Roberts v. Department of Commerce

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3356
SANDRA J. ROBERTS,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
Sandra J. Roberts, of Honolulu, Hawaii, pro se.
Allison Kidd-Miller, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Jeanne E. Davidson, Deputy Director. Of counsel was Bryant G. Snee, Assistant
Director. Of counsel on the brief was William J. Monahan, Attorney, Office of General
Counsel, Bureau of Census, United States Department of Commerce, of Washington,
DC.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3356
SANDRA J. ROBERTS,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
__________________________
DECIDED: March 5, 2007
__________________________
Before NEWMAN, RADER, and DYK, Circuit Judges.
PER CURIAM.
Ms. Sandra Roberts seeks review of the decision of the Merit Systems Protections
Board affirming her removal from employment by the Bureau of the Census.1 Ms. Roberts
states that the Board overlooked certain factual and evidentiary issues and applied the
incorrect statute, and that the totality of facts and the application of the correct statute do
1 Roberts v. Dep't of Commerce, No. SF0752050605-I-1 (M.S.P.B., June 21,
2006).
not support the removal action. On review of the issues and arguments, we affirm the
Board's decision.
DISCUSSION
Ms. Roberts was employed in the excepted service as a Field Representative in the
Los Angeles Regional Office of the Census Bureau of the Department of Commerce, with
an intermittent schedule. She was assigned to work on the American Community Survey
(ACS) and Demographic Area Address Listing (DAAL) in Honolulu, Hawaii. Field
Representatives who are conducting the ACS are provided with a confidential list of
addresses and interview survey questions, and are required to go to the listed addresses
and interview the respondents using the survey questions. A Field Representative is
expected to conduct each monthly ACS survey in the month of issuance, and is required to
transmit certain percentages of completed work results to the Census Bureau headquarters
on the 7th, 14th, and 21st of the month.
Four employment issues were the basis of the four counts of the agency's removal
action. Count one was based on Ms. Roberts' failure to provide her current street address
to her supervisors so that the agency could send equipment and confidential work
assignments to a valid street address. The agency charged Ms. Roberts with "failure to
follow supervisory directives" for her failure to provide her current address. This charge
was sustained by the Board, as a reasonable and necessary requirement. On this appeal
Ms. Roberts argues that she could not follow the directive concerning her address because
her second level supervisor Ms. Julie Lam Ly failed to give her such a directive. The Board
found that even if Ms. Lam Ly did not explicitly order Ms. Roberts to provide her street
address, this directive was communicated by her first level supervisor Ms. Mai Nguyen at
2006-3356 2
Ms. Lam Ly's direction. Ms. Roberts does not dispute that this directive was communicated
by her first level supervisor, and that she failed to follow it. The Board's finding as to count
one must be sustained.
On count two, the agency charged Ms. Roberts with "failure to follow interview
procedures" because for a certain facility, Ms. Roberts completed the assignment without
having interviewed the respondents at that facility. The Board found in favor of Ms. Roberts
on this count, reasoning that although Ms. Roberts did not interview these respondents, the
agency did not carry its burden of showing that interview procedures were violated.
The third charge was that Ms. Roberts did not meet the agency's required weekly
ACS transmittal rates over a three-month period. Ms. Roberts does not dispute that she
did not meet these requirements. She instead argues that the Board erred by applying 5
U.S.C. '7501 et seq. (Chapter 75) rather than 5 U.S.C. '4301 et seq. (Chapter 43) to this
count, and that the Board should have analyzed count three based on the "poor
performance of a particular duty" standard of Chapter 43. She argues that Chapter 75,
which states that an adverse personnel action can be taken "only for such cause as will
promote the efficiency of the service," requires persistent employee failure to meet
expectations. However, as explained in Guillebeau v. Dep't of the Navy, 362 F.3d 1329(Fed. Cir. 2004), Chapter 75 does not prohibit reliance on performance standards to show
that the employee has not met the agency's requirements. The Board did not err by
analyzing the undisputed facts under Chapter 75; substantial evidence supported the
finding of failure of compliance.
The fourth charge was based on an event at the Honolulu Municipal Building, where
Ms. Roberts refused to adhere to building security requirements, leading to the agency's
2006-3356 3
charge of "conduct unbecoming a federal employee." The Board found that Ms. Roberts
acted unprofessionally when she refused to follow the procedure required by the security
personnel, and that Ms. Roberts' confrontation with the security guard was improper and
unsuitable for a federal employee. Ms. Roberts does not dispute that she refused to follow
the procedure, requested by security personnel, that she surrender a recognized
government identification in order to obtain a pass to enter the Municipal Building. Her
behavior was described as "ranting" and "raving" by the security guard. Ms. Roberts states
that the incident was "devoid of conflict" and does not constitute "conduct unbecoming."
The Board ruled that "[e]ven assuming, without deciding, that the building's policy was not
reasonable, that the appellant had the right to object to it to the guards, and that she was
given no alternative to surrendering her identification, her behavior as described by Ogawa
was not justified or reasonable under the circumstances." Ms. Roberts argues that the
Board erred by refusing to consider evidence to show that the incident was civil and devoid
of conflict, including a letter from Mr. Ogawa's supervisor and the findings of an
unemployment hearing officer. The Board held that Ms. Roberts had not provided a
reasonable explanation as to why these documents were not presented or could not have
been presented at the hearing before the administrative judge. We conclude that the Board
did not abuse its discretion in declining to reopen the appeal in order to receive this
proffered evidence.
The Board found that Ms. Roberts' job as a Field Representative involved public
contact, and that her conduct at the Municipal Building indicated that she could not be
relied upon to act in a professional manner and to protect the agency's image. We
2006-3356 4
conclude that the Board's findings were supported by substantial evidence, and must be
sustained.
Ms. Roberts also raises various procedural and due process issues. We have
reviewed her arguments, and discern no reversible error in the Board's procedures and in
the analysis by the administrative judge.
The Board found that the criteria for removal under Chapter 75 were met, in that the
agency had shown that the charged conduct in counts one, three and four occurred, that
there is a nexus between the charged conduct and the efficiency of the service, and that
the penalty was appropriate to the circumstances. Ms. Roberts has not shown that the
Board's decision was arbitrary, capricious, an abuse of discretion, unsupported by
substantial evidence, or otherwise not in accordance with law. The decision must be
affirmed.
No costs.
2006-3356 5