Purifoy v. Department of Veterans Affairs

United States Court of Appeals

for the Federal Circuit

______________________

LAMONTE L. PURIFOY,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________

2015-3196

______________________

Petition for review of the Merit Systems Protection

Board in No. CH-0752-14-0185-I-1.

______________________

Decided: October 4, 2016

______________________

PHILIP CHARLES STERNHELL, Quinn Emanuel Ur-

quhart & Sullivan, LLP, Washington, DC, argued for

petitioner.

ALEXIS J. ECHOLS, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent. Also represented

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT

D. AUSTIN.

______________________

2 PURIFOY v. DVA

Before O’MALLEY, LINN, and STOLL, Circuit Judges.

STOLL, Circuit Judge.

Lamonte L. Purifoy appeals a final order by the Merit

Systems Protection Board affirming the Agency’s decision

to remove him from his position over two charges of

extended unauthorized absence. The Board’s order re-

versed an administrative judge’s reinstatement of

Mr. Purifoy following a 40-day suspension. Because the

Board’s analysis improperly omitted relevant Douglas

factors and discarded the AJ’s credibility determinations

without an adequate rationale, we vacate the Board’s

judgment and remand for further proceedings consistent

with this opinion.

BACKGROUND

In 2013, Mr. Purifoy missed two days of work as a

housekeeping aid in a VA medical center in Milwaukee,

Wisconsin without authorization. Later that same week,

he sought treatment for substance abuse from the VA

facility where he worked. He was admitted and trans-

ferred to Madison, Wisconsin for treatment. While Mr.

Purifoy verbally informed his VA supervisor that he

would miss work, he did not fill out leave paperwork. Nor

did he inform his parole officer that he would miss upcom-

ing supervision visits. After Mr. Purifoy missed these

visits, his parole officer issued a warrant for his arrest.

Mr. Purifoy contacted his parole officer by phone and

explained that he had been admitted to a VA medical

center for substance abuse treatment, but she refused to

withdraw the warrant and told Mr. Purifoy to report to

Milwaukee Secure Detention Facility (“MSDF”) of the

Wisconsin Department of Corrections.

Mr. Purifoy agreed to enter a substance abuse treat-

ment at MSDF as an alternative to revocation of his

parole. He entered the program, but was terminated after

an altercation with another inmate. After his involve-

PURIFOY v. DVA 3

ment in the substance abuse treatment program ended,

he remained as an inmate at MSDF for 38 more days.

Following his release on November 4, 2013, Mr. Purifoy

returned to work. Shortly afterwards, the Agency re-

moved him from employment as a penalty for his unex-

cused absences.

I.

The Agency first sent Mr. Purifoy a notice of proposed

removal, drafted on July 29, 2013, while he was still at

MSDF. The Agency charged him with one count of ex-

tended unauthorized absence beginning April 4, 2013.

Mr. Purifoy responded, and the Agency rescinded the first

notice letter. It then issued a second notice on October 8,

2013, with two counts of unauthorized absence. The first

charge concerned Mr. Purifoy’s absence from April 4 to 5,

2013, and the second charge concerned his absence due to

his incarceration at MSDF, starting on May 7, 2013, and

continuing through October 8, 2013.

On October 29, 2013, the Agency issued a decision

removing Mr. Purifoy from his position effective Novem-

ber 15, 2013. Mr. Purifoy appealed the removal decision

to the Merit Systems Protection Board.

II.

An AJ held an in-person hearing to review Mr. Puri-

foy’s case. See Purifoy v. Dep’t of Veterans Affairs,

No. CH-0752-14-0185-I-1, 2014 WL 6387880 (M.S.P.B.

Nov. 13, 2014). Over the course of the day-long hearing,

Mr. Purifoy not only testified, but also litigated the case

pro se, cross-examining the government’s four witnesses.

The AJ sustained the Agency’s first charge against

Mr. Purifoy—his failure to report to work on April 4 and

5, 2013—in full. But she sustained the second charge—

his absence while at MSDF—only in part. J.A. 14.

On the second charge—Mr. Purifoy’s six-month ab-

sence from May 7, 2013 until his return to work on No-

4 PURIFOY v. DVA

vember 7, 2013—the AJ found that the Agency had failed

to prove that Mr. Purifoy’s absences while at MSDF prior

to termination from the treatment program were unex-

cused. The AJ explained that Mr. Purifoy had “signed an

agreement consenting to enter a substance abuse treat-

ment program at MSDF as an alternative to revocation of

his parole.” J.A. 16. She found that “the primary purpose

of his stay at MSDF was to undergo substance abuse

treatment.” J.A. 17. Moreover, the AJ found that Mr.

Purifoy had notified his supervisor at the VA on several

occasions that he would be absent for treatment. After

his first absence on April 4 and 5, Mr. Purifoy called his

third level supervisor to inform him that he would be in

Madison, Wisconsin for treatment, and that he would be

absent from work. Id. His supervisor replied with verbal

approval of his leave request. As the AJ explained, the

supervisor “told the appellant to ‘go take care of that,’ but

that the appellant ‘had something’ coming for the two

days he did not call in to report he would be absent.” J.A.

12. Then, when Mr. Purifoy entered MSDF, he again told

one of his supervisors that he would be absent. His

supervisor testified that he responded, “I’m familiar with

that. Take care of yourself. You need to take care of

yourself first, . . . but you also need to see your supervisor

and fill out the proper paperwork.” J.A. 727. Mr. Purifoy

did not submit leave paperwork with his employer. Even

so, the AJ found that the Agency failed to prove that

Mr. Purifoy’s absences while seeking treatment at MSDF

were unexcused. In turn, the AJ found that the Agency’s

charge of unexcused absence for six months was not

wholly supported by substantial evidence.

The AJ also found that the Agency successfully proved

part of its second charge: the 38 days after Mr. Purifoy’s

treatment program was terminated. J.A. 14–18. The AJ

explained that, following an altercation with another

inmate, MSDF terminated Mr. Purifoy’s treatment and

sentenced him to a disciplinary separation. J.A. 12.

PURIFOY v. DVA 5

Mr. Purifoy remained at MSDF for 38 days after termina-

tion. J.A. 17. As such, the AJ found that the Agency had

sustained its charge of unexcused absence for those 38

days.

The AJ next analyzed the Agency’s penalty in light of

the mitigation factors set out in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 307–08 (1981), to deter-

mine if Mr. Purifoy’s removal was reasonable. The AJ

determined the penalty to be unreasonable and reduced it

to a 40-day suspension.

The Agency had argued that the severity of Mr. Puri-

foy’s conduct and his past disciplinary record justified

removal, but the AJ found that, to the contrary, both of

those factors mitigated in favor of Mr. Purifoy. The AJ

explained that Mr. Purifoy’s absence “was less severe

than the six months absence the Agency had originally

charged,” and that this was his first disciplinary offense.

J.A. 19.

The AJ examined the remaining Douglas factors and

found that each weighed in favor of mitigation. The AJ

found that Mr. Purifoy’s duties as a housekeeping aid did

not involve supervision or fiduciary duties, or place him in

a prominent public role. She also noted that his work

performance was rated as excellent and worthy of a

performance award. The AJ further found that appellant

was not on clear notice that his absence would result in

severe discipline. The AJ additionally found that Mr.

Purifoy’s potential for rehabilitation was high, as he went

to great lengths to notify his Agency of his whereabouts

and, since his release from MSDF, had continued to

participate in treatment for substance abuse without

relapse. Finally, the AJ commented that “[i]t is ironic

that the appellant’s enrollment, with the agency’s bless-

ing, in a substance abuse program conducted by the

agency ultimately led to his removal by the agency.”

J.A. 20. The AJ thus determined that, in light of the

6 PURIFOY v. DVA

reduced charge and the mitigating factors concerning

Mr. Purifoy’s absence, the maximum reasonable penalty

in light of the sustained charges was a 40-day suspension.

J.A. 21.

III.

The government petitioned the Board for review. The

Board reversed the AJ and reinstated the Agency’s origi-

nal penalty of removal. Purifoy v. Dep’t of Veterans Af-

fairs, No. CH-0752-14-0185-I-1, 2015 WL 3630677

(M.S.P.B. June 11, 2015). The Board first reviewed the

two charges the Agency brought against Mr. Purifoy and

left the AJ’s judgment undisturbed, even though it did not

affirmatively agree with the AJ’s reduction of the second

charge down from six months to 38 days. It explained

that “the penalty of removal was appropriate even if the

second charge was proven only in part.” Id. at ¶ 6.

The Board then analyzed some, but not all, of the

Douglas factors. It found that, contrary to the findings of

the AJ, most of the factors weighed against Mr. Purifoy.

It disagreed with the AJ about the seriousness of the

charge, finding that the 40-day absence “remain[ed] a

serious charge,” even though the charge was reduced from

the original charge brought by the Agency. Id. at ¶ 8. It

also found that Mr. Purifoy’s absence weighed against

mitigation, even though he lacked a disciplinary record.

It reversed the AJ’s finding that Mr. Purifoy was not on

clear notice that his continued absence from work would

result in severe discipline, finding instead that

Mr. Purifoy’s third-level supervisor sufficiently notified

him that his absence from work would result in severe

discipline. And it found that “the agency’s chosen penal-

ty, which is entitled to deference, is also consistent with

the table of penalties.” Id. at ¶ 10. The Board also con-

sidered Mr. Purifoy’s job performance and “s[aw] no

reason to disturb the administrative judge’s findings

concerning [Mr. Purifoy’s] brief, but good, work history.”

PURIFOY v. DVA 7

Id. at ¶ 11. The Board further noted that Mr. Purifoy’s

seeking treatment for a disabling condition had been

considered to be a mitigating factor. But the Board

agreed with the Agency that “this factor was not signifi-

cantly mitigating as the appellant was not fully pursuing

rehabilitation for his problem.” Id. at ¶ 11. The Board

thus found that the Agency’s penalty of removal was

reasonable and reversed the AJ’s decision.

Mr. Purifoy appealed to this court. We have jurisdic-

tion under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We review a final decision of the Board to determine

whether it is “(1) arbitrary, capricious, an abuse of discre-

tion, 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); Malloy v. U.S. Postal Serv.,

578 F.3d 1351, 1356 (Fed. Cir. 2009).

Agencies taking an adverse action against an employ-

ee bear the burden to establish that an employee’s

charged conduct occurred, that it affected the efficiency of

the service, and that “the penalty imposed was reasonable

in light of the relevant factors set forth in Douglas.”

Malloy, 578 F.3d at 1356 (citing 5 M.S.P.R. at 307–08).

The Douglas factors are a non-exhaustive set of consider-

ations that the Board must independently assess when

relevant to determine whether a penalty was reasonable.

Id.

Neither party challenges the sustained charges on

appeal. Mr. Purifoy argues, however, that the Board’s

treatment of the mitigation analysis under the Douglas

factors was inadequate. We agree. Even though the

Board was required to consider each relevant Douglas

factor, it failed to properly consider two factors relevant

here. Specifically, the Board (1) did not consider the

8 PURIFOY v. DVA

adequacy and effectiveness of alternative sanctions to

deter similar misconduct in the future, and the Board

(2) erred in its analysis of the potential for the employee’s

rehabilitation. See Douglas, 5 M.S.P.R. at 305–06.

Turning to the alternative sanctions factor, the Board

did not address this factor in the context of the lesser

sustained 40-day absence. It should have done so. The

Board is tasked with independently considering “the

adequacy and effectiveness of alternative sanctions to

deter such conduct in the future by the employee or

others.” Id. at 306. While the Board noted that the

Agency’s penalty fell within the range of penalties provid-

ed in the table of penalties (i.e., 14-day suspension to

removal), it did not discuss the adequacy of lesser sanc-

tions for the 40-day absence. Although we have repeated-

ly recognized that the Board need not consider all the

Douglas factors, it must consider the relevant ones. Nagel

v. Dep’t of Health & Human Servs., 707 F.2d 1384, 1386–

87 (Fed. Cir. 1983). The factor is plainly relevant here, as

the AJ had determined that the Agency’s removal of

Mr. Purifoy was too severe, and that a 40-day suspension

would adequately punish his absence and deter similar

conduct in the future. Additionally, the Agency chose the

penalty of removal based on charges of a six-month ab-

sence. After the AJ reduced the six-month charge to 40

days, the Board should have evaluated this Douglas factor

before sustaining the Agency’s action. The Board thus

erred when it did not consider whether lesser sanctions

would have been adequate in Mr. Purifoy’s case.

Turning to the rehabilitation factor, we determine

that the Board erred by substituting its own finding for

the AJ’s opposite one without adequate rationale. The AJ

had found that Mr. Purifoy’s potential for rehabilitation

was high:

The record further reflects the fact that [Mr. Puri-

foy] cares about his job and has a good potential

PURIFOY v. DVA 9

for rehabilitation. He went to great lengths and

took all available measures to notify his agency of

his whereabouts. And though he did not complete

the program at MSDF, he has continued to partic-

ipate in treatment and has not suffered a relapse.

J.A. 20. The AJ made these findings in view of

Mr. Purifoy’s live testimony and his extensive pro se

cross-examination of the government’s witnesses. The AJ

heard Mr. Purifoy testify under oath that he attends

Alcoholics Anonymous meetings three days a week and

that he has not suffered relapse since his removal.

J.A. 816. Not only did the AJ observe Mr. Purifoy on the

stand, but also the AJ had ample opportunity to observe

Mr. Purifoy and his condition when he cross-examined

witnesses, including his parole officer, his supervisor, and

the Medical Center Director at the VA Medical Center in

Milwaukee, Wisconsin.

Although the Board noted that it “s[aw] no reason to

disturb the administrative judge’s findings concerning the

appellant’s brief, but good, work history,” it nevertheless

reversed the AJ’s ultimate finding on Mr. Purifoy’s poten-

tial for rehabilitation. The Board found that this factor

weighed against mitigation because, in the Board’s view

of the paper record, Mr. Purifoy was “not fully pursuing

rehabilitation for his problem.” Purifoy, 2015 WL

3630677, ¶ 11. But this bare conclusion gives insufficient

consideration of, and deference to, the AJ’s findings.

“The MSPB must afford special deference to the pre-

siding official’s findings respecting credibility where the

presiding official relies expressly or by necessary implica-

tion on the demeanor of the witnesses.” Jackson v. Veter-

ans Admin., 768 F.2d 1325, 1331 (Fed. Cir. 1985). As we

recognized in Haebe v. Department of Justice, “the MSPB

is not free to overturn an administrative judge’s demean-

or-based credibility findings merely because it disagrees

with those findings.” 288 F.3d 1288, 1299 (Fed. Cir.

10 PURIFOY v. DVA

2002). This requirement “derived from the substantial

evidence standard expressed by the Supreme Court in

Universal Camera v. National Labor Relations Board,” Id.

(citing 340 U.S. 474, 487–88 (1951)), where the Court

recognized that “evidence supporting a conclusion may be

less substantial when an impartial, experienced [adminis-

trative judge] who has observed the witnesses and lived

with the case has drawn conclusions different from the

Board’s.” Universal Camera, 340 U.S. at 496.

The government contends that this rule does not ap-

ply here because nothing in the AJ’s opinion suggests that

her credibility determinations were based on demeanor.

But our case law requires deference not only when an AJ’s

credibility determinations explicitly rely on demeanor but

also when they do so “by necessary implication.” Jackson,

768 F.2d at 1331. Even if demeanor is not explicitly

discussed, assessing a witness’s credibility involves con-

sideration of various factors, including a witness’s de-

meanor. 1

The AJ’s findings about Mr. Purifoy’s propensity for

rehabilitation are necessarily intertwined with issues of

credibility and an analysis of his demeanor at trial, and

they deserved deference from the Board. See Haebe, 288

F.3d at 1299. The AJ necessarily made demeanor-based

credibility findings in assessing, for example, the credibil-

ity of Mr. Purifoy’s testimony that he attends AA meet-

ings three times per week and has been sober for one year

and five months, from the time of his first two-day ab-

1 For example, model civil jury instructions list de-

meanor as one of many factors for a jury to consider in

determining the credibility of witnesses. E.g. Sixth

Circuit Pattern Jury Inst. 1.07 (instructing a jury to: “Ask

yourself how the witness acted while testifying. Did the

witness appear honest? Or did the witness appear to be

lying?”).

PURIFOY v. DVA 11

sence through the time of his hearing. Indeed, the AJ’s

findings that Mr. Purifoy “cares about his job and has a

good potential for rehabilitation,” and that “he has con-

tinued to participate in treatment and has not suffered a

relapse,” J.A. 20, are findings based, at least in part, on

Mr. Purifoy’s credibility and demeanor as both a witness

and an advocate at the hearing. The Board must afford

these findings “special deference.” By dismissing the AJ’s

findings without explanation, the Board failed to afford

these findings the “special deference” required by law.

Jackson, 768 F.2d at 1331.

Mr. Purifoy also challenges the Board’s analysis with

respect to two other Douglas factors: 1) the nature and

seriousness of Mr. Purifoy’s offense, and 2) the clarity

with which Mr. Purifoy was properly on notice of any

rules he violated or warned about the conduct in question.

We see no legal error in the Board’s analysis of these

factors. Nor do we find the Board’s conclusion on these

factors unsupported by substantial evidence. Neverthe-

less, as “[s]election of an appropriate penalty

must . . . involve a responsible balancing of the relevant

factors in the individual case,” we encourage the Board to

revisit its analysis of these factors alongside all other

relevant Douglas factors on remand. See Douglas,

5 M.S.P.R. at 306.

CONCLUSION

Accordingly, we vacate the decision of the Board and

remand for the Board to consider Mr. Purifoy’s case in

light of the relevant Douglas factors, consistent with this

opinion.

VACATED AND REMANDED