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United States Court of Appeals for the Federal Circuit
04-3023
MICHAEL MARTIN,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
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.
Appealed from: The Arbitrator
United States Court of Appeals for the Federal Circuit
04-3023
MICHAEL MARTIN,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
___________________________
NONPRECEDENTIAL OPINION ISSUED: April 5, 2005
PRECEDENTIAL OPINION ISSUED: June 24, 2005
___________________________
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. § 309.301 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.
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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
04-3023 3
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
04-3023 4
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
04-3023 5
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 informed of his appeal rights to the Merit Systems Protection Board, or the
alternative to pursue a negotiated grievance as set forth in his union’s collective
bargaining agreement. Martin opted for the grievance procedure.
Martin and his union representative initiated a Step 3 Grievance with a letter
dated December 18, 2002, seeking reversal of the demotion, backpay, and other
compensatory remedies, and alleging that “[a] decision to demote has been made
based on flimsy conclusions, bungled processes and suspect motivation.” (J.A. at 391.)
The grievance alleged various contractual and regulatory violations, and focused
principally on the first evaluation conducted by Dr. Carracher, claiming that “the
psychological evaluation process conducted in 2002 for Mr. Martin lacked objectivity
04-3023 6
and any semblance of regard for policy, safety, ethics or the employee’s rights.” (Id. at
388-89.) As noted above, the agency did not rely on this assessment in demoting
Martin. With respect to Dr. Burda’s assessment, the sole assessment which formed the
basis for the agency’s decision, Martin’s principal claim was that it was “a poor
evaluation conducted by a psychologist not qualified to evaluate police.” (Id. at 391.)
The letter initiating the grievance procedure also included, and presented for the
first time to the agency, the results of an additional psychological assessment that was
undertaken at the request of the union subsequent to the agency’s demotion decision.
This evaluation was carried out by Dr. Bryan, a clinical psychologist in private practice
whose specialty areas include Police and Forensic Psychology. The assessment
consisted of a personal interview and the administration of standardized tests. In his
report, Dr. Bryan raised concerns regarding the behavioral pattern indicated by Martin’s
earlier disciplinary actions and the test’s prediction of a “high risk for future performance
difficulty.” (Id. at 410.) He nonetheless concluded that Martin was “fit to continue being
a police officer with the added responsibility of carrying a firearm.” (Id. at 409.) Dr.
Bryan also suggested that further input be provided from Martin’s former supervisor as
to whether he would have any reservations regarding Martin’s ability to perform
adequately as an armed police officer.
In January 2003 Dr. Burda, at the agency’s request, prepared an additional
memorandum for the arbitration hearing and compared the results of his psychological
evaluation with those of the evaluation conducted by Dr. Bryan. He noted that both
04-3023 7
testing reports raised “several significant concerns” and reasserted his “serious
concerns about Mr. Martin’s fitness to carry firearms.” (Id. at 411-12.) ∗
Unable to resolve his dispute through the Step 3 grievance procedure, Martin
sought arbitration. At an arbitration hearing conducted in August 2003, evidence
presented by the VA and the Union included, inter alia, Martin’s personnel records;
applicable VA policies and procedures regarding arming police officers; evidence on the
professional qualifications of Drs. Burda and Bryan and the reports of their
psychological assessments of Martin; and the January 2003, memorandum prepared by
Dr. Burda. The arbitrator first dismissed the VA’s motion to dismiss for lack of
jurisdiction, noting that the agency did not have “unfettered discretion to establish job
qualifications” but rather that “job qualifications must [be] reasonable, job-related, and
fairly administered and evaluated.” Martin v. DVA, No. 020313-06179-3 (August 23,
2003) (“Arbitrator’s Decision”), slip op. at 5. On the merits, after review of the evidence,
she sustained the agency’s decision, stating that an agency must “be given wide
latitude in determining whether a police officer is psychologically qualified to carry arms,
since the consequences which would follow from an erroneous determination could be
disastrous.” Id. Noting the VA standards, that “[a]ny 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,” the arbitrator observed that “a
∗
Dr. Burda also noted that “[g]iven these discrepancies, I would agree with
Dr. Bryan’s suggestion that Mr. Martin’s supervisor be given significant input into the
ultimate decision of whether Mr. Martin is fit for duty as a police officer.” (J.A. at 412)
The agency’s established procedures provide no role for the input of supervisors into
the psychological assessment, which under the pertinent VA Handbook “will be limited
04-3023 8
determination that an officer is not psychologically qualified to carry such a weapon
should not be set aside unless it is shown to be arbitrary and capricious [and that] [t]he
union has failed to make such a showing.” Id. at 5-6. The arbitrator found that the VA’s
reliance on Dr. Burda’s assessment was “not unreasonable.” Id. at 7.
Martin timely petitioned for review of the arbitrator’s decision in this court. We
have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703. Girani v. F.A.A., 924 F.2d
237, 239 (Fed. Cir. 1991).
DISCUSSION
An arbitrator is bound to apply the same substantive legal standards as would
the Merit Systems Protection Board (“MSPB”). Cornelius v. Nutt, 472 U.S. 648, 660
(1985); Newman v. Corrado, 897 F.2d 1579, 1582 (Fed. Cir. 1990). Under 5 U.S.C.
§ 7121(f), we review an arbitrator’s decision under the same standard used for appeals
from the MSPB. Cornelius, 472 U.S. at 652; Zingg v. Dep’t of the Treasury, I.R.S., 388
F.3d 839, 842 (Fed. Cir. 2004). Accordingly, the arbitrator’s decision must be affirmed
unless it was not supported by substantial evidence, obtained without following
procedures required by law, rule, or regulation, or was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 7703(c) (2000).
I
Petitioner contends that the arbitrator erred by applying an arbitrary and
capricious standard in reviewing the agency’s decision and improperly shifted the
burden of proof to Martin to disprove the reasonableness of the agency’s action.
to an interview by a psychologist or psychiatrist” and, when indicated, psychological
testing. VA Handbook 0730, August 11, 2000, at A-2.
04-3023 9
Under the pertinent statute, “the decision of the agency shall be sustained . . .
only if the agency’s decision . . . is supported by a preponderance of the evidence.” 5
U.S.C. § 7701(c)(1)(B) (2000) (emphasis added). The implementing regulations clarify
that it is the agency’s burden to establish that a preponderance of the evidence
supports the agency’s decision. 5 C.F.R. § 1201.56(a)(ii) (2004). Once the government
meets its burden, the burden of proof then shifts to the petitioner to demonstrate by a
preponderance of the evidence that there was harmful procedural error; a prohibited
personnel practice occurred; or that the decision was not in accordance with law. 5
U.S.C. § 7701(c)(2); 5 C.F.R. § 1201.56 (a)(2) & (b).
OPM regulations clearly state that “[f]ailure to meet a properly established
medical standard or physical requirement under this part means that the individual is not
qualified for the position.” 5 C.F.R. § 339.102(a) & (c) (2004). The VA Handbook
provides that “[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.
Petitioner does not challenge either the agency’s authority to establish this
standard, or the reasonableness of the standard. While petitioner urges that the
agency’s decision under this standard is not supported by the preponderance of the
evidence and that the arbitrator impermissibly shifted the burden of proof to Martin,
there is no dispute that Martin failed the psychological assessment. Dr. Burda’s first
evaluation, the only evaluation relied upon by the agency in reaching its demotion
04-3023 10
decision, found Martin unfit to carry a firearm. Martin conceded that he failed the
psychological assessment undertaken by Dr. Burda in his written response to the notice
of proposed demotion. See Catalano v. United States Postal Serv., 23 M.S.P.R. 432,
436-37 (1984).
While the arbitrator may have applied an incorrect standard (arbitrary and
capricious, rather than preponderance of the evidence), our case law is clear that it is
substance, rather than form, which guides our review of arbitrators’ decisions. See
Girani, 924 F.2d at 242; Wissman v. Soc. Sec. Admin., 848 F.2d 176, 178 (Fed. Cir.
1988). Under these circumstances, where the agency’s decision was based on Dr.
Burda’s review, and there is no dispute that this assessment concluded that Martin was
not qualified, the arbitrator’s use of an incorrect standard was harmless error.
II
We now turn to an additional question—whether Martin established an affirmative
defense. In this respect, Martin claims that the agency’s decision cannot be sustained
due to harmful procedural error caused by the VA’s failure to comply with the
procedures to be used for medical examinations. 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R.
§ 339.303 (2004).
The applicable regulation provides:
(a) When an agency orders or offers a medical examination under this
subpart, it must inform the applicant or employee in writing of its
reasons for doing so and the consequences of failure to cooperate.
...
(b) The agency designates the examining physician or other appropriate
practitioner, but must offer the individual an opportunity to submit
medical documentation from his or her personal physician or
practitioner. The agency must review and consider all such
04-3023 11
documentation supplied by the individual’s personal physician or
practitioner.
5 C.F.R. § 339.303.
This regulation requires the agency, when reaching a decision based upon the
results of a medical examination, to provide an opportunity for the affected employee to
introduce contrary medical evidence. Martin does not claim that he was denied notice
of his rights to submit additional medical evidence, or adequate opportunity to do so.
The record is clear that Martin (represented by his union) received notice of his rights to
submit information, and he made no effort to submit medical evidence to the agency at
any time before the agency reached its final decision, notwithstanding a gap of six
months since the first, contested, psychological assessment carried out by Dr.
Carracher in April 2002, and the final agency decision of November 2002. Martin failed
to provide any medical evidence in his written response to the agency’s proposed
decision. It was only after the agency had already considered his response and
reached a final demotion decision that Martin was evaluated by Dr. Bryan. Dr. Bryan’s
evaluation results were presented to the agency for the first time as part of the evidence
accompanying his Step 3 Grievance. There was no violation of the regulation’s
requirement that the agency “offer the individual an opportunity to submit medical
documentation from his or her personal physician or practitioner.” Id.
Martin also argues that the agency violated its obligation under the regulation to
“review and consider” all the medical evidence that he supplied. Id. However, Martin
fails to comprehend that the regulation only requires the agency to consider medical
evidence it received prior to reaching its decision. Martin did not supply this evidence to
the agency. The OPM regulation does not impose an open-ended obligation upon the
04-3023 12
agency to continually revise a final personnel decision based upon new evidence
submitted by an employee, when adequate notice was provided and when that
employee failed to submit the information in a timely fashion.
CONCLUSION
For the foregoing reasons, the arbitrator’s decision is
AFFIRMED.
COSTS
No costs.
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