Case: 20-1361 Document: 48 Page: 1 Filed: 08/16/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MIRANDA GOLDENBERG, AS PERSONAL
REPRESENTATIVE FOR MICHELLE DAVIDSON,
Petitioner
v.
FEDERAL BUREAU OF PRISONS,
Respondent
______________________
2020-1361
______________________
Petition for review of an arbitrator’s decision in No.
19114-03260 by Richard A. Beens.
______________________
Decided: August 16, 2021
______________________
RUSHAB SANGHVI, Office of General Counsel, American
Federation of Government Employees, Washington, DC,
for petitioner. Also represented by ANDRES MYLES
GRAJALES.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.
Case: 20-1361 Document: 48 Page: 2 Filed: 08/16/2021
2 GOLDENBERG v. BOP
______________________
Before LOURIE, SCHALL, and DYK, Circuit Judges.
LOURIE, Circuit Judge.
Petitioner Miranda Goldenberg, as personal repre-
sentative for Michelle Davidson, seeks review of an arbi-
trator’s decision sustaining Davidson’s removal from
employment as a nurse with the Bureau of Prisons
(“BOP”), arguing that the deciding official violated Da-
vidson’s due process rights by considering new and mate-
rial information without notice to Davidson. See Federal
Bureau of Prisons v. Am. Fed’n of Gov’t Emps., Local 1612,
No. 19114-03260 (Nov. 22, 2019) (Beens, Arb.). Because
the record does not establish that the deciding official con-
sidered the information as an aggravating factor in deter-
mining the penalty, we affirm.
BACKGROUND
BOP operates seven United States Federal Prison
Medical Centers throughout the country. Davidson was
employed as a nurse in one such facility in Springfield, Mis-
souri for over 22 years, at one point rising to the position of
Assistant Director of Nursing. For approximately two
years prior to her removal, Davidson was one of two certi-
fied chemotherapy nurses at the facility.
The conduct at issue in this appeal arose from a series
of events in early 2018. On January 25, Davidson’s per-
sonal physician prescribed Suboxone®, a treatment for opi-
oid or alcohol dependence, with instructions to take the
medication six times a day. Davidson took a first dose that
night. The following morning, Davidson took a second dose
prior to arriving at work and a third dose shortly after ar-
riving. During her shift, Davidson’s coworkers reported
signs of impaired behavior, including slurred speech. Fol-
lowing breath and urine tests, Davidson was excused from
the remainder of her shift and taken home.
Case: 20-1361 Document: 48 Page: 3 Filed: 08/16/2021
GOLDENBERG v. BOP 3
A second incident occurred a week later when two
coworkers observed Davidson arrive to work and remove
from one of her personal bags a hazard bag containing
chemotherapy waste. The relevant procedures pertaining
to disposal of chemotherapy waste instruct nurses to
“[p]lace disposable material used in the administration of
Chemotherapy into a plastic zip-locked bag labeled chemo-
therapy then place in yellow trash container clearly labeled
Chemotherapy waste . . . .” Davidson told the coworkers
that she had been extremely busy the day before working
in the chemotherapy building and had not felt like walking
all the way to the appropriate building to throw away the
waste before going home. Davidson later disposed of the
waste in the appropriate bin after returning to work.
BOP investigated Davidson’s conduct, and on Novem-
ber 1, 2018, notified Davidson that it proposed to remove
her from her position based on two violations of the BOP
Standards of Employee Conduct: (1) Failure to Follow Pol-
icy for the improper disposal of chemotherapy waste, and
(2) Reporting for Duty Under the Influence of Suboxone.
J.A. 281. The letter noted that BOP considered that Da-
vidson had been suspended previously for 21 days in 2017
for failure to follow policy, and the proposing official
“ask[ed] the deciding official to consider this prior disci-
pline in making the decision” on the proposed removal.
J.A. 283. On November 14, 2018, Davidson met with War-
den Smith, the deciding official, to discuss the charges. Da-
vidson asked Smith to take into consideration, among other
things, her years of service and work history, and Smith
responded that he would review the applicable Douglas fac-
tors for determining an appropriate penalty in making his
decision. J.A. 286; see also Douglas v. Veterans Admin.,
5
M.S.P.B. 313 (1981).
On January 2, 2019, Smith informed Davidson of his
decision to remove her from service. J.A. 290. Smith found
that the charges were supported by the evidence and that
Davidson’s conduct “could have had serious consequences
Case: 20-1361 Document: 48 Page: 4 Filed: 08/16/2021
4 GOLDENBERG v. BOP
for the safety of everyone at the institution.” J.A. 289. Re-
garding the appropriate penalty, Smith considered Da-
vidson’s prior 21-day suspension and concluded that
Davidson’s “misconduct is so serious as to warrant a sub-
stantial penalty.” J.A. 290. Smith also noted that removal
“is consistent with sanctions imposed on others for sub-
stantially similar conduct.”
Id. Sometime between the con-
duct at issue in this appeal and Smith’s decision, Davidson
was demoted based on a separate disciplinary action, but
Smith did not address the demotion in his removal deci-
sion. See Appellee’s Br. 34 n.8.
Pursuant to her rights under a collective bargaining
agreement, the American Federation of Government Em-
ployees appealed Davidson’s removal to an arbitrator. The
arbitrator held a hearing at which Smith testified. On di-
rect examination, Smith was asked about his consideration
of Davidson’s prior 21-day suspension in his removal deci-
sion. Smith responded that he contemplated disciplines
other than removal, including “another demotion.”
J.A. 183. On cross-examination, Smith was asked about
the role of Davidson’s prior demotion in his removal deci-
sion and responded that, because previous discipline had
not “changed [Davidson’s] behavior,” Smith “could not get
past . . . that Ms. Davidson was safe to bring . . . back in-
side the facility in any capacity.” J.A 199.
The arbitrator sustained Davidson’s removal. The ar-
bitrator found Smith’s testimony credible and that Smith
“appropriately reviewed the Douglas factors” in making his
decision. J.A. 16. Ultimately, the arbitrator concluded
that the evidence supported both charges and that there
was a reasonable relationship between Davidson’s miscon-
duct and the penalty of removal. J.A. 15. The arbitrator
did not specifically address Smith’s testimony regarding
Davidson’s prior demotion.
Davidson appealed but passed away after briefing was
completed. We granted Goldenberg’s motion to substitute
Case: 20-1361 Document: 48 Page: 5 Filed: 08/16/2021
GOLDENBERG v. BOP 5
her as petitioner in this case as Davidson’s personal repre-
sentative. We have jurisdiction under
5 U.S.C. §§ 7121(f)
and 7703(b)(1).
DISCUSSION
We review “the award of an arbitrator in the same
manner and under the same conditions as if the matter had
been decided by the [Merit Systems Protection] Board.”
5 U.S.C. § 7121(f). We must set aside a decision of the
Board if it was “(1) arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by sub-
stantial evidence.”
Id. § 7703(c). Accordingly, we “must
reverse a decision of the Board if its decision [was] not in
accordance with the requirements of the Due Process
Clause of the Fifth Amendment or any other constitutional
provision.” Blank v. Dep’t of the Army,
247 F.3d 1225, 1228
(Fed. Cir. 2001) (citing Khan v. United States,
201 F.3d
1375, 1382 (Fed. Cir. 2000)). “We review the Board’s legal
conclusions de novo and its fact findings for substantial ev-
idence.” Smith v. Gen. Servs. Admin.,
930 F.3d 1359, 1364
(Fed. Cir. 2019) (citing Campbell v. Merit Sys. Prot. Bd.,
27
F.3d 1560, 1564 (Fed. Cir. 1994)).
On appeal, Goldenberg argues that Smith violated Da-
vidson’s due process rights by relying on Davidson’s prior
demotion as an aggravating factor in his removal decision
without providing prior notice to Davidson that the demo-
tion would be considered and an opportunity to respond.
At a minimum, because the arbitrator failed to address the
issue in his decision, Goldenberg argues that the arbitra-
tor’s decision should be vacated and remanded for a deter-
mination whether Smith’s consideration of the prior
demotion was a violation of due process in the first in-
stance.
The government responds that no due process violation
occurred because Smith did not rely on the demotion as an
Case: 20-1361 Document: 48 Page: 6 Filed: 08/16/2021
6 GOLDENBERG v. BOP
aggravating factor for an enhanced penalty. According to
the government, Smith’s testimony establishes that the
safety of the institution was the motivating factor in his
removal decision, and a mere reference to Davidson’s prior
demotion does not create a due process violation. But even
if the demotion was considered in the removal decision, the
government argues that the arbitrator’s decision should be
affirmed because Goldenberg has not demonstrated that
the information was new and material.
We agree with the government that Smith’s testimony
establishes that he did not rely on Davidson’s prior demo-
tion as an aggravating factor in his removal decision, and
therefore his reference to the demotion was not a violation
of due process. “Procedural due process guarantees are not
met if [an] employee has notice only of certain charges or
portions of the evidence and the deciding official considers
new and material information.” Stone v. FDIC,
179 F.3d
1368, 1376 (Fed. Cir. 1999). This extends to aggravating
factors supporting an enhanced penalty. See Ward v. U.S.
Postal Serv.,
634 F.3d 1274, 1280 (Fed. Cir. 2011). Here,
Goldenberg urges that Smith relied on Davidson’s prior de-
motion as an aggravating factor supporting his removal de-
cision without any previous notice. Specifically,
Goldenberg argues that the demotion was the “decisive fac-
tor” in removing Davidson and thus necessarily material to
the decision. Appellant’s Br. 13.
Goldenberg overstates Smith’s testimony. Smith’s ini-
tial reference to “another demotion” was in reference to his
consideration of “other disciplines”—that is, disciplines
other than removal—as required by the Douglas factors.
J.A. 183; see also Douglas, 5 M.S.P.B. at 332. Read in con-
text, it is evident that Smith simply acknowledged that he
considered demotion as an alternative penalty to removal
generally, not Davidson’s prior demotion specifically. His
reference to “another” demotion indicates only that he was
aware that Davidson had been demoted previously, not
that he relied on the prior demotion as an aggravating
Case: 20-1361 Document: 48 Page: 7 Filed: 08/16/2021
GOLDENBERG v. BOP 7
factor in the current discipline. “A deciding official’s
knowledge of an employee’s background only raises due
process or procedural concerns where that knowledge is a
basis for the deciding official’s determinations on either the
merits of the underlying charge or the penalty to be im-
posed.” Norris v. Sec. and Exch. Comm’n,
675 F.3d 1349,
1353 (Fed. Cir. 2012). Here, we agree with the government
that Smith’s reference to Davidson’s demotion was largely
“mere knowledge” of her background and was not relied
upon as an aggravating factor for the penalty imposed.
Id.
To be sure, the deciding official relied on the previous
demotion in concluding that another demotion would be in-
effective. But it is also apparent from Smith’s testimony
that it was the safety of the institution’s inmates and em-
ployees, rather than the ineffectiveness of prior discipline
to change Davidson’s conduct, that led him to conclude that
removal was necessary. At the oral hearing, Smith testi-
fied that, although he “seriously” considered another demo-
tion, “it was just not safe to put [Davidson] back in the
institution. So [he] felt like [he] had no other choice than
termination.” J.A. 184. When pressed on cross-examina-
tion whether he considered the prior demotion in determin-
ing the penalty in the instant matter, Smith again
reiterated that he considered it only as it pertains to
whether it was “safe to bring her back to work” and
whether the discipline is “going to be effective and [Da-
vidson] no longer have issues with misconduct.” J.A. 199.
Rather than considering that the prior demotion was inef-
fective in changing Davidson’s behavior as an aggravating
factor warranting an increased penalty, Smith’s testimony
focused on the prospective effectiveness of discipline in the
current matter to ensure a safe work environment. Thus,
Smith did not determine that an increased penalty was
warranted because the prior discipline was ineffective, but
because, based on the seriousness of the conduct at issue in
this discipline and the uniquely demanding work
Case: 20-1361 Document: 48 Page: 8 Filed: 08/16/2021
8 GOLDENBERG v. BOP
environment, a demotion would be ineffective to ensure the
safety of the institution.
The failure to notify Davidson of the limited use of the
prior demotion in the course of the proceedings before the
agency was not in and of itself sufficiently serious to
amount to a due process violation, particularly since Da-
vidson made no effort on appeal to demonstrate how such
knowledge would have enabled her to better argue against
the penalty of removal. See Do v. Dep’t of Hous. and Urb.
Dev.,
913 F.3d 1089, 1097 (Fed. Cir. 2019) (failures to notify
do not violate due process if the procedural errors were mi-
nor). Accordingly, we agree with the government that the
record does not demonstrate that Smith relied on the prior
demotion as an aggravating factor, and thus there was no
violation of Davidson’s due process rights.
CONCLUSION
We have considered Goldenberg’s remaining argu-
ments but find them unpersuasive. For the foregoing rea-
sons, the arbitrator’s decision is affirmed.
AFFIRMED
COSTS
No costs.
