Case: 22-1665 Document: 55 Page: 1 Filed: 03/05/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROBERT JEFF DEMPSEY,
`Petitioner
`
`v.
`
`UNITED STATES MARSHALS SERVICE,
`Respondent
`______________________
`
`2022-1665
`______________________
`
`Petition for review of an arbitrator’s decision in No.
`FMCS 211117-01415 by Melinda G. Gordon.
`______________________
`
`Decided: March 5, 2024
`______________________
`
`ROBERT JEFF DEMPSEY, Brunswick, GA, pro se.
`
`
` LIRIDONA SINANI, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for respondent. Also represented by BRIAN M.
`BOYNTON, TARA K. HOGAN, STEVEN C. HOUGH, PATRICIA M.
`MCCARTHY.
` ______________________
`
`Before TARANTO, CHEN, and STOLL, Circuit Judges.
`
`

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`Case: 22-1665 Document: 55 Page: 2 Filed: 03/05/2024
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`PER CURIAM.
`Robert Jeff Dempsey worked as a Property Manage-
`ment Specialist in the United States Marshals Service
`(USMS) until USMS, acting under 5 U.S.C. Chapter 43, re-
`moved him from that position for unacceptable perfor-
`mance, with the removal effective on September 25, 2020.
`Mr. Dempsey’s union, the American Federation of Govern-
`ment Employees Local 2272 (the Union), filed a grievance
`on his behalf challenging the removal. Under 5 U.S.C.
`§ 7121(e)(1) and pursuant to the collective bargaining
`agreement between the Union and USMS, the parties se-
`lected an arbitrator, who ultimately affirmed USMS’s re-
`moval decision. See J.A. 1–15. On Mr. Dempsey’s petition
`for review, we affirm the arbitrator’s decision.
`I
`Mr. Dempsey was a Property Management Specialist
`with the USMS Training Division in Glynco, Georgia, from
`2011 until 2020. His duties, according to USMS’s and Mr.
`Dempsey’s evidence, included accounting for and keeping
`inventory of training division property, such as training
`weapons, and ensuring that the division’s motor vehicles
`received routine and required maintenance.
`On December 18, 2019, Mr. Dempsey acknowledged
`that he was being evaluated under a “performance work
`plan” (also referred to as a “performance plan”) during the
`period from October 1, 2019, to September 30, 2020. J.A.
`671–72. The plan listed “Time Management” as one of the
`“critical elements” of his position. J.A. 676; see J.A. 674–
`677. On April 30, 2020, Mr. Dempsey met with his direct
`supervisor, Chief Abra Lattany-Reed, and the then-Deputy
`Assistant Director of his division, Stephanie Creasy. Ms.
`Lattany-Reed and Ms. Creasy informed him, and he also
`received a written notice, that he was being placed on a
`“performance improvement plan” in accordance with 5
`C.F.R. Part 432 for 30 calendar days due to unacceptable
`performance in the earlier-adopted performance work plan.
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`3
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`He was also informed that he had been denied a scheduled
`within-grade pay increase due to his poor performance.
`The written notice emphasized the “Time Manage-
`ment” critical element from his performance work plan and
`expressed concern that Mr. Dempsey “continually fail[ed]
`to manage [his] time in a manner that ensure[d] timely
`completion of assignments.” J.A. 698. The notice provided
`six examples of Mr. Dempsey’s failures to manage his time,
`J.A. 698–702, and outlined both specific tasks to be com-
`pleted (e.g., “accomplish a complete review of the Training
`Division inventory for all division property”) and general
`standards to be met (e.g., “respond to emails and corre-
`spondence timely”) under the new performance improve-
`ment plan, J.A. 702. The notice also advised Mr. Dempsey
`that if, at the end of the 30-day period, his performance
`continued to be unacceptable, he could be subject to “reas-
`signment, reduction in grade or removal from the [f]ederal
`service.” J.A. 703.
`During the April 30 meeting, Mr. Dempsey and his su-
`pervisors agreed that he would make a plan to accomplish
`the tasks required of him during the performance-improve-
`ment period. Mr. Dempsey was advised that the 30-day
`period of the performance improvement plan would start
`immediately, i.e., on April 30. The next day, May 1, Mr.
`Dempsey met with Ms. Lattany-Reed and Ms. Creasy to
`discuss his work plan for the 30-day period, but Ms. Lat-
`tany-Reed and Ms. Creasy found his work plan to be inad-
`equate. Mr. Dempsey then proposed a new plan and began
`working on his assigned tasks, and he and Ms. Lattany-
`Reed continued to communicate by email over the perfor-
`mance-improvement period.
`On July 21, 2020, Mr. Dempsey received a notice of pro-
`posed removal under 5 U.S.C. § 4303 and 5 C.F.R. Part 432
`for “[f]ailure of a [p]erformance [i]mprovement [p]lan,”
`which “concluded on June 1.” J.A. 719. The notice sets
`forth five examples of performance deficiencies during the
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`performance-improvement-plan period. Mr. Dempsey re-
`plied orally on August 31, 2020. On September 25, 2020,
`Mr. Dempsey was notified that the deciding official had
`considered the record and found his “performance deficien-
`cies” with respect to time management had been “substan-
`tiated” and that Mr. Dempsey would be removed effective
`the close of business that day. J.A. 818.
`In accordance with the collective bargaining agreement
`between the Union and USMS, which provides for griev-
`ance procedures as required by 5 U.S.C. § 7121, the Union
`filed a grievance challenging Mr. Dempsey’s removal. The
`Union and the USMS jointly selected an arbitrator via the
`Federal Mediation and Conciliation Service. The arbitra-
`tor held a series of virtual hearings in June through August
`2021, hearing testimony from Mr. Dempsey, Ms. Lattany-
`Reed, Ms. Creasy, the deciding official, and a number of
`other USMS employees.
`The arbitrator issued a decision denying the Union’s
`grievance and affirming Mr. Dempsey’s removal, because
`USMS’s removal decision was supported by substantial ev-
`idence, as required by 5 U.S.C. §§ 7121(e) and 7701(c)(1)(A)
`and 5 C.F.R. § 1201.56(b)(1)(i). In particular, the arbitra-
`tor determined that substantial evidence existed of Mr.
`Dempsey’s poor performance before the performance-im-
`provement period, USMS’s notice to him of his performance
`issues, USMS’s provision of a reasonable opportunity to im-
`prove, and Mr. Dempsey’s continued poor performance.
`She also noted that, although USMS made an error in its
`proposed removal letter, by giving “May 20” as the day of a
`meeting, Mr. Dempsey “was not harmed by this error.” J.A.
`10–11.
`The arbitrator’s decision issued on February 14, 2022.
`On April 8, 2022, within the 60 days allowed by 5 U.S.C.
`§§ 7121(f) and 7703(b)(1), the Union and Mr. Dempsey pe-
`titioned this court for review of the arbitrator’s decision.
`The parties then stipulated to the dismissal of the Union
`
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`as a party, see Fed. R. App. P. 27, leaving Mr. Dempsey the
`sole petitioner. We have jurisdiction under 5 U.S.C.
`§§ 7121(f) and 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
`II
`When presented with an arbitral decision arising from
`a grievance procedure established under 5 U.S.C. § 7121
`for a collective bargaining agreement, we review it “in the
`same manner and under the same conditions as if the mat-
`ter had been decided by the [Merit Systems Protection
`Board].” 5 U.S.C. § 7121(f); see AFGE Local 3599 v. Equal
`Employment Opportunity Commission, 920 F.3d 794, 796–
`797 (Fed. Cir. 2019); Dixon v. Department of Transporta-
`tion, Federal Aviation Administration, 8 F.3d 798, 803
`(Fed. Cir. 1993). Consequently, we will affirm the arbitra-
`tor’s decision unless it is “(1) arbitrary, capricious, an abuse
`of discretion, or otherwise not in accordance with law; (2)
`obtained without procedures required by law, rule, or reg-
`ulation having been followed; or (3) unsupported by sub-
`stantial evidence.” 5 U.S.C. § 7703(c); see also Dixon, 8
`F.3d at 803. Substantial evidence is “such relevant evi-
`dence as a reasonable mind might accept as adequate to
`support a conclusion.” McLaughlin v. Office of Personnel
`Management, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (cleaned
`up). “This court’s role is further circumscribed when re-
`viewing a performance-based action taken under chapter
`43 because of the deference owed to each agency’s judgment
`regarding its employees’ performance in light of the
`agency’s assessment of its own personnel needs and stand-
`ards.” Harris v. Securities and Exchange Commission, 972
`F.3d 1307, 1315 (Fed. Cir. 2020) (cleaned up).
`Chapter 43 authorizes the reduction in grade or re-
`moval of an employee for “unacceptable performance.” 5
`U.S.C. § 4303(a).
`In order to properly remove or demote an employee
`under chapter 43, the agency must have (1) estab-
`lished a performance appraisal system approved by
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`the Office of Personnel Management, (2) communi-
`cated objective and reasonable written perfor-
`mance standards and critical elements of an
`employee’s position to her at the beginning of the
`appraisal period, (3) warned her of inadequacies in
`critical elements during the appraisal period, and
`(4) counseled and afforded her an opportunity for
`improvement after proper notice.
`Harris, 972 F.3d at 1316; see Lovshin v. Department of the
`Navy, 767 F.2d 826, 834 (Fed. Cir. 1985) (en banc).
`An agency that has complied with the performance-ap-
`praisal requirements may “reduce in grade or remove an
`employee who receives a rating of ‘unacceptable’ with re-
`spect to even a single critical element.” Harris, 972 F.3d at
`1316 (emphasis in original) (cleaned up); see 5 U.S.C.
`§ 4301(3) (For purposes of chapter 43, subchapter I, under
`which this § 4303 removal falls, “‘unacceptable perfor-
`mance’ means performance of an employee which fails to
`meet established performance standards in one or more
`critical elements of such employee’s position.”). The imple-
`menting regulations that govern chapter 43 removals de-
`fine a “critical element” as “a work assignment or
`responsibility of such importance that unacceptable perfor-
`mance on the element would result in a determination that
`an employee’s overall performance is unacceptable.” 5
`C.F.R. § 430.203.
`Mr. Dempsey broadly argues that the arbitrator did not
`take due account of favorable evidence when she found the
`agency’s removal decision to be supported by substantial
`evidence. Mr. Dempsey does not challenge USMS’s “estab-
`lish[ment of] a performance appraisal system” or its com-
`munication of
`“objective and
`reasonable written
`performance standards and critical elements.” Harris, 972
`F.3d at 1316; see Petitioner’s Br. at 59 (stating that “two”
`of the “four elements” required for a chapter 43 removal are
`“pertinent here,” and then referring to “warning” and
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`“opportunity for improvement”). Mr. Dempsey’s argu-
`ments address the remaining three pieces of the chapter 43
`inquiry: whether he was “warned of [his] inadequacies,”
`whether he was “counseled and afforded . . . an opportunity
`for improvement,” and whether his performance was in fact
`unacceptable with respect to a critical element. Harris,
`972 F.3d at 1316.
`
`A
`Mr. Dempsey suggests that the arbitrator erred in find-
`ing that he was reasonably warned of his deficiencies,
`pointing to the fact that he did not receive a specific warn-
`ing that he was “in danger of failing” during the course of
`the performance-improvement period. Petitioner’s Br. at
`10 (emphasis omitted). But we have stated that, for chap-
`ter 43 removals, no warning needs to be issued prior to a
`performance improvement plan, because the plan “notice
`itself often serves as the warning,” and there is no require-
`ment “that the warning come at any particular time.” Har-
`ris, 972 F.3d at 1316–17. Mr. Dempsey cites no authority
`suggesting that he was entitled to any additional warning
`after the notice of the performance improvement plan for
`the purposes of chapter 43. And he does not dispute that
`he received the performance-improvement-plan notice.
`Consequently, the arbitrator’s decision regarding USMS’s
`warning is supported by substantial evidence.
`B
`Mr. Dempsey points to evidence that he argues weighs
`against the arbitrator’s determination that he was coun-
`seled and afforded the opportunity to improve. First, he
`points to evidence that his workload during the perfor-
`mance-improvement period was too great for one person to
`manage. He also asserts that his 30-day performance-im-
`provement period was too short and that he received new
`tasks and deadlines days into the period. Finally, he as-
`serts that he did not receive enough support during the
`
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`performance-improvement period. These arguments, we
`conclude, do not support disturbing the arbitrator’s ruling.
`Mr. Dempsey first argues that the arbitrator ignored
`evidence that his workload was unreasonable, including
`testimony by others about the size of his workload and ev-
`idence that, for completion of one of the tasks he was as-
`signed, i.e., taking an inventory of all division property, 45
`days would ordinarily be allowed. But Ms. Lattany-Reed
`and Ms. Creasy both testified—and the arbitrator noted—
`that Mr. Dempsey would have been given more time to
`complete the tasks if he had asked for it and that they com-
`municated such flexibility to Mr. Dempsey. And Mr.
`Dempsey’s performance-improvement-plan notice required
`that he provide notice if he would miss a deadline. Yet, as
`the arbitrator found, Mr. Dempsey never expressed con-
`cern about the shortness of the performance-improvement
`period, asked for more time, advised that he would miss a
`deadline, or communicated about other obstacles.1 How-
`ever large his list of assigned tasks was, Mr. Dempsey does
`not seem to dispute that he could have communicated his
`concerns to his supervisors but never did. Evidence of the
`size of his workload does not overcome this fact.
`Mr. Dempsey also argues that his performance-im-
`provement period was in effect only 28 days, rather than
`the 30 to which he was entitled under the notice.
`
`In challenging the finding that his performance
`1
`was unacceptable, Mr. Dempsey argues that an email re-
`ceived from Ms. Lattany-Reed on May 11, 2020, meant that
`he no longer had to request more time if he was going to
`miss a deadline. This argument does not on its face suggest
`that Mr. Dempsey believed that he did not have to (and
`should not) communicate any concerns about the deadline
`or workload to his supervisors, and such a suggestion
`would be an unpersuasive reading of the language of Ms.
`Lattany-Reed’s email.
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`Specifically, he argues that he was missing two days be-
`cause he received notice of the performance improvement
`plan in the afternoon and the period contained a federal
`holiday. Mr. Dempsey does not, however, cite to authority
`indicating that federal holidays are to be excluded from a
`performance-improvement period, which would be surpris-
`ing when weekends are counted, as Mr. Dempsey accepts
`in putting forth his 28-day alternative. Further, his per-
`formance-improvement-plan notice expressly specified
`that the period would last “30 calendar days.” J.A. 697.
`And, as USMS further notes, Mr. Dempsey’s performance-
`improvement period ended up lasting until June 1, 2020.
`Respondent’s Br. at 22 n.5 (citing J.A. 719). Thus, even not
`counting April 30 or June 1, Mr. Dempsey was afforded the
`31 calendar days of May.
`Mr. Dempsey also asserts that, part way through the
`period, via an email on May 11, he was given new deadlines
`and tasks, which he had even less time to complete. The
`arbitrator reasonably found, however, based on testimony
`from Mr. Dempsey and Ms. Creasy, that the additional
`tasks and deadlines Mr. Dempsey alleges he received had
`previously been communicated to him. Mr. Dempsey con-
`ceded, for example, that the tasks and items identified in
`the May 11 email had been discussed at the May 1 meeting,
`though no specific deadlines had been provided. And, as
`discussed above, to the extent that Mr. Dempsey was con-
`cerned about newly set deadlines before the end of his per-
`formance-improvement period, the record is clear that he
`could have raised his concerns with his supervisors.
`Finally, Mr. Dempsey argues that Ms. Lattany-Reed
`did not meet or communicate with him regularly during the
`performance-improvement period and did not express her
`dissatisfaction with his work, and therefore did not counsel
`him as required. The arbitrator found that, despite Mr.
`Dempsey’s testimony about a lack of support, USMS “cred-
`ibly demonstrated it assisted Dempsey” through, among
`other things, the testimony of Ms. Lattany-Reed. J.A. 14.
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`Mr. Dempsey’s argument thus asks us to review the arbi-
`trator’s determinations about credibility of, and how to
`weigh, different testimony, something beyond our limited
`standard of review. See, e.g., Raney v. Federal Bureau of
`Prisons, 222 F.3d 927, 939 (Fed. Cir. 2000) (en banc)
`(“Credibility determinations are within the discretion of
`the arbitrator and are virtually unreviewable on appeal.”).
`Overall, substantial evidence supports the arbitrator’s
`conclusion that Mr. Dempsey was counseled and given an
`opportunity to improve before he was removed.
`C
`Mr. Dempsey challenges aspects of the examples of un-
`acceptable performance specified in his notice of proposed
`removal. To the extent that the notice gives these exam-
`ples as specifications of failure to complete certain tasks,
`he asserts that he did in fact complete those tasks. These
`arguments, too, are unpersuasive.
`Example 1A of the notice of proposed removal notes
`that Mr. Dempsey failed to complete scheduled mainte-
`nance on several vans by the deadline of May 12, even
`though he had previously represented that the repairs in
`question had already been scheduled and would be com-
`pleted by the deadline. J.A. 720. Mr. Dempsey does not
`seem to contest that at least certain repairs were not com-
`pleted by May 12.2 Instead, Mr. Dempsey argues that he
`completed the overall task because the repairs listed in the
`notice, such as a broken seatbelt, were “repairs” and not
`“scheduled maintenance.” Petitioner’s Br. at 22–24. Mr.
`Dempsey also testified as to his belief that repairs were
`
`2 USMS conceded that some vehicle work listed in
`the notice of proposed removal was completed on time, but
`the arbitrator found substantial evidence that two items of
`work were not completed on time. J.A. 11 & n.71. Mr.
`Dempsey appears not to dispute that finding.
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`11
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`distinct from maintenance. The arbitrator, however, noted
`that USMS policy “clearly contemplate[d] repair work on a
`vehicle as part of maintenance. J.A. 11 (citing J.A. 1120).
`Mr. Dempsey does not argue or suggest that any miscon-
`ception on his part was based on communication from his
`supervisors or that he could not have sought clarification.
`Mr. Dempsey essentially asks us to reweigh his testi-
`mony and credit it over the arbitrator’s findings. We again
`decline to do so. See Raney, 222 F.3d at 939. And Mr.
`Dempsey’s arguments against the other examples simi-
`larly ask us to reweigh and reconsider his testimony re-
`garding his understanding, which diverged from that of his
`supervisors, of the tasks before him. Thus, these argu-
`ments are equally unavailing.
`Mr. Dempsey also argues that, based on Ms. Lattany-
`Reed’s email on May 11 (see supra n.1), he no longer needed
`to provide advance notice that he would miss a deadline.
`He argues that the examples in the notice of proposed re-
`moval all depended on his not having provided such notice.
`Aside from the fact that the email could reasonably be sub-
`ject to an interpretation different from Mr. Dempsey’s, the
`examples in the proposed removal notice consistently note
`that Mr. Dempsey both failed to provide notice and failed
`to meet the deadlines. Thus, his failure to provide notice,
`even if in good faith based on Ms. Lattany-Reed’s email,
`was not the sole basis for USMS’s finding of unacceptable
`performance.
`Finally, Mr. Dempsey argues that his errors during the
`performance-improvement period should have been bal-
`anced against his accomplishments. He cites no authority,
`however, that supports such a balancing of errors against
`accomplishments.
`Ultimately, there was ample record evidence that Mr.
`Dempsey failed to meet standards that were clearly set
`forth for him. We find that the arbitrator’s decision on the
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`DEMPSEY v. UNITED STATES MARSHALS SERVICE
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`unacceptable-performance issue to be supported by sub-
`stantial evidence.
`
`III
`We have considered Mr. Dempsey’s other arguments
`and find them unpersuasive. For the reasons stated above,
`substantial evidence supports the arbitrator’s affirmance
`of USMS’s removal of Mr. Dempsey. We affirm.
`The parties shall bear their own costs.
`AFFIRMED
`
`