[00:00:32] Speaker 03:
Our final case this morning is number 15-32-17, Davis v. Navy.

[00:01:09] Speaker 03:
Mr. Tinkle, is that the way to pronounce it?

[00:01:17] Speaker 01:
Yes.

[00:01:17] Speaker 01:
Thank you, Your Honor.

[00:01:18] Speaker 01:
May it please the Court, Marshal Tinkle, for the appellant, Keith Davis.

[00:01:23] Speaker 01:
This appeal examines the maximum reasonable penalty for a single instance of displeasing conduct.

[00:01:31] Speaker 01:
If this standard maximum reasonable penalty is to have any meaningful oversight

[00:01:39] Speaker 01:
This court should conclude that a maximum reasonable penalty in this instance has got to be something less than the ultimate sanction of removal.

[00:01:51] Speaker 01:
What was the offense?

[00:01:54] Speaker 01:
Keith Davis was assigned to the inspection booth at the shipyard's commercial vehicle inspection station known as SEVIS.

[00:02:05] Speaker 01:
SEVIS booth is on the left side

[00:02:07] Speaker 01:
of the entrance to the Portsmouth Naval Shipyard.

[00:02:10] Speaker 01:
The police officer manning the booth is responsible for monitoring every person, every vehicle that enters the shipyard.

[00:02:20] Speaker 01:
For obvious reasons, an officer has to be there at all times.

[00:02:24] Speaker 01:
8.30 a.m.

[00:02:28] Speaker 01:
on July 7, 2011, Officer Davis is

[00:02:34] Speaker 01:
dealing with a steady stream of vehicles.

[00:02:38] Speaker 01:
It's probably the busiest time of the day.

[00:02:40] Speaker 01:
And suddenly, Captain James Beale comes over to see this from another part of the shipyard and... Council, let me ask you a question.

[00:02:52] Speaker 02:
I'm going to move you off the facts a little bit, back up to the decision of the board.

[00:02:57] Speaker 02:
The board took under consideration those four events that happened between October 18, 2010 and May 24, 2011.

[00:03:07] Speaker 02:
And those are incidents.

[00:03:08] Speaker 02:
It doesn't appear that the administrative law judge took into consideration or said that.

[00:03:16] Speaker 02:
Can you state whether it was appropriate for the board to consider those four incidents?

[00:03:22] Speaker 01:
By the four incidents, you mean the other suspensions?

[00:03:26] Speaker 02:
The other suspensions don't appear to form part of the basis for the charges or the specifications.

[00:03:36] Speaker 01:
To the extent that, I mean, I think that in the removal action, it did say that it was taking into account the suspensions.

[00:03:47] Speaker 01:
And the suspensions were considered by both the administrative judge and the board as a whole.

[00:03:57] Speaker 01:
But anything else that to the extent that they want beyond that, then that wouldn't have been appropriate.

[00:04:04] Speaker 01:
Well, you don't object to considering the prior suspensions as part of the Douglas factors, right?

[00:04:08] Speaker 01:
No, no, that's factor three.

[00:04:10] Speaker 01:
We concede that that's a factor to be considered.

[00:04:14] Speaker 01:
And in our view, that's the only one factor of the 12 factors that goes in the agency's favor.

[00:04:27] Speaker 01:
to get back to just exactly what happened here.

[00:04:32] Speaker 01:
Captain Beale comes over and he asks, he doesn't order, but he asks that Officer Davis go to the back room in the little SEVIS building that's on the other side of the gate.

[00:04:47] Speaker 01:
He didn't say why, he didn't say for how long, he didn't say what this was all about.

[00:04:55] Speaker 01:
So Officer Davis's first reaction was, who's going to relieve me?

[00:05:00] Speaker 01:
This shouldn't have been a big deal.

[00:05:02] Speaker 01:
All Beale had to say was, I'll get so-and-so to cover the booth.

[00:05:07] Speaker 01:
But Beale didn't answer.

[00:05:08] Speaker 01:
He just repeated his request.

[00:05:10] Speaker 01:
Again, some requests not in order.

[00:05:13] Speaker 01:
So Officer Davis asked again, because if he knew anything from working at the shipyard since January of 2006,

[00:05:22] Speaker 01:
It was that you can't leave your Sebus post without being properly relieved.

[00:05:30] Speaker 01:
Bill still in answer, but finally he just ordered him to go to the back room.

[00:05:36] Speaker 01:
And without any further hesitation, Officer Davis went to the back room and he complied.

[00:05:43] Speaker 01:
That's it.

[00:05:44] Speaker 01:
That's the full extent of the conduct that the Navy claims was a fireable offense.

[00:05:52] Speaker 01:
Even if

[00:05:52] Speaker 01:
he had outright refused to obey a proper order, which he didn't.

[00:05:58] Speaker 01:
And even if Beale had been his supervisor at the time, which he wasn't, the worst penalty that he could have received, according to the shipyard's own table of penalties, would have been a five-day suspension.

[00:06:11] Speaker 00:
That would be for a first offense, I think.

[00:06:13] Speaker 01:
For a first offense.

[00:06:14] Speaker 01:
And this was his first offense.

[00:06:16] Speaker 00:
Well, it is, but it wasn't his first.

[00:06:18] Speaker 00:
offense of this precise nature perhaps, but not his first offense of the general type of misconduct that was concerning the Navy, right?

[00:06:31] Speaker 01:
Well, I'm not sure what you mean by general type of conduct.

[00:06:34] Speaker 01:
This was the first time he had ever been accused of either not complying with a request or an order.

[00:06:43] Speaker 01:
There wasn't even anything in the suspension that

[00:06:48] Speaker 01:
had anything to do with being insubordinate of being?

[00:06:53] Speaker 00:
Inappropriate conduct, I think, was the subject matter of the problem.

[00:06:56] Speaker 01:
The other ones had to do with customer relations before he got his customer training.

[00:07:01] Speaker 00:
And disrespectful comments was part of it, I guess, part of the specifications?

[00:07:10] Speaker 01:
Disrespectful comments to, well, we have to distinguish

[00:07:17] Speaker 01:
What happened was that the Navy saw fit to say that they were moving him for five reasons.

[00:07:27] Speaker 01:
And four of them were fairly serious instances of not complying with orders, not complying with senior officers.

[00:07:39] Speaker 01:
And then they tacked on this, in our view, pretty trivial instance at the end.

[00:07:47] Speaker 01:
But when it came time for proof, they couldn't prove any of those.

[00:07:52] Speaker 01:
The administrative judge decided and the board decided that they hadn't proven any of those except for the last one.

[00:08:01] Speaker 01:
And those were the ones where it had to do with being disrespectful, discourteous, except he was reprimanded in the past for

[00:08:14] Speaker 01:
supposedly being discourteous to customers.

[00:08:18] Speaker 01:
But that's quite different.

[00:08:19] Speaker 01:
That really is a separate category from not complying with a request or an order from a supervisor or a senior officer.

[00:08:30] Speaker 03:
Do we have the table penalties in the appendix here?

[00:08:33] Speaker 01:
Yes.

[00:08:33] Speaker 03:
Where is it?

[00:08:34] Speaker 01:
That's on, I think it's 8106.

[00:08:46] Speaker 01:
Yes, 111 through 114.

[00:08:52] Speaker 01:
And that's not all of it.

[00:08:56] Speaker 01:
That's the relevant provisions.

[00:09:01] Speaker 01:
And the one that we're looking at is on page 4 of the table.

[00:09:07] Speaker 01:
It's 112 in the appendix.

[00:09:11] Speaker 01:
deliberate refusal to carry out any proper order from any supervisor having responsibility for the work of the employee.

[00:09:21] Speaker 01:
And the first offense of that is reprimand to five-day suspension.

[00:09:29] Speaker 03:
And this court has said that... So your view of this table is the only way you can increase the penalty for a second offense is if it's exactly the same kind of offense?

[00:09:38] Speaker 01:
No, I'm not saying that, Your Honor, because

[00:09:43] Speaker 01:
This isn't, I think that the Navy does have leeway in enforcing this.

[00:09:56] Speaker 01:
But even if you consider the other suspensions and you take them for what they are, that added to questioning, making a legitimate inquiry

[00:10:13] Speaker 01:
on a request.

[00:10:14] Speaker 03:
Well, I'm just sticking with the table of penalties here.

[00:10:17] Speaker 03:
If you make that concession, then this table says for a third offense, removable.

[00:10:23] Speaker 03:
Right, but this wasn't a third offense.

[00:10:26] Speaker 01:
This court has said before that when you're looking at the table... Why isn't it a third offense?

[00:10:33] Speaker 01:
It's a fifth offense, isn't it?

[00:10:35] Speaker 01:
No, because it's something that's completely different.

[00:10:38] Speaker 01:
It's unrelated.

[00:10:39] Speaker 01:
And in considering the table of penalties, you have to look at whether something is a first offense or a second offense for that particular penalty.

[00:10:50] Speaker 02:
It may not be related to the charges or the specifications under the charges, but there's still prior offenses, correct?

[00:10:58] Speaker 01:
There were prior things for which he received penalties.

[00:11:09] Speaker 01:
intent was that you should know what it is you are being charged to do or not to do.

[00:11:19] Speaker 01:
And when you are being penalized for something, it makes a difference whether you've been penalized for that particular offense before or not.

[00:11:33] Speaker 01:
has to do with whether you're on notice.

[00:11:35] Speaker 02:
The question here is whether Mr. Davis actually, if we view it, whether he was guilty or not of that particular specification.

[00:11:49] Speaker 02:
We're looking at whether the LLJ's mitigation

[00:11:55] Speaker 02:
penalty was correct.

[00:11:58] Speaker 02:
Or whether the board's decision that it was incorrect, not to mitigate.

[00:12:04] Speaker 02:
So that really takes the whole case out of that specific specification.

[00:12:11] Speaker 02:
And now the board is free to consider prior conduct or prior offenses.

[00:12:18] Speaker 01:
It's free to use the Douglas Factors to consider as one factor

[00:12:23] Speaker 01:
whether there have been prior disciplinary actions, which they did.

[00:12:30] Speaker 02:
So on that point, and this is my first question to you, why was the board wrong in considering those other factors or how are we to review that particular decision of the board under our standard of review?

[00:12:45] Speaker 01:
You should consider whether they considered the relevant Douglas Factors or whether they only considered a couple of factors

[00:12:53] Speaker 01:
like the prior suspensions, as opposed to considering what is in the table of penalties, what the seriousness of the offense, which really should be the most important consideration, whether there was a possibility of rehabilitation.

[00:13:15] Speaker 01:
And they didn't really consider any of these except in reference to the suspensions.

[00:13:24] Speaker 01:
So they did make it arbitrary.

[00:13:28] Speaker 00:
They did comment on rehabilitation, I believe, didn't they, if I recall correctly?

[00:13:33] Speaker 00:
But only the coding that somebody that had four prior suspensions in the previous seven months was not looking like a real good candidate for rehabilitation.

[00:13:43] Speaker 01:
But that's only because they considered it as part of the, that really is the suspension part.

[00:13:49] Speaker 01:
They sort of doubled down on that.

[00:13:51] Speaker 01:
by saying, well, we don't think that you're a good candidate for rehabilitation just because of these suspensions, ignoring all the other circumstances.

[00:13:59] Speaker 01:
The fact that he didn't have any other problems with customer relations after he got his training that he was supposed to get a year before.

[00:14:09] Speaker 01:
The fact that he'd had this history of having good reviews, being told that he was a team player, that he had good

[00:14:21] Speaker 01:
that he was polite, that he was professional.

[00:14:25] Speaker 01:
They didn't consider any of that.

[00:14:27] Speaker 01:
It's good certainty.

[00:14:27] Speaker 03:
Well, what seems to have happened here, if you look at page 251, where the AJ says, well, the appellant does have four prior disciplinary actions.

[00:14:37] Speaker 03:
This is the first one issued for Feather to follow a request.

[00:14:40] Speaker 03:
And then she seems to

[00:14:43] Speaker 03:
put the four prior fences aside on that ground.

[00:14:48] Speaker 03:
And as I read the board's decision, they're saying, no, no, you can't put it aside just because they weren't involving a failure to follow a request.

[00:14:58] Speaker 03:
They have to be considered.

[00:14:59] Speaker 03:
That's the difference between the board and the AJ, right?

[00:15:02] Speaker 01:
Well, the way I read it is that the AJ did certainly consider this prior suspension.

[00:15:11] Speaker 01:
She gave it.

[00:15:12] Speaker 01:
a lot of weight, maybe even too much weight, but when it came time to look at... Well, she didn't give it any weight in regard to rehabilitation.

[00:15:24] Speaker 03:
She said, thus I find the training that the repellent has the potential for it to be rehabilitated, because she's putting aside the four prior offenses on the ground that they didn't follow a request, right?

[00:15:39] Speaker 01:
I think she considered that along with all the other circumstances that I just mentioned that militate in favor of rehabilitation.

[00:15:50] Speaker 01:
And remember, it's the agency's burden to prove that, and the agency hadn't proved it.

[00:15:58] Speaker 01:
It comes down to one instance of not

[00:16:07] Speaker 01:
followed it.

[00:16:08] Speaker 01:
He immediately obeyed an order.

[00:16:12] Speaker 01:
Before that, he questioned it.

[00:16:14] Speaker 01:
And if you're going to have a rule that you can't question anything, I just don't think that that's how the federal government works.

[00:16:26] Speaker 01:
Okay, we're out of time.

[00:16:27] Speaker 03:
We'll give you two minutes for a while.

[00:16:29] Speaker 03:
Okay, thank you.

[00:16:34] Speaker 03:
Ms.

[00:16:34] Speaker 03:
Rose?

[00:16:59] Speaker 04:
May I please the court?

[00:17:00] Speaker 04:
I'd like to start today by also discussing the penalty.

[00:17:05] Speaker 04:
Removal was the maximum reasonable penalty for the sustained misconduct in this case.

[00:17:11] Speaker 04:
Mr. Davis's arguments in this matter mirror arguments that were made by a petitioner in the Villela decision.

[00:17:18] Speaker 04:
And the court's decision in that case really provides guidance for this case.

[00:17:23] Speaker 04:
In that case, the petitioner also sought to have the court look at his

[00:17:29] Speaker 04:
sustained misconduct, which he maintained was fairly not serious in a vacuum.

[00:17:34] Speaker 04:
There was four hours of AWOL.

[00:17:36] Speaker 04:
The petitioner in Vila went to work at the beginning of the day, went to lunch and didn't return.

[00:17:41] Speaker 04:
He said, this is, removal is far too serious for this.

[00:17:44] Speaker 04:
But the court said that whether or not the penalty of removal was too, excuse me,

[00:17:58] Speaker 04:
Whether it was too severe for the sustained misconduct alone was irrelevant given the prior misconduct.

[00:18:04] Speaker 04:
Here we have four prior suspensions.

[00:18:06] Speaker 04:
The prior discipline was progressive, and it was recent.

[00:18:11] Speaker 04:
This was his fifth disciplinary action within the period of one year.

[00:18:15] Speaker 04:
In Viela, the petitioner also made the argument that the agency should be limited to the first defense column, something that the court said would produce an absurd result wherein

[00:18:29] Speaker 04:
an employee could commit each offense once without ever being subject to removal.

[00:18:36] Speaker 04:
Because the board's decision considered the devil's factors and is based on substantial evidence, we would argue that the removal should be sustained.

[00:18:47] Speaker 04:
In addition, we also state that the board's determination that petitioner had failed to

[00:18:57] Speaker 04:
prove his affirmative defense of whistleblower reprisal is supported by substantial evidence.

[00:19:01] Speaker 00:
Now, you had submitted as a 28-J letter the Diggs case, I think, which you submitted would deprive this Court of jurisdiction over the EEO claim.

[00:19:13] Speaker 00:
Is it your view that the EEO claim having been raised before this Court at all deprives the Court of jurisdiction or that it is appropriate for us simply not to consider the EEO claim?

[00:19:26] Speaker 04:
Given that Mr. Davis stated in his statement regarding discrimination that he abandoned his claims of discrimination, we believe that the court could consider the removal and whistle-blower activity, and essentially, it would be as if the EEO activity was not raised.

[00:19:48] Speaker 04:
If, however, the court were to determine that those claims had not been abandoned, then the entire case should be dismissed from lack of jurisdiction.

[00:19:59] Speaker 00:
Let me ask you one question of the facts that came up.

[00:20:05] Speaker 00:
There was a dispute about whether, in connection with the whistleblowing allegations, Mr. Babcock had knowledge of the congressional communications.

[00:20:19] Speaker 00:
And it looked to me from the record as if there was evidence that he did.

[00:20:27] Speaker 00:
yet the board seems to have said that completely didn't.

[00:20:31] Speaker 00:
What is the government's position on that?

[00:20:33] Speaker 00:
Because you didn't address that in your brief.

[00:20:35] Speaker 04:
Well, even if Mr. Babcock did have knowledge of the congressional inquiries, the board found that there were no improper communications, no ex parte communications between Babcock and Tyree, the deciding official.

[00:20:55] Speaker 04:
And the board also found that each of the agency had established... Retiree had nothing to do with this, right?

[00:21:12] Speaker 03:
Correct.

[00:21:13] Speaker 03:
He had just recently arrived on the scene.

[00:21:15] Speaker 04:
He had never interacted with Mr. Davis.

[00:21:18] Speaker 04:
They worked in different institutions.

[00:21:21] Speaker 04:
So he had no reason to retaliate against them.

[00:21:24] Speaker 04:
And again...

[00:21:25] Speaker 04:
there was no evidence of any improper communications.

[00:21:29] Speaker 02:
Was it an indication that Tyree pretty much rubber stamped the recommendation for removal?

[00:21:35] Speaker 04:
No, I think that actually is not correct.

[00:21:37] Speaker 04:
Mr. Tyree testified before the board that he wrote the Douglas Factors analysis himself around, he said that it was a very extensive undertaking that he did it after hours sometimes around his other

[00:21:54] Speaker 04:
his other duties, the Dallas Factors Analysis, which can be found at 284 through 296 in the record.

[00:22:08] Speaker 04:
Mr. Tyree stated that there's basically a word document that had each of the elements, but then all of the description underneath that was his own unique work, and that he made that analysis himself.

[00:22:21] Speaker 03:
Did Babcock have any reason to retaliate against the petitioner here?

[00:22:34] Speaker 04:
There wasn't any finding of any improper animus.

[00:22:42] Speaker 04:
I believe that the chief complaint against Mr. Babcock related to the EEO complaint, which was

[00:22:50] Speaker 04:
about wearing, if Mr. Davis could wear, protective hearing.

[00:22:54] Speaker 04:
And in that instance, again, although it's outside the court's jurisdiction, Mr. Babcock stated that the practitioner could not wear over-the-ear protection, which was described as like Mickey Mouse-type headphones, but he did permit him to wear in-ear hearing protection.

[00:23:13] Speaker 04:
And then he also had the decibel level of noise at the CBIS tested, and although it was found that it was within

[00:23:20] Speaker 04:
normal levels, he continued to let Mr. Davis wear those inserts.

[00:23:25] Speaker 04:
So I don't think, and also that was subject to an EEO complaint, which was ultimately found that there was no improper conduct there.

[00:23:31] Speaker 04:
So I don't think that the record has any evidence that there was any improper animus or any reason for Jim Abtok to retaliate against Mr. Davis.

[00:23:44] Speaker 04:
If the court has no further questions, we ask.

[00:23:50] Speaker 04:
That's what the decision came from.

[00:23:57] Speaker 01:
Thank you, Your Honor.

[00:24:01] Speaker 01:
Just really quickly on jurisdiction.

[00:24:03] Speaker 01:
Diggs was decided in 2011 before the amendments to the Whistleblower Protection Act, which I think makes it clear that was expanding the court's jurisdiction to include all complaints under 2302B, 8 and 9.

[00:24:20] Speaker 01:
And that would include complaints that were made to an EEO office.

[00:24:26] Speaker 00:
That's a different issue from whether the complaints were made, the whistleblower-type complaints were made to an EEO officer.

[00:24:32] Speaker 00:
It's different from saying that there was EEO-based retaliation.

[00:24:37] Speaker 00:
That's an EEO-type claim, not a whistleblower-type claim.

[00:24:40] Speaker 00:
So are you abandoning the EEO-type claims without abandoning the whistleblower claims that may be predicated on complaints to an EEO officer?

[00:24:49] Speaker 01:
Well, I'll abandon whatever claims are necessary to give the court jurisdiction over this matter.

[00:24:56] Speaker 01:
But I don't believe that those would include claims under subsections 8 and 9, 23 and 2B.

[00:25:04] Speaker 01:
On getting back to the issue of the maximum reasonable penalty, yes, he had four suspensions.

[00:25:16] Speaker 01:
But there are some actions that are so de minimis

[00:25:20] Speaker 01:
that no matter whether you have a record as long as your arm, it shouldn't be grounds for you.

[00:25:25] Speaker 01:
If you can't say to somebody, I don't think that you're missing a button on your shirt, that looks sloppy, you're fired because you have some prior offenses that are unrelated.

[00:25:37] Speaker 01:
It's the equivalent of giving somebody a life sentence for jaywalking.

[00:25:41] Speaker 01:
Even if they have a record for more than four offenses,

[00:25:48] Speaker 01:
You still don't deserve to be put away for life for jaywalking.

[00:25:52] Speaker 01:
And this is the equivalent in the employment context of doing that.

[00:25:58] Speaker 01:
I think that employees do have a need, a right to question something before they obey.

[00:26:06] Speaker 01:
He did obey when he was given an order.

[00:26:09] Speaker 01:
And that should not be a fireable offense.

[00:26:12] Speaker 01:
Thank you.

[00:26:13] Speaker 01:
Thank you, Mr. Chair.

[00:26:13] Speaker 01:
Thank you, Ms.

[00:26:14] Speaker 01:
Ross.

[00:26:14] Speaker 01:
The case is submitted.

[00:26:16] Speaker 01:
And that concludes our session for today.