Lovett v. Internal Revenue Service , 520 F. App'x 964 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VIRGINIA LOVETT,
Petitioner,
v.
INTERNAL REVENUE SERVICE,
Respondent.
______________________
2012-3030
______________________
Petition for review of an arbitrator’s decision by Roger
C. Williams.
______________________
Decided: April 12, 2013
______________________
JOHN DEREK WALES, III, of John D. Wales, PC, of At-
lanta, Georgia, for petitioner.
KATY M. BARTELMA, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. On the
brief were STUART F. DELERY, Acting Assistant Attorney
General, JEANNE E. DAVIDSON, Director, PATRICIA M.
MCCARTHY, Assistant Director, and AMANDA L. TANTUM,
2 LOVETT v. IRS
Trial Attorney. Of counsel was CHRISTOPHER ANDREW
BOWEN, Trial Attorney.
______________________
Before NEWMAN, BRYSON, and MOORE, Circuit Judges.
NEWMAN, Circuit Judge.
Petitioner Virginia Lovett appeals an arbitration deci-
sion sustaining her removal as file and mail clerk of the
Image Control Team (ICT) in Account Management of the
IRS’s Wage and Investment Operating Division in Cham-
blee, Georgia. Because the arbitrator’s decision is sup-
ported by substantial evidence, and is not arbitrary,
capricious, contrary to law, or an abuse of discretion, we
affirm.
BACKGROUND
Petitioner worked at the IRS for approximately 23
years prior to her removal. During the relevant period,
petitioner was supervised by two lead file clerks and two
managers. Tammy Hatchell was an ICT manager from
May 2009 through June 2010. Carla Belle was a lead
clerk from June 2009 to October 2009. Sharon Watson
was a lead clerk from October 2009 through July 2010.
The department manager was Michele Williams. The
operation manager was Judith Baker.
On February 8, 2010, Hatchell recommended to
Baker that corrective action be taken against petitioner
due to several instances of alleged workplace misconduct.
In accordance with IRS disciplinary procedures, Hatchell
filled out a Recommendation for Corrective Action Form
10954. J.A. 293. Baker reviewed the allegations, and
determined that disciplinary action was warranted. On
March 4, 2010, Baker provided petitioner a Notice of
Proposed Adverse Disciplinary Action (“Notice”). J.A. 93.
The Notice set forth fourteen individual specifications of
misconduct, organized into three reasons for disciplinary
LOVETT v. IRS 3
action: 1. failure to follow management directives; 2.
causing workplace disruptions; and 3. sending inappro-
priate emails and letters to management. J.A. 93–96.
The individual specifications included allegations of
failing to follow management directives regarding com-
puter use, failing to adhere to the Weekly Duty Schedule,
improperly using a cell phone, arguing with managers,
and sending inappropriate emails and letters to superiors.
Id.
On March 21, 2010, Atlanta Field Director Jon
Schwartz issued a Decision sustaining each of the four-
teen specifications against petitioner. J.A. 97–98. Direc-
tor Schwartz determined that no penalty less than
removal would be adequate, and removed petitioner from
her position effective May 24, 2010. Petitioner appealed
Schwartz’s determination to arbitration.
On October 28, 2010, an arbitration hearing was held
in Chamblee, Georgia, in which petitioner’s removal was
litigated. The government’s witnesses included Hatchell,
Belle, Watson, Williams, and Schwartz. Petitioner prof-
fered her own testimony, and that of her colleague John
Sheffield, and union representative Tita Grier.
On October 11, 2011, arbitrator Roger C. Williams is-
sued an opinion upholding petitioner’s removal. Internal
Revenue Serv. v. Nat’l Treasury Emp. Union, Opinion and
Award of Arbitrator 29 (Oct. 11, 2011) (hereinafter “Op”).
The opinion discussed each of the 14 specifications
against petitioner. In conclusion, the opinion stated that
the petitioner had demonstrated
persistent unwillingness to accept constructive
criticism and corrective instruction from her su-
pervisors, and [had a] routine practice of criticiz-
ing managers, trainers, and leads, who tried to
correct deficiencies in her performance.
4 LOVETT v. IRS
Id. 27. The arbitrator also found that the agency’s efforts
to modify petitioner’s behavior were unsuccessful and
there was no reasonable likelihood that her behavior
would change, justifying removal. Id. 28. The arbitrator
found evidence of non-removal in similar cases unpersua-
sive, stating that those instances were not equally “egre-
gious or persistent.” Id. 29.
DISCUSSION
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)
(2000); Martin v. Dep’t of Veterans Affairs, 412 F.3d 1258,
1264 (Fed. Cir. 2005).
Petitioner states that the arbitrator’s determinations
as to particular specifications are “unsupported” and
“arbitrary and capricious.” Pet’r Br. 12–17. Petitioner
further avers that even if some specifications have “some
basis in fact,” termination of employment based on those
violations resulted in “manifest injustice” because the
charges “overlap and fail to rise to the level of serious
misconduct.” Id. 18–21.
The government states that this court need only up-
hold the arbitrator’s conclusions as to one of the specifica-
tions to sustain petitioner’s removal. Gov’t Br. 16–18
(citing Burroughs v. Dep’t of the Army, 918 F.2d 170, 172
(Fed. Cir. 1990)). The government states that the arbitra-
tor’s conclusions were supported by substantial evidence,
and his application of the Douglas factors was not arbi-
trary or capricious. Id. 26.
LOVETT v. IRS 5
For the following reasons, we conclude that the arbi-
trator’s determinations are supported by substantial
evidence and the removal of petitioner was not arbitrary
or capricious.
I.
REASON 1: FAILURE TO FOLLOW DIRECTIVES
The arbitrator found that Reason 1, specifications 1
and 2 asserted against petitioner were proper. Both of
those specifications arose out of a single computer reboot-
ing incident which took place on January 21, 2010, about
which the arbitrator received extensive evidence.
According to the testimony of petitioner’s ICT Man-
ager, Hatchell, on January 19, 2010, petitioner rebooted a
computer on which another employee was working so that
petitioner could use it herself. Hr’g Tr. 32. Hatchell
testified that this hijacking “caused quite a disturbance”
in the office, requiring her to hold a meeting to instruct
the group not to reboot any more computers without
permission from a manager or lead. Id. Hatchell stated
that petitioner ignored this instruction two days later
when she asked training specialist John Sheffield to
reboot a computer on her behalf. Id. 33. Upon learning of
the incident, Hatchell asked petitioner to come to her
office to explain. Petitioner showed Hatchell the palm of
her hand, told Hatchell to “see John [Sheffield],” and
stated she was “going on break.” Id. 33–34.
Petitioner testified that Hatchell “never had a meet-
ing in reference to a reboot,” Hr’g Tr. 154, and that she
did go to Hatchell’s office when summoned, id. 156.
Petitioner conceded that she did not go to Hatchell’s office
immediately, but explained that she had to log off of her
computer first, in accordance with office policy. Id. 156.
Petitioner also explained that while she did tell Hatchell
“I am on break,” she did not actually go on break because
Hatchell threatened her with a write-up. Id. 155.
6 LOVETT v. IRS
John Sheffield testified that he rebooted the computer
because he was not aware of any rule forbidding him to do
so in his role as a training specialist. Hr’g Tr. 148–49.
Sheffield had not been present during Hatchell’s meeting
two days earlier. Id. When asked if petitioner “told him”
to reboot the computer, Sheffield stated “No. That is just
what I do.” Id. 147.
A letter in the record dated January 25, 2010, with
subject line “Failure to Follow a Directive,” corroborates
Hatchell’s version of events. J.A. 119. The letter, ad-
dressed from Hatchell to petitioner, states
On Tuesday, January 19, 2010, I held a brief team
meeting to discuss the use of computers when an-
other employee is logged on. In the meeting, I in-
structed all employees to consult with the
Manager or Lead if they start to work at a com-
puter on which another employee is logged or to
move to a computer that is not logged on by an
employee. I also said that under no circumstances
should an employee reboot a computer that has
been logged on. . . .
On Thursday, October 21st, you asked an employ-
ee who was not in attendance at the meeting to
reboot a ·computer that had been logged on by an-
other employee. Unknowingly, the employee re-
booted the computer . . . . When I asked you if you
rebooted the computer, you held the palm of your
hand up to me and said “See John!” Upon asking
again, you said, “See John!” At this time, I asked
you to come to my office so we could further dis-
cuss this situation. You remained seated for a few
minutes, and then got up and rather than follow
my directive, you said you were going on break.
...
LOVETT v. IRS 7
You failed to follow my instructions in regards to
rebooting the computer and reporting to my office
as directed. . . .
Id. The bottom of the letter states that “Employee elected
not to sign.” Id.
The arbitrator found Reason 1, specification 1 proper
because petitioner’s initial response, “See John,” and
delay in attending Hatchell’s office, was insubordinate
and contrary to instructions. Op. 25. The arbitrator also
found specification 2 supported because
Grievant did not ask Sheffield to reboot, but it is
evident that she sat at the computer as if she
wanted to use it until he rebooted it, and when
she got the computer rebooted by passively induc-
ing Sheffield to reboot it, she was as guilty of dis-
obeying Hatchell’s instructions as she would have
been if she had rebooted it herself or asked Shef-
field to do it for her.
Id. The arbitrator’s findings are supported by substantial
evidence. The Hatchell testimony and letter are sufficient
evidence to sustain the arbitrator’s ruling. To the extent
petitioner’s testimony explained or was contrary to the
government’s evidence, we conclude the arbitrator was
free to find Hatchell’s testimony and letter more credible.
Credibility determinations made by the arbitrator, as
with those by the MSPB, are “virtually unreviewable.”
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986); Wright v. U.S. Postal Serv., 183 F.3d 1328,
1334 (Fed. Cir. 1999).
The arbitrator also found Reason 1, specifications 3
and 4 proper, and we agree.
Specification 3 of Reason 1 concerned petitioner’s
“strong resistance to adhere to the Weekly Duty Sched-
ule.” The specification stated that petitioner’s supervisors
were forced to engage petitioner in “lengthy discussions”
8 LOVETT v. IRS
about the Duty Schedule on multiple occasions in Decem-
ber 2009. The arbitrator found that petitioner “did not
deny that she failed to perform her assigned work on
those occasions” and found unpersuasive petitioner’s
argument that the schedule maker was not a manager
and therefore her failure to comply could not be insubor-
dinate. Op. 25. Petitioner argues on appeal that the
arbitrator’s determination on specification 3 was “irra-
tional and capricious” because all of the instances oc-
curred within one week and none of the instances were
discussed with any “specificity.” Pet’r Br. 14–15.
The arbitrator’s conclusion sustaining specification 3
was not irrational or capricious. Petitioner did not dis-
pute the testimony of lead clerk Sharon Watson that she
resisted the work assigned to her in December 2009.
Watson testified that “On this particular week I believe
[petitioner] was scheduled for Quality. . . . She didn’t
want to do Quality that particular week. She felt she
should do something else . . . .” Hr’g Tr. 81–82.
We find no error in the arbitrator’s conclusion as to
specification 3. The fact that petitioner’s insubordination
occurred on several instances during one week does not
rebut the charge of failing to follow directives. Moreover,
Watson’s testimony suggests that petitioner’s refusal to
follow the Weekly Duty Schedule was not limited to just
one week, even if the count was so limited. E.g., Hr’g Tr.
83. Petitioner has not demonstrated error by the arbitra-
tor in relying on Watson’s testimony.
The arbitrator’s conclusion as to specification 4 of
Reason 1 is also supported. This specification involved
petitioner’s use of her cell phone in the work unit on
September 21, 2009. A letter of that date with the subject
header “Cell phone usage in the workplace,” from lead
clerk Carla Belle to Hatchell states
As directed to Virginia Lovett on two other occa-
sions, she was asked not to have conversation[s]
LOVETT v. IRS 9
on her cell phone while in the unit. Ms. Virginia
[Lovett] walked passed Carla Belle (Acting Man-
ager at the time) while on her phone.
She continuously disregards the instructions of
the Unit lead as well as Management.
J.A. 127. Petitioner states that the relevant cell phone
policy at the time indicated that cell phones “should be
used only in emergencies and/or if absolutely necessary.”
Pet’r Br. 12. Petitioner testified that she took at least one
call because her brother was under medical supervision.
Id. 13.
The arbitrator was not required to credit petitioner’s
testimony. Specification 4 refers to a specific call on a
specific day, namely September 21, 2009. Petitioner did
not testify that the subject call was from her brother, she
simply testified that she remembered “one instance” in
which her brother called. Hr’g Tr. 157. Moreover, the
arbitrator found that petitioner’s testimony did not ring
true because petitioner did not offer the “medical emer-
gency” explanation at the time of the incident. Op. 24–25.
The arbitrator’s conclusion that the petitioner failed
to follow management directives on four occasions is
affirmed.
II.
REASON 2: WORKPLACE DISTURBANCES
Reason 2 for petitioner’s removal comprises six speci-
fications of workplace disturbances. All six specifications
follow the same basic pattern, wherein petitioner was
approached by a manager regarding a relatively mundane
or trivial matter, and petitioner allegedly became “inso-
lent,” “loud,” “belligerent” or “confrontational.” See Notice
3, J.A. 94. Petitioner’s testimony was the same on all six
specifications: the managers were either “lying,” “instigat-
ing,” or “misunderstanding” the circumstances that led to
10 LOVETT v. IRS
the disagreement. See Hr’g Tr. 158–84. Petitioner did
not deny that the confrontations occurred, but instead
generally stated that the confrontations were not her
fault. E.g., id. 161 (“[Belle] came back and she wanted
the system and kind of made a commotion as far as me
getting up.”); id. 164 (“ [Watson] got real upset. She got
loud with me, and she was just right in my face. I tried to
get her out of my face.”). The arbitrator found that all six
specifications were supported, and we affirm.
Reason 2, specification 4 is representative. This spec-
ification involved an allegation that petitioner became
“confrontational and argumentative” towards lead clerk
Sharon Watson on October 23, 2009, when Watson in-
structed petitioner to move a file cabinet back where it
had been. Notice 2, J.A. 93. Watson testified that peti-
tioner immediately and loudly told her she was being
unfair in the middle of the floor, as the other employees
watched. Hr’g Tr. 89. The incident is memorialized in a
letter from Hatchell to petitioner, dated October 29, 2009:
[Y]ou moved your pedestal file cabinet near the
scanner without approval from your Manager or
Lead. When the lead asked you to move it back to
its original location you immediately became con-
frontational and argumentative with her stat-
ing . . . “you’re being treated unfairly, etc.”
Virginia, please be aware when you refuse to per-
form a duty within your responsibility, this behav-
ior is considered to be insubordination and will
not be tolerated. This written counseling also
serves as a reminder that any remarks and or ges-
tures to the public, fellow peers or management
officials that are reasonably considered to be rude,
abusive or discourteous will not be tolerated un-
der any circumstances.
J.A. 125. Petitioner signed the letter acknowledging her
receipt, but hand-wrote on the letter a “Rebuttal,” which
LOVETT v. IRS 11
stated, among other things, “Tammy Hatchell you are not
telling the complete truth. . . . You come to work with
your body parts hanging out and try to flaunt it in my
face, read dress code for managers. Not a strip joint.”
J.A. 125.
Petitioner argues on appeal that it was “undisputed”
that she moved the cabinet back and therefore the “evi-
dence elicited at the hearing did not support the conclu-
sion reach by the arbitrator.” Pet’r Br. 17. But contrary
to petitioner’s representation, it was not “undisputed”
that petitioner moved her cabinet back when asked.
Compare Hr’g Tr. 170-71 (“I didn’t move the cabinet back.
I mentioned to Sharon that I wanted to talk her later
about the situation.”) with id. 195 (“Q When your manag-
er told you to move your cabinet back, you didn’t do it, did
you? A Yes, I did. Yes, I did. I had no reason to leave it
there after she told me to move it.”). And even if the
testimony were undisputed that petitioner moved the
cabinet back, it would not matter. The specification is for
a workplace disruption; it is irrelevant whether petitioner
eventually moved the cabinet back to its original place if
she first became confrontational and argumentative. The
arbitrator found that petitioner’s testimony was “insuffi-
cient to refute the specification,” Op. 26, and this finding
was supported by substantial evidence.
We have reviewed the additional five specifications
and affirm the arbitrator’s conclusions on those counts.
III.
REASON 3: INAPPROPRIATE EMAILS AND LETTERS
Reason 3 for petitioner’s removal was the sending of
inappropriate letters and emails, on which there were
four specifications.
Specifications 1 and 2 revolved around emails peti-
tioner wrote on February 12, 2010 criticizing her co-
workers. The first email states that lead clerk Sharon
12 LOVETT v. IRS
Watson “is trouble” and asks that petitioner’s work with
Watson be limited. J.A. 108. The second email blames
other employees for errors in petitioner’s work and states
that “ICT needs people who know how to train profession-
ally.” J.A. 106.
Specification 3 involved a handwritten letter dated
February 2, 2010, in which petitioner accused Hatchell of
“harassment” and telling “lies.” J.A. 110. The letter also
states that petitioner intended to tell the Inspector Gen-
eral of Tax Administration (“TIGTA”) about a car accident
involving Hatchell in which two people were killed, imply-
ing that Hatchell did something wrong in being a part of
the accident. Id.
The arbitrator partially sustained specifications 1
and 2, and sustained specification 3. Op. 27. The arbitra-
tor explained that while neither February 12 email consti-
tuted misconduct by itself, the two emails together
demonstrated petitioner’s
persistent unwillingness to accept constructive
criticism and corrective instruction from her su-
pervisors, and her routine practice of criticizing
managers, trainers, and leads, who tried to correct
deficiencies in her performance.
Op. 27. The arbitrator found that the February 2 hand-
written letter was “an apparent attempt to threaten and
intimidate” Hatchell. Id.
Specification 4 centered on a letter in which petition-
er requested to be represented by union representative
Tita Grier whenever speaking with Hatchell, and was not
sustained. J.A. 109. The arbitrator found that the letter
did not amount to misconduct. Op. 27.
We conclude the arbitrator did not err in analyzing
the specifications under Reason 3. The February 2 letter
can fairly be read as a threat, and the February 12 emails
LOVETT v. IRS 13
sufficiently support the arbitrator’s finding of a “routine
practice of criticizing managers.”
IV.
REMOVAL
Petitioner contends that the penalty of removal can-
not be supported under the “minor infractions” found by
the arbitrator. Pet’r Br. 19. The petitioner also cites the
testimony of John Schwartz, in which Schwartz mistaken-
ly stated that petitioner called Hatchell a “murderer”—a
term petitioner never used. Id. 20. On these bases,
petitioner seeks reversal.
The government argues that the IRS’s guide to Penal-
ty Determinations provides no rigid standards for penal-
ties for particular actions, but the MSPB has found that
failing to follow instructions, abusive and disrespectful
behavior, and failure to follow instructions are each
independently bases for removal. Gov’t Br. 33–34.
The factors which are generally recognized as rele-
vant in determining the appropriateness of a disciplinary
penalty were set forth by the MSPB in Douglas v. Veter-
ans Administration, 5 M.S.P.R. 280 (1981). See Kline v.
Dep’t of Transp., F.A.A., 808 F.2d 43, 45 (Fed. Cir. 1986).
The Douglas factors include: (1) The nature and serious-
ness of the offense, and its relation to the employee’s
duties, position, and responsibilities, including whether
the offense was intentional or technical or inadvertent, or
was committed maliciously or for gain, or was frequently
repeated; (10) potential for the employee’s rehabilitation;
and (12) the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future by the
employee or others. 5 M.S.P.R. at 305–06.
“Determination of an appropriate penalty is a matter
committed primarily to the sound discretion of the em-
ploying agency. This court defers to an agency’s choice of
penalty unless the penalty exceeds the range of permissi-
14 LOVETT v. IRS
ble punishment specified by statute or regulation, or
unless the penalty is so harsh and unconscionably dispro-
portionate to the offence that it amounts to an abuse of
discretion.” Zingg v. Dep’t of Treasury, IRS, 388 F.3d 839,
843 (Fed. Cir. 2004).
The arbitrator concluded that government’s decision
to remove petitioner was not unconscionable or dispropor-
tionate to the offenses petitioner committed. Although
Director Schwartz incorrectly testified that petitioner
called Hatchell a “murderer” when she did not use that
word, the arbitrator specifically addressed Schwartz’s
mistake and found that the agency’s decision would not
have been different had Schwartz properly attributed the
comment. Op. 29. The arbitrator explained that the
letter “was intimidating, threatening and inappropriate
even though the word was not used.” Id. Moreover,
Schwartz relied on several factors, not just the “murderer”
comment, in deciding to remove petitioner. The arbitrator
credited Schwartz’s testimony that petitioner was repeat-
edly given counseling memos and reprimands that did not
change her behavior, as well as his testimony that peti-
tioner’s inability to get along with her fellow workers, and
her inability to perform work satisfactorily, were aggra-
vating factors. Id.On this record, we cannot conclude that the agency or
the arbitrator committed an abuse of discretion. Bryant v.
Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997).
The choice of penalty is committed to the sound discretion
of the employing agency and will not be overturned unless
the agency’s choice of penalty is wholly unwarranted in
light of all the relevant factors. Guise v. Dep’t of Justice,
330 F.3d 1376, 1382 (Fed. Cir. 2003).
CONCLUSION
The arbitrator’s decision is supported by substantial
evidence.
LOVETT v. IRS 15
AFFIRMED
No costs.