Mungo v. Army

Case: 22-1266 Document: 47 Page: 1 Filed: 04/04/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LECOLA MUNGO, JR.,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2022-1266
______________________
Petition for review of an arbitrator’s decision in No.
21103-01030 by Dennis Nolan.
______________________
Decided: April 4, 2023
______________________
STEPHAN B. CALDWELL, Suwanee, GA, for petitioner.
KRISTIN ELAINE OLSON, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before DYK, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
Case: 22-1266 Document: 47 Page: 2 Filed: 04/04/2023
2 MUNGO v. ARMY
Lecola Mungo, Jr., petitions for review of an arbitra-
tor’s decision upholding his removal from his position as a
security guard. For the reasons discussed below, we affirm.
BACKGROUND
Mungo was employed as a Department of the Army Se-
curity Guard (“DASG”) at Gillem Enclave, an installation
which houses several military units. J.A. 15, 136–37. On
May 8, 2020, Mungo was involved in a heated dispute with
another DASG, Gerald Thompson, related to food placed in
the office refrigerator. J.A. 15. Mungo acknowledged be-
fore the arbitrator that during this altercation he told
Thompson that he would “[expletive] him up.” J.A. 15 (ci-
tation and internal quotation marks omitted).
Immediately after the dispute with Thompson, Mungo
called Captain Danny Taylor, one of his supervisors. J.A.
16. Taylor testified that Mungo was very emotional and
repeatedly threatened to kill Thompson. J.A. 16, 46, 275.
Mungo then called another supervisor, Captain Jeffrey
Butler. J.A. 16, 281. Butler testified that Mungo repeat-
edly threatened Thompson, saying that he “wanted to hurt
him bad.” J.A. 282. Butler thereafter told Mungo to put
his weapon in the safe and to leave work immediately. J.A.
16, 281–22.
Both Butler and Taylor called Gregory Whittington,
the Chief of Guards for Gillem Enclave, and reported their
conversations with Mungo. J.A. 216–17. Taylor subse-
quently issued a letter of warning to Mungo, J.A. 46–47,
and held a counseling session with him, J.A. 49–50.
As a DASG, Mungo was required to maintain a certifi-
cation pursuant to the Army’s Individual Reliability Pro-
gram (“IRP”), a security program designed to ensure that
all security guards are fit for duty and that their characters
and trustworthiness comport with the high standards ex-
pected of law enforcement personnel. J.A. 17, 31–34. Fol-
lowing an investigation in which he gathered statements
Case: 22-1266 Document: 47 Page: 3 Filed: 04/04/2023
MUNGO v. ARMY 3
from Butler, Taylor, and Thompson, Whittington informed
Mungo that he was being temporarily suspended from the
IRP. J.A. 71–72, 217, 266. Additionally, Whittington re-
ferred Mungo for a medical fitness for duty examination,
which he passed. J.A. 52–53, 72, 217.
In July 2020, Whittington informed Mungo that he was
permanently decertified from the IRP based on the May 8,
2020, incident, and that this IRP decertification could be
cause for removal from federal employment. J.A. 13.
Mungo submitted a timely written rebuttal to his perma-
nent suspension from the IRP. See J.A. 71–72. Whitting-
ton subsequently proposed Mungo’s removal from the
federal service on charges of: (1) “conduct unbecoming a
federal employee–unprofessional behavior,” based upon
Mungo’s conduct on May 8, 2020; and (2) “failure to main-
tain a condition of employment,” based upon Mungo’s de-
certification from the IRP. J.A. 1–2, 6–7. Whittington
provided Mungo with the materials upon which the notice
of proposed removal was predicated and informed him of
his right to respond to the notice. J.A. 3–4.
Through his union, Mungo responded to the notice of
proposed removal, arguing that the charges against him
did not warrant removal or decertification from the IRP.
J.A. 54–58. After the Army removed Mungo from his posi-
tion, he invoked arbitration. J.A. 14. The arbitrator deter-
mined that the Army had “demonstrated by a
preponderance of the evidence that [Mungo] engaged in
conduct unbecoming a federal employee by threatening to
‘[expletive] up,’ to kill, and to hurt DASG Thompson.” J.A.
21. Turning to the second charge against Mungo, failure to
maintain a condition of employment, the arbitrator found
that Mungo’s position required IRP certification and that
the agency had a reasonable basis for revoking that certifi-
cation. J.A. 19, 21–22. Furthermore, although the union
challenged Mungo’s decertification by arguing that Whit-
tington lacked the proper delegated authority to make the
decertification decision, the arbitrator held that Mungo’s
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4 MUNGO v. ARMY
decertification “was procedurally proper,” J.A. 22, and that
“there was no due process violation in Chief Whittington’s
making the decision to revoke [Mungo’s] certification,” J.A.
18–19.
The arbitrator stated, moreover, that “[e]ven if there
were a technical error” related to the decertification, “the
error did not harm” Mungo. J.A. 19. In upholding Mungo’s
removal, the arbitrator concluded that the Army “had just
cause to remove [him] for threatening a co-worker” and
that “[r]emoving him would promote the efficiency of the
service by ending a possible workplace threat and by deter-
ring [other] employees from similar conduct.” J.A. 24.
Mungo then appealed to this court. We have jurisdic-
tion under 5 U.S.C. §§ 7121(f) and 7703(b)(1)(A).
DISCUSSION
A federal employee who wishes to challenge an adverse
action may generally appeal to the Merit Systems Protec-
tion Board (“board”) or, in the alternative, bring a claim
before an arbitrator under a negotiated grievance proce-
dure created through collective bargaining. See id.§ 7121(e)(1); Buffkin v. Dep’t of Def., 957 F.3d 1327, 1329
(Fed. Cir. 2020). This court reviews an arbitrator’s deci-
sion under the same standard of review that we apply to
decisions from the board. See Johnson v. Dep’t of Air Force,
50 F.4th 110, 114 (Fed. Cir. 2022). We thus must affirm an
arbitrator’s decision unless it is: “(1) arbitrary, capricious,
an abuse of discretion, 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); see Johnson v.
Dep’t of Veterans Aff’s, 625 F.3d 1373, 1376 (Fed. Cir. 2010).
On appeal, Mungo argues that the arbitrator’s decision
was “not in accordance with the law” because it “excused
the [Army] from having to prove the underlying merits of
[his] permanent [IRP] decertification.” Br. of Pet’r 6. We
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MUNGO v. ARMY 5
disagree. Before the arbitrator, the Army properly estab-
lished the bases for its decision to permanently revoke
Mungo’s IRP certification. See J.A. 15–18. Both Taylor
and Butler testified that Mungo had repeatedly threatened
to hurt or kill Thompson. J.A. 16–17, 275–76, 281–82.
Whittington testified, moreover, that after an investiga-
tion, J.A. 217, 243, he decided to decertify Mungo because
security guards are held to a “high standard” and “severe”
threats such as those Mungo made to Thompson could not
be “tolerated.” J.A. 220; see also J.A. 241.
The arbitrator evaluated the evidence related to
whether Mungo’s decertification was “substantively
proper,” J.A. 22, and concluded that the Army “had ample
reason to decertify him from the IRP because his actions
raised serious doubts about his reliability,” J.A. 24. In par-
ticular, despite the fact that “[t]he Union did not argue that
threats of the sort made by [Mungo] on May 8 were insuf-
ficient to justify decertification,” J.A. 22, the arbitrator
nonetheless specifically found that the Army acted reason-
ably in decertifying him because “[t]hreats to kill or hurt
another employee are certainly sufficient to make a super-
visor doubt an employee’s ability to perform his job safely,”
J.A. 22. We reject, therefore, Mungo’s argument that the
Army failed to demonstrate that it had a reasonable basis
for its decertification decision.
Mungo further contends that the Army’s decertifica-
tion decision was procedurally improper, asserting that
Whittington lacked IRP certification and decertification
authority. We do not find this argument persuasive. After
carefully evaluating the documentary evidence produced
by the Army, as well as the hearing testimony, the arbitra-
tor determined that while Army regulations gave the Fort
Gordon Garrison Commander IRP certification authority,
he delegated that authority in 2016 for an indefinite period
to the Director of Emergency Services who, in turn, dele-
gated the authority to Division Chiefs such as Whittington.
J.A. 17–19, 25–28. The arbitrator further determined that
Case: 22-1266 Document: 47 Page: 6 Filed: 04/04/2023
6 MUNGO v. ARMY
while “the persons in those positions changed over time,”
there was no evidence that any “of the various delegations
was ever revoked.” J.A. 18. Given that the union “failed to
present any authority holding that a delegee’s authority
automatically terminates when one of his or her superiors
is replaced,” J.A. 22, we conclude that the arbitrator did not
err in concluding that Whittington was vested with dele-
gated IRP certification and decertification authority at the
time he revoked Mungo’s certification.
Relatedly, Mungo asserts that he was deprived of due
process because Whittington lacked IRP authority and
therefore could not properly evaluate Mungo’s rebuttal to
his decertification. As we have previously made clear, fed-
eral employees generally “possess a constitutionally pro-
tected property right in their employment and are entitled
to pre-deprivation due process.” Do v. Dep’t of Hous. & Urb.
Dev., 913 F.3d 1089, 1093 (Fed. Cir. 2019); see also Ramirez
v. Dep’t of Homeland Sec., 975 F.3d 1342, 1352 (Fed. Cir.
2020) (concluding that “the arbitrator legally erred in con-
cluding that [an employee] lacked a due process right to
review and challenge the records of the [psychiatric] as-
sessments underlying the Agency’s removal decision”). On
the other hand, however, “not every disciplinary action re-
quires pre-deprivation notice and opportunity to be heard.”
Do, 913 F.3d at 1094.
Here, even assuming, for the sake of argument, that
Mungo had a constitutional right to notice and an oppor-
tunity to be heard related to his decertification—as op-
posed to his removal—the factual premise for Mungo’s
constitutional argument is flawed. Because, as discussed
previously, the arbitrator reasonably concluded that Whit-
tington possessed IRP authority, there is no merit to
Mungo’s assertion that he was deprived of “the opportunity
to be heard by an IRP deciding official who had the power
to affect the outcome of the IRP determination,” Br. of Pet’r
24. We have considered Mungo’s remaining arguments but
do not find them persuasive.
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MUNGO v. ARMY 7
CONCLUSION
Accordingly, the decision of the arbitrator is affirmed.
COSTS
No costs.