Deleon v. DVA

Case: 20-1199 Document: 61 Page: 1 Filed: 09/20/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CHRIS DELEON,
Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________

2020-1199
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-0714-19-0431-I-1.
______________________

Decided: September 20, 2021
______________________

DAVID BRANCH, Law Office of David A. Branch, Wash-
ington, DC, for petitioner.

GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, for re-
spondent. Also represented by JEFFREY B. CLARK, TARA K.
HOGAN, ROBERT EDWARD KIRSCHMAN, JR.
______________________

Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
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2 DELEON v. DVA

REYNA, Circuit Judge.

Petitioner Chris deLeon appeals a decision of the Merit
Systems Protection Board, which sustained a charge of con-
duct unbecoming a federal employee. The Board affirmed
the United States Department of Veterans Affairs decision
to remove him from employment with the federal service.
For the reasons set forth in this opinion, we affirm the
Board’s determinations.
I. BACKGROUND
On February 28, 2019, the Petitioner became em-
broiled in an altercation at the Washington, DC Veterans
Affairs Medical Center (VAMC). J.A. 9. At the time of the
incident, he was a police officer whose statutory arrest au-
thority had been temporarily suspended due to failure to
meet certain weapon-certification requirements. J.A. 10,
141. Based on the arrest-authority suspension and a prior
injury, the Petitioner’s supervisors had assigned him du-
ties as a security assistant. J.A. 2, 188. Robyn Hardy, the
Chief of Police of the DC VAMC also moved the Petitioner
to the security desk due to complaints from VA personnel
about unauthorized entries into employee offices, including
the Human Resources (HR) Office. J.A. 19–20. His pri-
mary job as a security assistant was to check visitors’ iden-
tifications at a VAMC entrance. J.A. 2.
While checking identifications at the facility that day,
he encountered Ms. Karen Dadey, a veteran visiting the
VAMC for medical appointments. J.A. 2–3. Dadey con-
tends that, upon entering the VAMC, the Petitioner asked
for her identification. J.A. 2. She noticed that the Peti-
tioner was not wearing a police badge or uniform and asked
him, in turn, whether he was an employee. J.A. 2–3. The
Petitioner did not respond and asked for her identification
again. Id. When Dadey did not immediately provide her
identification, the Petitioner asked her to step aside to al-
low other visitors to pass. J.A. 11. After she entered the
building, Dadey stopped at a police room and complained
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DELEON v. DVA 3

about her encounter with the Petitioner. J.A. 3. She al-
leged that she felt as though she had been “detained.”
J.A. 3, 16. She also indicated that the Petitioner could be
a mental-health patient and expressed concern about the
way other patients could be affected if they were similarly
treated. J.A. 3, 11.
Upon completing her medical appointments, Dadey left
the building through the same VAMC entrance and waited
for a shuttle bus. J.A. 3. She alleged that she noticed the
Petitioner staring at her through the sliding doors and felt
threatened. Id. Dadey reentered the facility and asked the
Petitioner if he knew when the next shuttle would arrive.
J.A. 3, 12. The Petitioner responded that he did not know.
J.A. 12. Dadey also asked the Petitioner if anyone had spo-
ken to him about their earlier interaction and reiterated
that he should be wearing a badge and uniform. J.A. 3.
Dadey alleged that the Petitioner then became angry, and
she took out her phone in an attempt to take his photo-
graph. Id. The Petitioner warned Dadey that taking pho-
tographs or recording video in the VAMC was a violation of
agency policy. J.A. 7, 97. The Petitioner’s assertion, how-
ever, was not true and contravened the Division Chief of
the Department of Veterans Affairs (VA), who previously
noted the lack of policies or regulations that prohibited the
taking of photographs, digital images, and video or audio
recordings on VA premises. See J.A. 206–08.
The Petitioner and Dadey dispute the fine details of the
altercation that ultimately ensued. Dadey testified that
she believed the Petitioner was likely a patient imperson-
ating an officer. J.A. 15. She alleged that the Petitioner
lunged at her, grabbed her right arm, shoved her into the
wall, and demanded she delete any pictures she may have
taken of him. J.A. 3–4. Dadey testified that, after the Pe-
titioner “slammed” her into the wall, she informed him she
had not taken any pictures of him. J.A. 16. She testified
that she felt angry and violated by the Petitioner’s alleged
actions. J.A. 16. According to Dadey, the Petitioner ranted
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4 DELEON v. DVA

that she did not “have the right to tell [him] what to wear,
[or] what to put on his body when [he] leave[s] the house.”
Id. Dadey also testified that the Petitioner was “unstable
and acting crazy.” J.A. 17.
The Petitioner alleged that Dadey cornered him be-
tween his podium and the wall and positioned herself ap-
proximately one foot away from him. J.A. 10, 12. He
testified that, when Dadey held up her phone so as to take
a picture, he “feared for his safety,” grasped her arm, and
called for assistance with a “disruptive visitor.” J.A. 7. The
Petitioner testified that he grabbed her forearm believing
“she could have used [the] phone as a weapon.” J.A. 13.
However, when an officer from the Metropolitan Police De-
partment arrived at the scene and interviewed the Peti-
tioner, he did not mention that he was afraid of Dadey
during the altercation. J.A. 15. On the witness stand, the
Petitioner provided further testimony that Dadey was “try-
ing to get away from him” as he attempted to control the
situation. J.A. 13. The Petitioner contends that his actions
were consistent with the scope of his job duties and the pur-
ported policy against taking photographs at the VAMC.
J.A. 7, 14.
On March 18, 2019, following an internal investigation,
Hardy proposed the Petitioner’s removal from federal ser-
vice based on a single charge of conduct unbecoming of a
VA employee. J.A. 1, 9. The VAMC Executive Director
subsequently consulted with the VA’s HR Office and the
Office of General Counsel. J.A. 22. On April 8, 2019, the
Director sustained the charge and issued a decision to re-
move the Petitioner effective April 10, 2019. J.A. 8–9. Con-
sidering the evidence, the Director explained that the
Petitioner knew his arrest authority had been suspended
prior to the incident, but he nevertheless engaged in “phys-
ical contact with a patient” when he lacked the authority
to do so. J.A. 8. The Director discussed several factors out-
lined in Douglas v. Veterans Administration, 5 M.S.P.B.
313 (1981), including loss of confidence in the Petitioner’s
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DELEON v. DVA 5

ability to perform his job and consideration of lesser penal-
ties. J.A. 8.
The Petitioner filed a timely appeal with the Merit Sys-
tems Protection Board (Board) on April 9, 2019. Id. The
Administrative Judge (AJ) held a hearing, listened to tes-
timony, and reviewed the surveillance video of the incident.
See J.A. 10. After reviewing the evidence, the AJ issued an
Initial Decision finding that the VA “prove[d] by substan-
tial evidence that the [Petitioner] engaged in the charged
misconduct.” J.A. 29. The AJ noted that the surveillance-
video evidence contradicted the Petitioner’s testimony that
Dadey stood close to him with her phone next to his face or
had provoked him into action. J.A. 30. The AJ also deter-
mined that Dadey had not cornered him and “he could have
moved away from [her] without incident.” Id. The AJ
found “it was inherently improbable that the [Petitioner]
feared for his safety.” Id. Rather, it was “more likely that
the [Petitioner] feared [Dadey] would report him as she
told him she had done earlier in the day.” J.A. 30–31.
With respect to the Petitioner’s claim that he believed
Dadey would use her phone as a weapon, the AJ found the
Petitioner’s testimony “inherently improbable” and “incon-
sistent with his prior statements.” J.A. 31. Regardless of
whether the Petitioner believed Dadey posed a threat to
him, the AJ found such belief to be “insufficient to justify
[the] aggressive response.” Id. Accordingly, the AJ deter-
mined that the Petitioner’s actions were “improper and
constituted conduct unbecoming a VA employee.” Id.
Next, the AJ discussed the penalty imposed. The AJ
noted that the Board lacks authority to mitigate the pen-
alty following a finding that the charged misconduct is sup-
ported by substantial evidence. J.A. 36 (citing 38 U.S.C.
§ 714(d)(2)(B)). Thus, pursuant to the § 714 statutory man-
date, the AJ determined that an evaluation of any Douglas
factors was unnecessary, including consideration of the Pe-
titioner’s argument that the VA treated him differently
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6 DELEON v. DVA

than another officer involved in a similar physical alterca-
tion, whom the Petitioner claimed is a comparator. J.A. 36.
Despite deciding that there was no need to apply any
Douglas factors, the AJ evaluated the comparator claim. In
so doing, the AJ determined that the Petitioner could not
prevail because the alleged comparator officer had “re-
tained his law enforcement authority while the [Peti-
tioner]’s was suspended.” Id. Furthermore, unlike the
Petitioner, the alleged comparator had “attempted to
deescalate the situation and only made physical contact
with the patient after the patient struck the officer.” Id.
In contrast, the AJ found that the Petitioner had initiated
physical contact with Dadey and noted the lack of evidence
to support efforts to deescalate the confrontation. J.A. 37.
Moreover, unlike in this case, the patient in the comparator
case had not formally “pursued a complaint” as Dadey did.
J.A. 35, 37. Accordingly, the AJ determined that weighing
the comparator claim would not alter the outcome because
the alleged comparator and the Petitioner were not simi-
larly situated. Id.
Ultimately, the AJ found that the VA’s decision to re-
move the Petitioner from his post was supported by sub-
stantial evidence and, on that basis, sustained the charge
of misconduct unbecoming a VA employee. Id. The Peti-
tioner did not appeal the AJ’s findings to the full Board
and, thus, the AJ’s determination became the Board’s deci-
sion. The Petitioner now appeals. We have jurisdiction
under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
II. STANDARD OF REVIEW
We review Board decisions under the statutory con-
straints set forth in 5 U.S.C. § 7703(c). Beck v. Dep’t of the
Navy, 997 F.3d 1171, 1181–82 (Fed. Cir. 2021). We must
affirm unless the Board’s decision is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without adherence to procedures re-
quired by law, rule, or regulation; or (3) unsupported by
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DELEON v. DVA 7

substantial evidence.” 5 U.S.C. § 7703(c). An agency
abuses its discretion when it renders a decision “based on
an erroneous interpretation of the law, on factual findings
that are not supported by substantial evidence, or repre-
sents an unreasonable judgment in weighing relevant fac-
tors.” Star Fruits S.N.C. v. United States, 393 F.3d 1277,
1281 (Fed. Cir. 2005) (citation omitted). “Substantial evi-
dence ‘means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” In re
Bayer Aktiengesellschaft, 488 F.3d 960, 964 (Fed.
Cir. 2007) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
III. DISCUSSION
The Petitioner raises a single issue in his opening brief,
namely, that the AJ erred in determining the alleged com-
parator officer and the Petitioner were not similarly situ-
ated. Pet’r’s Br. 8–9. 1 The VA, in response, makes two
primary arguments: (1) § 714(d)(2)(B) unambiguously pre-
cludes the AJ from mitigating the penalty imposed for the
Petitioner’s misconduct, thereby rendering analysis of any
Douglas factors superfluous; and (2) the AJ’s conclusion
that the Petitioner and the alleged comparator are not sim-
ilarly situated is supported by substantial evidence.
Resp’t’s Br. 8–11.
We first underscore this court’s recent decision in Con-
nor v. Department of Veterans Affairs, _ F.4th _, 2021 WL

1 To the extent the Petitioner argues, in his reply
brief, that the AJ erred in concluding the Board lacks au-
thority to mitigate the VA’s penalty under § 714(d)(2)(B),
see Pet’r’s Reply Br. 3–4, we conclude that the Petitioner
has forfeited such argument. See United States v. Olano,
507 U.S. 725, 731 (1993) (noting that a party may forfeit an
argument by failing to timely assert it).
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8 DELEON v. DVA

3556910 (Fed. Cir. 2021), which addresses and forecloses
the VA’s § 714(d)(2)(B) arguments.
Section 714 prescribes that “if the decision of the [VA]
Secretary is supported by substantial evidence, the admin-
istrative judge shall not mitigate the penalty prescribed by
the Secretary.” 38 U.S.C.A. § 714(d)(2)(B). In interpreting
this statutory provision, Connor held that Ҥ 714 precludes
the Board only from mitigating the agency’s chosen pen-
alty. It does not alter the penalty review with respect to
the Douglas factors.” Connor, 2021 WL 3556910, at *5 (in-
ternal citation omitted). The court emphasized that the en-
actment of § 714 did not change the proper legal standard
and, thus, “the VA and Board must continue to apply the
relevant Douglas factors in considering the reasonableness
of the penalty in VA disciplinary[-]action cases.” Id. Thus,
the Board’s determination that it lacks authority to review
the VA’s penalty and consider the Douglas factors under
§ 714(d)(2)(B) is incorrect in view of Connor.
This court’s recent decision in Rodríguez v. Department
of Veterans Affairs, _ F.4th _, 2021 WL 3556562 (Fed.
Cir. 2021) is also instructive. Rodríguez held that an AJ’s
conclusion that substantial evidence is both the level of
proof required of the agency and the Board’s standard of
review constitutes legal error. Rodríguez, 2021 WL
3556562, at *8. We conclude that the AJ in this case also
legally erred by applying substantial evidence as the
agency’s burden of proof. 2 See J.A. 29.
Notwithstanding the Board’s erroneous determina-
tions as to the scope of § 714 and the burden of proof appli-
cable, we conclude that the AJ’s comparator findings in the
alternative are adequately supported by substantial evi-
dence because the alleged comparator is not similarly

2 The error, however, is not dispositive given the AJ’s
comparator findings, as explained below.
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DELEON v. DVA 9

situated to the Petitioner. See J.A. 37. The alleged com-
parator retained his law-enforcement authority, attempted
to deescalate the conflict, and did not initiate physical con-
tact during the altercation. See J.A. 36–37. The Petitioner,
on the other hand, lacked law-enforcement authority to de-
tain or subdue anyone, did not exercise prudent restraint
to control the situation, and initiated a physical altercation
with a veteran that was neither appropriate nor justified
under the circumstances. We therefore conclude that the
AJ correctly identified fundamental distinctions in the al-
leged comparator’s case that materially distinguish it from
the facts of this record. And we discern no reason to disturb
the Board’s assessment regarding the credibility of the Pe-
titioner’s inconsistent testimony or reweigh the Douglas-
factor evaluation of the Board’s comparator findings. 3 The
Board’s decisions to sustain the charge of misconduct and
affirm the Petitioner’s removal from employment with the
federal service are supported by substantial evidence.
IV. CONCLUSION
For the reasons set forth in this opinion, we affirm the
Board’s decision upholding the Petitioner’s removal from
federal service under 38 U.S.C. § 714(d)(2)(B). We do not
reach the forfeited arguments in the Petitioner’s reply
brief.

AFFIRMED
No costs.

3 We note that the Petitioner’s opening brief only al-
leged that the Board erred in its comparator findings and,
thus, we limit our analysis to that argument.