Eilers v. Dep't Of The Army, 2010-3059
| Decision Date | 24 January 2011 |
| Docket Number | 2010-3059 |
| Parties | DOUGLAS EILERS, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent, |
| Court | U.S. Court of Appeals — Federal Circuit |
Note: This disposition is nonprecedential.
Petition for review of an arbitrator's decision by Ronald L. Miller.
Thomas F. Muther, Jr., Minahan and Muther, P.C., of Denver, Colorado, for petitioner.
Elizabeth M. Hosford, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director.
Before Newman, Gajarsa, and Moore, Circuit Judges
This case is an appeal from the decision of an arbitrator sustaining the Department of the Army, Corps of Engineers' removal of Douglas Eilers from his position based on charges of misconduct. Because substantial evidence supports the arbitrator's decision and Mr. Eil-ers's due process rights were not violated, we affirm.
Mr. Eilers was employed as a power plant operator at the Detroit Dam. On June 18, 2007, while Mr. Eilers was on duty, a ground fault occurred in the electrical system. The ground fault caused the XJ-5 and XJ-31 circuit breakers to automatically open (trip). While the Detroit Dam system experienced other ground faults in the months prior to June 2007, this ground fault was serious enough for Mr. Eilers to call Mr. Deforest Petersdorf, an electrician, and Mr. Joseph Shindelus, the maintenance foreman, and request they come to the Detroit Dam to help analyze the problem.
Upon arrival, Mr. Petersdorf and Mr. Eilers investigated the problem. Together they concluded that the XJ-5 circuit breaker should be closed to see whether it would trip again. Mr. Eilers closed the XJ-5 breaker, and almost immediately the ground fault alarm sounded. Mr. Eilers pushed buttons to acknowledge and reset the alarm, but the alarm did not clear. Soon thereafter, unusual and loud noises came from an area of the powerhouse below the control room. Seconds later, additional alarms sounded and emergency lighting came on. Mr. Petersdorf left to investigate the source of the noises, and returned minutes later to report a fire at a lower level of the powerhouse. Smoke from the fire began to fill the controlroom. Mr. Eilers called 911 and evacuated the powerhouse.
In the days following the fire, Mr. Greg Morris, a supervisor, allegedly told Mr. Eilers: Early in the morning of June 20, however, Mr. Shindelus instructed Mr. Eilers to enter the powerhouse and retrieve a key needed to reset the head gate. Mr. Eilers complied. Later that day, Mr. Eilers, without instruction, allegedly reentered the powerhouse to check the scroll case pressure.
The Detroit Dam fire gave rise to two reports evaluating the incident: an Army Regulation (AR) 15-6 investigation report and a Board of Investigation (BOI) report. The purpose of an AR 15-6 report is to create a record for use in disciplinary actions. AR 15-6 §§ 1-1 to 1-9. Conversely, a BOI report is for accident prevention purposes and cannot be used as evidence in disciplinary actions. AR 385-10 § 3-28. Mr. Eilers had access to the AR 15-6 report. Although Mr. Eilers obtained a copy of a "nearly final" draft of the BOI report, he was denied access to the final version of the BOI report.
After the completion of the AR 15-6 and BOI investigations, the operations project manager of the Detroit Dam issued a Notice of Proposed Removal for Mr. Eilers. In his response to the proposed removal, Mr. Eilers referred to portions of the draft BOI report. On September 15, 2008, Mr. Dwane Watsek issued a Notice of Decision on Proposed Removal, which removed Mr. Eilers from employment. In the decision, Mr. Watsek indicated that he considered the contents of the BOI report only "to the extent necessary to address [Mr. Eilers's] response and clarify the facts." J.A. 59.
Mr. Eilers's union initiated a grievance and the matter was taken to arbitration. During the arbitration, Mr. Eilers again sought access to the final BOI report. At the hearing, counsel for Mr. Eilers indicated that he thought the Army's refusal to give access to the final BOI report raised "a Constitutional violation issue." J.A. 1315. Thereafter, the union submitted the draft BOI report into evidence.
The arbitrator sustained Mr. Eilers's removal based on charges including the failure to reopen the XJ-5 breaker or cut off power to the plant after the alarm sounded, and the failure to take action to stop the flow of electricity, for example by opening the A320 main breaker, after the fire started. The arbitrator also sustained additional charges related to Mr. Eilers's behavior after the fire, including reentering the powerhouse without authorization after resetting the head gate, lack of candor regarding Mr. Morris's instructions not to enter the power plant, and lack of candor regarding entering the power plant after resetting the head gate. Arbitrator's Op. 9-17. Mr. Eilers now appeals the arbitrator's decision. We have jurisdiction pursuant to 5 u.S.C. § 7121(f) and 5 U.S.C. § 7703. Martin v. Dep't of Veterans Affairs, 412 F.3d 1258, 1263 (Fed. Cir. 2005).
Mr. Eilers raises two issues on appeal. First, Mr. Eil-ers asserts that his due process rights were violated because the Army did not provide him with newly acquired evidence and an opportunity to respond. Second, he asserts that the arbitrator's decision was not supported by substantial evidence or otherwise not in accordance with the law. We address Mr. Eilers's arguments in turn below.
The federal statutory employment scheme creates a property interest in continued employment. Stone v. FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999). Before being deprived of this property interest, a public employee must be given "notice and an opportunity to respond." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). An "employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id. An ex parte communication that introduces "new and material information to the deciding official will violate the due process guarantee of notice." Stone, 179 F.3d at 1377.
Whether there was a due process violation turns on "the facts and circumstances of each particular case." Id. Factors to be considered include whether the "communication merely introduces 'cumulative' information or new information; whether the employee knew of the error and had a chance to respond to it; and whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner." Id. There is no due process violation if the ex parte communication does not introduce new and material information. Id.
Mr. Eilers alleges that his due process rights were violated because Mr. Watsek, the deciding official, reviewed the final BOI report and spoke with BOI members individually prior to rendering his decision in this case. Mr. Eilers indicates that he was prejudiced because he was denied access to the final BOI report and "was not given an opportunity to consider their input in defending against the Agency action."
The government responds that, as an initial matter, there is no indication that Mr. Watsek used anything other than the draft BOI report in his decision and that because Mr. Eilers had the draft report he could not have been prejudiced. The government explains that Mr. Eilers had the opportunity to examine Mr. Watsek during the arbitration to obtain proof that his procedural due process rights were violated. Mr. Eilers's only citation to the record, however, is that Mr. Watsek had "read the BOI." Pet'r's Br. 17 (citing J.A. 1290-91). This testimony does not demonstrate Mr. Watsek reviewed the final BOI report, as opposed to the draft report. Likewise there is no evidence that indicates that Mr. Watsek received any new and material information from conversations with BOI members. Thus, there is no evidence that indicates that Mr. Watsek relied upon any new and material information which was not cumulative of the information Mr. Eilers already possessed (the draft BOI Report and the AR-15-6 Report).
Moreover, Mr. Watsek testified that, under normal circumstances, he would not consider a BOI Report in a disciplinary action and, in fact, Army Regulation 385-10 prevents the BOI report from being used as evidence in a disciplinary action. Mr. Watsek testified that he considered the BOI Report only to the extent necessary to address Mr. Eilers's "mischaracterizations from the BOI", but otherwise attempted to give the BOI report no weight in his decision. J.A. 1273; see also J.A. 59 (same). Thus, we have no basis to infer that Mr. Watsek considered information not in Mr. Eilers's possession. Without evidence that Mr. Watsek reviewed information not already in his possession, Mr. Eilers fails to establish any prejudice, and therefore has failed to establish any due process violation.
This court reviews the decision of an arbitrator in a federal employment dispute under the same standard as if the dispute was decided by the Merit Systems Protection Board. 5 U.S.C. § 7121(f); Martin, 412 F.3d at...
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