Corkery v. Dep't of Homeland Sec., 2015-3216
| Decision Date | 04 January 2017 |
| Docket Number | 2015-3216 |
| Parties | BRENDAN CORKERY, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
NOTE: This disposition is nonprecedential.
Petition for review of an arbitrator's decision in No. FMCS 13-02672-6 by Roger P. Kaplan.
MICHAEL WILSON MACOMBER, Tully Rinckey PLLC, Albany, NY, for petitioner.
ELIZABETH ANNE SPECK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN; JILL M. SKRENTY-PACKARD, United States Customs and Border Protection, Buffalo, NY.
Before O'MALLEY, WALLACH, and TARANTO, Circuit Judges.
Brendan Corkery appeals from an arbitrator's decision following the arbitration between the American Federation of Government Employees, Local 2724 ("the Union") and the Department of Homeland Security, U.S. Customs and Border Protection ("the Agency") with respect to Corkery's removal from his position as a Border Patrol Agent ("BPA"). Because substantial evidence supports the arbitrator's decision, we affirm.
Corkery began work for the Agency as a BPA in December 1997, and was transferred to the Erie Border Patrol Station in June 2009. BPAs at Corkery's level (GS-1896-12) perform demanding duties related to intelligence collection and utilization, and also may be required to perform physically strenuous tasks. The Agency also required Corkery to qualify and show proficiency with a government-issued firearm.
In 2012, several of Corkery's coworkers made statements explaining that Corkery had exhibited odd and concerning behavior while on duty. Several BPAs provided written statements complaining about Corkery's body odor in the gym and while patrolling. Other agents noted that Corkery talked to himself, sometimes in nonsensical sentences. A BPA reported witnessing an incident in which Corkery had what appeared to be human feces on his leg while in the workplace locker room. Other BPAs witnessed Corkery leave communal shower facilities tracking what appeared to be human feces across the locker room floor. Based on these observations, Agency management ordered Corkery to attend a fitness-for-duty evaluation and placed Corkery on administrative leave pending the results of the evaluation.
Corkery attended the physical evaluation portion of the fitness-for-duty evaluation in November 2012. The physical evaluation did not reveal a medical condition explaining the odd behavior Corkery's colleagues observed, and the reviewing medical official recommended that Corkery undergo a psychiatric evaluation.
Dr. Jeffrey Grace, an independent medical examiner and board-certified psychiatrist, conducted a psychiatric evaluation of Corkery in December 2012. As part of a complete assessment of Corkery, Dr. Grace administered the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") psychiatric assessment to Corkery. Dr. Richard Frederick, a licensed clinical psychologist, scored Corkery's MMPI-2 assessment. Based on his analysis and the results of Corkery's MMPI-2 assessment, Dr. Grace diagnosed Corkery with "Psychotic Disorder NOS."1 Dr. Grace found that Corkery's prognosis was "guarded" and the severity of his illness was "significant." Dr. Grace further concluded that Corkery likely suffered from psychotic symptoms such as auditory hallucinations. The functional implication of Corkery's responses to such hallucinations, according to Dr. Grace, meant that Corkery's "judgment, in a comprehensive way, is significantlyimpaired and he is not able to safely and effectively function as a Border Patrol Agent." J.A. 120-21.
Dr. Paul Prunier, the Agency's board-certified psychiatric consultant, reviewed Dr. Grace's psychiatric assessment and Dr. Frederick's interpretation of the MMPI-2 results. Given the severity of Corkery's symptoms, Dr. Prunier concurred with Dr. Grace's assessment and concluded that Corkery was psychiatrically unfit for any form of duty.
Dr. Grace later submitted an addendum discussing Corkery's limitations and restrictions. In this report, Dr. Grace again noted Corkery's diagnosis of "Psychotic Disorder NOS," stated that Corkery's prognosis was guarded, and restated his opinion that Corkery's illness was significant. Dr. Grace again opined that Corkery could not safely or effectively perform several of the specific duties of a BPA. Dr. Prunier reviewed Dr. Grace's addendum and agreed that Corkery was psychiatrically unfit for duty.
Based on the medical opinions of Drs. Grace, Frederick, and Prunier, the Agency concluded that Corkery was unfit for duty, and proposed removing him from his position as a BPA. The Agency notified Corkery by letter of this decision in April 2013. Corkery and his representative responded to the letter orally and in writing. In support, Corkery submitted results of a psychiatric evaluation conducted by Dr. Jay Supnick, a licensed psychologist. Dr. Supnick's report reflected more favorably on Corkery's mental condition than did the reports commissioned by the Agency.
The Agency asked Dr. Prunier to review Dr. Supnick's report. Dr. Prunier concluded that he did not agree with Dr. Supnick's findings—and further noted that at no point in his report did Dr. Supnick conclude that Corkery was fit for duty. Dr. Prunier recommended that Dr. Frederick review Dr. Supnick's report, particularly Dr. Supnick'spsychological testing of Corkery and his results. Dr. Frederick criticized Dr. Supnick's methods and concluded that Dr. Supnick's testing reached "essentially the same outcome obtained in the evaluation conducted by Dr. Grace." J.A. 141. After reviewing Dr. Frederick's report, Dr. Prunier issued a final report and recommendation in June 2013, concluding that, based on his review of all medical documentation including Dr. Supnick's report, Corkery was psychiatrically not fit for duty.
The deciding official, U.S. Border Patrol Chief Patrol Agent (Buffalo Sector) Brian Hastings ("Hastings"), sustained the Agency's proposal to remove Corkery. Given the medical reports and the risks and responsibilities of the BPA position, Hastings concluded that he had no option but to remove Corkery from service. Corkery's removal became effective on June 14, 2013.
On July 3, 2013, the Union invoked arbitration on behalf of Corkery pursuant to Article 34 of the parties' controlling collective bargaining agreement. The arbitrator held hearings on October 7 and 8, 2014, and February 3, 2015. Contemporaneously with the filing of its closing brief, the Union filed a motion for sanctions alleging, among other things, that the Agency failed to produce a memorandum prepared by BPA Edward Hess in December 2012 ("the Hess memorandum") related to Hess's observations of Corkery on the day of the first feces incident mentioned above. In the Hess memorandum, Hess explains that, after speaking to Corkery in the locker room, another BPA asked Hess if he noticed anything unusual about Corkery. Hess told that BPA that he had not.
On July 2, 2015, the arbitrator upheld the Agency's removal of Corkery. The arbitrator also denied the Union's motion for sanctions, concluding that there was no evidence that the Agency deliberately withheld the Hess memorandum and that the information in the Hessmemorandum was not key to the removal decision. Corkery appeals these determinations. We have jurisdiction to adjudicate a petition for review of an arbitrator's decision pursuant to 5 U.S.C. § 7121(e)(l) and 5 U.S.C. § 7701(a). Corkery timely appealed under 5 U.S.C. § 7703(b)(l).
We review the arbitrator's decision under 5 U.S.C. § 7121(f), which establishes that arbitrations of such grievances are reviewed under the same standard of review that applies to appeals from Board decisions. 5 U.S.C. § 7121(f); see also Cornelius v. Nutt, 472 U.S. 648, 652 (1985). Section 7703(c) requires this court to set aside "any agency action, findings, or conclusions found to be (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). As to element (3), substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support" the Board's conclusion. Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938).
An agency may remove an employee "only for such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a). We sustain an employee's discharge if it is supported by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). Where an employee occupies a position with medical standards or physical requirements and the finding that he was unable to perform was based on medical history, the agency is required to show the following to establish a charge of inability to perform: "[1] the condition at issue is itself disqualifying, [2] recurrence cannot medically be ruled out, and [3] the duties of the position are such that a recurrence would pose a reasonable probability of substantial harm." 5 C.F.R. § 339.206.
At the outset,2 Corkery argues that the arbitrator failed to cite to a legal standard in his decision, or alternatively, that the arbitrator failed to apply the correct...
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