Martin v. Department of Veterans Affairs

• Decision Date: 24 June 2005
• Docket Number: No. 04-3023.,04-3023.
• Parties: Michael MARTIN, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

412 F.3d 1258

Michael MARTIN, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

No. 04-3023.

United States Court of Appeals, Federal Circuit.

Nonprecedential Opinion Issued: April 5, 2005.

Precedential Opinion Issued: June 24, 2005.

Jacqueline M. Sims, American Federation of Government Employees, AFL-CIO, of Washington, DC, argued for petitioner. With her on the brief was Mark D. Roth.

Lisa Donis, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director and Brian M. Simkin, Assistant Director. Of counsel were Kent G. Huntington and Thomas Fatouros.

Before SCHALL, DYK, and PROST, Circuit Judges.

DYK, Circuit Judge.

Petitioner Michael Martin ("Martin") challenges an arbitrator's award sustaining his demotion by the Department of Veterans Affairs ("VA"). The VA demoted Martin because he no longer satisfied the conditions of employment as a police officer, having failed to pass the psychological assessment required to carry arms. Even accepting Martin's argument that the arbitrator may have applied an incorrect standard in reviewing the agency's decision and impermissibly shifted the burden of proof, we conclude that the arbitrator's error was harmless because there is no material factual dispute. Petitioner has also failed to establish any violation of the relevant Office of Personnel Management regulation. Accordingly, we affirm.

BACKGROUND

From 1994 to 2002, Martin was employed as an unarmed police officer for the VA at the West Palm Beach Medical Center. Prior to his employment with the VA, he had served as an armed military policeman for twenty years. In December 2001, Martin's employer began implementation of VA Directive 0720, "Pilot Program to Arm Department of Veterans Affairs Police Officers" ("Directive"), with plans to arm all police officers by June of 2002. As set forth in the implementing handbook, "Procedures to Arm Department of Veterans Affairs Police Officers," "[o]nly those officers who have successfully completed... the revised psychological assessment within the 12 months before initial firearms training, will be issued the Firearm Authorization Card.... Armed officers must maintain current (annual) ... psychological assessments as a condition of continued employment as a VA police officer." VA Handbook 0720, January 24, 2000, at 8. Psychological assessments were to include "[q]uestions ... designed to determine an officer's suitability to be issued a firearm." Id. The Handbook also required the psychological assessment to comply with the regulations of the Office of Personnel Management ("OPM"), which set forth the procedures to be used by federal agencies in requiring medical examinations and in using such examinations for the basis of personnel decisions. Id. at 9 (citing 5 C.F.R. § 339.301 et seq.)

An additional set of agency guidelines stated:

The initial and annual medical examinations must include a psychological assessment of the applicant/officer's emotional and mental stability by a psychiatrist or psychologist. Police officer duties include personal encounters with ... mentally ill, irrational, or disturbed persons who ... must be handled with ... full control of force, and unimpeded judgment. Any emotional or mental condition which could cause the applicant/officer to be a hazard to others or self during stress situations and physical altercations will disqualify.

VA Handbook 0730, Security and Law Enforcement, August 11, 2000, at A1-A2. These guidelines further clarified that standardized psychological testing could be administered as part of the psychological assessment "only after reason to question the applicant/officer's suitability has arisen" and if the initial assessment revealed "an articulative reason to doubt that the officer is capable of performing the duties of a police officer." Id. at A2.

In April 2002, Martin underwent a psychological assessment performed by Dr. Carracher, a staff psychologist at the West Palm Beach facility, who concluded that Martin was unfit to carry a firearm. This first evaluation suffered from various alleged procedural irregularities, including inadequate prior notice. This assessment was not considered by the agency when reaching the final decision to demote Martin. It did, however, lead to negotiations between Martin's union and the VA regarding further psychological testing.

In September 2002, as a result of these negotiations, Martin voluntarily agreed to be interviewed by Dr. Burda, the Manager of Psychology at the Miami VA Medical Center, ("Dr.Burda"), in order to undergo the "psychological assessment [which] is a mandatory screening to determine whether or not Police Officers ... are able to carry firearms." (J.A. at 297.) Although Martin refused to release his personnel records to Dr. Burda, on the grounds that knowledge of his disciplinary history might unduly influence Dr. Burda's assessment, he did discuss his disciplinary history during the course of the interview. That disciplinary history included two suspensions.

Martin's first suspension had occurred in October 1996, and was issued for failing to confiscate a knife from a homeless patient in accordance with applicable procedures, an offense which at the time was found to have caused a "potential threat of serious harm" to fellow police officers. (Id. at 20.) Martin's second suspension, in May of 2000, had been based on a conflict with another staff member and included charges of "inappropriate conduct [and] use of insulting, or abusive language." (Id. at 70.)

Dr. Burda noted that Martin was "ambiguous about his responsibility" for the events underlying his first suspension, which "raised questions about his judgment as a police officer." (Id. at 305.) Dr. Burda also found that Martin's account of the events surrounding his second suspension "raised questions about his temperament and emotional control." (Id.)

After informing Martin that it was regular procedure to complete standardized psychological tests when there was a history of prior disciplinary action, Dr. Burda administered two such tests with Martin's consent and after receiving the appropriate authorization from the agency. Martin's results from the second test placed him in the Medium Risk level of being rated "poorly suited" for a job as a police officer in the areas of Job Performance Behaviors and Anger Management. He also had elevated scores compared to a normative sample of incumbent police officers in the areas of Substance Abuse Proclivity, Traumatic Stress, and Negative Relations. Dr. Burda's overall assessment was that "there is sufficient evidence to indicate that Mr. Martin is not psychologically suited to perform his duties as a police officer, including the carrying of firearms." (Id. at 306.)

As a result of Dr. Burda's psychological assessment, Martin received notice of his proposed demotion in October 2002. The notice stated that "Dr. Burda determined that you failed to meet the minimum psychological requirements and did not recommend that you be approved to carry a firearm. Therefore you have failed to meet the condition of employment to remain in the position as a police officer." (Id. at 348). It further noted that Martin, as a federal employee, had "the responsibility to perform the full scope of duties of [his] assigned position [and that his] inability to carry a firearm prevents [him] from performing the official duties of [the] police officer position" and that the proposed demotion was therefore "in order to promote the efficiency of the Federal service." (Id.) The notice of proposed demotion notified Martin of his rights to reply, orally, or in writing, or both, and to submit affidavits in support of his reply, "showing why this notice is inaccurate and any other reasons why [his] demotion should not be effected." (Id. at 349.)

In his written response, Martin submitted no contrary medical evidence to challenge the validity of Dr. Burda's findings. Martin also explicitly stated, "I concede that I was not recommended to carry a firearm by Dr. Burda." (J.A. at 363.) His response did allege, without specifying, "numerous instances of the agency's failure to follow procedures outlined in policy" and requested that he be assigned a position at an equal pay grade, with adequate training, in lieu of the proposed demotion. (Id. at 364.) He stated that his past suspensions were due to problems with his previous supervisor, who "provided an antagonistic work environment," and requested that the Medical Center Director speak with his current supervisor to clarify that the situation had changed for the better. (Id.)

Martin was formally demoted the following month, with the demotion to be effective as of December 1, 2002. In his final decision letter, the Medical Center Director specifically found that Martin's "failure to satisfactorily complete the psychological assessment prevents [him] from carrying a firearm. Therefore [he] cannot remain in the position of a police officer at this Medical Center." (Id. at 366.) The Director further stated that he had carefully considered Martin's replies along with all the evidence developed, but found that Martin's "failure to maintain a condition of employment leaves me no alternative but to remove [him] from [his] police officer position and that the penalty of demotion is appropriate and within the range of reasonableness." (Id.)

In accordance with a 1999 Memorandum of Understanding between the VA and Martin's union, to the effect that every effort would be made to find qualified positions for any officers adversely affected by the decision to arm VA police officers, Martin was assigned to the highest available position for which he was qualified: a Program Support Clerk position, two grades lower than his Lead Police Officer post. At that time, he was...