Jenkins v. Department of Transportation ( 2020 )

Case: 19-2075 Document: 48 Page: 1 Filed: 08/06/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CARA JENKINS,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2019-2075
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-18-0428-I-1.
______________________
Decided: August 6, 2020
______________________
GEORGE CHUZI, Kalijarvi, Chuzi, Newman & Fitch, PC,
Washington, DC, for petitioner. Also represented by
WILLIAM COFFIELD, Berliner, Corcoran & Rowe, LLP,
Washington, DC.
SEAN LYNDEN KING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ETHAN P.
DAVIS, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
______________________
Case: 19-2075 Document: 48 Page: 2 Filed: 08/06/2020
2 JENKINS v. DEPARTMENT OF TRANSPORTATION
Before LOURIE, MOORE, and O’MALLEY, Circuit Judges.
LOURIE, Circuit Judge.
Cara Jenkins appeals from the decision of the Merit
Systems Protection Board (“the Board”) affirming the U.S.
Department of Transportation’s (“the Agency”) action re-
moving her from her position as Chief of Staff with the Fed-
eral Aviation Administration’s (“FAA”) Office of Human
Resources Management (“AHR”) in Washington, D.C..
Jenkins v. Dep’t of Transp., No. DC-0752-18-0428-I-1, 2019
WL 1516844 (Apr. 3, 2019) (“Initial Decision”). For the fol-
lowing reasons, we affirm.
BACKGROUND
Jenkins was employed by the Agency for nearly 30
years until her removal in March 2018. During her final
year of employment, she served as the Chief of Staff to the
FAA’s Associate Administrator for Human Resources.
In 2017, one of Jenkins’s subordinates, Sharon Bartley,
complained to the FAA Accountability Board that Jenkins
had created a hostile work environment. In support of her
complaint, Bartley provided the Accountability Board with
a number of personal cell phone text message exchanges
that she had with Jenkins. Many of the text messages were
disparaging toward Jenkins’s colleagues, including senior
officials at the FAA. Moreover, many of the messages con-
tained derogatory comments about the race and gender of
Jenkins’s colleagues.
The Agency requested an investigation into Bartley’s
allegations from the Office of Security and Hazardous Ma-
terials Safety (“ASH”). During that investigation, ASH
Agent Richard Busser interviewed Jenkins and asked her
about text messages she had sent to Bartley, and Jenkins
subsequently provided a signed statement about the inter-
view. J.A. 183–91. The Agency also forensically searched
Bartley’s phone and exported text messages sent by Jen-
kins into a hard drive. Additionally, during the
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JENKINS v. DEPARTMENT OF TRANSPORTATION 3
investigation, another FAA employee, Lavada Strickland,
came forward with copies of text messages from Jenkins
that were similar in nature to the messages obtained from
Bartley’s phone.
Upon concluding its investigation, the Agency pre-
pared a Report of Investigation, which included a compila-
tion of disparaging text messages sent by Jenkins. See J.A.
90–156. On December 6, 2017, the Agency proposed to re-
move Jenkins from her position as Chief of Staff. The No-
tice of Proposed Removal provided three reasons:
(1) inappropriate conduct; (2) making disparaging remarks
racial in nature; and (3) lack of candor. J.A. 65–80. In sup-
port of the charge for inappropriate conduct, the Agency
provided 18 specifications, each one citing a separate text
message that negatively referenced one or more of Jen-
kins’s colleagues at the FAA. J.A. 67–69. In support of the
charge for making disparaging remarks racial in nature,
the Agency provided 22 specifications, each one citing a
separate text message in which Jenkins made a racial com-
ment about a colleague. In support of the charge for lack
of candor, the Agency provided four specifications, three
citing Jenkins’s statement that it was “a lie” that she con-
stantly told Bartley that there are a lot of dumb people
working in HR, and the fourth citing Jenkins’s statement:
“I do not admit to the validity of these messages. . . . They
are allegedly from [a] phone identified as ‘Cara’ with no
phone number. . . . I am not saying I did not send them but
that I simply do not remember sending some of them.” J.A.
70–74.
After Jenkins provided an oral and written response to
the Notice of Proposed Removal, the deciding official for the
Agency issued a Decision on Proposed Removal. J.A. 48–
56. The deciding official found a nexus between Jenkins’s
misconduct and the Agency’s ability to perform its func-
tions because, among other things, Jenkins’s misconduct
undermined the credibility and managerial authority of
senior officials at the FAA. See, e.g., J.A. 49. The deciding
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4 JENKINS v. DEPARTMENT OF TRANSPORTATION
official thus determined that “the information contained in
the Notice of Proposed Removal is fully supported by the
evidence.” J.A. 52. Moreover, as aggravating factors, the
deciding official highlighted the seriousness of Jenkins’s
conduct, the loss of confidence in her reliability, judgment,
and trustworthiness, questions about her integrity, and the
fact that she was a manager held to a higher standard. J.A.
52–54. Ultimately, the deciding official determined that
removal was the “lowest level of discipline necessary to ad-
dress [Jenkins’s] behavior.” J.A. 54.
Jenkins appealed to the Board. For the first two
charges—inappropriate conduct and making disparaging
remarks racial in nature—the Board’s Administrative
Judge (“AJ”) sustained the Agency’s charges based on Jen-
kins’s “numerous inappropriate, derogatory, and racially
disparaging text messages” exchanged with a subordinate
employee and contract employee talking about FAA lead-
ership. See, e.g., Initial Decision, 2019 WL 1516844, at *10.
In finding a nexus between Jenkins’s misconduct and the
efficiency of the Agency’s service, the AJ rejected Jenkins’s
argument that her misconduct was insulated by the fact
that the messages were sent using a personal phone rather
than government property. Id. at *11. The AJ also sus-
tained the Agency’s lack of candor charge because Jenkins
was untruthful and not fully forthcoming with respect to
the substance of the text messages. Id. at *11–13. Addi-
tionally, the AJ upheld the Agency’s decision that removal
was the appropriate penalty for Jenkins’s misconduct and
rejected Jenkins’s argument that the deciding official failed
to consider the relevant factors. Id. at *16–19.
The AJ’s decision became the final decision of the
Board on May 8, 2019. Jenkins appealed directly to this
court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a decision by the Board is limited. Pur-
suant to 5 U.S.C. § 7703(c), a Board decision must be
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JENKINS v. DEPARTMENT OF TRANSPORTATION 5
affirmed unless it is found to be: (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. Hayes v. Dep’t of the Navy, 727 F.2d
1535, 1537 (Fed. Cir. 1984). The Board’s decision must be
sustained when a rational basis exists for its conclusions.
Carroll v. Dep’t of Health & Human Servs., 703 F.2d 1388,
1390 (Fed. Cir. 1983) (citing United States v. Shimer, 367
U.S. 374 (1961); Mississippi Valley Barge Line Co. v.
United States, 292 U.S. 282, 286–87 (1934)).
Jenkins raises three challenges on appeal. First, Jen-
kins challenges the Board’s finding of a nexus between her
private text messages and the FAA’s ability to function.
Second, Jenkins challenges the Board’s finding of a lack of
candor. And third, Jenkins challenges the Board’s decision
to uphold the penalty of removal. We address each chal-
lenge in turn.
I
To sustain the charge of misconduct, the agency must
have established by preponderant evidence the existence of
a nexus between the employee’s misconduct and the work
of the agency, i.e., the agency’s performance of its functions.
See Doe v. Dep’t of Justice, 565 F.3d 1375, 1379 (Fed. Cir.
2009) (citing Brown v. Dep’t of the Navy, 229 F.3d 1356,
1358 (Fed. Cir. 2000)). “As long as the agency can prove
that the removal of [the employee] promoted the efficiency
of the service, however, nothing prevents the agency from
relying upon off-duty behavior.” Weekes v. Dep’t of Home-
land Sec., 351 F. App’x 442, 445 (Fed. Cir. 2009) (citing
Brown, 229 F.3d at 1361; Allred v. Dep’t of Health & Hu-
man Servs., 786 F.2d 1128, 1130 (Fed. Cir. 1986)). Here,
the misconduct at issue consists of Jenkins’ prolonged his-
tory of repeatedly making disparaging and racial com-
ments about FAA leadership to other FAA employees,
including one of her subordinates. Substantial evidence
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6 JENKINS v. DEPARTMENT OF TRANSPORTATION
supports the Board’s finding that such misconduct was re-
lated to Jenkins’s job responsibilities and was detrimental
to the Agency’s performance.
First, Jenkins’s misconduct negatively affected the job
performances and work environments of Bartley and
Strickland, who were the recipients of the offending mes-
sages. For example, in a statement provided to Agent
Busser, Bartley described the toxic environment and the
effects of Jenkins’s behavior on Bartley’s health and job
performance:
I have put up with [Jenkins’s] abusive behavior for
many months now and the only reason I filed a
complaint with the Accountability Board on July
24, 2017, was because [Jenkins] has created such a
hostile work environment it has greatly affected
my health. AHR has now become like a gossip
show instead of a workplace of professionals.
J.A. 270; see also J.A. 275 (“[Jenkins] is the main pivot
point for the toxic environment I, and others, are subjected
to.”); J.A. 277(“ [Jenkins] also created the hostile work en-
vironment that has now affected my health so much I am
faced with quitting the FAA if I cannot transfer to another
position in the agency.”); J.A. 278 (“Working in that envi-
ronment has changed me [sic] my health, I can’t sleep . . .
my health has been so affected by what I’ve endure[d] these
past few months.”). Additionally, according to Agent
Busser’s Record of Interview with Strickland, she “felt like
quitting her AHR detail because of all the stress. . . . It was
the stress of all the drama and negativity caused by, and
perpetuated by, [Jenkins].” J.A. 266. Strickland also noted
that “[Jenkins’s] behavior created so much tension and
mistrust in AHR that many employees want to transfer out
of AHR.” Id.In addition to directly affecting Bartley and Strickland,
substantial evidence supports the Board’s finding that Jen-
kins’s messages undermined the authority and credibility
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JENKINS v. DEPARTMENT OF TRANSPORTATION 7
of senior officials at the FAA, a point that was emphasized
in both the Notice of Proposed Removal and the Decision
on Proposed Removal. J.A. 75, J.A. 49. This court has cited
with approval the “principle of Board law holding that in-
solent disrespect toward supervisors seriously interferes
with an agency’s fulfillment of its mission.” O’Neill v. Dep’t
of Hous. & Urban Dev., 220 F.3d 1354, 1364 (Fed. Cir.
2000). Here, the evidence, including statements from Bart-
ley and Strickland, confirms that Jenkins’s misconduct had
the effect of undermining senior officials in a way that in-
terfered with the Agency’s ability to function. See, e.g., J.A.
274 (Bartley stating that Jenkins “really had me believing
a lot of things about people in HR/Leadership”); J.A. 266
(Strickland’s Record of Interview noting that Jenkins
“many times disparaged AHR employees by calling them
backstabbers, dumb and that they did not know how to do
their jobs, including AHR-1 and AHR-2”).
Moreover, substantial evidence supports the Board’s
finding that Jenkins’s pattern of misconduct created seri-
ous questions about the quality of her judgment. Id. at *11.
Once the messages were revealed, the Agency lost confi-
dence and trust in Jenkins and her ability to perform her
job in a senior leadership role. See J.A. 54, 78. This court
has recognized that loss of trust in an employee’s judgment
can be a sufficient nexus to support disciplinary action for
misconduct. See Brook v. Corrado, 999 F.2d 523, 527 (Fed.
Cir. 1993) (citing Sanders v. United States Postal Serv., 801
F.2d 1328, 1332 (Fed. Cir. 1986)).
These connections to Jenkins’s job individually and col-
lectively demonstrate that Jenkins’s comments directly im-
pacted the work environment at the FAA’s Office of Human
Resources Management. Thus, substantial evidence sup-
ports the Board’s finding that the misconduct had a nexus
to the Agency’s ability to perform its functions.
In challenging the Board’s findings, Jenkins argues
that her text messages did not affect the Agency’s functions
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8 JENKINS v. DEPARTMENT OF TRANSPORTATION
because they have nothing to do with safe air travel. But
such an argument, if extended to its logical conclusion,
would likely insulate most government employee miscon-
duct from penalty. The law requiring a nexus to the
Agency’s “ability to perform its functions” should not be
read so narrowly. Jenkins’s misconduct directly affected
the environment in which she worked—namely, the FAA’s
Office of Human Resources Management—and thus ad-
versely affected the Agency’s ability to function.
Jenkins also argues that there is no nexus because her
comments “were intended to be and were private using per-
sonal cell phones and no government resources.” Appellant
Br. 29. Jenkins contends that “private off-duty speech is
not intended to be the government’s business” and “search-
ing private speech for statements potentially subject to dis-
cipline is beyond the government’s reach.” Appellant
Br. 38. But this is not a case in which the Agency violated
Jenkins’s right to privacy or free speech by illegally search-
ing Jenkins’s private communications for disciplinable con-
duct. 1 The offending text messages were provided to the
Agency by its employees, Bartley and Strickland, in con-
nection with the Agency’s investigation into a complaint
about a hostile work environment. Once Jenkins’s miscon-
duct and its effect on the work environment became known
to the Agency, there was no law, rule, or regulation that
prevented the Agency from addressing the misconduct
merely because Jenkins used a personal phone to send
messages that she “intended” to be private.
Additionally, Jenkins argues that a government em-
ployee can only be disciplined for speech if it is speech in
public, in the workplace, or on social media. Appellant Br.
35. Jenkins attempts to support that argument by
1 Though Jenkins raised an argument based on free-
dom of speech before the Board, she has not raised any
Constitutional arguments in this appeal.
Case: 19-2075 Document: 48 Page: 9 Filed: 08/06/2020
JENKINS v. DEPARTMENT OF TRANSPORTATION 9
contrasting her allegedly “private” speech with instances
in which federal employees have been disciplined for what
she argues was non-private speech. Id. at 35–37. But the
comparison is inapposite. The fact that other federal em-
ployees have been disciplined for other misconduct does not
immunize Jenkins’s behavior from punishment in this
case.
Overall, Jenkins’s arguments focus entirely on the
“where,” “when,” and “how” of her misconduct—i.e., that it
was done outside the workplace, while she was off-duty, us-
ing her personal phone—while ignoring the substance of
what she actually did. The Board, by contrast, properly
considered those circumstantial facts in the context of the
actual misconduct, namely, that Jenkins repeatedly sent
disparaging and racial comments to a subordinate and
other employee about senior officials at the FAA. Substan-
tial evidence supports the Board’s finding that such pro-
longed and persistent misconduct—whether achieved
through text messages, in person, or by carrier pigeon—has
a nexus to the work of the Agency.
II
We next turn to Jenkins’s challenge regarding the lack
of candor charge. Jenkins makes two arguments. First,
Jenkins argues that she did not lack candor when she said
it was “a lie” that she constantly told Bartley that there are
a lot of dumb people working in HR. And second, Jenkins
argues that her denial of the validity of the text messages
was truthful. We find both arguments unpersuasive.
For her first argument, Jenkins contends that she “rea-
sonably concluded” that Agent Busser was asking whether
she “constantly” made the exact statement: “[T]here are a
lot of dumb people working in HR.” Appellant Br. 41. We
do not find such a strawman interpretation to be reasona-
ble. One need only contrast the three text messages in
which Jenkins’s explicitly referred to a colleague as “dumb”
or “dummy” with Jenkins’s unequivocal denial to conclude
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10 JENKINS v. DEPARTMENT OF TRANSPORTATION
that the Board had substantial evidence to affirm the lack
of candor charge. That conclusion is bolstered even further
by contrasting Jenkins’s prolonged and persistent history
of disrespectful and disparaging text messages with her
disingenuous statements immediately following that une-
quivocal denial: “I do not think like that nor do I speak like
that about people. I have the utmost respect for my col-
leagues and have never been disrespectful.” See J.A. 186.
In view of the record, it is impossible to conclude that the
Agency lacked substantial evidence to find that Jenkins
was less than truthful regarding the subject matter of the
text messages.
Jenkins next argues that the Agency failed to meet its
burden of showing that she “knowingly” gave incorrect or
incomplete information about the validity of the text mes-
sages. Appellant Br. 46 (citing Fargnoli v. Dep’t of Com-
merce, 123 M.S.P.R. 330, 338 ¶ 17 (2016)). Jenkins
contends that she had a right to resist confirming from
memory the validity of quotes from messages that she had
allegedly sent long before the interview, that she never de-
nied that she sent the messages, and that her statement
that she does not remember sending some of the messages
remains true. Appellant Br. 45–46. We reject Jenkins’s
arguments because the record tells a different story. Sub-
stantial evidence demonstrates that Jenkins recalled the
messages and spoke substantively about them during her
interview with Agent Busser but then attempted to walk
back large portions of her interview with a generic state-
ment about her lack of memory. See J.A. 189–91. The fact
that Jenkins did not tell an overt lie by outright claiming
that she did not send the messages does not negate her lack
of candor with regard to her memory of the text messages.
Thus, substantial evidence supports the Board’s affir-
mance of the Agency’s lack of candor charge.
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JENKINS v. DEPARTMENT OF TRANSPORTATION 11
III
Finally, we address Jenkins’s challenge that the Board
erred in affirming the penalty of removal. Jenkins con-
tends that the AJ made two errors in applying the relevant
factors set forth in Douglas v. Veterans Admin., 5 M.S.P.R.
280, 305 (1981). First, Jenkins argues that the penalty of
removal is improper because it lacks “consistency . . . with
those imposed upon other employees for the same or simi-
lar offences.” Appellant Br. 48 (quoting Williams v. Social
Sec. Admin., 586 F.3d 1365, 1368 (Fed. Cir. 2009)). And
second, Jenkins argues that the Board failed to consider
whether she could be rehabilitated. We are unpersuaded
by either argument.
In support of her argument that the penalty of removal
is not consistent with others who have committed the same
offenses, Jenkins points to the FAA Table of Disciplinary
Offenses and Penalties, J.A. 214–25, and to lists complied
by Jenkins and by the Agency of allegedly comparable em-
ployees disciplined for making disparaging statements.
Jenkins argues that the table only recommends repri-
mands or suspensions for a first offense of the misconduct
with which she has been charged. Appellant Br. 49. And
Jenkins contends that the Agency cannot point to any other
employee who was removed for making offensive com-
ments. Id. at 50.
Jenkins’s argument is unavailing because the choice of
penalty for an employee’s misconduct is a matter largely
committed to the discretion of the agency. See Quinton v.
Dep’t of Transp., 808 F.2d 826, 829 (Fed. Cir. 1986) (citing
Miguel v. Dep’t of the Army, 727 F.2d 1081, 1083 (Fed. Cir.
1984)). The FAA Table of Disciplinary Offenses and Pen-
alties is provided as guidance rather than a mandate, see
J.A. 284–85, and, in any event, the table explicitly contem-
plates removal for a first offense of lack of candor. See
J.A. 215 (recommending that the penalty for a first offense
of lack of candor be a 14-day suspension or removal).
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12 JENKINS v. DEPARTMENT OF TRANSPORTATION
Additionally, as the Agency points out, Jenkins’s argu-
ments are predicated on separating her three offenses,
which would effectively remove the Agency’s discretion to
impose a realistic penalty that accounts for her total mis-
conduct. And, regarding Jenkins’s arguments about com-
parable offenders, we are not able to second-guess the
evidentiary and factual findings that led to the Board’s de-
termination that there were no comparable cases involving
this type of prolonged and persistent egregious misconduct
directed at the highest level of agency leadership by a per-
son with such a high-level position as Jenkins.
Turning to Jenkins’s argument about her potential re-
habilitation, Jenkins contends that the Board ignored cru-
cial evidence of her remorse and her clean record.
Appellant Br. 53 (citing Portner v. Dep’t of Justice, 119
M.S.P.R. 365, ¶ 11 (2013)). But the record demonstrates
that the deciding official seriously considered those miti-
gating factors and found that they were outweighed by the
gravity of her offense, the Agency’s loss of confidence in her
reliability, judgment and trustworthiness, questions about
her integrity, and her high-level position as a manager. See
J.A. 52–54. The Board concluded, under the relevant
standard of review, that the deciding official had not failed
to consider the relevant Douglas factors, including poten-
tial for rehabilitation. Initial Decision, 2019 WL 1516844,
at *17–19. We have no basis to reconsider that reasonable
conclusion.
CONCLUSION
We have considered Jenkins’s remaining arguments,
but we find them unpersuasive. Accordingly, the decision
of the Board is affirmed.
AFFIRMED