Jerry W. Murray v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JERRY W. MURRAY, DOCKET NUMBER

Appellant, DA-0752-13-0407-I-1

v.

DEPARTMENT OF HOMELAND DATE: January 22, 2015

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrea Goplerud, Esquire, and Jessica L. Parks, Esquire, Washington,

D.C., for the appellant.

William J. Flynn, Del Rio, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s removal action. Generally, we grant petitions such as this

one only when: the initial decision contains erroneous findings of material fact;

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A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

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the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review. We MODIFY

the initial decision to supplement the administrative judge’s nexus analysis, but

we agree with the administrative judge’s finding that there is a nexus between the

sustained misconduct and the efficiency of the service. Except as expressly

modified by this Final Order, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective May 17, 2013, the agency removed the appellant from his GS-11

Paralegal Specialist position in the Asset Forfeiture Office (AFO) of the U.S.

Customs and Border Protection (CBP) based on the following two charges:

(1) false report to the Val Verde Sheriff’s Office; and (2) false insurance claim to

GEICO insurance company. Initial Appeal File (IAF), Tab 1 at 7-10. The

appellant appealed his removal to the Board and requested a hearing. Id. at 1-5.

He admitted to the first charge but disputed the second charge and argued that the

penalty of removal was unreasonable given certain mitigating factors, the

deciding official failed to properly weigh the relevant factors, and the agency

treated him disparately compared to other employees who engaged in similar

misconduct. IAF, Tab 14 at 17-34, Tab 16 at 1, Tab 40, Initial Decision (ID) at 6

n.4. He also raised the affirmative defenses of race discrimination, lack of due

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process, and harmful procedural error. IAF, Tab 1 at 3, Tab 14 at 31, 34; see

IAF, Tab 16, Tab 24; ID at 8-9. The appellant withdrew his request for a hearing

and the parties presented closing arguments over the telephone. IAF, Tabs 27,

39.

¶3 The administrative judge issued an initial decision affirming the removal

action. ID at 1, 19. He sustained both charges, found a nexus between the

sustained misconduct and the efficiency of the service, and determined that the

penalty was within the bounds of reasonableness. ID at 2-6, 12-19. The

administrative judge additionally found that the appellant failed to prove his

affirmative defenses. ID at 6-12.

¶4 The appellant has filed a petition for review and primarily challenges the

administrative judge’s findings regarding nexus and the reasonableness of the

removal penalty, including his claim of disparate penalties. Petition for Review

(PFR) File, Tab 4 at 4, 9-27. The agency has responded in opposition. PFR File,

Tab 5. The appellant has filed a reply to the agency’s response. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved the charged misconduct and the existence of a nexus between

the misconduct and the efficiency of the service.

¶5 The appellant does not contest in his petition for review the administrative

judge’s finding that the agency proved both charges of misconduct. PFR File,

Tab 4 at 9. However, he argues that the agency failed to prove a nexus between

the sustained misconduct and the efficiency of the service. Id. at 9-15; PFR File,

Tab 6 at 5-9. We modify the initial decision to discuss the proper standard for

evaluating nexus when off-duty misconduct is involved and to supplement the

administrative judge’s nexus analysis.

¶6 The nexus requirement, for purposes of determining whether an agency has

shown that its action promotes the efficiency of the service, means there must be

a clear and direct relationship between the articulated grounds for an adverse

action and either the employee’s ability to accomplish his duties satisfactorily or

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some other legitimate government interest. Merritt v. Department of Justice,

6 M.S.P.R. 585, 596 (1981), modified on other grounds by Kruger v. Department

of Justice, 32 M.S.P.R. 71, 75 n. 2 (1987). An agency may show a nexus between

off-duty misconduct and the efficiency of the service by three means: (1) a

rebuttable presumption in certain egregious circumstances; (2) preponderant

evidence that the misconduct adversely affects the appellant’s or coworkers’ job

performance or the agency’s trust and confidence in the appellant’s job

performance; or (3) preponderant evidence that the misconduct interfered with or

adversely affected the agency’s mission. See Kruger, 32 M.S.P.R. at 74.

¶7 The agency argues that it established a nexus under the second Kruger

category because the appellant’s misconduct “undermined the Agency’s trust and

confidence in the Appellant’s ability to successfully perform his work as a

paralegal.” PFR File, Tab 5 at 10. In the decision letter, the deciding official

stated, “I have lost confidence in your integrity and ability to perform the duties

of your position, or those of any other position, within this Agency.” IAF, Tab 1

at 8. He also stated in a declaration made under penalty of perjury that the

appellant’s “dishonest behavior negatively impacted [his] ability to effectively

perform his duties on the government’s behalf” and “his lack of mature judgment

and misconduct undermined my confidence in his ability to carry out the duties

and responsibilities of his position.” IAF, Tab 37 at 11. The deciding official

testified during his deposition that the agency “cannot have one of [its]

employees lying to a member of law enforcement,” IAF, Tab 30 at 71-72, and that

the appellant violated “the confidence of the public,” id. at 35-36. 2

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Management’s loss of trust and confidence under the second Kruger category must be

related to the employee’s job performance. See Doe v. Department of Justice, 565 F.3d

1375, 1377-83 (Fed. Cir. 2009) (finding the Board’s nexus analysis inadequate and

remanding the case for more specific findings demonstrating the off-duty misconduct of

the appellant and the impact of that conduct on his ability to perform his job or the

mission of the agency); Brown v. Department of the Navy, 229 F.3d 1356, 1360-61

(Fed. Cir. 2000) (finding management’s trust and confidence in the appellant was

undermined where he initiated an adulterous affair with the wife of a deployed Marine

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¶8 The appellant disputes the agency’s characterization of the nature of his job

duties and claims that his duties were “essentially ministerial in nature.” PFR

File, Tab 6 at 8. The appellant further contends that “he had no actual role in

determining whether a vehicle was stolen other than giving stolen vehicle reports

to [his supervisor] and making sure the reports were in the file.” Id. The

appellant also asserted that he did not deal with stolen vehicle reports. IAF, Tab

34 at 13 (affidavit); see IAF, Tab 18 at 110 (interview with the agency’s fact

finder). To support his position, the appellant relies on the testimony of his

former assistant. PFR File, Tab 4 at 6, 12, 15, Tab 6 at 7; see IAF, Tab 35 at 5-6.

She testified that she did not recall a time when the appellant obtained a stolen

vehicle report by contacting a law enforcement agency. IAF, Tab 28 at 13-14.

However, it is unclear whether the former assistant’s deposition testimony

addresses her previous duties as a Paralegal Assistant or her current duties as a

who was a member of a unit that he was directly responsible for supporting, thus

implicating his managerial responsibilities on the unit); Royster v. Department of

Justice, 58 M.S.P.R. 495, 500 (1993) (finding that the agency established by

preponderant evidence that the appellant’s misconduct adversely affected its trust and

confidence in the appellant’s ability to perform his duties where the sustained

misconduct involved making a threat of violence to a woman, thus relating to the

appellant’s duties of maintaining the safety, custody, and control of female inmates).

Grounding disciplinary actions on such a nebulous standard as loss of trust alone,

however, is contrary to the theory of the Civil Service Reform Act that disciplinary

actions may be taken only in the efficiency of the service. Norton v. Macy, 417 F.2d

1161, 1165-67 (D.C. Cir. 1969) (“[a] reviewing court must at least be able to discern

some reasonably foreseeable, specific connection between an employee’s potentially

embarrassing conduct and the efficiency of the service”); see Doe, 565 F.3d at 1380

(using only “clearly dishonest” as a standard for nexus risked arbitrary results, “as the

question of removal would turn on the Board’s subjective moral compass”).

Accordingly, a deciding official’s statement that he has lost confidence in an

appellant’s ability to perform the duties of his position or of any other position within

the agency, absent evidence or argument showing how his loss of confidence in the

appellant is related to the appellant’s job performance, is insufficient to establish nexus

under the second Kruger category. We need not reach the issue of whether the agency

in this case established nexus under the second Kruger category because, as discussed

below, the record reflects that it established nexus under the third Kruger category.

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Paralegal Specialist, as claimed by the appellant. Id. at 4-19; see IAF, Tab 35 at

5-6; PFR File, Tab 4 at 12, Tab 6 at 7.

¶9 In contrast, the appellant’s first-line supervisor has consistently stated that

determining the validity of stolen vehicle reports was one of the appellant’s

primary duties and it involved contacting law enforcement agencies and

collecting stolen vehicle reports. IAF, Tab 10 at 19 (written memorandum), Tab

18 at 103 (interview with the agency’s fact finder), Tab 29 at 22-23, 26-27, 29, 32

(deposition testimony), Tab 35 at 5-6 (declaration). The position description for

a GS-11 Paralegal Specialist position is consistent with the agency’s contention

that the appellant dealt with stolen vehicle reports. IAF, Tab 11 at 4 (“Develops

and evaluates all evidence, facts and circumstances relating to the case . . . .”).

The deciding official also relied on the position description to determine the

appellant’s duties, IAF, Tab 30 at 17 (deposition testimony), which he believed

involved stolen vehicle claims, id. at 72, Tab 37 at 10 (declaration).

¶10 The appellant’s allegation that he did not deal with stolen vehicle reports

conflicts with the position description and the opinions of both the deciding

official and the appellant’s first-line supervisor. However, we need not make

credibility determinations because, even assuming the appellant did not deal with

stolen vehicle reports as part of his primary duties, we find that the nature of the

work accomplished in the AFO is so related to the appellant’s misconduct that it

establishes a nexus under the third Kruger category. See, e.g., Kruger,

32 M.S.P.R. at 76 (holding that the appellants’ use of marijuana was antithetical

to the agency’s law enforcement and rehabilitative programs that they were

responsible for monitoring). The purpose of the AFO is to process seized items,

such as vehicles, for administrative forfeiture. IAF, Tab 35 at 4. Sometimes, the

seized vehicles are reported as stolen and the office must investigate the validity

of the stolen vehicle reports. Id. at 5. Additionally, the office is small and only

has five employees. Id. The office processed 313 seized vehicles during fiscal

year 2013, and 309 seized vehicles in fiscal year 2012. IAF, Tab 37 at 5. Thus,

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the appellant’s conduct in intentionally filing a false stolen vehicle report with

the police and the insurance company is antithetical to the office’s mission of

conducting administrative forfeiture in part by determining the validity of stolen

vehicle reports. See Kruger, 32 M.S.P.R. at 75-76.

¶11 Therefore, we agree with the administrative judge’s implicit finding that the

agency established a nexus between the appellant’s misconduct and the efficiency

of the service. ID at 19.

The deciding official properly weighed the relevant Douglas factors and the

penalty of removal was within the tolerable limits of reasonableness.

¶12 In his petition for review, the appellant argues that the deciding official

misapplied the Douglas factors 3 and the penalty of removal is excessive under the

circumstances. Where, as here, all of the agency’s charges have been sustained,

the Board will review an agency-imposed penalty only to determine if the agency

considered all of the relevant Douglas factors and exercised management

discretion within tolerable limits of reasonableness. Portner v. Department of

Justice, 119 M.S.P.R. 365, ¶ 10 (2013). In determining whether the selected

penalty is reasonable, the Board gives due deference to the agency’s discretion in

exercising its managerial function of maintaining employee discipline and

efficiency. Id. The Board will modify a penalty only when it finds that the

agency failed to weigh the relevant factors or that the penalty the agency imposed

clearly exceeded the bounds of reasonableness. Id. However, if the deciding

official failed to appropriately consider the relevant factors, the Board need not

defer to the agency’s penalty determination. Id.

¶13 The administrative judge determined that the deciding official’s penalty

determination was entitled to deference. ID at 14, 19. The administrative judge

found, based on the deciding official’s decision letter, testimony, and declaration,

3

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to

be imposed for an act of misconduct.

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that he considered the relevant Douglas factors. IAF, Tab 1 at 7-10, Tab 30 at

19-20, 92, Tab 37 at 10-11. Specifically, the deciding official considered that the

appellant’s duties involved access to stolen vehicle reports and that he had

contact with law enforcement agencies. IAF, Tab 37 at 10. The deciding official

further explained that the appellant had no rehabilitation potential. IAF, Tab 1 at

8, Tab 37 at 11. The deciding official also noted that the penalty was consistent

with CBP’s Table of Penalties. IAF, Tab 30 at 64-65, Tab 37 at 11. He

considered, as mitigating factors, that the appellant had over 5 years of service

with good performance ratings and no prior disciplinary history, but concluded

that these factors were outweighed by the seriousness of the misconduct. IAF,

Tab 1 at 8, Tab 37 at 11.

¶14 The appellant argues on review that the deciding official failed to consider

other mitigating factors such as the appellant’s remorse or rehabilitation

potential. PFR File, Tab 4 at 10, 22-24, Tab 6 at 10-11. The appellant cites Raco

v. Social Security Administration, 117 M.S.P.R. 1, ¶ 16 (2011), as support for his

argument that the fact that he alleged that his first-line supervisor told him to

report his vehicle as stolen does not demonstrate lack of remorse. PFR File, Tab

4 at 24. The appellant’s case is distinguishable from Raco because the deciding

official here recognized the appellant’s remorse, whereas the agency in Raco

argued that the employee was not remorseful. See Raco, 117 M.S.P.R. 1, ¶ 16.

Specifically, the deciding official stated in the decision letter that the appellant

“eventually accepted responsibility for [his] actions,” IAF, Tab 1 at 8, and noted

in his declaration that the appellant “apologized for his actions,” IAF, Tab 37 at

11. The appellant also argues that his more than 2 years of employment in the

Logistics Department following his misconduct demonstrates his rehabilitation

potential. PFR File, Tab 4 at 22, Tab 6 at 11. However, the appellant’s duties in

the Logistics Department were inconsistent with his duties as a Paralegal

Specialist, and the deciding official stated that permanent reassignment was not

feasible. See IAF, Tab 37 at 11 (“Reassigning [the appellant] to Logistics or

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another department is not feasible as the AFO is the only unit in the Sector that

has a Paralegal Specialist.”). Therefore, the appellant’s continued employment in

the Logistics Department does not show that he could be rehabilitated to his

Paralegal Specialist position.

¶15 The appellant further alleges that the deciding official improperly held the

appellant to a higher standard of conduct because he worked for a law

enforcement agency. PFR File, Tab 4 at 16-18, Tab 6 at 9-10. In the decision

letter, the deciding official stated, “Integrity is one of CBP’s Core values and as

an Agency with law enforcement functions, it is imperative that all employees

demonstrate high standards of integrity.” IAF, Tab 1 at 7. The deciding

official’s statement is supported by CBP’s Standards of Conduct. IAF, Tab 10 at

177-87. The agency imposes this high standard of integrity on all CBP

employees, not just supervisors and law enforcement officers. Id. at 177-78. The

appellant further argues that the deciding official improperly considered as an

aggravating factor the possibility that the appellant’s ability to testify in trials

would be impaired. PFR File, Tab 4 at 13-14, 18. We agree that the deciding

official erred by suggesting that the appellant may “be called upon to testify in

court proceedings” when in fact the appellant would not have an opportunity to

testify in criminal cases. IAF, Tab 1 at 7. However, the deciding official’s error

is immaterial to the outcome of the case because the penalty is supported by the

deciding official’s consideration of the relevant factors and is within the bounds

of reasonableness. The appellant also alleges that the deciding official and

administrative judge improperly compared the appellant to supervisors and law

enforcement officers. PFR File, Tab 4 at 16-18, Tab 6 at 9-10. However, the

deciding official and administrative judge compared the appellant to such

employees to demonstrate their similar misconduct, not to hold the appellant to

the higher standard of a supervisor or a law enforcement officer. See IAF, Tab 30

at 61-63; ID at 14-15. Thus, the deciding official properly determined that the

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nature of the appellant’s misconduct was serious given the actual duties of his

position and did not hold him to a higher standard of conduct.

¶16 Finally, the appellant argues that the deciding official applied an automatic

penalty of removal for falsification and did not consider any alternative penalties.

PFR File, Tab 4 at 16, 18-21, Tab 6 at 10. We disagree. The deciding official did

not automatically apply the removal penalty, but instead properly considered the

relevant Douglas factors. IAF, Tab 1 at 7-8, Tab 30 at 92, Tab 37 at 10-11. The

deciding official discussed previous cases where he removed employees for

dishonest conduct to demonstrate the consistency of the penalty for similar

misconduct. 4 IAF, Tab 30 at 61-63, 92-93. We also find that the deciding

official properly considered alternative sanctions. See id. at 92-93. The appellant

further argues that the agency misapplied the Table of Penalties, PFR File, Tab 4

at 18-19, 21, however, we find that the agency properly considered the range of

penalties stated in the Table of Penalties in deciding to remove the appellant, see

IAF, Tab 30 at 64-65, 92-93. Furthermore, the penalty of removal is within the

range of appropriate penalties for falsification. IAF, Tab 10 at 167-68.

Therefore, the deciding official did not impose a default penalty of removal for

falsification.

¶17 Under the circumstances of this case, we find that the deciding official

considered the relevant Douglas factors, and the penalty of removal did not

exceed the tolerable limits of reasonableness.

The appellant’s proffered comparators were not similarly situated and his

disparate penalties claim lacks merit.

¶18 The appellant argues on review that the administrative judge improperly

concluded that the appellant’s proffered comparators were not similarly situated

to the appellant. PFR File, Tab 4 at 24-27, Tab 6 at 11-12. With regard to

putative comparators, there must be “enough similarity between both the nature of

4

The appellant’s argument regarding his disparate penalties claim is discussed later in

this Final Order.

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the misconduct and the other factors to lead a reasonable person to conclude that

the agency treated similarly-situated employees differently, but the Board will not

have hard and fast rules regarding the ‘outcome determinative’ nature of these

factors.” Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012) (quoting

Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An

appellant’s initial showing of disparate penalties triggers an agency’s burden to

prove a legitimate reason for the difference in treatment between the appellant

and other employees. Boucher, 118 M.S.P.R. 640, ¶ 24.

¶19 The appellant submitted evidence of three alleged comparators. IAF, Tab

14 at 58-79. In the first case, a Border Patrol Agent was suspended for 45 days

for four charges of misuse of his position as a law enforcement officer, misuse of

his service-issued collapsible baton, failure to provide truthful information, and

unauthorized outside employment. Id. at 74-79. However, the alleged

comparator is not valid because his proposed removal was reduced as part of a

settlement agreement. Id. at 78-79; see Portner, 119 M.S.P.R. 365, ¶ 20 n.4 (the

Board has held that, where another employee receives a lesser penalty, despite

apparent similarities in circumstances, as a result of a settlement agreement, the

agency will not be required to explain the difference in treatment).

¶20 In the second case, an Automotive Mechanic was suspended for 15 days for

failure to be forthright and using personally-owned containers to transport

gasoline owned by the U.S. Government. IAF, Tab 14 at 58-64. The failure to be

forthright charge was based on the employee’s conflicting statements made

during interviews with the agency’s investigators and his written response. Id. at

61. The deciding official in the Automotive Mechanic case considered several

mitigating factors, including the employee’s more than 13 years of service, lack

of prior discipline, and potential for rehabilitation. Id. at 62. In contrast, the

appellant had less than 6 years of service and the deciding official felt that the

appellant had no potential for rehabilitation. IAF, Tab 1 at 8. Additionally, the

appellant’s dishonesty was more serious because he made false claims with an

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intent to deceive both a law enforcement agency and an insurance company, id. at

7-8, 18; ID at 2-6, whereas the employee in this case was not forthright in his

responses, IAF, Tab 14 at 61-62. Therefore, we find that the employee was not

similarly situated.

¶21 In the third case, a CBP Officer was suspended for 3 days for one sustained

charge of misrepresenting information on his time and attendance record. IAF,

Tab 14 at 66-72. The employee was scheduled for military leave on a particular

day, but he was later excused from attending training because he felt unwell. Id.

at 70-71. The charge was based on the employee’s failure to request approved

leave when the basis for the prior authorization of military leave was cancelled.

Id. The employee’s single instance of failing to change 1 day of military leave to

another form of approved leave was much less serious than the appellant’s

intentional filing of a false police report and insurance claim. See IAF, Tab 1 at

7, 18; ID at 2-6. Thus, the employee in the CBP Officer case was not similarly

situated to the appellant.

¶22 For these reasons, we conclude that the administrative judge properly found

that the appellant’s three proffered comparators were not similarly situated to the

appellant. Accordingly, we discern no basis for disturbing the administrative

judge’s finding that the appellant’s allegation of disparate penalties lacks merit.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

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Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method

requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.