Jones v. Department of Justice , 524 F. App'x 660 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEE A. JONES,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
______________________
2012-3144
______________________
Petition for review of the Merit Systems Protection
Board in No. SF315H110741-I-2.
______________________
Decided: April 16, 2013
______________________
JEFFREY S. BLANCK, of Reno, Nevada, for petitioner.
JANE W. VANNEMAN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respond-
ent. With her on the brief were STUART F. DELERY, Prin-
cipal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and KIRK T. MANHARDT, Assistant
Director.
______________________
2 LEE JONES v. DOJ
Before RADER, Chief Judge, O'MALLEY, and WALLACH,
Circuit Judges.
PER CURIAM.
The Merit Systems Protection Board (the Board) af-
firmed the termination of Mr. Lee A. Jones. Jones v. Dep’t
of Justice, No. SF-315H-11-0741-I-2 (M.S.P.B. April 3,
2012) (Board Decision). Because the Board correctly
found no harmful error, this court affirms.
I.
On September 14, 2008, Bureau of Prisons (BOP) ap-
pointed Mr. Jones to the competitive service position of
Correctional Officer at the Federal Correctional Institu-
tion in Herlong, California. His appointment was subject
to the completion of a one-year probationary period. As a
Correctional Officer, Mr. Jones was responsible for main-
taining safety and security of inmates and fellow staff
members.
On March 19, 2009, Mr. Jones was videotaped playing
basketball with inmates for about thirty minutes. After
Warden Richard Ives of BOP was notified of Mr. Jones’
activity, he referred the matter to BOP’s Office of Internal
Affairs (OIA) for investigation. Warden Ives was con-
cerned that Mr. Jones’ actions had violated BOP’s stand-
ards of conduct, which require correctional officers to
remain attentive to duty and fully alert.
On March 30, 2009, during an OIA investigation of
the alleged misconduct, Warden Ives offered Mr. Jones a
different competitive service position at Herlong. Mr.
Jones began this new position as a Cook Supervisor on
April 12, 2009. He formally accepted the position via
email on May 2, 2009. Mr. Jones is a 30-percent prefer-
ence eligible disabled veteran. According to BOP, Mr.
Jones was selected from the certificate of eligibles because
LEE JONES v. DOJ 3
he was the only one who met the requirements for the
position.
Mr. Jones performed satisfactory work as a Cook Su-
pervisor for the remainder of the summer. However, BOP
terminated him by letter on August 7, 2009. The letter,
signed by Warden Ives, cited Mr. Jones’ “unsatisfactory
conduct” of “play[ing] basketball with inmates” as justifi-
cation for his termination. J.A. 292. His termination was
effective as of the date of the letter.
Earlier, on April 2, 2009 as part of OIA’s investiga-
tion, Mr. Jones voluntarily had given a sworn statement.
He had stated that he was “not authorized to play basket-
ball” and that doing so was “a bad decision.” Aff. of Mr.
Jones, J.A. 286. On April 6, 2009, OIA issued its final
report regarding Mr. Jones’ alleged misconduct. The
report found sufficient evidence that Mr. Jones acted
against policy by playing basketball. On April 17, 2009,
OIA issued its final report. It found that Mr. Jones’
“inattention to duty” constituted misconduct. J.A. 278.
Over two years later, in July 2011, Mr. Jones ap-
pealed seeking review of his termination. An administra-
tive judge (AJ) found Mr. Jones had made a nonfrivolous
allegation of Board jurisdiction under 5 C.F.R.
§ 315.806(c) and invited him to proceed. The AJ found
Board jurisdiction under Section 315.806(c) and affirmed
BOP’s termination action.
Before the AJ, the agency initially argued that Mr.
Jones was under the same one-year probationary period
that began in September 2008. Thus, it argued that Mr.
Jones’ termination in August 2009 was for a post-
appointment reason. The AJ rejected this argument.
Instead, the AJ found that a new one-year probationary
period began on April 12, 2009. Board Decision at 6-7.
The government does not appeal this finding.
4 LEE JONES v. DOJ
The termination letter cited unsatisfactory conduct
(i.e., playing basketball) that occurred before his appoint-
ment to Cook Supervisor; thus, the AJ found that BOP
terminated Mr. Jones for a pre-appointment reason. Id.
at 7. As a result, the AJ found that Mr. Jones was enti-
tled to the procedural protections of 5 C.F.R. § 315.805.
These protections include notice and an opportunity to
respond. See § 315.805. Finally, the AJ found that Mr.
Jones’ right to appeal was limited to the conditions of
Section 315.806(c), which did not include the merits of the
agency’s decision. Board Decision at 5, 8.
The record shows that the agency did not follow the
procedures of Section 315.805 when it terminated Mr.
Jones. Thus, the only issue was whether “the agency’s
failure to follow the procedures of section 315.805 was
harmful error.” Board Decision at 8. Consequently, Mr.
Jones had the burden to establish, by preponderant
evidence, that the error was harmful. Id.
After considering the evidence, the AJ concluded that
Mr. Jones had not carried his burden. First, the AJ
determined that Mr. Jones had some opportunity to
respond when OIA first investigated the March 2009
incident. During the investigation, OIA interviewed Mr.
Jones and allowed him to provide an affidavit. Second,
the AJ relied extensively on Warden Ives’ testimony. The
AJ found the testimony “credible because [Ives] was
unequivocal, forthcoming, and not evasive.” Id. at 9. The
AJ therefore affirmed the agency’s decision to terminate
Mr. Jones. Her decision became the Final Decision of the
Board in May 2012, after neither party petitioned for
review. Mr. Jones now appeals that decision. This court
has jurisdiction under 28 U.S.C. § 1295(a)(9).
II.
This court must affirm a decision of the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
LEE JONES v. DOJ 5
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). This court reviews the Board’s
conclusions of harmful error under the substantial evi-
dence standard. Kewley v. Dep't of Health & Human
Servs., 153 F.3d 1357, 1366 (Fed. Cir. 1998). Substantial
evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Massa
v. Dep’t of Def., 815 F.2d 69, 72 (Fed. Cir. 1987) (internal
quotation marks omitted).
The Board correctly concluded that Mr. Jones was a
probationer terminated for a pre-appointment condition.
As such, the scope of his appeal to the Board was limited
to the “ground that his termination was not effected in
accordance with the procedural requirements” of Section
315.805, thus resulting in a harmful procedural error.
§ 315.806(c).
A procedural error is harmful if it was “likely to have
caused the agency to reach a conclusion different from the
one it would have reached in the absence or cure of the
error.” 5 C.F.R. § 1201.56(c)(3). Accordingly, the question
before the Board was whether Warden Ives would likely
have reached a different conclusion if the agency had
complied with Section 315.805. See § 315.806(c). This
section entitles a probationer to advance notice of the
proposed termination, a reasonable time for filing an
answer to the notice, consideration of the answer by the
agency, and written notice of the agency’s decision.
§ 315.805.
Additionally, having not become an “employee” as de-
fined by statute, Mr. Jones could not challenge the merits
of his termination before the Board nor can he before this
court. 5 U.S.C. § 7511(a); see 5 C.F.R. § 315.806(c).
A.
6 LEE JONES v. DOJ
According to Mr. Jones, because Warden Ives termi-
nated him for an illegal reason (i.e., performance during a
prior probationary period) any lack of procedure is harm-
ful as a matter of law. Mr. Jones, however, cites no
authority to support this assertion.
Instead, Mr. Jones argues that a pre-appointment
condition for termination has been limited to essentially
two circumstances, neither of which applies to his case.
First, when the probationer “fail[s] to disclose infor-
mation” at the time of appointment (e.g., possibility of
federal indictment); and, second, when the probationer
falsifies application materials. See Beeson v. Hudson, 630
F.2d 622, 624-25 (8th Cir. 1980) (failure to disclose FBI
investigation); Pope v. Dep’t of the Navy, 62 M.S.P.R. 476,
479 (1994) (falsification of cumulative Grade Point Aver-
age in application materials). Further, Mr. Jones argues
that performance under a prior probationary period is
entirely irrelevant to a decision of whether to terminate a
probationer during a later probationary period.
Thus, according to Mr. Jones, because he made full
disclosure and did not falsify his application materials,
any procedural error was harmful because the original
reason for his termination should have been irrelevant.
In other words, the Board should have ignored the per-
formance issues from his earlier probationary period and
instead found harmful error.
This court does not agree with Mr. Jones’ narrow view
of the distinctions between termination for pre-
appointment conditions and termination for unsatisfacto-
ry performance. While the two are treated differently
under Sections 315.804 and 315.805, that treatment does
not lead to Mr. Jones’ unduly narrow reading. Compare
§ 315.804 (describing termination of probationers for
unsatisfactory performance), with § 315.805 (describing
termination for conditions arising before appointment).
LEE JONES v. DOJ 7
Generally, the agency uses the probationary period “to
determine the fitness of the employee . . . for continued
employment.” § 315.803. As the Board has previously
found in discussing suitability under 5 C.F.R. § 731.202,
“misconduct in prior employment that would have a
bearing on efficient service in the position in ques-
tion . . . may be the basis for finding an individual unsuit-
able.” LaPre v. Dep’t of Justice, 62 M.S.P.R. 329, 335
(1994). Additionally, as BOP correctly notes, this court
has recognized the “great latitude [of federal managers] in
removing probationary employees before they bec[ome]
vested with the rights afforded tenured employees.”
Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 650 (Fed. Cir.
1992). Here, keeping the “great latitude” in mind, this
court concludes that Mr. Jones’ prior misconduct was
relevant to his suitability and fitness for continued em-
ployment as a Cook Supervisor.
First, as of April 12, 2009, Warden Ives was aware of
only outstanding allegations of Mr. Jones’ misconduct.
Warden Ives had not yet received substantiation in the
form of OIA’s report. The Board correctly found Warden
Ives’ and Mr. Bradford Mackey’s (BOP’s Human Resource
manager) testimony credible and persuasive. Each testi-
fied that it would have been imprudent to not hire Mr.
Jones based on mere allegations of misconduct. See J.A.
94-95, 220-21.
Further, the Board found the testimony of Warden
Ives and Mr. Mackey persuasive of the date Warden Ives
received the report. They each testified that Warden Ives
did not have the finalized report before April 12, 2009.
They also described the normal BOP process in handling
allegations of misconduct. The process involves OIA
preparing and finalizing the report, forwarding it to
human resources, and human resources sending it to
Labor Management to determine a recommended disci-
pline. Next, Labor Management would forward its rec-
ommendation to Warden Ives. Finally, Warden Ives
8 LEE JONES v. DOJ
would consider Labor Management’s recommendation
before informing the employee of his discipline. This
whole process could take up to 120 days. J.A. 95, 220.
For these reasons, substantial evidence supports the
Board’s conclusion that Warden Ives may not have known
the finality of the pending allegations against Mr. Jones
when he accepted the position.
Second, once the OIA report was completed, Warden
Ives was justified in considering its contents in consider-
ing Mr. Jones’ removal. Indeed the report described his
misconduct as “Inattention to Duty.” As a Cook Supervi-
sor, Mr. Jones was responsible for taking orders, oversee-
ing inventory, etc. Beyond these duties, and similar to
those of a corrections officer, Mr. Jones was responsible
for supervising eighteen to twenty inmates in the kitchen
as a Cook Supervisor.
B.
Mr. Jones was terminated for a pre-appointment con-
dition without proper procedure. Therefore, the question
is whether the Board’s conclusion of harmless error was
supported by substantial evidence. See § 315.806(c). This
court finds that it was.
In making its decision, the Board relied extensively on
Warden Ives’ testimony. Mr. Jones argues that such
reliance amounted to an abuse of discretion by the Board
because, according to Mr. Jones, Warden Ives was not
credible. Specifically, he asserts that Warden Ives’ credi-
bility was impeached and that he admitted to perjury.
Thus, according to Mr. Jones, Warden Ives’ testimony
should not be considered in our review for substantial
evidence.
The AJ, however, was present during the questioning
of Warden Ives, often interjecting to gauge Warden Ives’
credibility. As such, the AJ was well positioned to make
credibility determinations. This court finds those credibil-
LEE JONES v. DOJ 9
ity determinations supported by substantial evidence and
not inherently implausible. Pope v. U.S. Postal Serv., 114
F.3d 1144, 1149 (Fed. Cir. 1997); Bieber v. Dep’t of the
Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002) (concluding
that the credibility determinations of an AJ are given a
high level of deference on review).
Three additional points further support the Board’s
finding of harmless error. First, Warden Ives understood
the purpose of the probationary period and the im-
portance of proper performance. He testified that the
probationary period was “used to determine [probation-
ers’] suitability for continuing their employment.” J.A.
256. He also stated that he instructed new employees
that they could not “mess up” during this time. Id. at 206.
Warden Ives also understood the importance of limit-
ing personal relationships between inmates and guards.
He explained that inmates are “violent and potentially
very dangerous individuals.” Id. at 241. Additionally,
Warden Ives recognized and informed Mr. Jones that
BOP’s “Standards of Employee Conduct” require employ-
ees to be alert during duty hours. Id. at 360. Thus,
Warden Ives reasonably concluded that playing basket-
ball during duty hours was serious misconduct. Id. He
considered it serious regardless of the situation in which
it arose. Accordingly, the record supports a finding that
Warden Ives would have otherwise removed Mr. Jones.
See id. at 250-51, 255.
Second, when Warden Ives appointed Mr. Jones to the
Cook Supervisor position he was only aware of allegations
against Mr. Jones. Mr. Mackey had previously advised
Warden Ives to not consider pending allegations of mis-
conduct in making a hiring decision until the process was
finalized. Id. at 94-95. Additionally, during the OIA
investigation, Mr. Jones submitted an affidavit explaining
his view on the allegations, in which he admitted to the
misconduct. Id. The Board found that Warden Ives
10 LEE JONES v. DOJ
would not likely have been persuaded differently if Mr.
Jones had presented a full regulatory response. See id. at
250-51, 255. Mr. Mackey’s advice coupled with the nor-
mal procedures at Herlong in handling disciplinary ac-
tions support the Board’s finding of harmless error.
“Like any large organization, a personnel action trig-
gers many administrative chores . . . [and] [i]t defies all
common sense to expect that all such steps will be carried
out simultaneously with the personnel action.” Hardy v.
Merit Sys. Prot. Bd., 13 F.3d 1571, 1575 (Fed. Cir. 1994).
Thus, it was reasonable for Warden Ives to wait for com-
pletion of the entire report before initiating action against
Mr. Jones.
Finally, at the time BOP hired Mr. Jones for the Cook
Supervisor position, he was the only one on the certified
list of eligibles. See J.A. 92-95, 332. According to Mr.
Mackey, Mr. Jones was at the “greatest level of preference
among veterans and nonveterans.” Id. at 94. Moreover,
Mr. Mackey reasonably believed that alleged misconduct
was no reason to “pass . . . over” Mr. Jones as an other-
wise qualified candidate. Id. at 108. Thus, it was reason-
able to hire Mr. Jones for the position, even in light of the
allegations of misconduct. See Hardy, 13 F.3d at 1575.
The Board also considered Warden Ives’ testimony as
to BOP’s decisions whether to terminate other individuals
and found that testimony credible. He testified that even
taking the situations of these others into account, his
decision to terminate Mr. Jones would not have been any
different. See J.A. 250-51, 255.
Accordingly, substantial evidence supports the
Board’s conclusion that BOP’s procedural error was
harmless. This court has considered the remainder of Mr.
Jones’ arguments and finds them unconvincing. Accord-
ingly, the decision of the Board affirming BOP’s termina-
tion of Mr. Jones is affirmed.
LEE JONES v. DOJ 11
AFFIRMED