Puckett v. United States Department of Agriculture et al

Filing 25

ORDER denying 16 Plaintiff's Motion for Summary Judgment; granting 17 Defendant's Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 5/12/16. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PAULA PUCKETT,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE; FARM SERVICE
AGENCY OF THE USDA, and
GREGORY DIEPHOUSE, DEPUTY
ADMINISTRATOR FOR FIELD
OPERATIONS, in his official capacity,
Defendants.

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Case No. CIV-15-380-C

MEMORANDUM OPINION AND ORDER
Beginning in 1983, Plaintiff was employed by Defendant Farm Service Agency
(“FSA”) working in the Jackson County, Oklahoma, office. In January of 2012, Mr. Josefy
became Plaintiff’s supervisor. Upon his arrival as a supervisor at the local office, Mr. Josefy
determined that the most efficient work schedule for all employees was to be from 7:00 a.m.
to 4:30 p.m. Previously, the employees had operated under a flexible work schedule, with
employees arriving at different times. Also prior to Mr. Josefy’s arrival, the employees were
allowed to take advantage of what was referred to as “glide time” whereby if an employee
arrived within minutes of their scheduled start time, they simply made up those minutes at
the end of their work day. Mr. Josefy eliminated the concept of glide time. Plaintiff did not
react favorably to Mr. Josefy’s new work hours, his requirement that employees arrive on
time, or elimination of the idea of glide time and that is the genesis of this action.

The following facts are undisputed:*
On March 27, 2012, Mr. Josefy provided Plaintiff with a counseling memorandum
regarding her tardiness. Prior to this time, Mr. Josefy had discussed the issue with Plaintiff
on several occasions, reinforcing the fact that her work day started at 7:00 a.m. Plaintiff did
not react well to the memorandum and accused Mr. Josefy of nitpicking. On April 24, Mr.
Josefy discussed Plaintiff’s time sheet with her. Mr. Josefy informed Plaintiff that because
she was 10 minutes late, she needed to record that as lost time. Plaintiff reacted loudly in
front of other employees, eventually engaging in a shouting match with Mr. Josefy. On July
2, 2012, Mr. Josefy gave Plaintiff a letter of reprimand for the above referenced discourteous
actions and her continued tardiness. That memorandum specified 23 occasions of tardiness,
from March 30 to June 27, 2012. The letter did not have the desired effect, and on July 25,
2012, Plaintiff did not arrive for work until 7:15. When Mr. Josefy called Plaintiff into his
office to discuss the issue, Plaintiff responded with obscenities directed at Mr. Josefy. On
July 31, 2012, Plaintiff was suspended five days without pay based on her outburst on July
25. Plaintiff responded to this reprimand with additional obscenities directed at Mr. Josefy.
On November 1, 2012, Plaintiff was given notice of proposed disciplinary action of a 14-day
suspension based on repeated tardiness exceeding 20 instances, all accruing after her five-day
suspension. Despite these measures, Plaintiff continued to arrive for work after 7:00 a.m.

*

The Court notes that Plaintiff purportedly “disputes” some of these facts. However,
her disputes either focus on details insignificant to the issue or lack any evidentiary support.
Each of these facts are well supported by Defendants’ documentary evidence.
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On March 29, 2013 Mr. Josefy, along with the district director, gave notice to Plaintiff of a
proposed removal from her position. The reason given for the removal was repeated
tardiness, giving 22 specific dates on which Plaintiff was tardy. Plaintiff was placed on
administrative leave pending a final decision.
On April 12, 2013, Plaintiff filed an appeal of the proposed removal. That appeal
worked its way through the process, ultimately resulting in a hearing in front of Ms.
Webbink. Ms. Webbink found no evidence to contradict the 20 specifications related to
Plaintiff’s arrival at work after 7:00 a.m. and, in fact, found the agency had met its burden
of proof with respect to 21 of the 22 specifications outlined by Mr. Josefy. However, Ms.
Webbink concluded that termination was an inappropriate penalty and instead recommended
a 30-day suspension without pay.
Ms. Webbink’s recommendation was submitted to the Deputy Administrator for Field
Operations, Gregory Diephouse.

Mr. Diephouse declined to adopt Ms. Webbink’s

recommendation and instead concluded that Plaintiff had shown “callous disregard for
Agency time and attendance rules, and was charged in this instant matter only three months
after serving her prior fourteen day suspension.” (Agency Record 169, Dkt. No. 17-4 at 2
(emphasis omitted).) Mr. Diephouse also noted Plaintiff’s reaction any time her supervisor
approached her regarding her conduct. Ultimately Mr. Diephouse determined that the proper
resolution was termination of Plaintiff’s employment.
The parties have now filed cross-Motions for Summary Judgment, each arguing the
undisputed material facts entitle them to judgment. On her behalf, Plaintiff argues that the
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appropriate action by the Court is to reject Mr. Diephouse’s finding and reinstate Ms.
Webbink’s recommendation of a 30-day suspension as the appropriate punishment. For their
part, Defendants request the Court to find that Mr. Diephouse’s decison was not arbitrary and
capricious and uphold Plaintiff’s termination.
The parties are in agreement that the Court’s review of Mr. Diephouse’s decision falls
under the guidelines outlined in the Administration Procedures Act (“APA”), 5 U.S.C.
§§ 701, et seq. Under that review, the Court may set aside the Agency’s action only if it
finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). Under this standard, the Court is not empowered to
substitute its own judgment for that of the Agency, even if the Court may have reached a
different conclusion in reaching the underlying decision. Citizens to Pres. Overton Park, Inc.
v. Volpe, 401 U.S. 402, 416 (1971). “‘A presumption of validity attaches to the agency
action and the burden of proof rests with the [parties] who challenge such action.’” Morris
v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 691 (10th Cir. 2010) (citation omitted).
An action is arbitrary and capricious if the agency “‘(1) entirely failed to consider an
important aspect of the problem, (2) offered an explanation for its decision that runs counter
to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise, (3) failed to base its decision on
consideration of the relevant factors, or (4) made a clear error of judgment.’” Hillsdale
Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1165 (10th Cir.

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2012) (citation omitted). With these standards in mind, the Court will consider the
arguments provided by the parties.
Plaintiff argues that many of the tardy occurrences should not count against her as she
arrived at work by 7:07 a.m. To support her position Plaintiff, argues for the existence of the
so called “seven minute rule.” Plaintiff’s reliance on this “rule” is misplaced. It is apparent
from the evidence before the Court that to the extent any such rule existed, it functioned as
a leave accounting mechanism, rather than a time of arrival mechanism. That is, if an
employee arrived at work not later than 7:07 a.m., that employee was not required to take
leave for the seven minutes. Whereas if the employee arrived at 7:08, they would be required
to use 15 minutes of leave.
Plaintiff’s arguments regarding the “seven minute rule” misapply the appropriate level
of review by attempting to substitute her version of the facts for the reasons underlying the
agency decision. It is unquestionably clear from Mr. Josefy’s many notes to Plaintiff, as well
as the evidentiary record provided to the Agency, that Plaintiff had been made fully aware
that she was expected to arrive for work no later than 7:00 a.m. and that any period of time
after that would be considered a tardy and would subject her to disciplinary action. Plaintiff
does not dispute her knowledge in this regard and indeed the written records provided by
Defendants establish without doubt that Plaintiff was tardy on multiple occasions even after
being warned by Mr. Josefy of the consequences for tardiness. Thus, the Court finds the
determination that Plaintiff acted with “callous disregard for Agency time and attendance
rules” was not arbitrary and capricious.
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Based on a review of the evidence presented to Mr. Diephouse, the Court cannot say
his decision to terminate Plaintiff’s employment resulted from entirely failing to consider an
important aspect of the problem, was based on an explanation that ran counter to the
evidence presented to him, was not based on consideration of the relevant factors, or was a
clear error of judgment. To the contrary, Mr. Diephouse was provided with substantial
evidence supporting the fact that Plaintiff was tardy on multiple occasions after being warned
of her potential termination for those actions. Indeed, the evidence presented to Mr.
Diephouse and this Court reflect that even after serving two suspensions, Plaintiff continued
to frequently be tardy.
Plaintiff argues that even eliminating the seven minute rule Defendants have failed
to account for her disparate treatment, the office harassment of Plaintiff, and the reasons for
Plaintiff’s occasional tardy arrival. Even accepting Plaintiff’s argument that there was
disparate treatment and/or harassment, those factors simply do not play a role in the Court’s
review. The issue is whether or not there is evidence to support the Agency decision. That
Plaintiff or this Court may have reached a different decision is immaterial. For the reasons
set forth herein, Defendants’ decision is well supported and therefore cannot be said to be
arbitrary and/or capricious.
Plaintiff’s final arguments in response to her Motion for Summary Judgment urge the
Court to set aside the decision in favor of the hearing officer’s recommendation and the 30day suspension. Plaintiff bases her argument on case law which suggests that deference
should be given to the trier of fact. While this may hold true for appellate review of a jury
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trial, Plaintiff offers no legal authority suggesting those standards apply in this instance.
Indeed, it appears that the standard would be to the contrary, as the Supreme Court has stated,
“[e]vidence is substantial in the APA sense if it is ‘enough to justify, if the trial were to a
jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.’”
Olenhouse, at 1575 (citations omitted). That is, before the Court could reach a conclusion
contrary to that reached by the hearing officer, there must be such evidence presented by
Plaintiff that the Court would be compelled to direct a verdict in favor of Plaintiff. Plaintiff
has failed to provide any evidence to satisfy this standard. Further, the conclusions reached
by Ms. Webbink were adopted in total by Mr. Diephouse as the final decisionmaker, with the
exception of the recommended disposition of the case. Whether a 30-day suspension or
termination was the proper result for Plaintiff’s transgressions is unquestionably a matter of
discretion and not within the scope of the Court’s authority on review under the APA.
Finally, to the extent Plaintiff relies on Bryant v. National Science Foundation, 105
F.3d 1414 (Fed. Cir. 1997), to argue that Defendants reached an improper conclusion, her
arguments are without merit. As Defendants aptly explain in their response brief, Bryant
provides strong support for both the Agency decision here and the Court’s determination to
uphold that decision.
CONCLUSION
Based upon its review of the evidence presented in the underlying Agency proceeding
and that presented in the parties’ cross-Motions for Summary Judgment, the Court finds that
Plaintiff has not and cannot show that Defendants’ decision to terminate her was arbitrary
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and capricious. Accordingly, Defendants’ Motion for Summary Judgment (Dkt. No. 17) is
GRANTED and Plaintiff’s Motion for Summary Judgment (Dkt. No. 16) is DENIED. A
separate Judgment will issue.
IT IS SO ORDERED this 12th day of May, 2016.

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