Toyama v. Leavitt , 408 F. App'x 351 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEPHANIE S.K.C. TOYAMA,
Petitioner,
v.
MICHAEL O. LEAVITT, SECRETARY OF HEALTH
AND HUMAN SERVICES,
Respondent.
__________________________
2010-3038
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SE0752030358-M-1.
__________________________
Decided: October 13, 2010
__________________________
STEPHANIE S.K.C. TOYAMA, of Honolulu, Hawaii, pro
se.
ERIC P. BRUSKIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
TOYAMA v. LEAVITT 2
JEANNE E. DAVIDSON, Director, and REGINALD BLADES,
JR., Assistant Director.
__________________________
Before RADER, Chief Judge, DYK and PROST, Circuit
Judges.
PER CURIAM.
Appellant Stephanie Toyama petitions for review of
the final decision of the Merit Systems Protection Board
(“Board”) sustaining her removal from her Department of
Health and Human Services (“HHS”) position for refusing
to accept a directed reassignment. Because the Board’s
decision is supported by substantial evidence, we affirm.
BACKGROUND
The HHS removed Ms. Toyama from her position as a
Public Health Advisor beginning December 6, 2002, for
failing to accept a directed reassignment from Honolulu to
Atlanta. Ms. Toyama was serving in a field assignment to
the Hawaii State Health Department. When the Hawaii
State Health Department terminated the Public Health
Advisor position in Honolulu, Ms. Toyama no longer had
HHS work to perform in Hawaii. As a result, Ms. Toyama
was reassigned to an HHS position in Atlanta.
Ms. Toyama eventually declined the reassignment.
Human Resources officially notified her of her expected
separation and her eligibility for various career transition
assistance programs. HHS then sent her a written re-
moval proposal explaining why she was being removed.
Ms. Toyama was ultimately removed for refusing to
relocate when her position was moved outside of her
commuting area.
3 TOYAMA v. LEAVITT
Ms. Toyama appealed her removal to the Board. She
subsequently requested that the Board dismiss her appeal
without prejudice to refiling so she could pursue a “mixed
case complaint” under 29 C.F.R. § 1614.302(a) before the
Equal Employment Opportunity Commission (“EEOC”).
The EEOC granted summary judgment for HHS, which
Ms. Toyama appealed. She then filed a district court
action and a new appeal before the Board, which was
dismissed as untimely. We reversed the Board’s dis-
missal. See Toyama v. Merit Sys. Prot. Bd., 481 F.3d 1361(Fed. Cir. 2007). Her district court action was dismissed
for failure to exhaust administrative remedies. See
Toyama v. Sebelius, 329 F. App’x 175 (9th Cir. 2009).
On remand from this court, the Board’s administra-
tive judge upheld Ms. Toyama’s removal after a hearing.
While Ms. Toyama and her counsel appeared in person for
the hearing, HHS’s representatives appeared by videocon-
ference from Atlanta. Ms. Toyama objected to the video
appearances and contended that the hearing should be
held in Atlanta. The administrative judge overruled
these objections. The administrative judge’s initial deci-
sion became the final decision of the Board when the
Board denied Ms. Toyama’s petition for review.
Ms. Toyama now seeks review of the Board’s final de-
cision. We have jurisdiction under 28 U.S.C. § 1295(a)(9),
pursuant to 5 U.S.C. § 7703(b)(1).
DISCUSSION
The scope of our review of a Board decision is limited.
We must affirm the Board’s decision unless we find it to
be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
TOYAMA v. LEAVITT 4
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c); Frey v. Dep’t of Labor, 359
F.3d 1355, 1359 (Fed. Cir. 2004).
To remove an employee based on a directed reassign-
ment, HHS must show that its decision to reassign Ms.
Toyama was based on legitimate management considera-
tions, that she was given adequate notice of the reas-
signment, and that she refused to accept the
reassignment. Frey, 359 F.3d at 1360. Ms. Toyama does
not assert that she was given inadequate notice of her
reassignment, and she plainly refused to accept the
reassignment. She also does not contest that her removal
was supported by substantial evidence. Rather, she
raises a number of procedural issues concerning how her
removal and her Board hearing were handled. We ad-
dress each issue in turn.
First, Ms. Toyama’s asserts that the Board should
have treated her employment action as a reduction in
force (“RIF”) transfer of function rather than a directed
reassignment. A RIF occurs when an agency “releases a
competing employee from his or her competitive level by
furlough for more than 30 days, separation, demotion, or
reassignment requiring displacement.” 5 C.F.R. §
351.201(a)(2). Here, Ms. Toyama was neither released
from government service nor did her reassignment re-
quire displacement of another employee. See Thomas v.
United States, 709 F.2d 48, 50 (Fed. Cir. 1983). There-
fore, the employment action was not a RIF.
Further, Ms. Toyama argues that she did not receive
adequate notice of her removal because she was not aware
that her removal was “disciplinary” in nature. We are not
persuaded. The record shows that she received proper
notice as required by 5 C.F.R. § 752.404(b). The notice
5 TOYAMA v. LEAVITT
specified that the proposed removal was “based on [Ms.
Toyama’s] failure to accept reassignment/relocation to
another local commuting area.” We have recognized that
“discipline is warranted for refusing to accept a legitimate
directed reassignment.” Frey, 359 F.3d at 1357. Also,
“removal is not an unreasonably harsh penalty for such a
refusal.” Id. Ms. Toyama was ultimately removed for the
very reason recited in the notice of proposed action. The
fact that she did not understand that this removal was
“disciplinary”—particularly because she was never
treated as an employee removed for misconduct—does not
render the notice deficient.
Finally, Ms. Toyama alleges that the administrative
judge made various procedural errors, including using
video conferencing rather than transferring the hearing to
Atlanta and recording the hearing rather than making a
written transcript. These actions do not rise to an abuse
of discretion. The Board has broad discretion as to how
hearings are conducted, and the Board previously has
approved of using video conferencing. Koehler v. Dep’t of
Air Force, 99 M.S.P.R. 82 (2005). Given the administra-
tive judges’ heavy caseload and the fact that they are
often stationed long distances from employment sites and
places that are convenient to parties and witnesses, the
use of video conferencing is acceptable absent a showing
of specific unfairness in a particular case. While Ms.
Toyama argues generally that the video conference format
“harmfully compromised” her ability to confront and cross
examine witnesses, she has not shown that the video
conferencing caused particular unfairness. As for the
hearing transcript, we have previously held that hearing
tapes satisfy the transcript requirement. Gearan v. Dep’t
of Health & Human Servs., 838 F.2d 1190, 1191-92 (Fed.
Cir. 1988). Ms. Tayoma’s contention that the hearing
CDs are “impermissibly vague for citation and rebuttal
TOYAMA v. LEAVITT 6
purposes” is inconsistent with her numerous citations to
those recordings throughout her briefs.
We have carefully considered Ms. Toyama’s remaining
arguments and find them unpersuasive. Accordingly, we
affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED