Jolly v. Department of the Army
711 F. App'x 620
| Fed. Cir. | 2017Background
- Laurie Jolly, a Health Systems Administrator at Dwight D. Eisenhower Army Medical Center, had a workplace dispute over her work schedule beginning around 2014.
- On May 2, 2014, during a meeting with Yolanda Kelly, Jolly referenced Camp Lejeune and Fort Hood shootings and made comments about "bloodshed" and asked whether more blood needed to be shed before things changed; Kelly perceived these remarks as threatening.
- Jolly also sent a letter to her Congressman attaching a Fort Hood article and criticizing military leadership; she later reiterated alarming statements to Kelly and security was alerted.
- The Army proposed removal for conduct unbecoming a federal employee for making inflammatory/menacing comments that reasonably placed coworkers in fear; Jolly argued her remarks were rhetorical and not threats.
- After considering Jolly’s response and the Douglas factors, the deciding official (Col. Barrow) removed Jolly; the Board sustained the removal and rejected Jolly’s due-process and mitigation arguments.
- The Federal Circuit affirmed: substantial evidence supported the Board’s credibility findings and the removal penalty; using the supervisor as proposing and deciding official did not violate pre-termination due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jolly’s statements constituted menacing, threatening conduct unbecoming a federal employee | Jolly: remarks were rhetorical expressions of frustration about unfair labor practices, not threats | Army: statements about bloodshed and shootings implied violence and reasonably placed coworkers in fear | Held: Substantial evidence supports that the comments implied threats and justified removal |
| Whether the Douglas factors were properly considered in imposing removal | Jolly: Board failed to give an honest assessment / consider mitigating factors | Army: deciding official considered relevant Douglas factors and mitigation but found seriousness of misconduct outweighed service | Held: Board and deciding official adequately considered Douglas factors; removal reasonable |
| Whether the deciding official was biased, violating due process, because Barrow was the target and served as proposing and deciding official | Jolly: Barrow’s dual role and status as alleged target created an impartiality/due process problem | Army: pre-termination standards do not require an impartial external decisionmaker; supervisor may change view after hearing | Held: No due-process violation; pre-termination impartiality not required and dual role is permissible |
| Whether Board’s credibility determinations were supported by evidence | Jolly: Board based findings on conjecture and misread testimony | Army: Board relied on testimony and documentary evidence, crediting supervisors | Held: Credibility determinations are within Board’s discretion and are supported by substantial evidence |
Key Cases Cited
- Bruce v. Dep’t of Veterans Affairs, [citation="307 F. App'x 442"] (Fed. Cir. 2009) (credibility determinations by the Board are virtually unreviewable on appeal)
- Harrison v. Dep’t of Agric., [citation="411 F. App'x 312"] (Fed. Cir. 2010) (removal is within permissible range when employee makes threats that harm work atmosphere)
- Webster v. Dep’t of Army, 911 F.2d 679 (Fed. Cir. 1990) (AJ need not address every Douglas factor; addressing nature of charges, record, and effect of misconduct can suffice)
- DeSarno v. Dep’t of Commerce, 761 F.2d 657 (Fed. Cir. 1985) (no due-process violation when proposing and deciding roles are performed by same person at pre-termination stage)
- Norris v. S.E.C., 675 F.3d 1349 (Fed. Cir. 2012) (pre-termination deciding official need not be a neutral arbiter unfamiliar with the person or facts)
- McDaniels v. Flick, 59 F.3d 446 (3d Cir. 1995) (explaining why requiring impartial pretermination decisionmakers would be impractical and is not required)