Shaddie C. Shabazz v. Dept. Of Justice , 158 F. App'x 261 ( 2005 )


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  •                        NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    05-3032
    SHADDIE C. SHABAZZ,
    Petitioner,
    v.
    DEPARTMENT OF JUSTICE,
    Respondent.
    ___________________________
    DECIDED: September 30, 2005
    ___________________________
    Before CLEVENGER, RADER, DYK, Circuit Judges.
    PER CURIAM.
    Petitioner Shaddie C. Shabazz (“Shabazz”) seeks review of the decision of the
    Merit Systems Protection Board (“Board”), affirming her removal from her position as
    Recreational Specialist by the respondent, the United States Department of Justice,
    Federal Bureau of Prisons (“Agency”).              Shabazz v. Dept. of Justice, No.
    AT0752040464-I-1 (M.S.P.B. July 26, 2004). Finding no reversible error in the Board’s
    decision, we affirm.
    BACKGROUND
    On October 17, 1993, Shabazz began employment as a correctional officer at the
    Federal Correctional Institution (“FCI”) in Estill, South Carolina. She was promoted to
    the position of Recreational Specialist on January 5, 1997.
    Shabazz’s conduct prompted disciplinary action on two occasions, both times for
    violations of section 9(c) of the Bureau of Prison’s “Standards of Employee Conduct,”
    which states that an “employee may not offer or give to an inmate or a former inmate or
    any member of his or her family, or to any person known to be associated with an
    inmate or former inmate, any article, favor, or service, which is not authorized in the
    performance of the employee’s duties.” J.A. at 206.
    The first incident resulted in a reprimand.      On July 25, 1999, Shabazz was
    observed alone with an inmate in the education building of the prison, and later that
    evening was seen leaving the hobby craft area with that same inmate, at a time when
    the inmate should have been in the housing unit for the nightly inmate count. As a
    result of this incident, on July 18, 2000, she received a letter of reprimand.
    The second alleged incident resulted in her removal. The agency alleged that
    during January 2001, Shabazz wrote letters and sent money orders to inmate Keith
    Walton’s mother, Deanna Walton, that Ms. Walton then forwarded to her son. The
    agency further alleged that Shabazz took Ms. Walton and her niece to dinner in January
    2001. These allegations were based on (1) an analysis of the letters and money orders
    by a Forensic Document Examiner, Marvin Dawson; and (2) testimony of Deanna
    Walton identifying petitioner as the individual who contacted her. The allegations were
    supported by evidence that the return address on the letters was the address of one of
    Shabazz’s relatives, and that the name on the return address was her maiden name.
    On July 17, 2002, a final decision letter notified Shabazz that she would be
    removed from her position effective July 18, 2002. After her removal, on August 21,
    2002, Shabazz filed an Equal Opportunity Employment (“EEO”) complaint alleging that
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    her removal was in retaliation for filing two previous EEO grievances. The Complaint
    Adjudication Office ruled on March 2, 2004, that the evidence did not support her EEO
    claims.
    Shabazz timely appealed the Bureau of Prison’s removal action to the Board. A
    hearing before an administrative judge (“AJ”) included testimony of several witnesses,
    including Deanna Walton and Shabazz. On July 26, 2004, the AJ affirmed the agency’s
    action.     That decision became final on August 30, 2004.     Shabazz timely filed her
    petition to this court on April 1, 2005. We have jurisdiction pursuant to 
    28 U.S.C. § 1295
    (a)(9).
    DISCUSSION
    The Board’s decision must be affirmed unless it is found to be arbitrary,
    capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
    without procedures required by law, rule or regulation; or unsupported by substantial
    evidence. 
    5 U.S.C. § 7703
    (c) (2000); Yates v. Merit Sys. Prot. Bd., 
    145 F.3d 1480
    , 1483
    (Fed. Cir. 1998).
    I
    To sustain the removal, the agency was required to prove three elements: (1)
    that the charged conduct occurred; (2) that there was a nexus between the conduct and
    the efficiency of the service; and (3) that the penalty imposed was reasonable. See 
    5 U.S.C. §§ 7513
    (a), 7701(c)(1)(B) (2000); Pope v. United States Postal Serv., 
    114 F.3d 1144
    , 1147 (Fed.Cir.1997). Shabazz does not dispute the nexus between the alleged
    conduct and the efficiency of the service, but she disputes the other two elements.
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    Shabazz argues that the Board’s finding that the charged conduct occurred is not
    supported by substantial evidence, because the AJ “did not fairly consider the
    contradictions in Ms. Walton’s testimony which effectively destroy her credibility.”
    Credibility determinations are “virtually unreviewable” on appeal. See, e.g., Hambsch v.
    Dept. of Treasury, 
    796 F.2d 430
    , 436 (Fed. Cir. 1986). Having reviewed the alleged
    contradictions in Ms. Walton’s testimony, we conclude that they were not so significant
    as to render the Board’s determination “unsupported by substantial evidence.”
    We also find that the administrative judge’s evaluation of expert testimony
    regarding document analysis was supported by substantial evidence. In reaching its
    conclusion that the agency’s expert was more credible than Shabazz’s, the AJ carefully
    considered both experts’ qualifications, and their respective analyses.
    For the above reasons, we conclude that the Board did not err in finding that the
    alleged conduct occurred.
    Shabazz also asserts that her removal was an unreasonable penalty. Shabazz's
    burden in proving her penalty unreasonable is a heavy one: “deference is given to the
    agency's judgment unless the penalty exceeds the range of permissible punishment
    specified by statute or regulation, or unless the penalty is so harsh and unconscionably
    disproportionate to the offense that it amounts to an abuse of discretion.” Parker v.
    United States Postal Serv., 
    819 F.2d 1113
    , 1116 (Fed. Cir. 1987) (internal quotation
    marks omitted).   Here, we cannot conclude that the Board erred in sustaining the
    penalty of removal. Inappropriate conduct by a prison official with an inmate’s family is
    a very serious offense which, as the Board asserted, “could have placed her and others
    at risk,” particularly in light of the “charged inmate atmosphere found in many federal
    05-3032                                    4
    facilities.” J.A. at 12. See Watson v. Dept. of Justice, 
    64 F.3d 1524
    , 1530 (Fed. Cir.
    1995) (“Law enforcement officers are held to a higher standard of conduct than are
    other federal employees”). Moreover, the Board found that petitioner had concealed her
    misconduct.
    Shabazz also argues that her punishment was based on the improper
    consideration of prior disciplinary action, in violation of an agency guideline, the
    “Standard Schedule of Disciplinary Offenses and Penalties” (“Schedule”), which states
    that “[t]he reckoning period is defined as that period of time following the date
    management becomes aware of the offense during which that offense can be used to
    determine the sanction for a subsequent offense.” J.A. at 2. She alleges that the July
    2000 reprimand fell outside the two year reckoning period. Although both the Board
    and the deciding official, Warden Maldonado, considered the prior offense as evidence
    that Shabazz was on notice that her conduct was a violation of the rules, the Board was
    persuaded by Maldonado’s testimony that he did not consider the prior disciplinary
    action in arriving at the penalty. The Board did not err in concluding that the guideline
    was not violated because the agency may rely on actions outside the reckoning period
    for the limited purpose of establishing notice of the prohibited conduct.
    II
    Shabbaz also claims that she was punished in reprisal for two prior EEO
    complaints. Under 
    5 U.S.C. § 2302
    (b)(9), it is a prohibited practice to take a personnel
    action against an employee because of the exercise of any “grievance right granted by
    any law, rule, or regulation.” To prevail on an allegation of illegal reprisal for exercising
    grievance rights under 
    5 U.S.C. § 2302
    (b)(9), Shabazz must show: (1) she filed a
    05-3032                                     5
    grievance protected under § 2302(b)(9); (2) the accused official knew of the grievance;
    (3) the adverse action under review could have been retaliation under the
    circumstances; and (4) there was a genuine nexus between the alleged retaliation and
    the grievance. See Warren v. Dept. of the Army, 
    804 F.2d 654
    , 656-58 (Fed. Cir. 1986).
    The record discloses that Shabazz filed two grievances: first, a sex discrimination
    compliant against her supervisor, Ken Jones, in July 1997; and second, a gender
    discrimination complaint in August 2000. The administrative judge found that Shabazz
    had failed to establish a genuine nexus.        The complaints were not directed to the
    conduct of the deciding official, Warden Maldonado.        Although Maldonado knew of
    Shabbaz’s EEO complaints from conversations with the Human Resources Office, the
    AJ was persuaded that the prior complaints played no role in his decision.             That
    decision is supported by substantial evidence.
    Shabazz also alleges that the agency committed procedural error by proposing
    disciplinary action prior to the conclusion of the agency investigation, and prior to review
    by the Chief Executive Officer, and that these errors violate the collective bargaining
    agreement (“CBA”). The CBA provides: “[w]hen an investigation takes place on an
    employee’s alleged misconduct, any disciplinary or adverse action arising from the
    investigation will not be proposed until the investigation has been completed and
    reviewed by the Chief Executive Officer or designee . . .” J.A. at 9-10. However,
    assuming petitioner is correct that the procedure was violated, the Board found that she
    failed to allege that the agency would have reached a different conclusion if the
    procedure had been followed. Where, as here, the final agency decision is subject to
    judicial review, it is well settled that agency error is harmful only where the record shows
    05-3032                                     6
    that the procedural error was likely to have affected the agency’s conclusion. See 5
    U.S.C. 7701(c)(2)(A) (2000); Carmichael v. United States, 
    298 F.3d 1367
    , 1375-76
    (Fed. Cir. 2002); Sargisson v. United States, 
    913 F.2d 918
    , 922-23 (Fed. Cir. 1990).
    But cf. Wagner v. United States, 
    365 F.3d 1358
    , 1364-65 (Fed. Cir. 2004) (different rule
    applies where final agency decision unreviewable). We are not persuaded that the
    Board erred in concluding that the petitioner “failed to prove harmful error.” J.A. at 9.
    Nor do we believe that the Board erred in concluding that the CBA did not “require that
    an employee be permitted to respond to the charges under investigation prior to the
    issuance of the proposal notice.” J.A. at 10.
    CONCLUSION
    For the foregoing reasons, the Board’s decision is affirmed.
    COSTS:
    No costs.
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