Brigham v. Social Security Administration ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
TAMMY R. BRIGHAM,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
2012-3129
__________________________
Petition for review of an arbitrator’s decision in Case
Nos. BR-2011-R-0004 and BR-2011-R-0018 by Daniel L.
Feinstein.
__________________________
Decided: October 4, 2012
__________________________
TAMMY R. BRIGHAM, of Memphis, Tennessee, pro se.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
__________________________
BRIGHAM v. SSA 2
Before RADER, Chief Judge, LOURIE, Circuit Judge, and
DANIEL, Chief District Judge 1
PER CURIAM.
Tammy R. Brigham seeks review of an arbitrator’s
decision holding that just cause supported the Social
Security Administration’s decisions to 1) suspend Ms.
Brigham for thirty days and subsequently 2) terminate
her employment. Because the record contains substantial
evidence to support the Arbitrator’s factual determina-
tions and the arbitrator correctly applied the law, this
court affirms.
I
Ms. Brigham began employment with the Social Secu-
rity Administration (the “Agency”) in 1994 as a Claims
Clerk. In October 2004, she received a promotion to the
position of Claims Representative. While working as a
Claims Representative, Ms. Brigham observed what she
believed was inappropriate termination of claimants’
benefits, and reported the situation. Ms. Brigham then
allegedly suffered acts of retaliation for being a whistle-
blower. She filed a grievance. The grievance ended when
Ms. Brigham voluntarily accepted a downgrade from
Claims Representative to Service Representative and a
transfer to another office.
Ms. Brigham began work at her new position in June
2009, where she engaged in a pattern of disruptive behav-
ior. Ms. Brigham’s interactions with co-workers and the
public were discourteous. At the arbitration hearing in
this case, six of Ms. Brigham’s co-workers testified regard-
ing her unprofessional and intimidating behavior. The
1 The Honorable Wiley Y. Daniel, Chief District
Judge, United States District Court for the District of
Colorado, sitting by designation.
3 BRIGHAM v. SSA
Agency also identified several instances of substandard
job performance, including tardiness, unscheduled ab-
sence without leave, and Ms. Brigham’s denial of assis-
tance to social security claimants in violation of
instructions from her supervisor.
On August 18, 2009, Ms. Brigham met with two of her
supervisors, Mr. James Alford and Ms. Charlene Strong.
They intended to discuss complaints from Ms. Brigham’s
co-workers about her behavior. During the arbitration
hearing, both Mr. Alford and Ms. Strong testified that Ms.
Brigham abruptly ended the August 18, 2009 meeting.
Their testimony recounted that Ms. Brigham bumped into
one supervisor and pushed the other as she left the room.
Conversely, Ms. Sharon Patrick, a union representative,
testified that she watched the entire meeting through a
window from the common area into the office and did not
see Ms. Brigham take any aggressive action towards
either Mr. Alford or Ms. Strong. Ms. Patrick testified that
she could not hear what was said during the meeting, but
believed she would have heard any raised voices. The
arbitrator found the testimony of Mr. Alford and Ms.
Strong credible, and found Ms. Patrick had not been able
to fully observe the events of the meeting from her posi-
tion outside the window.
Ms. Brigham received the Agency’s notice of intent to
suspend her without pay for thirty days for (a) discourte-
ous behavior directed at colleagues; (b) the incident in
which she bumped and pushed two supervisors; and (c)
failure to perform assigned tasks. This discipline took
effect on February 1, 2010. On March 10, 2010, immedi-
ately upon returning from her thirty-day suspension, Ms.
Brigham had a physical altercation with an employee who
was assisting Ms. Brigham with setting up her voicemail.
The employee, Ms. Nina Des Vignes, testified Ms. Brig-
ham slapped her hand “really hard” when she reached for
BRIGHAM v. SSA 4
Ms. Brigham’s phone. J.A. 31. Ms. Jean Vaught, an
Operations Supervisor, and Mr. Alford both testified they
observed a red mark on Ms. Des Vignes’s hand following
the incident and that Ms. Des Vignes appeared shaken.
Mr. Ennis Lee Brown, a contract security guard, similarly
testified that he heard a slapping sound and also observed
a red mark on Ms. Des Vignes’s hand. Ms. Brigham
testified that her finger only brushed Ms. Des Vignes’s
hand. The arbitrator found the testimony of Ms. Brig-
ham’s co-workers credible and compelling, and deter-
mined Ms. Brigham initiated the physical confrontation.
Following the March, 10, 2010 incident, the Agency
terminated Ms. Brigham’s employment. The American
Federation of Government Employees, a labor union
representing employees in the office where Ms. Brigham
worked, invoked arbitration on her behalf. At arbitration,
Ms. Brigham denied engaging in the charged misconduct
and alleged that the Agency violated the Whistleblower
Protection Act, 5 U.S.C. § 2302(b)(8).
On March 27, 2012, the arbitrator issued a decision
finding that just cause supported the Agency’s decisions
to suspend and remove Ms. Brigham from Federal service.
The arbitrator found the Agency carried its burden of
proving Ms. Brigham engaged in the conduct with which
she was charged, and found that Ms. Brigham’s perform-
ance-related and interoffice conflicts were egregious.
After considering the factors set forth in Douglas v. Veter-
ans Administration, 5 M.S.P.R. 280 (1981) (“Douglas
factors”), the arbitrator concluded that the penalties were
appropriate.
The arbitrator did not reach the merits of Ms. Brig-
ham’s whistleblower allegations. The arbitrator deter-
mined that even if Ms. Brigham made protected
disclosures and the deciding officials were aware of those
5 BRIGHAM v. SSA
disclosures, the Agency had met its burden to show it
would have imposed the same disciplinary measures
regardless of such disclosures.
II
This court reviews an arbitrator’s decision under the
same standard of review that is applied to decisions from
the Merit Systems Protection Board (the “Board”).
5 U.S.C. § 7121(f); Johnson v. Dep’t of Veterans Affairs,
625 F. 3d 1373, 1376 (Fed. Cir. 2010). Thus, the arbitra-
tor’s decision must be affirmed unless it is “(1) arbitrary,
capricious, an abuse of discretion, 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.” 5 U.S.C.
§ 7703(c); Johnson, 625 F. 3d at 1376.
This court’s review of an agency’s penalty determina-
tion is “highly deferential.” Bieber v. Dep’t of the Army,
287 F. 3d 1358, 1365 (Fed. Cir. 2002). The court will not
overturn the penalty determination unless it is “grossly
disproportionate to the offense charged.” Id. (quotation
omitted).
In cases involving retaliation for whistleblowing, the
employee must first demonstrate by a preponderance of
the evidence that she made a protected disclosure under 5
U.S.C. § 2302(b)(8)(A). The burden then shifts to the
agency to establish by clear and convincing evidence that
it would have taken the action even in the absence of the
protected disclosure. 5 U.S.C. § 1221(e)(2). The Board
looks at three factors in assessing whether the agency has
met its burden: (1) “the strength of the agency’s evidence
in support of its personnel action”; (2) “the existence and
strength of any motive to retaliate on the part of the
agency officials who were involved in the decision”; and
(3) “any evidence that the agency takes similar actions
BRIGHAM v. SSA 6
against employees who are not whistle-blowers but who
are otherwise similarly situated.” Carr v. Soc. Sec.
Admin., 185 F.3d 1318 (Fed. Cir. 1999).
III
This record contains substantial evidence to support
the arbitrator’s determination that the Agency properly
decided to suspend and later terminate Ms. Brigham. Ms.
Brigham’s primary argument on appeal is that she did not
engage in any of the conduct with which she was charged.
The arbitrator, however, personally observed the testi-
mony of Ms. Brigham, her witnesses, and the supervisors
and co-workers who testified against her. The arbitrator
found the testimony of Ms. Brigham’s co-workers and
supervisors credible and compelling. Having weighed the
conflicting testimony, the arbitrator found Ms. Brigham
violated direct instructions from supervisors in dealing
with social security claimants, was intimidating and
unprofessional in her behavior with colleagues, and
engaged in two incidents of workplace violence. Absent
compelling reasons to protect against manifest injustice,
this court must credit the credibility determinations
entrusted to a fact-finder. See, e.g., Gibson v. Dep’t of
Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998). Ms.
Brigham has not identified any evidence that demon-
strates the testimony of her colleagues and managers was
“inherently improbable or discredited by undisputed
evidence or physical fact.” Id. at 726 (citations omitted).
Ms. Brigham also disputes that suspension and re-
moval were appropriate punishments for the charged
conduct. The arbitrator, however, engaged in an express
weighing of the Douglas factors. The arbitrator found
that some factors “mitigate against strong discipline,”
including Ms. Brigham’s long history of federal employ-
ment without prior disciplinary problems, and the possi-
7 BRIGHAM v. SSA
bility that “some of the routine interruptions of colleagues
may have been mitigated through a more rigorous
on-board[ ] training process.” Arbitrator Op. at 16-17.
The arbitrator also noted Ms. Brigham “suffers from a
diagnosed mental health condition” and considered this as
a mitigating circumstance in Ms. Brigham’s favor which
might weigh in favor of less severe discipline. Id. at 16.
Ms. Brigham asserts that the arbitrator improperly
referred to her mental health condition, but this court
detects no prejudice to Ms. Brigham or her case in the
arbitrator’s consideration of her condition.
Ms. Brigham suggests her performance issues were
caused by the Agency’s failure to provide proper training
when she moved to her new office and position in June
2009. As noted by the Arbitrator, “the purported failure
of the Agency to provide ‘expectations discussions’ was
previously grieved but not appealed to arbitration.”
Arbitrator Op. at 17 n.6. This court will not review issues
that were not presented to the Arbitrator in the first
instance. To the extent Ms. Brigham argues the lack of
formal training is a mitigating factor favoring a lesser
penalty, the Arbitrator considered and correctly rejected
this argument. Ms. Brigham received and did not heed
numerous warnings regarding her unprofessional behav-
ior with co-workers. Moreover, physical confrontations
with co-workers are unacceptable in almost any event.
Ms. Brigham argues she was denied procedural due
process because Mr. Alford and Ms. Strong, the two
officials who proposed and implemented the thirty day
suspension, were both involved in the physical confronta-
tion that occurred August 18, 2009. The Agency respected
Ms. Brigham’s due process rights by giving her notice and
an opportunity to be heard with respect to her suspension
and removal. See Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 546 (1985) (explaining the requirements of
BRIGHAM v. SSA 8
due process). In any event, the charges against Ms.
Brigham received corroboration from several non-
supervisor colleagues, which further weighs against Ms.
Brigham’s claim that the adverse personnel actions were
motivated by bias. Accordingly, Ms. Brigham did not
present sufficient evidence of bias to prove any violation
of her due process rights.
Ms. Brigham also points out that she had not experi-
enced any disciplinary problems until after she reported a
supervisor’s alleged inappropriate termination of claimant
benefits, which this court interprets as an appeal of the
denial of Ms. Brigham’s claim of whistleblower retalia-
tion. The arbitrator gave Ms. Brigham’s whistleblower
retaliation claim due consideration by assuming, without
deciding, that Ms. Brigham had made a protected disclo-
sure. The Arbitrator determined, however, that the
Agency established it would have proposed the same
penalties absent any protected disclosures Ms. Brigham
may have made. Likewise, the record adequately sup-
ports this conclusion.
Based on witness testimony, the arbitrator found the
Agency compellingly proved that Ms. Brigham engaged in
a physical confrontation with two supervisors. Immedi-
ately upon return from a suspension imposed for unpro-
fessional conduct, Ms. Brigham slapped a co-worker. The
latter incident was established through the testimony of
three witnesses, two of whom were non-management
co-workers with no motivation to engage in reprisal over
any alleged whistleblowing by Ms. Brigham. The record
contains substantial evidence to support the arbitrator’s
determination that the Agency would have proposed the
same penalties for any employee who engaged in such
disruptive and physically violent conduct. See Carr, 185
F.3d at 1318.
9 BRIGHAM v. SSA
For the reasons stated above, this court affirms the
final decision of the arbitration decision holding that just
cause supported the Social Security Administration’s
decisions to 1) suspend Ms. Brigham for 30 days and 2)
terminate her employment.
AFFIRMED
COSTS
Each party shall bear its own costs.