Chase v. Department of Army

25 F. App'x 951
CourtCourt of Appeals for the Federal Circuit
DecidedDecember 7, 2001
DocketNo. 01-3307
StatusPublished

This text of 25 F. App'x 951 (Chase v. Department of Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chase v. Department of Army, 25 F. App'x 951 (Fed. Cir. 2001).

Opinion

PER CURIAM.

Carl A. Chase appeals the final decision of the Merit Systems Protections Board (Board) affirming the action by the Department of Army (Army) reducing him in grade and pay and suspending him from duty and pay for a period of sixty days. Because substantial evidence supports the Board’s decision, which is not arbitrary, capricious, or an abuse of discretion, this court affirms.

I.

Before the Army’s action to reduce him in grade and pay, Mr. Chase was a 6S-11 Supervisory Computer Operator at the United States Total Army Personnel Command in Alexandria, Virginia. On May 19, 2000, Mr. Chase and another employee, Thomas Vines, engaged in a verbal altercation in the workplace. During the exchange of words, Mr. Chase picked up Mr. Vines and threw him to the floor, fracturing his shoulder. Other employees witnessed this event and summoned security guards. The Department of Defense Protective Service arrested Mr. Chase, charging him with simple assault, giving him a mandatory court date, and then releasing him. The charge was dismissed in June 2000.

On June 8, 2000, the Army issued a “Notice of Proposed Removal,” in which it proposed to remove Mr. Chase from his position in the Army based on his assault on Mr. Vines. On July 6, 2000, the Army issued its decision on the proposed removal. The deciding official, Colonel Charles Triplett, found that Mr. Chase, in his response to the proposed removal, had admitted the charged offense. Based on several mitigating factors, however, Col. Triplett mitigated the proposed penalty to a sixty-day suspension and a reduction in grade and pay to a non-supervisory GS-09 position.

Mr. Chase timely appealed the Army’s disciplinary action to the Board. In his appeal, Mr. Chase did not challenge the merits of the Army’s charge. Rather, he asserted that the penalty was excessive given his age, years of service, performance ratings, and the fact that while he was criminally charged with simple assault (and this fact was noted in the Army’s initial action proposing his removal), the charge was dismissed without prejudice.

In the Board’s initial decision, an administrative judge found that the Army had established, by way of stipulation by the parties, that Mr. Chase had physically assaulted Mr. Vines. The administrative judge also found that there was a “sufficient nexus” between Mr. Chase’s actions [953]*953and the efficiency of the service. Finally, the administrative judge found that the Army had considered all relevant factors and assessed a penalty that was within the limits of reasonableness.

On November 9, 2000, Mr. Chase filed a petition for review of the initial decision to the full Board. The Board concluded that there was no new, previously unavailable evidence and that the administrative judge made no error in law or regulation that affected the outcome. Accordingly, in a final order dated July 2, 2001, the Board denied Mr. Chase’s petition for review and rendered the initial decision final.

Mr. Chase timely appealed to this court, which has exclusive appellate jurisdiction. 28 U.S.C. § 1295(a)(9) (1994); 5 U.S.C. § 7703(b)(1) (Supp. IV1998).

II.

This court must affirm any Board decision not found to be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996); Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

An agency, such as the Army, must establish three things to withstand challenge to an adverse action against an employee. Pope v. United States Postal Serv., 114 F.3d 1144, 1147 (Fed.Cir.1997); Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 728-729 (Fed.Cir.1998) (Plager, J., concurring) (citing Pope). First, the Army must prove, by a preponderance of the evidence, that the charged misconduct occurred. 5 U.S.C. § 7701(c)(1)(B) (1994). Second, the Army must establish a nexus between that misconduct and the efficiency of the service. 5 U.S.C. § 7513(a) (1994); Hayes, 727 F.2d at 1539; Brown v. Dep’t of Navy, 229 F.3d 1356, 1358 (Fed.Cir.2000). Third, it must demonstrate that the penalty imposed is reasonable. See Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306-307 (1981).

A.

Mr. Chase does not dispute the first inquiry as the parties stipulated during the record-closing conference that the charged misconduct occurred. As part of the second inquiry, the Army must show, by a preponderance of evidence, that Mr. Chase’s misconduct is “related to his job-related responsibilities so that [ ] removal promotes the efficiency of service.” Allred v. Dep’t of Health & Human Servs., 786 F.2d 1128, 1130 (Fed.Cir.1986); see also 5 U.S.C. § 7701(c)(1)(B); 5 U.S.C. § 7513(a) (1994 & Supp. IV 2000). To satisfy this requirement, the Army must establish a nexus between Mr. Chase’s misconduct and the Army’s performance of its functions. See Brown, 229 F.3d at 1360.

An adverse action promotes efficiency of service when the basis for the action either relates to the employee’s ability to accomplish his duties satisfactorily or to some other legitimate government interest. See Hatfield v. Dep’t of Interior, 28 M.S.P.R. 673, 674 (1985). This court has previously held that there was a reasonable nexus between an employee’s misconduct and the efficiency of the service where that misconduct occurred in part at work. Parker v. United States Postal Serv., 819 F.2d 1113, 1116 (Fed.Cir. 1987)(“[T]here is a direct connection to the efficiency of the service in that petitioner admittedly aided and abetted the sale of drugs to another employee at that facility in a transaction that was arranged at least in part at work”). Moreover, this court has held that nexus existed between the efficiency of the service and an employee’s violent behavior against another employee. See Dominguez v. Dep’t of Air Force, 803 [954]*954F.2d 680, 683 (Fed.Cir.1986) (finding a nexus between efficiency of service and employee’s assault against his supervisor at an off-duty location). In this case, Mr.

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Loyce E. Hayes v. Department of the Navy
727 F.2d 1535 (Federal Circuit, 1984)
Bobby H. Mitchum v. Tennessee Valley Authority
756 F.2d 82 (Federal Circuit, 1985)
Joe T. Dominguez v. Department of the Air Force
803 F.2d 680 (Federal Circuit, 1986)
Stanley B. Parker v. United States Postal Service
819 F.2d 1113 (Federal Circuit, 1987)
Drellie Gibson, III v. Department of Veterans Affairs
160 F.3d 722 (Federal Circuit, 1998)
Michael J. Brown v. Department of the Navy
229 F.3d 1356 (Federal Circuit, 2000)

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