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
04-3448
JEROME HALL,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
___________________________
DECIDED: June 9, 2005
___________________________
Before MAYER, GAJARSA, and DYK, Circuit Judges.
PER CURIAM.
Jerome Hall (“Mr. Hall”) seeks review of an arbitrator’s decision affirming his
removal by the Department of Homeland Security (“DHS”). In the Matter of Arbirtation
Between AFGE Local 3123, Union, and Dep’t of Homeland Sec., (July 27, 2004)
(Zigman, Arbitrator). Because Mr. Hall has not shown the arbitrator’s decision to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
law; obtained without procedures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence, we affirm.
BACKGROUND
Mr. Hall worked as a detention enforcement officer with the Immigration and
Naturalization Service (“INS”) beginning July 1997. From July 1997 to July 2002 he
was assigned to the Baltimore, Md. District. In July 2002, Mr. Hall transferred to the
Atlanta District and was assigned to the Raleigh, N.C. sub-district. His direct supervisor
in Raleigh was Paige Edenfield, the supervising detention and deportation officer for
both North and South Carolina.
Mr. Hall’s job required him to pick up aliens from different facilities, transport
them to facilities that have government contracts, book the aliens in and out of jail, enter
biographical information into the Deportable Alien Control System (“DACS”), and
conduct domestic and foreign escorts. These duties were reviewed during a
“performance rating period” from April 1, 2002 to March 31, 2003; the Baltimore District
reviewed his first three months and the Atlanta District the remaining nine.
On November 18, 2002, Ms. Edenfield conducted a midterm performance review
with Mr. Hall. Her review provided Mr. Hall a performance appraisal record and
discussed his performance. The appraisal divided Mr. Hall’s duties into seven “critical
elements.” She rated Mr. Hall fully successful in only one critical element, minimally
satisfactory in four elements, and unsatisfactory in two others.
Because of his midterm performance review, Ms. Edenfield gave Mr. Hall a
written performance improvement plan (“PIP”). The PIP stated that Mr. Hall’s
performance in four critical areas was unsatisfactory and advised him that the plan
would be in place during the remainder of the rating period. The PIP also listed twelve
specific areas that required improvement.
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Ms. Edenfield discussed Mr. Hall’s performance with him a number of times prior
to his midterm review. She also testified that she trained Mr. Hall and gave him
feedback after the PIP was issued. Mr. Hall, however, contended that Ms. Edenfield did
not explain his past performance prior to the PIP. He also contended that Ms. Edenfield
did not review and explain the PIP nor train him and provide feedback based on the
plan. The only written documentation verifying the consultations dealt with a two hour
DACS training session on December 2002.
Based on Mr. Hall’s performance and lack of improvement, the head of the
deportation branch for the Atlanta District, Tony Campos, recommended Mr. Hall’s
removal. On September 5, 2003, Mr. Hall was notified of the Agency’s proposal to
remove him for (1) unauthorized use of a government cellular telephone, (2) inattention
to duty, and (3) unacceptable performance. The unauthorized use of a government
cellular telephone charge arose from Mr. Hall’s use of 4,200 minutes of unauthorized
long distance telephone calls costing approximately $1,200. The inattention to duty
charge was brought since Mr. Hall’s passport expired and an escort to Liberia had to be
cancelled as a result. The final charge, unacceptable performance, was premised on
Mr. Hall’s errors in entering information in the DACS computer system.
After sending the letter proposing removal, Mr. Campos learned that Mr. Hall had
not participated in a training program developed for all new and experienced officers
entering the Atlanta District. The program included training with forms, paperwork, and
the DACS computer system. According to Mr. Campos the training program may have
cured some of Mr. Hall’s performance deficiencies. Mr. Campos informed the deciding
official, Michael Rozos, that he would not have recommended removal if he had known.
04-3448 3
Mr. Rozos let the removal stand, however. Mr. Campos suggested during the
arbitration that he would have recommended oral counseling or an oral reprimand in this
instance rather than removal.
The arbitrator’s initial decision on July 27, 2004, after a hearing and review of the
record, affirmed Mr. Hall’s removal. Specifically, the arbitrator looked at each charge
individually. The arbitrator found that just cause existed to discipline, but not remove,
Mr. Hall with respect to the inattention to duty charge. The arbitrator also found that the
DHS did not meet its burden concerning the unacceptable work performance charge to
support removal. The arbitrator noted that if the initial removal was predicated solely on
the inattention to duty and unacceptable performance charges, the removal would not
stand. Because the removal was also based on the unauthorized use of a government
cellular telephone, the arbitrator sustained the removal. The arbitrator noted that the
unauthorized use of a government cellular telephone “played a significant role in the
severity” of the charge and Mr. Hall’s removal. Mr. Hall timely appealed to this court
and we have jurisdiction under
28 U.S.C. § 1295(a)(9) (2000) and
5 U.S.C. §§ 7121(f),
7703 (2000).
DISCUSSION
An arbitrator is bound to apply the same substantive legal standards as the Merit
Systems Protection Board (“MSPB”). Cornelius v. Nutt,
472 U.S. 648, 660 (1985). We
review an arbitrator’s decision under the same standard used for appeals from the
MSPB.
5 U.S.C. § 7121(f) (2000). Accordingly, we must affirm the arbitrator’s decision
unless we determine that it is (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without procedures required by law,
04-3448 4
rule, or regulation having been followed; or (3) unsupported by substantial evidence.
See
5 U.S.C. § 7703(c) (2000); Kileen v. Office of Pers. Management,
382 F.3d 1316,
1320 (Fed. Cir. 2004).
On appeal, Mr. Hall challenges the arbitrator’s decision that his removal was
justified. Mr. Hall argues that the penalty should be mitigated because the arbitrator did
not uphold all the charges. Mr. Hall also argues that since the arbitrator did not uphold
all of the DHS’s charges that the maximum penalty cannot be imposed. Further,
Mr. contends that the arbitrator abused his discretion when he did not place more
weight on Mr. Campos’ testimony. Mr. Hall also argues that the removal was too severe
relative to penalties received by other employees in similar circumstance. Finally,
Mr. Hall argues that the arbitrator misapplied the Douglas factors.
Mr. Hall first argues that the arbitrator erred by not mitigating the penalty of
removal after some of the charges against him were not sustained. Specifically, he
contends that since the government failed to carry its burden of proof concerning the
unacceptable work performance charge the arbitrator should have assessed the penalty
of oral counseling or light suspension. He finds support in this proposition from
Mr. Campos testimony that Mr. Hall’s offenses should lead to oral counseling rather
than removal. The removal, however, was also based on the unauthorized use of the
cellular telephone charge, which the arbitrator noted “played a significant role in the
severity of the discipline.”
Since the arbitrator agreed with the penalty assessment (removal), yet declined
to affirm all charges (unacceptable work performance), the arbitrator must “precisely
articulate the basis for upholding the agency’s action.” LaChance v. Devall,
178 F.3d
04-3448 5
1246, 1258 (Fed. Cir. 1999). The arbitrator found that Mr. Hall’s 4,200 minutes of
unauthorized time, costing the government approximately $1,200, including spending
part of his work time on these calls, was conduct so serious as to justify removal. The
arbitrator’s focus on the egregiousness of Mr. Hall’s misuse of a government cellular
telephone fulfills this requirement. We find no error in this determination.
Mr. Hall also contends that since the arbitrator sustained fewer than all of the
DHS’s charges, the arbitrator cannot affirm the maximum reasonable penalty (removal)
because Mr. Campos, the proposing official, recommended that Mr. Hall be given only a
reprimand. See LaChance, 178 F.3d at 1260 (noting that there must be a nexus
between the original agency action and a sustained penalty). The arbitrator noted that
Mr. Campos’ opinion for reversing his recommendation, however, was based solely on
the charge of unacceptable work performance since Mr. Hall did not receive orientation
training. Further, Mr. Rozos, the deciding official, decided to let the removal stand after
he learned that Mr. Hall did not receive the training. Accordingly, the arbitrator did not
err by not mitigating the penalty of removal based on Mr. Campos’ comments
concerning orientation training.
Mr. Hall also argues that the arbitrator abused his discretion when he did not
place more weight on Mr. Campos’ testimony that the charges would ordinarily only
require oral counseling or a reprimand. Due to the egregiousness of the unauthorized
use of a government cellular telephone charge, the arbitrator found this portion of
Mr. Campos’ testimony “inconsistent with the principles of just cause.” The weight to be
given to Mr. Campos’ views concerning the appropriate penalty is within the discretion
of the administrative Judge.
04-3448 6
Mr. Hall also challenges the penalty of removal, arguing that it was too severe
relative penalties other DHS employees received for similar misconduct. The
“[d]etermination of an appropriate penalty is a matter committed primarily to the sound
discretion of the employing agency.” Zingg v. Dep’t of the Treasury,
338 F.3d 839, 843
(Fed. Cir. 2004). Mr. Hall claims that since three people who misused their government
issued cellular telephones and four officers who failed to renew their passports were not
removed then his penalty should be reprimand, rather than removal. We disagree. In
each of these situations on which Mr. Hall relies, none of the employees appears to
have other violations pending, past disciplinary actions, as severe an indiscretion, or as
heavy an impact on coworkers as Mr. Hall. Further, as the government notes, removals
have been affirmed based in whole, or in part, upon unauthorized use of government
issued telephones. See, e.g., Bledsoe v. Dep’t of Justice,
91 M.S.P.R. 93, 120 (2002);
Lewis v. General Services Admin.,
82 M.S.P.R. 259, 265 (1999); Mitchell v. Dep’t of
Defense,
22 M.S.P.R. 271, 273-274 (1984). Finally, as a law enforcement officer, Mr.
Hall is held to a higher standard of conduct than other federal employees. Watson v.
Department of Justice,
64 F.3d 1524, 1530 (Fed. Cir. 1995). Mr. Hall has not shown
that his removal was “so harsh and unconscionably disproportionate to the offense that
it amounts to an abuse of discretion.” Villela v. Dep’t of the Air Force,
727 F.2d 1574,
1576 (Fed. Cir. 1984)
Finally, Mr. Hall contends that the arbitrator failed to consider properly the criteria
set forth in Douglas v. Veterans Admin.,
5 M.S.P.R. 280, 305-306 (1981). We begin by
noting that the factors in Douglas are not exhaustive and an agency is required only to
balance those factors relevant to the action. See Douglas, 5 M.S.P.R. at 305-306
04-3448 7
(noting that some of the factors may weigh in favor of the appellant and that selection of
an appropriate penalty must “involve a responsible balancing of the relevant factors”).
While the arbitrator did not analyze each Douglas factor individually, the record
establishes that he properly considered the relevant criteria, including mitigating factors.
The arbitrator reviewed the record and examined the totality of the circumstances,
including: the nature and seriousness of the cellular telephone misuse; Mr. Hall’s past
disciplinary record; the impact his actions had on his coworkers and supervisor; the
consistency of the penalties with other penalties imposed for similar offenses; his
heightened standard of conduct as an officer; and the value of imposing a lesser
penalty. We cannot say that the removal is so “outrageously disproportionate” to the
offenses as to constitute an abuse of discretion in light of all relevant factors. See
Yeschick v. Dep’t of Transp.,
801 F.2d 383, 384-85 (1986).
CONCLUSION
We find that the arbitrator’s decision affirming Mr. Hall’s removal is supported by
substantial evidence; was not arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; and was not obtained without procedures required by law,
rule, or regulation having been followed. Accordingly, we affirm the decision of the
arbitrator.
No costs.
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