Moore v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LARRY STEWART MOORE
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2012-3009
__________________________
Petition for review of the Merit Systems Protection
Board in case no. AT0752100504-I-1
__________________________
Decided: March 13, 2012
___________________________
LARRY STEWART MOORE, of Albany, Georgia, pro se.
JESSICA R. TOPLIN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director.
__________________________
MOORE v. NAVY 2
Before DYK, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Larry Stewart Moore (“Moore”) appeals the final deci-
sion of the Merit Systems Protection Board (“MSPB”)
affirming the Department of the Navy’s (“the Navy”)
removing him from his position due to his misconduct.
Because we find the MSPB’s decision to be supported by
substantial evidence and in accordance with the law, we
affirm.
I. BACKGROUND
Moore was a Financial Technician with the Transpor-
tation Voucher Certification Division, Programs and
Resources Department, Marine Corps Logistics Command
in Albany, Georgia. In October 2009, Moore made sev-
eral disrespectful and threatening comments to his co-
workers, and did not cease this activity after directed by
his supervisor to stop. Moore told his coworkers they had
“better watch their backs,” that “it ain’t no fun when the
rabbit’s got the gun,” that he was “getting gang members
to come to Albany, GA to confront someone and that [he
was] just waiting for a name.” A33. His comments
prompted an investigation by the Navy’s Criminal Inves-
tigation Division, in which various statements taken from
Moore’s coworkers reflected their feeling unsafe working
with Moore. On October 29, 2009, the Navy proposed that
Moore be suspended for 10 days for Conduct Unbecoming
a Federal Employee and Insubordination. Moore re-
sponded to the proposed suspension on November 9, 2009,
denying the allegations, but the Navy ultimately issued a
decision on November 16, 2009 to impose the 10-day
suspension effective from November 23, 2009 through
December 2, 2009. Moore did not challenge this decision.
3 MOORE v. NAVY
Meanwhile, on November 5 and 6, 2009, Moore had
again made a series of disruptive and threatening state-
ments to his coworkers, including accusing them of con-
spiring against him, of being cowards, and of interfering
with his finances, and also threatening to interfere with
their finances. Moore’s supervisor Mark Soroka (“So-
roka”) had ordered Moore to refrain from making such
comments on each occasion, but Moore refused to comply,
and instead responded with laughter and disrespectful
comments to Soroka. Soroka concluded that Moore’s
actions constituted Abusive and/or Disruptive Behavior in
the Workplace and his second offense of Insubordination
(collectively, the “Charged Misconduct”). Moore was
placed on administrative leave on November 6, 2009,
pending further investigation of the misconduct.
The Navy’s investigation revealed that Moore had
made many threats against coworkers, causing a hostile
work environment including fear of working with Moore.
The investigator concluded that Moore’s actions were
indeed insubordinate, disrespectful, and abusive, specifi-
cally finding that
11 out of 13 of Mr. Larry Moore’s co-workers be-
lieve they are working in a hostile environment.
All of the co-workers interviewed said Mr. Moore
has been a disruption in the workplace. Some of
the comments Mr. Moore has allegedly made show
a total disrespect for supervisors in a position of
authority over him. . . . The overwhelming major-
ity in the Branch feels anxious and believes things
will be the same or worse if Mr. Moore returns to
his current position.
A74-75. The investigator noted that one employee had
already requested to be moved out of Moore’s work area
and that others were likely to follow.
MOORE v. NAVY 4
On January 14, 2010, Soroka proposed Moore’s re-
moval based on the Charged Misconduct. As explained in
the proposal, on January 6, 2010, Moore was called in to
meet with Soroka, Al Dervan, Head of the Navy’s Labor
Relations Division, and Mike Rogers, Moore’s Union
President to discuss Moore’s return to work following his
administrative leave. Moore attempted to record the
meeting with a digital audio recording device, and despite
having been twice directly ordered by Soroka to turn off
the unauthorized device, Moore refused and the meeting
did not proceed.
On February 8, 2010, Moore responded in writing to
the proposed removal, denying any wrongdoing and
accusing Navy employees of conspiring to steal money
from his paycheck by imposing an IRS tax levy. After
considering Moore’s response, the deciding official, Ms.
Sandra Lemke (“Lemke”), concluded that Moore’s behav-
ior was indeed insubordinate and disruptive as described
in the proposal, “threaten[ing] the ability of the workforce
to accomplish its mission.” A108. Lemke further found
that Moore’s conduct was in each case serious, inten-
tional, repeated, and malicious. These findings, combined
with Moore’s prior suspension and his overall failure to
admit wrongdoing or show remorse, compelled Lemke to
issue a final decision on February 16, 2010 removing
Moore from his position. Lemke’s analysis involved
consideration of the relevant factors set forth in the
Board’s decision in Douglas v. Veterans Admin., 5
M.S.P.R. 280, 305-06 (1981) for determining the appropri-
ateness of the penalty.
Moore appealed to the MSPB. During a prehearing
conference, Moore contended that his 10-day suspension
should not be considered because Moore was unable to
challenge the underlying charges to an authority above
the deciding official. The AJ disagreed, finding that
5 MOORE v. NAVY
Moore in fact could have challenged the charges before
higher authorities than the deciding official. Accordingly,
the AJ declined to re-adjudicate the merits of those
charges and limited his review to whether the prior
disciplinary action was clearly erroneous.
After a hearing, the AJ issued his initial decision sus-
taining the removal, concluding that the Navy proved by
preponderant evidence that Moore committed the
Charged Misconduct. The AJ specifically noted that
testimony of witnesses other than Moore (e.g., Soroka)
regarding the incidents on November 5 and 6 was more
credible because it was corroborated by other witnesses’
testimony as well as contemporaneous written statements
and communications in the record. The AJ also noted
that Moore failed to establish any right to record his
January 6, 2010 meeting with Soroka and others, and
that Moore admitted to having refused to follow Soroka’s
orders to turn off the recording device.
The AJ further found that the Navy had proven by a
preponderance of the evidence that there was a nexus
between Moore’s misconduct and the efficiency of the
department’s service because Moore’s repeated threaten-
ing and insubordinate behavior occurred in the workplace.
A24 (citing Parker v. U.S. Postal Serv., 819 F.2d 1113,
1116 (Fed. Cir. 1987)). Lastly, the AJ found that the
penalty of removal did not exceed the tolerable bounds of
reasonableness, given the ample evidence of repeated
insubordination which “so seriously undermines the
capacity of management to maintain employee efficiency
and discipline that no agency should be expected to exer-
cise forbearance for such conduct more than once.” A25
(citing Lewis v. Dep’t of Vet. Affairs, 80 M.S.P.R. 472, ¶ 8
(1998)). Thus, the AJ affirmed the Navy’s removal of
Moore.
MOORE v. NAVY 6
Moore petitioned the full Board for review, generally
contesting the AJ’s factual findings and credibility deter-
minations. After considering Moore’s arguments, the
Board saw no new or previously unavailable evidence
being raised by Moore, nor any error of law by the AJ, and
denied Moore’s petition, making the AJ’s decision final.
This appeal followed.
II. DISCUSSION
Our review of decisions of the MSPB is limited by
statute. We may only set aside agency actions, findings,
or conclusions if we find them to be “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance 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).
We have previously explained the burden on a federal
agency to support its decision to take adverse action
against an employee as follows:
[A]n agency must establish three things to with-
stand challenge to an adverse action against an
employee. First, it must prove, by a preponder-
ance of the evidence, that the charged conduct oc-
curred. 5 U.S.C. § 7701(c)(1)(B) (1994). Second,
the agency must establish a nexus between that
conduct and the efficiency of the service. 5 U.S.C.
§ 7513(a) (1994); Hayes v. Department of Navy,
727 F.2d 1535, 1539 (Fed. Cir. 1984). Third, it
must demonstrate that the penalty imposed is
reasonable. See Douglas v. Veterans Admin., 5
M.S.P.R. 280, 306-07 (1981).
7 MOORE v. NAVY
Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147 (Fed. Cir.
1997). The AJ’s decision correctly stated and applied this
law.
On appeal, Moore contends that the MSPB erred in
finding that the Navy had proven a nexus between the
Charged Misconduct and the efficiency of service. See
Moore Informal Br. at Question 2 (citing 5 U.S.C. § 7513(“[A]n agency may take an action . . . against an employee
only for such cause as will promote the efficiency of the
service.”)). In support of this contention, Moore generally
argues that the decision was not supported by substantial
evidence, and that the AJ erred by crediting the Navy’s
witnesses and evidence over that offered by Moore. We
disagree. Substantial evidence supports the AJ’s finding
that nexus was adequately proven. Various witnesses
and co-workers of Moore confirmed that the Charged
Misconduct occurred, and the record adequately shows
that Moore’s actions were highly insubordinate and
created a hostile work environment, impeding the ability
of Moore’s department to efficiently function. See Webster
v. Department of Army, 911 F.2d 679, 688 (Fed. Cir. 1990)
(finding that disrespectful behavior and refusal to follow
orders from supervisors negatively affects the efficiency of
service). Sitting as the fact finder, the AJ was entitled to
make its credibility determinations in favor of the Navy
and its witnesses, and such determinations are virtually
unreviewable on appeal. De Sarno v. Dep’t of Commerce,
761 F.2d 657, 661 (Fed. Cir. 1985) (“Where, as here, the
presiding official expressly found a witness . . . credible,
this court cannot substitute a contrary credibility deter-
mination based on a cold paper record.”).
In challenging the proof of nexus Moore also alleges
that the AJ erred by permitting leading questions on cross
examination, and allowing cross examination beyond the
scope of direct testimony. Because Moore fails to identify
MOORE v. NAVY 8
any particular testimony that is believed to be objection-
able, nor does Moore explain why any of such testimony
was prejudicial so as to constitute harmful error, we see
no basis for reversal in these contentions. See Curtin v.
Office of Personnel Management, 846 F.2d 1373, 1378-
1379 (Fed. Cir. 1988) (“Procedural matters relative to
discovery and evidentiary issues fall within the sound
discretion of the board and its officials. This court will not
overturn the board on such matters unless an abuse of
discretion is clear and is harmful. If an abuse of discretion
did occur with respect to the discovery and evidentiary
rulings, in order for petitioner to prevail on these issues
he must prove that the error caused substantial harm or
prejudice to his rights which could have affected the
outcome of the case.”) (citations omitted).
Next, Moore contends that the Navy committed harm-
ful procedural error requiring the agency action to be set
aside. 5 U.S.C. § 7701(c)(2). Prior to removal, an em-
ployee against whom adverse action is proposed is enti-
tled to:
(1) at least 30 days’ advance written notice,
unless there is reasonable cause to believe the
employee has committed a crime for which a
sentence of imprisonment may be imposed,
stating the specific reasons for the proposed
action;
(2) a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish af-
fidavits and other documentary evidence in
support of the answer;
(3) be represented by an attorney or other repre-
sentative; and
9 MOORE v. NAVY
(4) a written decision and the specific reasons
therefor at the earliest practicable date.
5 U.S.C. § 7513; see also 5 U.S.C. § 7512. We disagree
with Moore’s contentions of any procedural error, as the
record reflects that the Navy complied with all four of
these requirements. Moore was notified in writing of his
proposed removal and the underlying charges on January
14, 2010. The notice indicated that the removal would not
take effect for at least 30 days, and afforded Moore 15
days in which to respond to the proposal. We see no
evidence that Moore was at any time deprived of the
opportunity to be represented—indeed, Moore’s union
representative attended the January 6, 2010 meeting
with him, and Moore privately consulted with his repre-
sentative concerning the issue of Moore’s audio recording
device. Moore’s ultimate removal decision was promptly
delivered to him on February 16, 2010, and included
detailed explanation for why he was being removed.
Along the same lines of alleged procedural error,
Moore contends that it was improper for the Navy to have
“allowed an opposing official, second level supervisor with
a start date of August 16, 2009, to conduct all adverse
action” against him. Moore Informal Br. at Question 5.
Moore fails to identify the official to whom he is referring,
but regardless has not demonstrated that there is any
particular time period of service required before a super-
visor may be a proposing or deciding official in a discipli-
nary action. 5 U.S.C. § 7513 imposes no such
requirements, nor does the corresponding regulation 5
C.F.R. § 752.404.
Finally, Moore makes a number of arguments raising
grounds for relief he believes were overlooked by the
Board. First, he contends that the AJ and MSPB failed to
consider the fact of the Navy’s enforcing an IRS tax levy
MOORE v. NAVY 10
against his salary. Like the MSPB when it considered
this argument, we see no relevance in these assertions to
the matters on appeal. Even if these allegations are true,
such facts would not detract from the substantial evidence
supporting Moore’s Charged Misconduct. Second, on a
closely related note, Moore also alleges that the AJ erred
“in omitting consideration of petitioner’s request for
action, from the Inspector General (IG)/Command Inspec-
tor, to investigate illegal pay activities . . . [and] gave no
consideration of an investigation request to the Criminal
Investigation Division, concerning illegal pay activities . .
. .” Moore Informal Br. at Question 5. We find no eviden-
tiary support for these assertions, and likewise view them
as irrelevant to the Charged Misconduct at issue in this
appeal. Third, Moore appears to argue, as he did before
the AJ, that he should have been able to challenge the
merits of his 10-day suspension before the AJ under a
standard of de novo review. As the AJ found, however,
nothing precluded Moore from pursuing the Navy’s griev-
ance procedures and any subsequent appeals to challenge
the 10-day suspension before authorities higher than the
deciding official. Since Moore failed to do so, the AJ
properly limited the scope of Moore’s appeal regarding the
10-day suspension to review for clear error on that prior
disciplinary action. See Bolling v. Dep’t of the Air Force, 9
M.S.P.R. 335, 339-40 (1981) (holding that, with respect to
prior actions being challenged, if “(1) appellant was in-
formed of the action in writing; (2) the action is a matter
of record; and (3) appellant was given the opportunity to
dispute the charges to a higher level than the authority
that imposed the discipline,” review of the prior action
will only be for clear error). Fourth, Moore contends that
the MPSB failed to consider that he had filed a formal
Equal Employment Opportunity (“EEO”) complaint on
November 5, 2009, but the record contains no evidence
that any such complaint was filed. In any event, Moore
11 MOORE v. NAVY
fails to offer any reason why the alleged EEO filing would
afford him a new ground for relief from the Board in his
appeal.
III. CONCLUSION
Because this appeal presents no basis for this court to
disturb the decision of the MSPB, its judgment is hereby
AFFIRMED
COSTS
No costs.