Sha’lisa Lewis v. Federal Bureau of Prisons

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’L ISA L EWIS , 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, P ATRICIA
M. MCCARTHY .
______________________
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LEWIS v. BOP 2
Before D YK and C UNNINGHAM , Circuit Judges, and
BENCIVENGO, District Judge.1
D YK, 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 3
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 4
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 5
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).
D ISCUSSION
“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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LEWIS v. BOP 6
[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 7
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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LEWIS v. BOP 8
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.
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