Licari v. Department of Transportation

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FRANK LICARI,
Petitioner
v.
DEPARTMENT OF TRANSPORTATION,
Respondent
______________________
2017-1470
______________________
Petition for review of an arbitrator’s decision in No.
FMCS 16-55055A by Laurence M. Evans.
______________________
Decided: August 11, 2017
______________________
FRANK LICARI, Burke, VA, pro se.
MARGARET JANTZEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH
M. HOSFORD; CHARLES EDWARD LOHMEYER, Department of
Transportation, Washington, DC.
______________________
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
2 LICARI v. DEPARTMENT OF TRANSPORTATION
PER CURIAM.
Frank Licari appeals from an arbitration decision af-
firming his dismissal from federal employment. Because
substantial evidence supports the arbitrator’s decision, we
affirm.
BACKGROUND
1. Mr. Licari’s Removal
Mr. Licari worked for the United States Department
of Transportation (“agency”) from 2004 until his removal
in March 2016. At the time of his removal, Mr. Licari was
a senior transportation analyst for a division of the agen-
cy responsible for reviewing and approving oil spill re-
sponse plans.
During his tenure at the agency, Mr. Licari was sub-
ject to annual performance appraisals. A July 2015
appraisal of Mr. Licari’s 2014–2015 performance resulted
in an “unacceptable” rating in three job elements. See
S.A. 93, 95–96. The only job element relevant to this
appeal is Critical Element 4, which states that employees
must “perform[] reviews of onshore pipeline oil spill
response plans . . . [and] accurately follow[] review guide-
lines 85% of the time.” S.A. 19, 96. Each response plan
required Mr. Licari to review oil operators’ answers to 38
questions. Mr. Licari accurately reviewed several of the
38 questions less than 85% of the time. For example, he
correctly reviewed Question 16 only 33% of the time. S.A.
20. 1
In September 2015, the agency placed Mr. Licari on a
Performance Improvement Plan (“PIP”) and issued a
1 The arbitrator set aside the agency’s determina-
tion that Mr. Licari’s performance as to Critical Element
3 was unacceptable. S.A. 18. That decision is not before
us on appeal.
LICARI v. DEPARTMENT OF TRANSPORTATION 3
memorandum explaining how he needed to improve his
performance. S.A. 101–05. The memorandum allowed
Mr. Licari 90 days “to demonstrate acceptable perfor-
mance,” assigned him a mentor, and set regular check-in
meetings. S.A. 104. The memorandum further specified
that Mr. Licari would meet biweekly with his supervisor,
David Lehman, to discuss his progress. Id.
At the conclusion of the 90-day period, the agency no-
tified Mr. Licari that he failed to improve to an acceptable
level of performance. S.A. 106. Based on his failure to
improve, the agency sent Mr. Licari a Notice of Proposed
Removal in January 2016. Mr. Licari, represented by his
union, challenged the Notice of Proposed Removal and
filed a Step 3 Grievance. The agency issued its decision to
remove Mr. Licari and denied Mr. Licari’s Step 3 Griev-
ance. The agency noted that if Mr. Licari was unsatisfied,
he could proceed to arbitration through his union. S.A.
182.
2. Arbitration
Mr. Licari elected to pursue arbitration. In August
2016, the arbitrator heard the testimony of six witnesses
and received 21 exhibits. After post-trial briefing, the
arbitrator rendered a decision that substantial evidence
supported the agency’s finding that Mr. Licari performed
unacceptably as to Critical Element 4 and that just cause
existed for Mr. Licari’s removal. The arbitrator summa-
rized the requirements for acceptable performance of
Critical Element 4, including the accurate review of 38
questions. The agency provided unrebutted testimony
that Question 16 was the most significant. The arbitrator
found Mr. Licari’s failure rate of 67% on Question 16 to be
“startling.” S.A. 20. He also noted that Mr. Licari accu-
rately answered several other questions below the 85%
threshold.
The arbitrator made credibility determinations about
Mr. Lehman’s testimony, stating that he had “no basis to
4 LICARI v. DEPARTMENT OF TRANSPORTATION
question Supervisor Lehman’s credibility or good faith” in
determining that Mr. Licari failed Critical Element 4. Id.
“As between the testimony of Supervisor Lehman and the
Grievant,” the arbitrator wrote, “I find Lehman’s testimo-
ny to be more reliable, accurate and trustworthy, and I
therefore credit his version of events with regard to
Critical Element 4 and its related performance standard.”
S.A. 21. The arbitrator noted that Mr. Licari “had to
recant certain testimony due to ‘confusion’ and start
over,” and that Mr. Licari provided no witness testimony
to “undermine Lehman’s testimony in any respect.” Id.
Based on these findings, the arbitrator concluded that
“the Agency, by ‘substantial evidence,’ has proven that the
Grievant’s work performance, during the term of his PIP,
was unacceptable under Critical Element 4 and its related
performance standard.” S.A. 22.
Mr. Licari appeals. We have jurisdiction pursuant to
5 U.S.C. §§ 7121(f) and 7703.
DISCUSSION
We review an appeal from an arbitration decision us-
ing the same standards as an appeal from a decision of
the Merit Systems Protection Board. 5 U.S.C. § 7121(f);
Norris v. SEC, 675 F.3d 1349, 1352–53 (Fed. Cir. 2012).
By statute, we may set aside an arbitration decision only
if it is arbitrary, capricious, an abuse of discretion, other-
wise not in accordance with law; obtained in violation of
law, rule, or regulation; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c). We review questions of law
de novo and questions of fact for substantial evidence.
See Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363,
1366 (Fed. Cir. 2014). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McLaughlin v. Office
of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004).
Credibility determinations, however, are “virtually unre-
viewable” and are almost never overturned absent con-
LICARI v. DEPARTMENT OF TRANSPORTATION 5
tradictory extrinsic evidence. Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). The burden
of proving reversible error rests on Mr. Licari. See
Pucilowski v. Dep’t of Justice, 498 F.3d 1341, 1344 (Fed.
Cir. 2007).
Mr. Licari appears to raise four primary arguments
on appeal. First, he contends that the arbitrator erred in
determining that Mr. Lehman was more credible than
Mr. Licari. The Board (or in this case, the arbitrator)
resolves credibility disputes by (1) identifying the disput-
ed facts; (2) summarizing the evidence; (3) identifying
which version he believes; and (4) explaining why one
version was more credible than the other. Hillen v. Dep’t
of the Army, 35 M.S.P.R. 453, 458 (1987). The arbitrator
acknowledged his obligation to follow Hillen, S.A. 21 n.17,
and we find no error in the arbitrator’s credibility deter-
mination. The arbitrator first identified Critical Element
4 as the issue in dispute. He also summarized both sides’
evidence, stated that he believed Mr. Lehman’s version to
be more credible, and explained why. For example, the
arbitrator noted that no witnesses contradicted
Mr. Lehman “in any respect,” and that Mr. Licari had to
recant some of his testimony. S.A. 21. In light of the
proper application of Hillen and the lack of contrary
extrinsic evidence, we have no difficulty upholding the
arbitrator’s determination that Mr. Lehman’s testimony
was credible. Hambsch, 796 F.2d at 436.
Second, Mr. Licari alleges that the agency applied an
incorrect, retroactive methodology to determine that he
failed to adequately perform Critical Element 4. Critical
Element 4 requires employees to review answers to 38
regulatory questions with 85% accuracy. Mr. Lehman
testified that prior to his becoming director in 2013, an
employee could consistently miss the same question but
still satisfy the 85% benchmark by correctly reviewing
other questions. S.A. 201. Because each question repre-
sented a regulatory requirement, Mr. Lehman was con-
6 LICARI v. DEPARTMENT OF TRANSPORTATION
cerned that employees could consistently review individu-
al questions inaccurately. He therefore began requiring
each question to be reviewed correctly 85% of the time.
S.A. 19, 201–02. Mr. Lehman testified that he explained
the new review methodology to his employees at two staff
meetings. S.A. 202. He also testified that he coached his
employees on the methodology during the “communication
timeframe,” which was the beginning of the upcoming
appraisal period. S.A. 210, 234. Mr. Licari confirmed
that he spoke with Mr. Lehman about the changes. S.A.
226, 234.
We do not agree with Mr. Licari that the review
methodology was flawed. A Senate Report notes that
agencies have “‘great flexibility’” in choosing and develop-
ing their own review systems. Gillebeau v. Dep’t of the
Navy, 362 F.3d 1329, 1336 (Fed. Cir. 2004) (quoting S.
Rep. No. 95-969, at 42, reprinted in 1978 U.S.C.C.A.N. at
2764). We have previously concluded that Congress
“intend[ed] to permit government agencies latitude in
crafting performance appraisal systems to fit their needs.”
Id. at 1337. The arbitrator explained that the agency’s oil
spill response plans were so significant that the 85%
accuracy threshold was not “unduly strict.” S.A. 19 n.13.
Given the potential environmental and economic effects of
oil spills, we agree. Mr. Licari presents no other persua-
sive arguments against the merits of the appraisal crite-
ria.
We also reject Mr. Licari’s argument that the ap-
praisal criteria were retroactively applied to him. When
the change went into effect, Mr. Licari notified
Mr. Lehman that he disagreed with “the whole plan,” S.A.
234, and signed the July 31, 2014 performance plan “in
disagreement,” S.A. 92. The fact that Mr. Licari docu-
mented his disagreement in July 2014—a full year before
his July 2015 performance appraisal—indicates that the
new standards were not applied retroactively. We discern
nothing from the record that Mr. Licari was unaware of
LICARI v. DEPARTMENT OF TRANSPORTATION 7
how he would be evaluated for the 2014–2015 appraisal
period. We conclude the methodology was not retroactive-
ly applied.
Third, Mr. Licari faults the arbitrator for not consid-
ering what he calls prior “exceptional performance ap-
praisals.” The record indicates, however, that the
arbitrator received Mr. Licari’s past performance apprais-
als dating back to 2009. S.A. 224. The arbitrator
acknowledged the union’s position that Mr. Licari “was an
‘outstanding performer’ until he came under the supervi-
sion of David Lehman in late 2013.” S.A. 11. But an
agency cannot decide to remove an employee based on
unacceptable performance that occurred more than a year
before the notice of proposed removal. 5 U.S.C.
§ 4304(c)(2). We note that § 4303(c)(2) does not prohibit
the arbitrator from considering past acceptable perfor-
mance. Given the prohibition on considering unaccepta-
ble performance more than one year old, however, we do
not fault the arbitrator for not focusing on acceptable
conduct prior to 2014. We see no requirement, statutory
or otherwise, that an arbitrator must consider acceptable
performance that occurred more than one year before the
notice of proposed removal. And at any rate, the arbitra-
tor had before him records of Mr. Licari’s past acceptable
behavior for the past several years.
Fourth, Mr. Licari alleges that the arbitrator was bi-
ased against him. Specifically, he argues that both par-
ties made the arbitrator aware of a medical condition that
could cause Mr. Licari to interrupt the proceeding, but
that the arbitrator “incorrectly interpreted [his] medical
problems, as being a difficult witness that was uncoopera-
tive.” Informal Br. at 9. Mr. Licari also alleges that
certain passages of the arbitration decision exemplify the
arbitrator’s bias.
The government disagrees, citing Bieber
v. Department of the Army, 287 F.3d 1358 (Fed. Cir.
8 LICARI v. DEPARTMENT OF TRANSPORTATION
2002). In Bieber, the appellant did not file a motion for
recusal with the administrative judge (“AJ”). Id. at 1361.
Instead, like here, the appellant complained of bias for
the first time on appeal. Id. We explained that in apply-
ing the federal judicial recusal statute, 28 U.S.C. § 455,
the Supreme Court requires a showing of “‘deep-
seated . . . antagonism’ toward a party.” Id. at 1362(quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). Though the appellant in Bieber sought a new
hearing instead of recusal, we applied the recusal stand-
ard from Liteky. Id. Based on that standard, we deter-
mined that although some of the AJ’s comments were
inappropriate, they did not to rise to the level of due
process-depriving bias. Id. at 1362. In a subsequent case,
an appellant alleged bias because an administrative judge
told her to either settle her case or face dismissal. Atanus
v. MSPB, 434 F.3d 1324, 1327 (Fed. Cir. 2006). Even
accepting the appellant’s version of the facts, we found
that such a statement “does not establish that the judge
had a ‘deep-seated favoritism or antagonism that would
make fair judgment impossible.’” Id. (quoting Bieber, 287
F.3d at 1362).
We find that the arbitrator’s conduct does not demon-
strate a deep-seated antagonism against Mr. Licari, and
thus did not deprive him of due process. Mr. Licari makes
only generalized allegations about the arbitrator’s conduct
during the trial but does not cite to specific statements
that demonstrate bias. He also points to two passages in
the arbitration decision: “I have no basis to question
Supervisor Lehman’s credibility or good faith” and “No
one came forward to undermine Lehman’s testimony in
any respect.” S.A. 20–21. While Mr. Licari may disagree
with the arbitrator’s credibility determinations, they do
not show any, let alone deep-seated, antagonism toward
Mr. Licari. An adverse credibility determination is not
equivalent to improper bias.
LICARI v. DEPARTMENT OF TRANSPORTATION 9
CONCLUSION
We have considered the remainder of Mr. Licari’s ar-
guments and find them to be unpersuasive. Substantial
evidence supports the arbitrator’s decision to uphold
Mr. Licari’s removal based on Critical Element 4. We
therefore affirm the arbitration decision.
AFFIRMED
COSTS
No costs.