Case: 23-2015 Document: 33 Page: 1 Filed: 03/04/2024
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`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`SHA’LISA LEWIS,
`Petitioner
`
`v.
`
`FEDERAL BUREAU OF PRISONS,
`Respondent
`______________________
`
`2023-2015
`______________________
`
`Petition for review of an arbitrator’s decision in No.
`FMCS 220523-06204 by Linda Eberenz.
`______________________
`
`Decided: March 4, 2024
`______________________
`
`SHA’LISA LEWIS, Mebane, NC, pro se.
`
`
` MEREDYTH COHEN HAVASY, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent. Also represented by
`BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA
`M. MCCARTHY.
` ______________________
`
`
`

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`Case: 23-2015 Document: 33 Page: 2 Filed: 03/04/2024
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`2
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`LEWIS v. BOP
`
`Before DYK and CUNNINGHAM, Circuit Judges, and
`BENCIVENGO, District Judge.1
`DYK, Circuit Judge.
`
`Petitioner Sha’Lisa Lewis seeks review of an arbitra-
`tor’s decision finding that the Federal Bureau of Prisons
`(“BOP”) properly terminated Ms. Lewis’s employment dur-
`ing her probationary period. Ms. Lewis argues primarily
`that she did not receive notification of her termination un-
`til after the completion of her probationary period and that
`the arbitrator ignored 5 C.F.R. § 315.804, which Ms. Lewis
`contends provides that an employee is not terminated until
`she receives such notice. We conclude that the regulation
`only requires that the agency make reasonable efforts to
`inform the employee of the termination and the reasons for
`it prior to the end of the probationary period. The govern-
`ment unquestionably made such reasonable efforts here.
`We affirm.
`
`BACKGROUND
` Under 5 U.S.C. § 7513, federal employees facing re-
`moval are normally entitled to advance written notice and
`procedural protections, including the right to appeal to the
`Merit Systems Protection Board (“MSPB”). However, these
`provisions are inapplicable to individuals serving a proba-
`tionary period under an initial appointment. 5 U.S.C.
`§ 7511(a)(1)(A)(i). The question here is whether Ms. Lewis
`was terminated during her probationary period.
`In April 2021, BOP hired Ms. Lewis as a correctional
`officer at the Federal Correctional Complex in Butner,
`North Carolina. Ms. Lewis’s appointment was subject to
`completion of a one-year probationary period, which the
`
`
`1 Honorable Cathy Ann Bencivengo, District Judge,
`United States District Court for the Southern District of
`California, sitting by designation.
`
`

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`LEWIS v. BOP
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`3
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`parties agree ended at 4:00 pm on April 8, 2022. On March
`30, 2022, shortly before the end of her probationary period,
`Ms. Lewis was “placed on administrative leave with pay
`until further notice.” S.A. 6. During administrative leave,
`Ms. Lewis was “subject to recall to duty at any time” and
`was required to provide a “telephone number where [she
`could] be reached at all times during normal duty hours.”
`Id.
` On April 6, 2022, BOP prepared a termination letter to
`Ms. Lewis providing “notice that [Ms. Lewis] will be re-
`moved during probation from [her] position of Correctional
`Officer” as of the end of the day on April 6, 2022. S.A. 9.
`The letter explained that “[t]his action is being taken be-
`cause of [Ms. Lewis’s] unsatisfactory conduct since enter-
`ing on duty April 11, 2021.” Id. The termination letter
`named one charge—“Appearance of an Inappropriate Rela-
`tionship with an Inmate”—and described two instances
`wherein Ms. Lewis purportedly allowed an inmate to enter
`the officer’s station with her while “the lights were off” on
`March 4, 2022, and March 5, 2022. Id. Although Ms. Lewis
`contended at arbitration that these allegations were false,
`the termination letter states that Ms. Lewis had admitted
`these events occurred and that they “support[] someone
`else’s perception of an inappropriate relationship.” Id.
`
`BOP “attempted to inform Ms. Lewis of their decision
`to terminate her.” S.A. 2. First, on April 5, 2022, BOP di-
`rected Ms. Lewis to report to the facility the next day,
`which a BOP witness testified was for Ms. Lewis “[t]o re-
`ceive the termination letter.” S.A. 28 (24:21). But
`“Ms. Lewis failed to report as instructed, alleging illness.”
`S.A. 2. The record contains a note from a nurse practitioner
`stating that Ms. Lewis was seen at a clinic at 3:15 pm on
`April 5, 2022—the day she received her instruction to re-
`port to the institution. The note requested that Ms. Lewis
`be excused from work until April 9, 2022—the day after her
`probationary period would end.
`
`

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`LEWIS v. BOP
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`When Ms. Lewis did not report to the facility on April
`6, 2022, BOP “mailed a copy of the termination letter to
`[Ms. Lewis’s] address of record via USPS Certified Mail
`and overnight mail via FedE[x].” Id. Ms. Lewis contends
`that she only received the letter on April 12, 2022, after the
`end of the probationary period. According to FedEx track-
`ing information, “the letter had been delivered on Thurs-
`day, April 7, 2022, at 9:59 am,” before the end of the
`probationary period. Id. Ms. Lewis contended that she
`never received the FedEx package, and that the signature
`on the receipt is not hers. As to the certified mail copy, a
`delivery slip indicates that USPS unsuccessfully attempted
`to deliver it on April 8, 2022. In addition, on April 8, 2022,
`the human resources manager called Ms. Lewis and, when
`Ms. Lewis did not answer, left a voicemail referencing “the
`removal letter from employment here at FCC Butner.” S.A.
`18. Ms. Lewis contended she did not receive the message
`until after her probationary period ended at 4:00 pm, and
`the time stamp on the voicemail exhibit is 4:05 pm, but the
`human resources manager testified that she had called and
`left the message before 3:00 pm.
`On April 20, 2022, the American Federation of Govern-
`ment Employees Local 408 (“the union”) “presented a for-
`mal grievance claiming that bargaining unit employee,
`Sha’Lisa Lewis had been removed from her position with-
`out due process required by the Master Agreement, appli-
`cable statute, and government regulations.” S.A. 1. After
`BOP denied the grievance, the union requested arbitration.
`On January 26, 2023, an in-person arbitration hearing was
`held, during which a lawyer appeared on behalf of the un-
`ion, four witnesses—including Ms. Lewis and a union vice
`president—testified under oath, and twenty-five exhibits
`were presented. The parties submitted post-hearing briefs.
`On April 26, 2023, the arbitrator rendered her decision,
`finding that “Ms. Sha’Lisa Lewis was terminated during
`her probationary period and was not entitled to advanced
`notice or other due process procedures as the Union claims.
`
`

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`LEWIS v. BOP
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`The termination is not grievable.” S.A. 3. The arbitrator
`held that probationary employees “are to be informed, in
`writing, of the reasons for the termination but there is
`nothing requiring that this information be provided prior
`to termination.” S.A. 2. The arbitrator did not resolve
`whether Ms. Lewis had received notice before the proba-
`tionary period ended. Ms. Lewis timely petitioned for re-
`view, arguing that the arbitrator erred in finding that
`Ms. Lewis was terminated before the end of her probation-
`ary period. Thus, Ms. Lewis contends, she was denied “due
`process protections, such as a proposed removal action, and
`. . . a reasonable opportunity to respond.” Pet. Br. at 4.
`
` We have jurisdiction to review the arbitrator’s decision
`under 5 U.S.C. §§ 7121(f) and 7703(b)(1) and 28 U.S.C.
`§ 1295(a)(9). See Buffkin v. Dep’t of Def., 957 F.3d 1327,
`1329 (Fed. Cir. 2020).
`
`DISCUSSION
`“Under 5 U.S.C. § 7121(e)(1) . . . a federal employee
`
`seeking to challenge disciplinary action by her employing
`agency may appeal her claim to the MSPB or, alterna-
`tively, take her claim to an arbitrator under a negotiated
`grievance procedure created by collective bargaining agree-
`ment.” Id. We review the arbitrator’s award “using the
`same standard of review that applies to appeals from deci-
`sions of the MSPB.” Id. (citing 5 U.S.C. § 7121(f)). Under
`that standard, we review the record and must “hold unlaw-
`ful and set aside any agency action, findings, or conclusions
`found to be (1) arbitrary, capricious, an abuse of discretion,
`or otherwise not in accordance with law; (2) obtained with-
`out procedures required by law, rule, or regulation having
`been followed; or (3) unsupported by substantial evidence.”
`5 U.S.C. § 7703(c).
` Ms. Lewis primarily argues that the arbitrator misap-
`plied 5 C.F.R. § 315.804(a), which provides (emphasis
`added):
`
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`Case: 23-2015 Document: 33 Page: 6 Filed: 03/04/2024
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`6
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`LEWIS v. BOP
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`[W]hen an agency decides to terminate an em-
`ployee serving a probationary or trial period be-
`cause his work performance or conduct during this
`period fails to demonstrate his fitness or his quali-
`fications for continued employment, it shall termi-
`nate his services by notifying him in writing as to
`why he is being separated and the effective date of
`the action.
`Ms. Lewis contends that her termination was not effective
`because she did not receive the notice of termination before
`the end of the probationary period and that the arbitrator
`erred in determining that such notice was not required.
`
`The regulation requires that termination be accom-
`plished “by notifying [the employee] in writing.” 5 C.F.R.
`§ 315.804(a). An agency cannot rely only upon an internal
`decision to terminate a probationary employee without no-
`tifying the employee before the end of the probationary pe-
`riod. However, the regulation does not require that the
`employee actually receive the notice before the end of the
`probationary period, as Ms. Lewis contends. Rather, a ter-
`mination is effective if the agency does “all that could be
`reasonably expected under the circumstances” to timely de-
`liver the notice. Shaw v. United States, 622 F.2d 520, 528
`(Ct. Cl. 1980).2
`
`
`2 The events in Shaw predated the enactment of the
`Civil Service Reform Act of 1978 (“CSRA”), Pub. L. No. 95-
`454, 92 Stat. 1111 et seq. While the CSRA “comprehen-
`sively overhauled the civil service system,” Lindahl v. Of-
`fice of Personnel Management, 470 U.S. 768, 773 (1985), the
`regulation at issue here is identical in relevant part to the
`regulation that was at issue in Shaw. Compare 5 C.F.R.
`§ 315.804(a) (2008) (agency “shall terminate his services by
`notifying him in writing”), with 5 C.F.R. § 315.804 (1972)
`(same). Therefore, Shaw is relevant precedent.
`
`

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`LEWIS v. BOP
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`In Shaw, the plaintiff contended that he did not receive
`actual notice of his termination until after his probationary
`period ended, but the agency had sent several copies of the
`notice to the plaintiff’s home, sent a telegram with the no-
`tice’s contents to a hospital where the plaintiff was being
`treated, and orally notified the plaintiff of his imminent
`termination. Id. The court held that these efforts were
`sufficient. Id. This makes eminent sense in terms of the
`purpose of the regulation. If timely actual notice was re-
`quired, a probationary employee could simply evade notice
`and preclude termination. Shaw’s approach is also con-
`sistent with the “very narrow” protections provided to pro-
`bationary employees. Id. at 527 (quoting Perlongo v.
`United States, 215 Ct. Cl. 982, 983 (1977)).
`Ms. Lewis argues that the arbitrator did not make a
`finding regarding whether BOP was reasonable or diligent
`in attempting to provide notice. We may affirm a judgment
`“on any ground supported by the record, whether or not
`that basis was given by the court,” and we exercise our dis-
`cretion to do so here. El-Sheikh v. United States, 177 F.3d
`1321, 1326 (Fed. Cir. 1999). It is undisputed that BOP
`placed Ms. Lewis on administrative leave and then in-
`structed her to report to the facility days before the end of
`her probationary period (with the intention of giving her
`the termination notice), and that she did not report as in-
`structed; that BOP sent multiple copies of the notice to her
`home address (designed to arrive before the probationary
`period ended); that BOP called Ms. Lewis on the last day of
`the probationary period to inform her of her termination
`orally; and that before the end of the period BOP attempted
`to leave a voicemail referencing the termination. Based on
`this record, we think that no reasonable arbitrator could
`find that BOP’s efforts were not reasonable under the cir-
`cumstances or that BOP’s efforts were inconsistent with
`the regulation.
`
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`Case: 23-2015 Document: 33 Page: 8 Filed: 03/04/2024
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`8
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`LEWIS v. BOP
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`CONCLUSION
`Because BOP’s efforts to notify Ms. Lewis of the infor-
`mation required by 5 C.F.R. § 315.804 before the end of the
`probationary period were reasonable under the circum-
`stances, BOP complied with the regulation. Ms. Lewis was
`effectively terminated as a probationary-period employee.
`AFFIRMED
`COSTS
`
`No costs.
`
`