Petition for review of an arbitrator's decision by Ronald L. Miller.
NOTE: This disposition is nonprecedential.
Before NEWMAN, GAJARSA, and MOORE, Circuit Judges
This case is an appeal from the decision of an arbitrator sustaining the Department of the Army, Corps of Engineers' removal of Douglas Eilers from his position based on charges of misconduct. Because substantial evidence supports the arbitrator's decision and Mr. Eilers's due process rights were not violated, we affirm.
Mr. Eilers was employed as a power plant operator at the Detroit Dam. On June 18, 2007, while Mr. Eilers was on duty, a ground fault occurred in the electrical system. The ground fault caused the XJ-5 and XJ-31 circuit breakers to automatically open (trip). While the Detroit Dam system experienced other ground faults in the months prior to June 2007, this ground fault was serious enough for Mr. Eilers to call Mr. Deforest Petersdorf, an electrician, and Mr. Joseph Shindelus, the maintenance foreman, and request they come to the Detroit Dam to help analyze the problem.
Upon arrival, Mr. Petersdorf and Mr. Eilers investigated the problem. Together they concluded that the XJ-5 circuit breaker should be closed to see whether it would trip again. Mr. Eilers closed the XJ-5 breaker, and almost immediately the ground fault alarm sounded. Mr. Eilers pushed buttons to acknowledge and reset the alarm, but the alarm did not clear. Soon thereafter, unusual and loud noises came from an area of the powerhouse below the control room. Seconds later, additional alarms sounded and emergency lighting came on. Mr. Petersdorf left to investigate the source of the noises, and returned minutes later to report a fire at a lower level of the powerhouse. Smoke from the fire began to fill the control room. Mr. Eilers called 911 and evacuated the power-house.
In the days following the fire, Mr. Greg Morris, a supervisor, allegedly told Mr. Eilers: "No, don't go into the power plant. It's not safe." Early in the morning of June 20, however, Mr. Shindelus instructed Mr. Eilers to enter the powerhouse and retrieve a key needed to reset the head gate. Mr. Eilers complied. Later that day, Mr. Eilers, without instruction, allegedly reentered the powerhouse to check the scroll case pressure.
The Detroit Dam fire gave rise to two reports evaluating the incident: an Army Regulation (AR) 15-6 investigation report and a Board of Investigation (BOI) report. The purpose of an AR 15-6 report is to create a record for use in disciplinary actions. AR 15-6 §§ 1-1 to 1-9. Conversely, a BOI report is for accident prevention purposes and cannot be used as evidence in disciplinary actions. AR 385-10 § 3-28. Mr. Eilers had access to the AR 15-6 report. Although Mr. Eilers obtained a copy of a "nearly final" draft of the BOI report, he was denied access to the final version of the BOI report.
After the completion of the AR 15-6 and BOI investigations, the operations project manager of the Detroit Dam issued a Notice of Proposed Removal for Mr. Eilers. In his response to the proposed removal, Mr. Eilers referred to portions of the draft BOI report. On September 15, 2008, Mr. Dwane Watsek issued a Notice of Decision on Proposed Removal, which removed Mr. Eilers from employment. In the decision, Mr. Watsek indicated that he considered the contents of the BOI report only "to the extent necessary to address [Mr. Eilers's] response and clarify the facts." J.A. 59.
Mr. Eilers's union initiated a grievance and the matter was taken to arbitration. During the arbitration, Mr. Eilers again sought access to the final BOI report. At the hearing, counsel for Mr. Eilers indicated that he thought the Army's refusal to give access to the final BOI report raised "a Constitutional violation issue." J.A. 1315. Thereafter, the union submitted the draft BOI report into evidence.
The arbitrator sustained Mr. Eilers's removal based on charges including the failure to reopen the XJ-5 breaker or cut off power to the plant after the alarm sounded, and the failure to take action to stop the flow of electricity, for example by opening the A320 main breaker, after the fire started. The arbitrator also sustained additional charges related to Mr. Eilers's behavior after the fire, including reentering the powerhouse without authorization after resetting the head gate, lack of candor regarding Mr. Morris's instructions not to enter the power plant, and lack of candor regarding entering the power plant after resetting the head gate. Arbitrator's Op. 9-17. Mr. Eilers now appeals the arbitrator's decision. We have jurisdiction pursuant to 5 U.S.C. § 7121(f) and 5 U.S.C. § 7703. Martin v. Dep't of Veterans Affairs, 412 F.3d 1258, 1263 (Fed. Cir. 2005).
Mr. Eilers raises two issues on appeal. First, Mr. Eilers asserts that his due process rights were violated because the Army did not provide him with newly acquired evidence and an opportunity to respond. Second, he asserts that the arbitrator's decision was not supported by substantial evidence or otherwise ...