Pollock v. Department of the Navy

Note: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2009-3246

JAMES E. POLLOCK,

Petitioner,

v.

DEPARTMENT OF THE NAVY,

Respondent.

Frank DeMelfi, Melville Johnson, P.C., of Atlanta, Georgia, for petitioner.

Deborah A. Bynum, Assistant Director, 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 Todd M. Hughes, Deputy Director. Of counsel on the brief was Major
Patrick A. Hodges, Attorney, Office of General Counsel, United States Department of
the Navy, of Camp Pendleton, California.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2009-3246

JAMES E. POLLOCK,

Petitioner,
v.

DEPARTMENT OF THE NAVY,

Respondent.

Petition for review of the Merit Systems Protection Board in
SF0752090047-I-1.

______________________

DECIDED: March 16, 2010
______________________

Before NEWMAN, LOURIE, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

James E. Pollock appeals from the Merit Systems Protection Board’s (the

“Board”) final decision affirming the Department of the Navy’s (the “Navy”) removal of

Mr. Pollock as a medical technician for failure to provide a urine sample during a drug

test. See Pollock v. Dep’t of Navy, 111 M.S.P.R. 467 (2009) (Table). Because the

Board did not commit reversible error and substantial evidence supports its decision,

we affirm.
 BACKGROUND

From April 4, 2004 to September 20, 2009, Mr. Pollock was a Medical

Technician, GS-0620-07, in the clinical laboratory at the Naval Hospital Twentynine

Palms, Marine Corps Air-Ground Combat Center (the “Naval Hospital”) in Twentynine

Palms, California. As part of his duties, Mr. Pollock was “in part responsible for the

validity and credibility of the drug testing process.” Under the Navy Drug Free

Workplace Program, medical technicians receive random drug testing as a “Testing

Designated Position,” commonly referred to as “TDP.”

On July 24, 2008, the Navy notified Mr. Pollock shortly after 8:00 a.m. that he

was selected for a random drug test and instructed him to provide a urine sample

between 9:15 a.m. and 11:15 a.m. at the Naval Hospital. Though Mr. Pollock stood

in line with the other employees for testing that morning, he left the Naval Hospital at

approximately 10:45 a.m. without providing a urine sample. Before leaving, Mr.

Pollock did not obtain permission to abandon his responsibilities or forgo drug testing

from his first-line supervisor, Lieutenant Elizabeth Angelo, who was absent that day.

On July 28, 2008, Mr. Pollock returned to work and contacted the Naval

Hospital’s drug coordinator, Leslie Rosson, to explain why he had failed to provide a

urine sample. Mr. Pollock claimed that at 10:45 a.m. on the morning of the drug test,

he learned that his estranged father had suffered a heart attack in Arizona. Upon

hearing of the heart attack, Mr. Pollock left the Naval Hospital immediately, claiming

to find out later that his father died while living at Mr. Pollock’s sister’s home.

Based on Mr. Pollock’s claims, the Navy retroactively approved his request for

leave from 10:45 a.m. on July 24, 2008 to 4:00 p.m. on July 25, 2008. Ms. Rosson

2009-3246 2
 and others expressed their condolences to Mr. Pollock for his father’s death. But the

Navy also requested that Mr. Pollock submit medical documentation of the death by

August 11, 2008, explaining that it would discipline Mr. Pollock if he failed to do so,

including the possibility of removal. Mr. Pollock failed to provide any documentation

by the deadline.

On August 12, 2008, Mr. Pollock and his union representative met with several

Navy officials, including Lieutenant Commander Debra Baker, Lieutenant Angelo,

and Employee Relations Specialist Jess Cook. During the meeting, Mr. Pollock

explained that though he had tried to obtain documentation, his “sister had already

moved the body to Idaho or to some other location, and he wasn’t sure where.” Mr.

Cook then offered to assist Mr. Pollock in locating the necessary documentation and

asked Mr. Pollock for his father’s name and social security number. Mr. Pollock

responded that he “didn’t know his father’s name and that he had not seen his father

since he was about three years old.” Mr. Cook then asked Mr. Pollock for his sister’s

name or other information in hopes of contacting her for documentation. But the

union representative advised Mr. Pollock “not to say anything.” Shortly thereafter,

Lieutenant Commander Baker placed Mr. Pollock on administrative leave without

pay.

On August 15, 2008, three days after the meeting with Navy officials, Lieutenant

Commander Baker issued a notice of proposed removal to Mr. Pollock for failure to

provide a urine sample. The union representative later testified that the Navy

informed Mr. Pollock after the notice that it would “take anything to show where he

was” on the day of the drug test. Two weeks after the notice, Mr. Pollock and his

2009-3246 3
 union representative met with the deciding official, Commander Jensen, 1 to provide a

written and oral response. In his written response, Mr. Pollock again recounted his

story and further claimed that he obtained permission to leave the Naval Hospital

from Chief Levy Malaguit on the morning of the drug test. But Mr. Pollock did not

allege that he obtained permission from any officer with authority to excuse him.

Chief Malaguit would later testify that Mr. Pollock did not mention anything about his

father the day of the drug test and that he did not give Mr. Pollock permission to

leave. During the meeting with Commander Jensen, Mr. Pollock provided a hand-

written note allegedly written by his sister, Sue Collins. The note stated in full,

“James Pollock is my brother[,] and he was in my presence on July 24[,] 2008 for a

family matter.” The note did not mention a death or a memorial service. At that

same meeting, Mr. Pollock gave the Navy his father’s name, Frank Pollock, and

stated that he last saw his father two years ago, contrary to his earlier claim that he

last saw his father as a three-year-old boy. Commander Jensen and Mr. Cook were

unable to find any information on the death of Frank Pollock.

On September 12, 2008, Commander Jensen issued his decision to remove

Mr. Pollock, concluding that Mr. Pollock’s story was “fictitious.” In making his

decision, Commander Jensen explicitly considered all twelve factors from Douglas v.

Veterans Administration, 5 M.S.P.B. 313 (1981). Commander Jensen considered

mitigating factors such as Mr. Pollock’s twenty-five years of federal service, his

acceptable performance ratings, and his lack of prior disciplinary actions. But

Commander Jensen determined that other factors weighed in favor of removal,

1
Neither Mr. Pollock nor the Navy’s appendices disclose Commander
Jensen’s full name.

2009-3246 4
 including Mr. Pollock’s ample opportunity to provide documentation of his father’s

death. Commander Jensen further explained that Mr. Pollock’s convoluted reasons

for avoiding the urine test also undermined his credibility and trustworthiness in

performing laboratory tests as a medical technician.

Mr. Pollock timely appealed his removal to the Board. Before the administrative

law judge (“ALJ”), Mr. Pollock testified that upon hearing of his father’s death, he

drove to Tucson, Arizona, where he thought his father had been living. But after he

learned that his father was living with his estranged sister, he drove to Phoenix where

a memorial service was held. Mr. Pollock further testified that he attended the

memorial service with two friends, but was unable to explain why he never attempted

to obtain a statement from his friends about the service. He also explained that his

sister refused to give him “any information to convey to his employer” because she

was “anti-government.” To support this claim, Mr. Pollock submitted a second letter

from his sister into evidence. She allegedly wrote that she was “sorry [she] can’t give

[him] the information [he] requested about Dad. Please understand that it is against

my personal and religious beliefs to do so. This is America[,] and we have the right

to privacy. This information is none of the government’s business.” The ALJ found

Mr. Pollock’s testimony unreliable and affirmed the Navy’s decision to remove Mr.

Pollock.

Unsatisfied, Mr. Pollock petitioned the Board to reconsider the ALJ’s initial

decision. For the first time on petition before the Board, Mr. Pollock submitted a

signed statement from his friend, Brandi Vargas, stating that she and her husband

attended the memorial service with Mr. Pollock. Though the letter was dated March

2009-3246 5
 3, 2008, Mr. Pollock had not submitted this letter to the ALJ. The Board concluded

that Mr. Pollock had not submitted any “new, previously unavailable, evidence and

that the [ALJ] made no error in law or regulation that affects the outcome.”

Mr. Pollock now appeals the Board’s decision. We have jurisdiction to review the

Board’s final decisions under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of Board decisions is limited by statute. This court may reverse a

final decision only if it finds the decision 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) (2006); see also Farrell v. Dep’t of Interior,

314 F.3d 584, 589 (Fed. Cir. 2002). Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

To sustain an adverse action against an employee, the agency must establish

three elements. Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997).

First, the agency must establish by a preponderance of the evidence that the conduct

occurred. Id. (citing 5 U.S.C. § 7701(c)(1)(B)). “Second, the agency must establish a

nexus between the conduct and the efficiency of the service.” Id. (citing 5 U.S.C.

§ 7513(a)). Third, the agency “must demonstrate that the penalty imposed was

reasonable.” Id.

We have stated, “The choice of penalty is committed to the sound discretion of

the employing agency and will not be overturned unless the agency’s choice of

2009-3246 6
 penalty is wholly unwarranted in light of all the relevant factors.” Guise v. Dep’t of

Justice, 330 F.3d 1376, 1382 (Fed. Cir. 2003). When determining the appropriate

penalty for an employee, this court has held that agencies should consider the twelve

factors listed in Douglas v. Veterans Administration, 5 M.S.P.B. 313, 332 (1981).

See Nagel v. Dep’t of Health & Human Servs., 707 F.2d 1384, 1387 (Fed. Cir. 1983).

However, the Douglas factors are not a checklist that the agency must “appl[y]

mechanically.” Id. at 1386.

In this case, substantial evidence supports the Board’s decision to affirm the

Navy’s removal of Mr. Pollock. First, the Navy demonstrated by a preponderance of

the evidence that Mr. Pollock committed the conduct for which he was removed. See

Bryant, 105 F.3d at 1416. Specifically, the Navy established that Mr. Pollock worked

in a TDP as a medical technician, that he received orders to provide a urine sample

as part of random drug test, that he reported for duty at the Naval Hospital on the day

of the test, and that he failed to provide a urine sample when he left without

permission.

Second, the Navy “establish[ed] a nexus between the conduct and the

efficiency of the service.” Id. Mr. Pollock received clear notice that he was subject to

random drug testing and that his failure to do so could result in removal, but he

nevertheless risked termination by not providing a urine sample. More importantly,

Mr. Pollock was “responsible for the validity and credibility of the drug testing

process” as a medical technician. Commander Jensen found that Mr. Pollock’s

failure to provide a urine sample and his fictitious excuse “question not only [his]

integrity, but adversely affects the credibility of the laboratory itself.” Substantial

2009-3246 7
 evidence thus supports the Navy’s finding that Mr. Pollock could no longer be trusted

to run drug testing when he provided an unsubstantiated excuse for failing to submit

to testing himself.

Third, the Navy demonstrated to the ALJ’s satisfaction that “the penalty

imposed was reasonable.” Id. The Board must give deference “to the agency’s

judgment unless the penalty exceeds the range of permissible punishment specified

by statute or regulation, or unless the penalty is ‘so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion.’” Parker v.

U.S. Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987) (quoting Villela v. Dep’t of Air

Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)). While it may seem harsh to Mr.

Pollock that the Navy removed him for failure to provide a urine sample, he does not

dispute that the schedule of offenses and recommended remedies grants the

deciding official the discretion to terminate an employee for failure to provide a urine

sample. Moreover, the Navy removed Mr. Pollock because it found he lacked

credibility and trustworthiness after claiming his father died based on specious proof.

It was not unreasonable for the Navy to remove Mr. Pollock when he provided the

Navy with a baseless story.

Mr. Pollock presents three arguments to support his claim that the Board

abused its discretion. We reject all three arguments and address each in turn. First,

Mr. Pollock argues that his collective bargaining agreement and Executive Order

12,564 require the Navy to place Mr. Pollock in an alternative position and refer him

to treatment for failure to provide a urine sample. Mr. Pollock’s argument is not

supported by any specific evidence. Mr. Pollock may be referring to the Navy’s

2009-3246 8
 notice of random drug testing signed by Mr. Pollock. In that notice, the Navy warned

that “[i]f you refuse to furnish a urine specimen o[r] fail to report for testing as

directed, you will be subject to the same range of discipline as a verified positive test

result for illegal drug use.” The range of discipline “includ[ed] removal from the

Federal Service.” The notice further provided that if Mr. Pollock was found to have

used illegal drugs, he would “be subject to the following . . . administrative actions

mandated by Executive Order 12[,]564.” Those administrative actions included

immediate removal from a TDP “through reassignment, detail, or other personnel

action” and referral “to the Civilian Employee Assistance Program.” The notice never

explained, however, that employees who refuse or fail to submit to drug testing will

be entitled to the remedial measures in Executive Order 12,564. It only warned that

such employees are subject to the same range of discipline as an employee who is

found to use illegal drugs, including removal.

The Navy’s notice comports with Executive Order 12,564. That order applies to

“employee[s] who [are] found to use illegal drugs.” Exec. Order No. 12,564 § 5(a), 51

Fed. Reg. 32,889 (Sept. 15, 1986) (emphasis added), reprinted in 5 U.S.C. § 7301

(2006). Specifically, the order states that “[a]gencies shall, in addition to any

appropriate personnel actions, refer any employee who is found to use illegal drugs

to an Employee Assistance Program for assessment, counseling, and referral for

treatment or rehabilitation as appropriate.” Id. (emphasis added). The order does

not, however, address the appropriate personnel actions for employees who refuse

or fail to take a drug test as required by the order. Refusal or failure to take a drug

test presents a different problem for an agency. Employees who refuse or fail to take

2009-3246 9
 a drug test can prompt others to act similarly, undermining the agency’s drug-testing

program. See Watson v. Dep’t of Transp., 49 M.S.P.R. 509, 519 (1991), aff’d, 983

F.2d 1088 (Fed. Cir. 1992) (Table). If other employees could decline to take a

random drug test without providing documentation for their excuse, the Navy Drug

Free Workplace Program could not serve its intended purpose. Almost any creative,

but unsubstantiated, excuse could relieve a TDP employee from providing a urine

sample.

As part of his remedial-measures argument, Mr. Pollock further asserts that the

Navy changed its description of the charge on appeal from “Failure to [P]rovide Urine

Sample,” to failure to follow a supervisory instruction to avoid placing him in an

alternative position and referring him to treatment. Although the Navy indeed

reworded the charge on appeal, the Board understood the charge in Mr. Pollock’s

notice of removal as failure to provide a urine sample and did not clearly err by

declining to apply the executive order’s remedial measures to an employee who

avoided or refused to take a drug test. At most, the Board’s decision not to apply the

remedial measures is harmless error.

Second, Mr. Pollock argues that the district court abused its discretion by

excluding a witness that would have testified that he saw Mr. Pollock speak with

Chief Malaguit on the day of the drug test. The Board has broad discretion to

exclude testimony that is irrelevant. 5 C.F.R. § 1201.41(b)(7)–(8) (2009); Tiffany v.

Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986). In this case, the ALJ was well within

his discretion to exclude testimony that could have only established that Mr. Pollock

2009-3246 10
 spoke with someone who lacked the authority to excuse him from leaving or taking

the drug test.

Finally, Mr. Pollock argues that the Board failed to consider as mitigating

circumstances that he cooperated with the Navy’s request for documentation of his

father’s death and volunteered to resubmit to drug testing. We have held that “failure

to consider a significant mitigating circumstance constitutes an abuse of discretion.”

VanFossen v. Dep’t of Hous. & Urban Dev., 748 F.2d 1579, 1581 (Fed. Cir. 1984).

Here, the ALJ in fact noted both Mr. Pollock’s attempts at providing documentation

and his offer to take another drug test. The ALJ did not, however, expressly consider

these circumstances in determining whether removal was reasonable because the

ALJ did not credit Mr. Pollock’s testimony. The ALJ rejected his explanation for

failing to comply with the Navy’s request for documentation as unreliable. The Board

need only consider mitigating circumstances, not circumstances it has determined

are not reliable and thus not mitigating. Moreover, the fact that Mr. Pollock offered to

resubmit to drug testing is insignificant because an offer to take a drug test four days

later is no substitute for failure to take a random test.

CONCLUSION

For the foregoing reasons, we affirm the Board’s decision.

No costs.

2009-3246 11