Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
LAMONTE L. PURIFOY,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2015-3196
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-14-0185-I-1.
______________________
Decided: October 4, 2016
______________________
PHILIP CHARLES STERNHELL, Quinn Emanuel Ur-
quhart & Sullivan, LLP, Washington, DC, argued for
petitioner.
ALEXIS J. ECHOLS, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT
D. AUSTIN.
______________________
2 PURIFOY v. DVA
Before O’MALLEY, LINN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Lamonte L. Purifoy appeals a final order by the Merit
Systems Protection Board affirming the Agency’s decision
to remove him from his position over two charges of
extended unauthorized absence. The Board’s order re-
versed an administrative judge’s reinstatement of
Mr. Purifoy following a 40-day suspension. Because the
Board’s analysis improperly omitted relevant Douglas
factors and discarded the AJ’s credibility determinations
without an adequate rationale, we vacate the Board’s
judgment and remand for further proceedings consistent
with this opinion.
BACKGROUND
In 2013, Mr. Purifoy missed two days of work as a
housekeeping aid in a VA medical center in Milwaukee,
Wisconsin without authorization. Later that same week,
he sought treatment for substance abuse from the VA
facility where he worked. He was admitted and trans-
ferred to Madison, Wisconsin for treatment. While Mr.
Purifoy verbally informed his VA supervisor that he
would miss work, he did not fill out leave paperwork. Nor
did he inform his parole officer that he would miss upcom-
ing supervision visits. After Mr. Purifoy missed these
visits, his parole officer issued a warrant for his arrest.
Mr. Purifoy contacted his parole officer by phone and
explained that he had been admitted to a VA medical
center for substance abuse treatment, but she refused to
withdraw the warrant and told Mr. Purifoy to report to
Milwaukee Secure Detention Facility (“MSDF”) of the
Wisconsin Department of Corrections.
Mr. Purifoy agreed to enter a substance abuse treat-
ment at MSDF as an alternative to revocation of his
parole. He entered the program, but was terminated after
an altercation with another inmate. After his involve-
PURIFOY v. DVA 3
ment in the substance abuse treatment program ended,
he remained as an inmate at MSDF for 38 more days.
Following his release on November 4, 2013, Mr. Purifoy
returned to work. Shortly afterwards, the Agency re-
moved him from employment as a penalty for his unex-
cused absences.
I.
The Agency first sent Mr. Purifoy a notice of proposed
removal, drafted on July 29, 2013, while he was still at
MSDF. The Agency charged him with one count of ex-
tended unauthorized absence beginning April 4, 2013.
Mr. Purifoy responded, and the Agency rescinded the first
notice letter. It then issued a second notice on October 8,
2013, with two counts of unauthorized absence. The first
charge concerned Mr. Purifoy’s absence from April 4 to 5,
2013, and the second charge concerned his absence due to
his incarceration at MSDF, starting on May 7, 2013, and
continuing through October 8, 2013.
On October 29, 2013, the Agency issued a decision
removing Mr. Purifoy from his position effective Novem-
ber 15, 2013. Mr. Purifoy appealed the removal decision
to the Merit Systems Protection Board.
II.
An AJ held an in-person hearing to review Mr. Puri-
foy’s case. See Purifoy v. Dep’t of Veterans Affairs,
No. CH-0752-14-0185-I-1, 2014 WL 6387880 (M.S.P.B.
Nov. 13, 2014). Over the course of the day-long hearing,
Mr. Purifoy not only testified, but also litigated the case
pro se, cross-examining the government’s four witnesses.
The AJ sustained the Agency’s first charge against
Mr. Purifoy—his failure to report to work on April 4 and
5, 2013—in full. But she sustained the second charge—
his absence while at MSDF—only in part. J.A. 14.
On the second charge—Mr. Purifoy’s six-month ab-
sence from May 7, 2013 until his return to work on No-
4 PURIFOY v. DVA
vember 7, 2013—the AJ found that the Agency had failed
to prove that Mr. Purifoy’s absences while at MSDF prior
to termination from the treatment program were unex-
cused. The AJ explained that Mr. Purifoy had “signed an
agreement consenting to enter a substance abuse treat-
ment program at MSDF as an alternative to revocation of
his parole.” J.A. 16. She found that “the primary purpose
of his stay at MSDF was to undergo substance abuse
treatment.” J.A. 17. Moreover, the AJ found that Mr.
Purifoy had notified his supervisor at the VA on several
occasions that he would be absent for treatment. After
his first absence on April 4 and 5, Mr. Purifoy called his
third level supervisor to inform him that he would be in
Madison, Wisconsin for treatment, and that he would be
absent from work. Id. His supervisor replied with verbal
approval of his leave request. As the AJ explained, the
supervisor “told the appellant to ‘go take care of that,’ but
that the appellant ‘had something’ coming for the two
days he did not call in to report he would be absent.” J.A.
12. Then, when Mr. Purifoy entered MSDF, he again told
one of his supervisors that he would be absent. His
supervisor testified that he responded, “I’m familiar with
that. Take care of yourself. You need to take care of
yourself first, . . . but you also need to see your supervisor
and fill out the proper paperwork.” J.A. 727. Mr. Purifoy
did not submit leave paperwork with his employer. Even
so, the AJ found that the Agency failed to prove that
Mr. Purifoy’s absences while seeking treatment at MSDF
were unexcused. In turn, the AJ found that the Agency’s
charge of unexcused absence for six months was not
wholly supported by substantial evidence.
The AJ also found that the Agency successfully proved
part of its second charge: the 38 days after Mr. Purifoy’s
treatment program was terminated. J.A. 14–18. The AJ
explained that, following an altercation with another
inmate, MSDF terminated Mr. Purifoy’s treatment and
sentenced him to a disciplinary separation. J.A. 12.
PURIFOY v. DVA 5
Mr. Purifoy remained at MSDF for 38 days after termina-
tion. J.A. 17. As such, the AJ found that the Agency had
sustained its charge of unexcused absence for those 38
days.
The AJ next analyzed the Agency’s penalty in light of
the mitigation factors set out in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 307–08 (1981), to deter-
mine if Mr. Purifoy’s removal was reasonable. The AJ
determined the penalty to be unreasonable and reduced it
to a 40-day suspension.
The Agency had argued that the severity of Mr. Puri-
foy’s conduct and his past disciplinary record justified
removal, but the AJ found that, to the contrary, both of
those factors mitigated in favor of Mr. Purifoy. The AJ
explained that Mr. Purifoy’s absence “was less severe
than the six months absence the Agency had originally
charged,” and that this was his first disciplinary offense.
J.A. 19.
The AJ examined the remaining Douglas factors and
found that each weighed in favor of mitigation. The AJ
found that Mr. Purifoy’s duties as a housekeeping aid did
not involve supervision or fiduciary duties, or place him in
a prominent public role. She also noted that his work
performance was rated as excellent and worthy of a
performance award. The AJ further found that appellant
was not on clear notice that his absence would result in
severe discipline. The AJ additionally found that Mr.
Purifoy’s potential for rehabilitation was high, as he went
to great lengths to notify his Agency of his whereabouts
and, since his release from MSDF, had continued to
participate in treatment for substance abuse without
relapse. Finally, the AJ commented that “[i]t is ironic
that the appellant’s enrollment, with the agency’s bless-
ing, in a substance abuse program conducted by the
agency ultimately led to his removal by the agency.”
J.A. 20. The AJ thus determined that, in light of the
6 PURIFOY v. DVA
reduced charge and the mitigating factors concerning
Mr. Purifoy’s absence, the maximum reasonable penalty
in light of the sustained charges was a 40-day suspension.
J.A. 21.
III.
The government petitioned the Board for review. The
Board reversed the AJ and reinstated the Agency’s origi-
nal penalty of removal. Purifoy v. Dep’t of Veterans Af-
fairs, No. CH-0752-14-0185-I-1, 2015 WL 3630677(M.S.P.B. June 11, 2015). The Board first reviewed the
two charges the Agency brought against Mr. Purifoy and
left the AJ’s judgment undisturbed, even though it did not
affirmatively agree with the AJ’s reduction of the second
charge down from six months to 38 days. It explained
that “the penalty of removal was appropriate even if the
second charge was proven only in part.” Id. at ¶ 6.
The Board then analyzed some, but not all, of the
Douglas factors. It found that, contrary to the findings of
the AJ, most of the factors weighed against Mr. Purifoy.
It disagreed with the AJ about the seriousness of the
charge, finding that the 40-day absence “remain[ed] a
serious charge,” even though the charge was reduced from
the original charge brought by the Agency. Id. at ¶ 8. It
also found that Mr. Purifoy’s absence weighed against
mitigation, even though he lacked a disciplinary record.
It reversed the AJ’s finding that Mr. Purifoy was not on
clear notice that his continued absence from work would
result in severe discipline, finding instead that
Mr. Purifoy’s third-level supervisor sufficiently notified
him that his absence from work would result in severe
discipline. And it found that “the agency’s chosen penal-
ty, which is entitled to deference, is also consistent with
the table of penalties.” Id. at ¶ 10. The Board also con-
sidered Mr. Purifoy’s job performance and “s[aw] no
reason to disturb the administrative judge’s findings
concerning [Mr. Purifoy’s] brief, but good, work history.”
PURIFOY v. DVA 7
Id. at ¶ 11. The Board further noted that Mr. Purifoy’s
seeking treatment for a disabling condition had been
considered to be a mitigating factor. But the Board
agreed with the Agency that “this factor was not signifi-
cantly mitigating as the appellant was not fully pursuing
rehabilitation for his problem.” Id. at ¶ 11. The Board
thus found that the Agency’s penalty of removal was
reasonable and reversed the AJ’s decision.
Mr. Purifoy appealed to this court. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review a final decision of the Board to determine
whether it is “(1) arbitrary, capricious, an abuse of discre-
tion, 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.” 5 U.S.C. § 7703(c); Malloy v. U.S. Postal Serv.,
578 F.3d 1351, 1356 (Fed. Cir. 2009).
Agencies taking an adverse action against an employ-
ee bear the burden to establish that an employee’s
charged conduct occurred, that it affected the efficiency of
the service, and that “the penalty imposed was reasonable
in light of the relevant factors set forth in Douglas.”
Malloy, 578 F.3d at 1356 (citing 5 M.S.P.R. at 307–08).
The Douglas factors are a non-exhaustive set of consider-
ations that the Board must independently assess when
relevant to determine whether a penalty was reasonable.
Id.
Neither party challenges the sustained charges on
appeal. Mr. Purifoy argues, however, that the Board’s
treatment of the mitigation analysis under the Douglas
factors was inadequate. We agree. Even though the
Board was required to consider each relevant Douglas
factor, it failed to properly consider two factors relevant
here. Specifically, the Board (1) did not consider the
8 PURIFOY v. DVA
adequacy and effectiveness of alternative sanctions to
deter similar misconduct in the future, and the Board
(2) erred in its analysis of the potential for the employee’s
rehabilitation. See Douglas, 5 M.S.P.R. at 305–06.
Turning to the alternative sanctions factor, the Board
did not address this factor in the context of the lesser
sustained 40-day absence. It should have done so. The
Board is tasked with independently considering “the
adequacy and effectiveness of alternative sanctions to
deter such conduct in the future by the employee or
others.” Id. at 306. While the Board noted that the
Agency’s penalty fell within the range of penalties provid-
ed in the table of penalties (i.e., 14-day suspension to
removal), it did not discuss the adequacy of lesser sanc-
tions for the 40-day absence. Although we have repeated-
ly recognized that the Board need not consider all the
Douglas factors, it must consider the relevant ones. Nagel
v. Dep’t of Health & Human Servs., 707 F.2d 1384, 1386–
87 (Fed. Cir. 1983). The factor is plainly relevant here, as
the AJ had determined that the Agency’s removal of
Mr. Purifoy was too severe, and that a 40-day suspension
would adequately punish his absence and deter similar
conduct in the future. Additionally, the Agency chose the
penalty of removal based on charges of a six-month ab-
sence. After the AJ reduced the six-month charge to 40
days, the Board should have evaluated this Douglas factor
before sustaining the Agency’s action. The Board thus
erred when it did not consider whether lesser sanctions
would have been adequate in Mr. Purifoy’s case.
Turning to the rehabilitation factor, we determine
that the Board erred by substituting its own finding for
the AJ’s opposite one without adequate rationale. The AJ
had found that Mr. Purifoy’s potential for rehabilitation
was high:
The record further reflects the fact that [Mr. Puri-
foy] cares about his job and has a good potential
PURIFOY v. DVA 9
for rehabilitation. He went to great lengths and
took all available measures to notify his agency of
his whereabouts. And though he did not complete
the program at MSDF, he has continued to partic-
ipate in treatment and has not suffered a relapse.
J.A. 20. The AJ made these findings in view of
Mr. Purifoy’s live testimony and his extensive pro se
cross-examination of the government’s witnesses. The AJ
heard Mr. Purifoy testify under oath that he attends
Alcoholics Anonymous meetings three days a week and
that he has not suffered relapse since his removal.
J.A. 816. Not only did the AJ observe Mr. Purifoy on the
stand, but also the AJ had ample opportunity to observe
Mr. Purifoy and his condition when he cross-examined
witnesses, including his parole officer, his supervisor, and
the Medical Center Director at the VA Medical Center in
Milwaukee, Wisconsin.
Although the Board noted that it “s[aw] no reason to
disturb the administrative judge’s findings concerning the
appellant’s brief, but good, work history,” it nevertheless
reversed the AJ’s ultimate finding on Mr. Purifoy’s poten-
tial for rehabilitation. The Board found that this factor
weighed against mitigation because, in the Board’s view
of the paper record, Mr. Purifoy was “not fully pursuing
rehabilitation for his problem.” Purifoy, 2015 WL
3630677, ¶ 11. But this bare conclusion gives insufficient
consideration of, and deference to, the AJ’s findings.
“The MSPB must afford special deference to the pre-
siding official’s findings respecting credibility where the
presiding official relies expressly or by necessary implica-
tion on the demeanor of the witnesses.” Jackson v. Veter-
ans Admin., 768 F.2d 1325, 1331 (Fed. Cir. 1985). As we
recognized in Haebe v. Department of Justice, “the MSPB
is not free to overturn an administrative judge’s demean-
or-based credibility findings merely because it disagrees
with those findings.” 288 F.3d 1288, 1299 (Fed. Cir.
10 PURIFOY v. DVA
2002). This requirement “derived from the substantial
evidence standard expressed by the Supreme Court in
Universal Camera v. National Labor Relations Board,” Id.(citing 340 U.S. 474, 487–88 (1951)), where the Court
recognized that “evidence supporting a conclusion may be
less substantial when an impartial, experienced [adminis-
trative judge] who has observed the witnesses and lived
with the case has drawn conclusions different from the
Board’s.” Universal Camera, 340 U.S. at 496.
The government contends that this rule does not ap-
ply here because nothing in the AJ’s opinion suggests that
her credibility determinations were based on demeanor.
But our case law requires deference not only when an AJ’s
credibility determinations explicitly rely on demeanor but
also when they do so “by necessary implication.” Jackson,
768 F.2d at 1331. Even if demeanor is not explicitly
discussed, assessing a witness’s credibility involves con-
sideration of various factors, including a witness’s de-
meanor. 1
The AJ’s findings about Mr. Purifoy’s propensity for
rehabilitation are necessarily intertwined with issues of
credibility and an analysis of his demeanor at trial, and
they deserved deference from the Board. See Haebe, 288
F.3d at 1299. The AJ necessarily made demeanor-based
credibility findings in assessing, for example, the credibil-
ity of Mr. Purifoy’s testimony that he attends AA meet-
ings three times per week and has been sober for one year
and five months, from the time of his first two-day ab-
1 For example, model civil jury instructions list de-
meanor as one of many factors for a jury to consider in
determining the credibility of witnesses. E.g. Sixth
Circuit Pattern Jury Inst. 1.07 (instructing a jury to: “Ask
yourself how the witness acted while testifying. Did the
witness appear honest? Or did the witness appear to be
lying?”).
PURIFOY v. DVA 11
sence through the time of his hearing. Indeed, the AJ’s
findings that Mr. Purifoy “cares about his job and has a
good potential for rehabilitation,” and that “he has con-
tinued to participate in treatment and has not suffered a
relapse,” J.A. 20, are findings based, at least in part, on
Mr. Purifoy’s credibility and demeanor as both a witness
and an advocate at the hearing. The Board must afford
these findings “special deference.” By dismissing the AJ’s
findings without explanation, the Board failed to afford
these findings the “special deference” required by law.
Jackson, 768 F.2d at 1331.
Mr. Purifoy also challenges the Board’s analysis with
respect to two other Douglas factors: 1) the nature and
seriousness of Mr. Purifoy’s offense, and 2) the clarity
with which Mr. Purifoy was properly on notice of any
rules he violated or warned about the conduct in question.
We see no legal error in the Board’s analysis of these
factors. Nor do we find the Board’s conclusion on these
factors unsupported by substantial evidence. Neverthe-
less, as “[s]election of an appropriate penalty
must . . . involve a responsible balancing of the relevant
factors in the individual case,” we encourage the Board to
revisit its analysis of these factors alongside all other
relevant Douglas factors on remand. See Douglas,
5 M.S.P.R. at 306.
CONCLUSION
Accordingly, we vacate the decision of the Board and
remand for the Board to consider Mr. Purifoy’s case in
light of the relevant Douglas factors, consistent with this
opinion.
VACATED AND REMANDED