Dempsey v. United States Marshals Service

• Court: Court of Appeals for the Federal Circuit
• Decided: March 5, 2024
• Docket: 22-1665
• Status: Unpublished

Opinion

Case: 22-1665 Document: 55 Page: 1 Filed: 03/05/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ROBERT JEFF DEMPSEY, Petitioner

v.

UNITED STATES MARSHALS SERVICE, Respondent ______________________

2022-1665 ______________________

Petition for review of an arbitrator’s decision in No. FMCS 211117-01415 by Melinda G. Gordon. ______________________

Decided: March 5, 2024 ______________________

ROBERT JEFF DEMPSEY, Brunswick, GA, pro se.

LIRIDONA SINANI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, STEVEN C. HOUGH, PATRICIA M. MCCARTHY. ______________________

Before TARANTO, CHEN, and STOLL, Circuit Judges. Case: 22-1665 Document: 55 Page: 2 Filed: 03/05/2024

PER CURIAM. Robert Jeff Dempsey worked as a Property Manage- ment Specialist in the United States Marshals Service (USMS) until USMS, acting under 5 U.S.C. Chapter 43, re- moved him from that position for unacceptable perfor- mance, with the removal effective on September 25, 2020. Mr. Dempsey’s union, the American Federation of Govern- ment Employees Local 2272 (the Union), filed a grievance on his behalf challenging the removal. Under 5 U.S.C. § 7121(e)(1) and pursuant to the collective bargaining agreement between the Union and USMS, the parties se- lected an arbitrator, who ultimately affirmed USMS’s re- moval decision. See J.A. 1–15. On Mr. Dempsey’s petition for review, we affirm the arbitrator’s decision. I Mr. Dempsey was a Property Management Specialist with the USMS Training Division in Glynco, Georgia, from 2011 until 2020. His duties, according to USMS’s and Mr. Dempsey’s evidence, included accounting for and keeping inventory of training division property, such as training weapons, and ensuring that the division’s motor vehicles received routine and required maintenance. On December 18, 2019, Mr. Dempsey acknowledged that he was being evaluated under a “performance work plan” (also referred to as a “performance plan”) during the period from October 1, 2019, to September 30, 2020. J.A. 671–72. The plan listed “Time Management” as one of the “critical elements” of his position. J.A. 676; see J.A. 674– 677. On April 30, 2020, Mr. Dempsey met with his direct supervisor, Chief Abra Lattany-Reed, and the then-Deputy Assistant Director of his division, Stephanie Creasy. Ms. Lattany-Reed and Ms. Creasy informed him, and he also received a written notice, that he was being placed on a “performance improvement plan” in accordance with 5 C.F.R. Part 432 for 30 calendar days due to unacceptable performance in the earlier-adopted performance work plan. Case: 22-1665 Document: 55 Page: 3 Filed: 03/05/2024

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He was also informed that he had been denied a scheduled within-grade pay increase due to his poor performance. The written notice emphasized the “Time Manage- ment” critical element from his performance work plan and expressed concern that Mr. Dempsey “continually fail[ed] to manage [his] time in a manner that ensure[d] timely completion of assignments.” J.A. 698. The notice provided six examples of Mr. Dempsey’s failures to manage his time, J.A. 698–702, and outlined both specific tasks to be com- pleted (e.g., “accomplish a complete review of the Training Division inventory for all division property”) and general standards to be met (e.g., “respond to emails and corre- spondence timely”) under the new performance improve- ment plan, J.A. 702. The notice also advised Mr. Dempsey that if, at the end of the 30-day period, his performance continued to be unacceptable, he could be subject to “reas- signment, reduction in grade or removal from the [f]ederal service.” J.A. 703. During the April 30 meeting, Mr. Dempsey and his su- pervisors agreed that he would make a plan to accomplish the tasks required of him during the performance-improve- ment period. Mr. Dempsey was advised that the 30-day period of the performance improvement plan would start immediately, i.e., on April 30. The next day, May 1, Mr. Dempsey met with Ms. Lattany-Reed and Ms. Creasy to discuss his work plan for the 30-day period, but Ms. Lat- tany-Reed and Ms. Creasy found his work plan to be inad- equate. Mr. Dempsey then proposed a new plan and began working on his assigned tasks, and he and Ms. Lattany- Reed continued to communicate by email over the perfor- mance-improvement period. On July 21, 2020, Mr. Dempsey received a notice of pro- posed removal under 5 U.S.C. § 4303 and 5 C.F.R. Part 432 for “[f]ailure of a [p]erformance [i]mprovement [p]lan,” which “concluded on June 1.” J.A. 719. The notice sets forth five examples of performance deficiencies during the Case: 22-1665 Document: 55 Page: 4 Filed: 03/05/2024

performance-improvement-plan period. Mr. Dempsey re- plied orally on August 31, 2020. On September 25, 2020, Mr. Dempsey was notified that the deciding official had considered the record and found his “performance deficien- cies” with respect to time management had been “substan- tiated” and that Mr. Dempsey would be removed effective the close of business that day. J.A. 818. In accordance with the collective bargaining agreement between the Union and USMS, which provides for griev- ance procedures as required by 5 U.S.C. § 7121, the Union filed a grievance challenging Mr. Dempsey’s removal. The Union and the USMS jointly selected an arbitrator via the Federal Mediation and Conciliation Service. The arbitra- tor held a series of virtual hearings in June through August 2021, hearing testimony from Mr. Dempsey, Ms. Lattany- Reed, Ms. Creasy, the deciding official, and a number of other USMS employees. The arbitrator issued a decision denying the Union’s grievance and affirming Mr. Dempsey’s removal, because USMS’s removal decision was supported by substantial ev- idence, as required by 5 U.S.C. §§ 7121(e) and 7701(c)(1)(A) and 5 C.F.R. § 1201.56(b)(1)(i). In particular, the arbitra- tor determined that substantial evidence existed of Mr. Dempsey’s poor performance before the performance-im- provement period, USMS’s notice to him of his performance issues, USMS’s provision of a reasonable opportunity to im- prove, and Mr. Dempsey’s continued poor performance. She also noted that, although USMS made an error in its proposed removal letter, by giving “May 20” as the day of a meeting, Mr. Dempsey “was not harmed by this error.” J.A. 10–11. The arbitrator’s decision issued on February 14, 2022. On April 8, 2022, within the 60 days allowed by 5 U.S.C. §§ 7121(f) and 7703(b)(1), the Union and Mr. Dempsey pe- titioned this court for review of the arbitrator’s decision. The parties then stipulated to the dismissal of the Union Case: 22-1665 Document: 55 Page: 5 Filed: 03/05/2024

DEMPSEY v. UNITED STATES MARSHALS SERVICE 5

as a party, see Fed. R. App. P. 27, leaving Mr. Dempsey the sole petitioner. We have jurisdiction under 5 U.S.C. §§ 7121(f) and 7703(b)(1) and 28 U.S.C. § 1295(a)(9). II When presented with an arbitral decision arising from a grievance procedure established under 5 U.S.C. § 7121 for a collective bargaining agreement, we review it “in the same manner and under the same conditions as if the mat- ter had been decided by the [Merit Systems Protection Board].” 5 U.S.C. § 7121(f); see AFGE Local 3599 v. Equal Employment Opportunity Commission, 920 F.3d 794, 796– 797 (Fed. Cir. 2019); Dixon v. Department of Transporta- tion, Federal Aviation Administration, 8 F.3d 798, 803 (Fed. Cir. 1993). Consequently, we will affirm the arbitra- tor’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 reg- ulation having been followed; or (3) unsupported by sub- stantial evidence.” 5 U.S.C. § 7703(c); see also Dixon, 8 F.3d at 803. Substantial evidence is “such relevant evi- dence as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Office of Personnel Management, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (cleaned up). “This court’s role is further circumscribed when re- viewing a performance-based action taken under chapter 43 because of the deference owed to each agency’s judgment regarding its employees’ performance in light of the agency’s assessment of its own personnel needs and stand- ards.” Harris v. Securities and Exchange Commission, 972 F.3d 1307, 1315 (Fed. Cir. 2020) (cleaned up). Chapter 43 authorizes the reduction in grade or re- moval of an employee for “unacceptable performance.” 5 U.S.C. § 4303(a). In order to properly remove or demote an employee under chapter 43, the agency must have (1) estab- lished a performance appraisal system approved by Case: 22-1665 Document: 55 Page: 6 Filed: 03/05/2024

the Office of Personnel Management, (2) communi- cated objective and reasonable written perfor- mance standards and critical elements of an employee’s position to her at the beginning of the appraisal period, (3) warned her of inadequacies in critical elements during the appraisal period, and (4) counseled and afforded her an opportunity for improvement after proper notice. Harris, 972 F.3d at 1316; see Lovshin v. Department of the Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc). An agency that has complied with the performance-ap- praisal requirements may “reduce in grade or remove an employee who receives a rating of ‘unacceptable’ with re- spect to even a single critical element.” Harris, 972 F.3d at 1316 (emphasis in original) (cleaned up); see 5 U.S.C. § 4301(3) (For purposes of chapter 43, subchapter I, under which this § 4303 removal falls, “‘unacceptable perfor- mance’ means performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position.”). The imple- menting regulations that govern chapter 43 removals de- fine a “critical element” as “a work assignment or responsibility of such importance that unacceptable perfor- mance on the element would result in a determination that an employee’s overall performance is unacceptable.” 5 C.F.R. § 430.203. Mr. Dempsey broadly argues that the arbitrator did not take due account of favorable evidence when she found the agency’s removal decision to be supported by substantial evidence. Mr. Dempsey does not challenge USMS’s “estab- lish[ment of] a performance appraisal system” or its com- munication of “objective and reasonable written performance standards and critical elements.” Harris, 972 F.3d at 1316; see Petitioner’s Br. at 59 (stating that “two” of the “four elements” required for a chapter 43 removal are “pertinent here,” and then referring to “warning” and Case: 22-1665 Document: 55 Page: 7 Filed: 03/05/2024

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“opportunity for improvement”). Mr. Dempsey’s argu- ments address the remaining three pieces of the chapter 43 inquiry: whether he was “warned of [his] inadequacies,” whether he was “counseled and afforded . . . an opportunity for improvement,” and whether his performance was in fact unacceptable with respect to a critical element. Harris, 972 F.3d at 1316. A Mr. Dempsey suggests that the arbitrator erred in find- ing that he was reasonably warned of his deficiencies, pointing to the fact that he did not receive a specific warn- ing that he was “in danger of failing” during the course of the performance-improvement period. Petitioner’s Br. at 10 (emphasis omitted). But we have stated that, for chap- ter 43 removals, no warning needs to be issued prior to a performance improvement plan, because the plan “notice itself often serves as the warning,” and there is no require- ment “that the warning come at any particular time.” Har- ris, 972 F.3d at 1316–17. Mr. Dempsey cites no authority suggesting that he was entitled to any additional warning after the notice of the performance improvement plan for the purposes of chapter 43. And he does not dispute that he received the performance-improvement-plan notice. Consequently, the arbitrator’s decision regarding USMS’s warning is supported by substantial evidence. B Mr. Dempsey points to evidence that he argues weighs against the arbitrator’s determination that he was coun- seled and afforded the opportunity to improve. First, he points to evidence that his workload during the perfor- mance-improvement period was too great for one person to manage. He also asserts that his 30-day performance-im- provement period was too short and that he received new tasks and deadlines days into the period. Finally, he as- serts that he did not receive enough support during the Case: 22-1665 Document: 55 Page: 8 Filed: 03/05/2024

performance-improvement period. These arguments, we conclude, do not support disturbing the arbitrator’s ruling. Mr. Dempsey first argues that the arbitrator ignored evidence that his workload was unreasonable, including testimony by others about the size of his workload and ev- idence that, for completion of one of the tasks he was as- signed, i.e., taking an inventory of all division property, 45 days would ordinarily be allowed. But Ms. Lattany-Reed and Ms. Creasy both testified—and the arbitrator noted— that Mr. Dempsey would have been given more time to complete the tasks if he had asked for it and that they com- municated such flexibility to Mr. Dempsey. And Mr. Dempsey’s performance-improvement-plan notice required that he provide notice if he would miss a deadline. Yet, as the arbitrator found, Mr. Dempsey never expressed con- cern about the shortness of the performance-improvement period, asked for more time, advised that he would miss a deadline, or communicated about other obstacles. 1 How- ever large his list of assigned tasks was, Mr. Dempsey does not seem to dispute that he could have communicated his concerns to his supervisors but never did. Evidence of the size of his workload does not overcome this fact. Mr. Dempsey also argues that his performance-im- provement period was in effect only 28 days, rather than the 30 to which he was entitled under the notice.

1 In challenging the finding that his performance was unacceptable, Mr. Dempsey argues that an email re- ceived from Ms. Lattany-Reed on May 11, 2020, meant that he no longer had to request more time if he was going to miss a deadline. This argument does not on its face suggest that Mr. Dempsey believed that he did not have to (and should not) communicate any concerns about the deadline or workload to his supervisors, and such a suggestion would be an unpersuasive reading of the language of Ms. Lattany-Reed’s email. Case: 22-1665 Document: 55 Page: 9 Filed: 03/05/2024

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Specifically, he argues that he was missing two days be- cause he received notice of the performance improvement plan in the afternoon and the period contained a federal holiday. Mr. Dempsey does not, however, cite to authority indicating that federal holidays are to be excluded from a performance-improvement period, which would be surpris- ing when weekends are counted, as Mr. Dempsey accepts in putting forth his 28-day alternative. Further, his per- formance-improvement-plan notice expressly specified that the period would last “30 calendar days.” J.A. 697. And, as USMS further notes, Mr. Dempsey’s performance- improvement period ended up lasting until June 1, 2020. Respondent’s Br. at 22 n.5 (citing J.A. 719). Thus, even not counting April 30 or June 1, Mr. Dempsey was afforded the 31 calendar days of May. Mr. Dempsey also asserts that, part way through the period, via an email on May 11, he was given new deadlines and tasks, which he had even less time to complete. The arbitrator reasonably found, however, based on testimony from Mr. Dempsey and Ms. Creasy, that the additional tasks and deadlines Mr. Dempsey alleges he received had previously been communicated to him. Mr. Dempsey con- ceded, for example, that the tasks and items identified in the May 11 email had been discussed at the May 1 meeting, though no specific deadlines had been provided. And, as discussed above, to the extent that Mr. Dempsey was con- cerned about newly set deadlines before the end of his per- formance-improvement period, the record is clear that he could have raised his concerns with his supervisors. Finally, Mr. Dempsey argues that Ms. Lattany-Reed did not meet or communicate with him regularly during the performance-improvement period and did not express her dissatisfaction with his work, and therefore did not counsel him as required. The arbitrator found that, despite Mr. Dempsey’s testimony about a lack of support, USMS “cred- ibly demonstrated it assisted Dempsey” through, among other things, the testimony of Ms. Lattany-Reed. J.A. 14. Case: 22-1665 Document: 55 Page: 10 Filed: 03/05/2024

Mr. Dempsey’s argument thus asks us to review the arbi- trator’s determinations about credibility of, and how to weigh, different testimony, something beyond our limited standard of review. See, e.g., Raney v. Federal Bureau of Prisons, 222 F.3d 927, 939 (Fed. Cir. 2000) (en banc) (“Credibility determinations are within the discretion of the arbitrator and are virtually unreviewable on appeal.”). Overall, substantial evidence supports the arbitrator’s conclusion that Mr. Dempsey was counseled and given an opportunity to improve before he was removed. C Mr. Dempsey challenges aspects of the examples of un- acceptable performance specified in his notice of proposed removal. To the extent that the notice gives these exam- ples as specifications of failure to complete certain tasks, he asserts that he did in fact complete those tasks. These arguments, too, are unpersuasive. Example 1A of the notice of proposed removal notes that Mr. Dempsey failed to complete scheduled mainte- nance on several vans by the deadline of May 12, even though he had previously represented that the repairs in question had already been scheduled and would be com- pleted by the deadline. J.A. 720. Mr. Dempsey does not seem to contest that at least certain repairs were not com- pleted by May 12. 2 Instead, Mr. Dempsey argues that he completed the overall task because the repairs listed in the notice, such as a broken seatbelt, were “repairs” and not “scheduled maintenance.” Petitioner’s Br. at 22–24. Mr. Dempsey also testified as to his belief that repairs were

2 USMS conceded that some vehicle work listed in the notice of proposed removal was completed on time, but the arbitrator found substantial evidence that two items of work were not completed on time. J.A. 11 & n.71. Mr. Dempsey appears not to dispute that finding. Case: 22-1665 Document: 55 Page: 11 Filed: 03/05/2024

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distinct from maintenance. The arbitrator, however, noted that USMS policy “clearly contemplate[d] repair work on a vehicle as part of maintenance. J.A. 11 (citing J.A. 1120). Mr. Dempsey does not argue or suggest that any miscon- ception on his part was based on communication from his supervisors or that he could not have sought clarification. Mr. Dempsey essentially asks us to reweigh his testi- mony and credit it over the arbitrator’s findings. We again decline to do so. See Raney, 222 F.3d at 939. And Mr. Dempsey’s arguments against the other examples simi- larly ask us to reweigh and reconsider his testimony re- garding his understanding, which diverged from that of his supervisors, of the tasks before him. Thus, these argu- ments are equally unavailing. Mr. Dempsey also argues that, based on Ms. Lattany- Reed’s email on May 11 (see supra n.1), he no longer needed to provide advance notice that he would miss a deadline. He argues that the examples in the notice of proposed re- moval all depended on his not having provided such notice. Aside from the fact that the email could reasonably be sub- ject to an interpretation different from Mr. Dempsey’s, the examples in the proposed removal notice consistently note that Mr. Dempsey both failed to provide notice and failed to meet the deadlines. Thus, his failure to provide notice, even if in good faith based on Ms. Lattany-Reed’s email, was not the sole basis for USMS’s finding of unacceptable performance. Finally, Mr. Dempsey argues that his errors during the performance-improvement period should have been bal- anced against his accomplishments. He cites no authority, however, that supports such a balancing of errors against accomplishments. Ultimately, there was ample record evidence that Mr. Dempsey failed to meet standards that were clearly set forth for him. We find that the arbitrator’s decision on the Case: 22-1665 Document: 55 Page: 12 Filed: 03/05/2024

unacceptable-performance issue to be supported by sub- stantial evidence. III We have considered Mr. Dempsey’s other arguments and find them unpersuasive. For the reasons stated above, substantial evidence supports the arbitrator’s affirmance of USMS’s removal of Mr. Dempsey. We affirm. The parties shall bear their own costs. AFFIRMED