Michael K. Frizelle v. Rodney E. Slater, Secretary of Transportation

Citations: 111 F.3d 172; 324 U.S. App. D.C. 130; 1997 U.S. App. LEXIS 8567; 1997 WL 199087Docket: 95-5248

Court: Court of Appeals for the D.C. Circuit; April 25, 1997; Federal Appellate Court

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Michael K. Frizelle appealed to the United States Court of Appeals for the District of Columbia Circuit following the district court's summary judgment in favor of Rodney E. Slater, Secretary of Transportation. Frizelle contested the Coast Guard Board of Correction of Military Records' refusal to remove disparaging remarks from his Officer Evaluation Report (OER) and to expunge records of his promotion failures, which led to his discharge. 

Frizelle, a former enlisted member of the Air Force, joined the Coast Guard Reserve in 1985 and was commissioned as an ensign in 1987. His first OER was positive; however, his second OER included negative comments regarding his performance, citing issues such as insufficient effort in certain areas, poor project management, lack of familiarity with necessary publications, and difficulties in fostering cooperative relationships with colleagues. The court noted that the Board had not adequately addressed two of Frizelle's non-frivolous arguments, leading to a reversal and remand for further consideration.

Frizelle faced challenges during his evaluation period, struggling to meet performance expectations due to the technical demands of his role and issues with time management and interpersonal communication. Despite his hard work, he frequently missed deadlines, partly because of flawed computer equipment and software problems that hindered access to the mainframe. He received counseling regarding his responsibilities and performance metrics but still fell short in several areas according to his OERs (Officer Evaluation Reports). His numerical ratings declined in multiple categories from the first to the second OER.

In his third OER, although marked improvements were noted, he was subsequently passed over for promotion to lieutenant twice, triggering a statutory requirement for his honorable discharge or retirement. Frizelle applied to the Coast Guard Board of Correction of Military Records to contest his second OER, seeking its deletion or redaction and the reversal of his promotion passovers. He argued that the comments in the OER were unjust, alleging bias from superiors and inaccuracies in the assessment of his performance. The Board denied his application, stating that he failed to demonstrate any errors or injustices by the Coast Guard. Frizelle then filed a petition for review in the district court.

The district court granted Frizelle's motion for summary judgment, remanding the case to the Board for insufficient explanation of its reasoning. Upon remand, the Board acknowledged merit in two of Frizelle's claims: it removed a sentence about a boat related to a previous reporting period and corrected a reference to a 'mainframe' by replacing it with 'system,' as Frizelle's office did not possess a mainframe computer. However, the Board declined to invalidate the entire Officer Evaluation Report (OER) or make further modifications, asserting that the OER was consistent with Frizelle's past evaluations and that the minor changes would not warrant nullifying his promotion passovers. The district court later granted summary judgment for the Secretary, determining the Board had provided an adequate explanation for its decision, leading to the current appeal.

The Secretary of Transportation is empowered under 10 U.S.C. § 1552 to amend military records, except in specific cases involving promotion or enlistment, through a civilian board whose decisions are reviewable under the Administrative Procedures Act. Judicial review of the Board's decisions follows a de novo standard, with a focus on whether the decisions are arbitrary, capricious, or unsupported by substantial evidence. The court found most of Frizelle's challenges to the Board's decision lacking merit, noting that while the Board could have elaborated further on its reasoning, it need not achieve perfect clarity as long as a rational connection between the facts and conclusions exists. The Board's interpretation suggested that Frizelle failed to present adequate evidence of bias against the OER preparers. The court deferred to the Board on issues related to Frizelle's computer skills and his interactions with superiors, as well as the lack of substantive OERs during his flight school attendance. However, the court highlighted that the Board did not address two non-frivolous arguments raised by Frizelle, which could impact the overall outcome, thus rendering the Board's decision arbitrary.

Frizelle contested a statement in his Officer Evaluation Report (OER) that claimed he missed a deadline for responding to an inquiry from the commandant, arguing it was unfair as it referenced a matter outside his control and prior to the reporting period of the OER. He asserted that the inquiry was assigned to a subordinate who retired before completion. The Board countered that Frizelle failed to prove the inaccuracy of the comment, noting he inherited incomplete projects from the subordinate. 

Frizelle further argued that the OER improperly referenced a missed deadline outside the reporting period, which the Coast Guard Personnel Manual prohibits. Although the Board ultimately removed a related reference, it focused on the accuracy of the charge rather than its fairness in relation to the reporting period. The Board did not provide a measurable rationale for its decision, raising concerns about the fairness of the evaluation.

Additionally, Frizelle claimed he did not receive counseling during the reporting period, which is a requirement outlined in the Personnel Manual. He stated that the only counseling occurred in the previous period. The Board responded that it was not proven Frizelle lacked counseling and referenced a statement in the OER indicating he was counseled midway through the reporting period. Frizelle did not provide the required Officer Support Form (OSF) for the Board’s review, although the OER suggested he had received counseling.

The Board's response to Frizelle's complaint was inadequate, as it presumed the accuracy of the Officer Evaluation Report (OER) without addressing specific evidence presented by Frizelle, particularly regarding the absence of a required Officer Support Form (OSF). The OER indicated procedural deviations, such as counseling occurring mid-reporting period instead of the mandated beginning and end. Counseling responsibilities rested with Frizelle’s immediate supervisor, yet the OER relied on statements from a higher-ranking officer, raising concerns about adherence to Coast Guard policy. The need for structured counseling is underscored, as it allows for performance feedback and improvement opportunities. The Board's conclusion that minor changes to the OER left it "virtually unchanged" does not account for the potential impact of derogatory comments or Frizelle's argument about missed counseling. Furthermore, the Board's decision regarding Frizelle's promotion passovers seemed to overlook substantial evidence indicating inconsistencies between the disputed OER and Frizelle's prior evaluations, focusing solely on overall numerical rankings while neglecting the negative implications of written comments. The Board may consider further revisions to the OER on remand, potentially leading to its complete removal if counseling deficiencies are confirmed.

The second Officer Evaluation Report (OER) for Frizelle is characterized by a negative tone, with two comments already struck by the Board, contrasting sharply with his other OERs, which generally highlight his readiness for greater responsibility and strong recommendations for promotion. The Board is required to reconsider its decision not to void Frizelle's passovers, taking into account the significant disparities between the disputed OER and Frizelle's prior evaluations. In applying the Engels v. United States standard, the Board must assess if the legal error was prejudicial or harmless, focusing on whether the officer's record was adversely affected by the errors and if promotion was unlikely regardless. The burden of proof lies with the officer for the first prong and involves a prima facie case for the second, with the government bearing the ultimate persuasion burden. The case is remanded to the district court for further proceedings, instructing the Board to reassess the OER and determine Frizelle's burden of proof under the Engels standard. Additionally, the Secretary of a military department has the authority to correct military records to address errors or injustices, as outlined in 10 U.S.C. 1552(a)(1). Notably, Frizelle's stamina ranking was an exception, rated at level 4 in one OER compared to level 5 in others. The rationale for the burden-shifting rule is based on the government's superior knowledge of the promotion process.