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Barbara Exum v. Department of Homeland Security

October 20, 2011

BARBARA EXUM, PETITIONER,
v.
DEPARTMENT OF HOMELAND SECURITY, RESPONDENT.



Petition for review of an arbitrator's decision by John M. Donoghue.

Per curiam.

NOTE: This disposition is nonprecedential.

Before LINN, PROST, and REYNA, Circuit Judges.

Barbara Exum appeals from the October 7, 2010 arbitration award affirming her removal by the Department of Homeland Security from her position as an immigration services officer. Because the arbitrator's award was supported by substantial evidence, was not arbitrary and capricious, and was in accordance with the law, we affirm.

I

Ms. Exum worked as an immigration services officer ("ISO") at the Department of Homeland Security's U.S. Citizenship and Immigration Services office ("Agency"). In this capacity, she adjudicated applications of aliens seeking to become lawful permanent residents. In particular, she was responsible for performing research, conducting investigations, and rendering final decisions on applications. Federal regulations require that immigrations officers such as Ms. Exum interview the applicants. See 8 C.F.R. § 245.6. Applicants are instructed to bring certain documents with them to the interviews.

Ms. Exum's employment problems originated because she refused to conduct interviews of certain applicants who failed to bring proper documentation with them to the interviews (e.g., birth certificates, divorce decrees, etc.). On several occasions, Ms. Exum's supervisors instructed her to perform these interviews and obtain the missing documentation through a request for evidence ("RFE"), a procedural device that permits an ISO to obtain documentation outside the interview process. See 8 C.F.R. § 103.2(b)(8)(ii),(iii). Ms. Exum, however, refused to comply with these instructions, and, as a result, was terminated. The Agency's termination letter listed five specific instances where Ms. Exum disobeyed her supervisor's instructions, all relating to her refusals to conduct interviews.

After the first three instances of disobedience (referred to as "Specifications 1-3"), which all occurred in the fall of 2008, Ms. Exum was placed on a "performance improvement period." This process involved explaining to Ms. Exum in a letter why the conduct outlined in Specifications 1-3 was unacceptable. Ms. Exum refused to sign the letter, and she failed to attend any of the counseling sessions proposed in the letter.

A week after being placed on the performance improvement plan, Ms. Exum refused to interview an applicant who had not brought an original copy of his birth certificate to the interview. Noting that it was snowing and that the applicant lived over three hours away from the field office, the supervisor instructed Ms. Exum to conduct the interview and issue a RFE. Ms. Exum refused. This incident formed the basis for Specification 4. Regarding Specification 5, Ms. Exum once again refused to interview an applicant and issue a RFE.

The Agency issued a proposed termination letter to Ms. Exum on February 11, 2009. The Agency then terminated her employment on March 18, 2009 after an oral hearing. Ms. Exum challenged this decision before an arbitrator, but the arbitrator sustained the Agency's decision and denied her grievance. Ms. Exum appealed.

II

Ms. Exum's grievance is based upon removal, which is an adverse action under 5 U.S.C. § 7512(1). Under 5 U.S.C. § 7121(f), an arbitrator's decision regarding an adverse action listed in § 7512 is reviewed "in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board."

We have jurisdiction to review the Board's final decisions under 28 U.S.C. § 1295(a)(9). Our scope of review for a Board decision, however, is limited. We may only set aside such a decision if it was "(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 Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381 (Fed. Cir. 2004). "[T]he arbitrary and capricious standard is extremely narrow . . . and allows the Board wide latitude in fulfilling its obligation to review agency disciplinary actions." U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7 (2001). "It is not for the Federal Circuit to substitute its own judgment for that of the Board." Id. at 7.

To take an adverse action against an employee, an agency must (1) "establish by preponderant evidence that the charged conduct occurred," (2) "show a nexus between that conduct and the efficiency of the service," and (3) "demonstrate that the penalty imposed was reasonable in light of the relevant factors set forth in Douglas v. Veterans Admin., 5 MSPB 313, 5 M.S.P.R. 280, 307-08 (1981)." Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009). Also, there is no requirement that an arbitrator explicitly mention these adverse action elements in his decision. See O'Neill v. Dep't of Hous. and Urban Dev., 220 F.3d 1354, 1364 (Fed. Cir. 2000) (finding of nexus between charged conduct and efficiency of service need not be explicit); Girani v. Fed. Aviation Admin., 924 F.2d 237, 242 n.10 (Fed. Cir. 1991) ("an arbitrator has no duty to ...


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