358, 1361 (Fed. Cir. 2012) (en banc), we
recently held that an untimely petition may be “a petition
filed under” a statutory provision where that provision is
silent on timeliness. Here, however, we reach the oppo-
site conclusion. Because subsection (b)(1) explicitly
specifies a 30-day time limit, an employee only “file[s] a
petition with the [EEOC] under subsection (b)(1)” if that
petition is filed “within 30 days after notice of the decision
of the Board.” 5 U.S.C. § 7702(a)(3)(A), (b)(1).
Because both parties agree that Burks’s petition to
the EEOC was not filed within 30 days of his notice of the
Board decision, we conclude that Burks’s appeal in this
court is “judicially reviewable” under 5 U.S.C.
§ 7702(a)(3), and that we have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
Turning to the merits, our review of final Board deci-
sions is limited. Under 5 U.S.C. § 7703(c), we may only
set aside agency actions, findings, or conclusions of law
found to be “(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.”
Regarding the first charge, Burks concedes that he re-
ceived and failed to follow his supervisor’s instructions on
May 29, 2009, but argues that he had no obligation to
follow instructions while off duty (relying on U.S. De-
partment of the Navy v. Federal Labor Relations Author-
ity, 962 F.2d 1066, 1068 (D.C. Cir. 1992)) and that he
could not have called his co-worker because he was filing
7 BURKS v. RAILROAD RETIREMENT BOARD
a pleading in a federal courthouse. We need not decide
whether this charge was properly sustained or whether
this minor offense would justify Burks’s removal because
the deciding official stated that the second charge was the
most serious, warranting removal for a first offense, and
that he would have removed Burks for the second charge
alone. See Guise v. Dep’t of Justice, 330 F.3d 1376, 1381
(Fed. Cir. 2003) (“[W]hen there is no indication that the
agency would have adopted a different penalty in the
absence of the unsustained charge, we have upheld the
penalty without the need for a remand.”).
The second charge was making an unauthorized con-
figuration change to the data communication network on
June 15, 2009. Burks concedes that he made this network
change, but he argues that it was not unauthorized be-
cause it was technically necessary and that he was au-
thorized to take appropriate measures to deal with such
technical problems. The Board rejected this argument,
finding that Burks was aware of how his supervisor
wanted to handle the ISP transition, that the transition
was successful, and that Burks then made an unnecessary
change back to Sprint that he knew was contrary to his
supervisor’s instructions. Burks further argues that other
employees made network changes that were not specifi-
cally authorized but were nonetheless condoned, but the
Board found that he had not provided any examples
comparable to his situation. Burks challenges these
findings, but we review the Board’s factual findings for
substantial evidence, which means that “[w]e do not
substitute our judgment for that of the [B]oard as to the
weight of the evidence or the inferences to be drawn
therefrom.” Cross v. Dep’t of Transp., 127 F.3d 1443, 1448
(Fed. Cir. 1997). We conclude that substantial evidence
supports the Board’s finding that Burks made an unau-
BURKS v. RAILROAD RETIREMENT BOARD 8
thorized configuration change to the data communication
network.
Burks makes no showing that removal is an unrea-
sonable penalty for the second charge. In general, “the
penalty for employee misconduct is left to the agency’s
discretion,” and this court’s review “is highly deferential.”
Webster v. Dep’t of the Army, 911 F.2d 679, 685 (Fed. Cir.
1990). “While . . . the penalty must be reasonable in light
of the sustained charges, . . . reasonable in this context .
. . mean[s] merely that the agency’s choice of penalty not
be ‘grossly disproportionate to the offense . . . .’” Id. at
686 (quoting Miguel v. Dep’t of the Army, 727 F.2d 1081,
1083 (Fed. Cir. 1984)). The deciding official considered
the Douglas factors, including “the seriousness of
[Burks’s] misconduct on June 15, 2009,” “the jeopardy in
which [his] actions placed [the agency’s] data communica-
tions system,” his work record, his “failure to even recog-
nize the problem . . . [which] raises serious doubts about
any potential for rehabilitation,” and the inadequacy of
lesser penalties. Resp’t’s App. 137-38; see Douglas, 5
M.S.P.R. 280. We find no error in the Board’s conclusion
that the agency adequately considered the Douglas fac-
tors and properly exercised its discretion in selecting the
penalty of removal.
We have considered Burks’s remaining arguments
and find them to be without merit.
COSTS
No costs.