Leovetta Taylor v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEOVETTA TAYLOR, DOCKET NUMBER

Appellant, AT-0752-12-0253-B-1

v.

DEPARTMENT OF JUSTICE, DATE: February 23, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Joyce E. Kitchens, Esquire, Athens, Georgia, for the appellant.

Marlon A. Martinez, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Member Robbins issues a separate, dissenting opinion.

FINAL ORDER

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

reversed the appellant’s removal. Generally, we grant petitions such as this one

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

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

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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 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 and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 Effective January 4, 2012, the appellant was removed from her position as a

Photographer with the Federal Bureau of Investigation (FBI) based on a finding

that she had operated her privately-owned vehicle while intoxicated or impaired

by alcohol or a controlled substance, in violation of the FBI offense code. MSPB

Docket No. AT-0752-12-0253-I-1, Initial Appeal File (I-1 IAF), Tab 14,

subtab 4(b). Specifically, on December 12, 2010, the appellant was stopped by an

Austell, Georgia police officer after she backed her vehicle into a concrete post

outside of a convenience store. Id. at 1. In response to the officer’s questioning,

the appellant indicated that she had taken an overdose of trazodone, a medication

for the treatment of depression and insomnia. Id. at 1-2. As a result, the

appellant was transported to the hospital by ambulance, where a blood test was

administered through which it was determined that she had been drinking alcohol.

Id. at 2. In fact, the appellant had a blood alcohol level of .316%, over three

times the legal limit in the state of Georgia. Id. The appellant was arrested and

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charged with driving under the influence (DUI), but was ultimately convicted of

Reckless Driving, Striking a Fixed Object, and a Basic Rule Violation. Id.

¶3 On January 23, 2012, the appellant filed an appeal of her removal, which

was subsequently dismissed without prejudice. I-1 IAF, Tab 24, Initial Decision

at 1-2. On May 17, 2012, the appeal was refiled. MSPB Docket No. AT-0752-

12-0253-I-2, Initial Appeal File (I-2 IAF), Tab 1. After holding the appellant’s

requested hearing, the administrative judge reversed the appellant’s removal,

finding that the agency had violated the appellant’s due process rights when the

deciding official considered information not set forth in the notice of proposed

removal. I-2 IAF, Tab 34, Initial Decision at 3-6. Subsequently, the Board

reversed the initial decision and remanded the case for a hearing on the merits.

Taylor v. Department of Justice, MSPB Docket No. AT-0752-12-0253-I-2,

Remand Order (Feb. 10, 2014).

¶4 On remand, after holding a hearing, the administrative judge issued an

initial decision, again reversing the removal action. MSPB Docket No. AT-0752-

12-0253-B-1, Initial Appeal File (B-1 IAF), Tab 16, Initial Decision (ID). The

administrative judge found that, although the agency had sustained the DUI

charge, it failed to establish a nexus between the appellant’s off-duty misconduct

and the efficiency of the service. ID at 3-5. Regarding nexus, the administrative

judge found that the appellant’s misconduct was: (1) not so egregious as to create

a rebuttable presumption of nexus; (2) did not adversely affect her or her

coworkers’ job performance, or the agency’s trust and confidence in her job

performance; and (3) did not adversely affect the agency’s mission because the

FBI’s mission does not include the enforcement of drunk driving laws and the

appellant was not a law enforcement officer. ID at 4-5. The administrative judge

ordered the agency to cancel the removal, retroactively restore the appellant with

back pay, and provide her interim relief, if either party filed a petition for review

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of the initial decision. 2 ID at 9-10. The administrative judge further found that

the appellant failed to establish her affirmative defense of discrimination based

on disability, race, and sex. ID at 6-8.

¶5 The agency filed a petition for review in which it argues that the

administrative judge erred in finding that it failed to establish nexus because the

appellant’s conduct was so egregious that nexus should have been presumed, the

administrative judge failed to consider that management indicated that it had a

low level of confidence in the appellant’s ability to perform her assigned duties,

and the appellant’s misconduct in violating the law was contrary to the FBI’s

mission as a law enforcement agency. B-1 PFR File, Tab 1 at 8-11. The

appellant filed a response in opposition to the agency’s petition, but did not file a

cross petition for review challenging the administrative judge’s findings that she

failed to prove her affirmative defense claims. B-1 PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board generally recognizes three independent means by which an

agency may show a nexus linking an employee’s off-duty 3 misconduct with the

efficiency of the service: (1) a rebuttable presumption of nexus that may arise in

certain egregious circumstances based on the nature and gravity of the

2

The appellant retired, effective March 8, 2013, prior to the issuance of the

administrative judge’s initial decision. MSPB Docket No. AT-0752-12-0253-B-1,

Petition for Review (B-1 PFR) File, Tab 1 at 17, 19. With its petition for review, the

agency submitted an affidavit from the Acting Un it Chief of the Payroll/Personnel

Actions Processing Unit, asserting that it would be an administrative burden to comply

with the interim relief order and restore the appellant to a paid status because it would

be difficu lt to ensure that she did not improperly receive retirement benefits from the

Office of Personnel Management in addition to a salary from the agency. I d. at 17. The

appellant has not raised any issues of noncompliance with the interim relief order.

However, given our disposition of this appeal in favor of the appellant, the issue of the

agency’s compliance with the interim relief order is now moot. See Wingate v. U.S.

Postal Service, 118 M.S.P.R. 566, ¶ 3 n.1 (2012).

3

There is sufficient nexus between an employee’s conduct and the efficiency of the

service where the conduct occurred in part at work. Parker v. U.S. Postal Service,

819 F.2d 1113, 1116 (Fed. Cir. 1987).

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misconduct; (2) a showing by preponderant evidence that the misconduct affects

the employee’s or her coworkers’ job performance, or management’s trust and

confidence in the employee’s job performance; and (3) a showing by

preponderant evidence that the misconduct interfered with or adversely affected

the agency’s mission. 4 Kruger v. Department of Justice, 32 M.S.P.R. 71, 74

(1987). Where an employee’s conduct is contrary to the agency’s mission, the

agency need not present proof of a direct effect on the employee’s job

performance. Brown v. Department of the Navy, 229 F.3d 1356, 1362 (Fed. Cir.

2000).

¶7 As to the first prong of the Kruger test, we agree with the administrative

judge that the appellant’s off-duty alcohol abuse is not sufficiently egregious so

as to automatically give rise to a presumption of nexus. 5 ID at 4; see, e.g., Brook

v. Corrado, 999 F.2d 523, 527-28 (Fed. Cir. 1993) (off-duty drug trafficking

sufficiently egregious to warrant a presumption of nexus); Graham v. U.S. Postal

Service, 49 M.S.P.R. 364, 367 (1991) (nexus presumed where the appellant was

4

The Board discussed the development and legislative h istory of the nexus requirement

in Merritt v. Department of Justice, 6 M.S.P.R. 585, 596 (1981), modified, Kruger v.

Department of Justice, 32 M.S.P.R. 71, 75 n.2 (1987). In that decision, the Board

extensively quoted comments made during the mark-up of the Civil Service Reform Act

of 1978, Pub. L. No. 95-454, 92 Stat. 1111, that federal emp loyees should not be

discip lined for activities that are not job-related, that do not affect the employee’s job

performance, and that do not affect the performance of others. Merritt, 6 M.S.P.R.

at 602-03; see House Committee on Post Office and Civil Service, Mark-Up Session on

H.R. 11280, 95th Cong., 2d Sess. 39-40 (June 21, 1978). The Board also quoted the

Conference Committee report, which states that conviction of a crime that has no

bearing on an employee’s performance or the performance of others may not be the

basis for action against an employee. Merritt, 6 M.S.P.R. at 603-04; see H.R. Conf.

Rep. No. 95-1717, 95th Cong., 2d Sess. 131 (1978).

5

The agency argues that subsequent case law has expanded the definition of

“egregious,” citing to O’Keefe v. U.S. Postal Service, 88 M.S.P.R. 475 (2001), vacated

and remanded, 318 F.3d 1310 (Fed. Cir. 2002), and Laniewicz v. Department of

Veterans Affairs, 83 M.S.P.R. 477 (1999). Such cases, however, involve a penalty

analysis and not an analysis of whether there was a nexus between the misconduct and

the efficiency of the service. Thus, the cases cited by the agency are inapposite to the

instant case.

6

convicted of sexual abuse in the first degree of a 14-year old girl); Faint v. U.S.

Postal Service, 22 M.S.P.R. 495, 497 (1984), aff’d, 770 F.2d 179 (Fed. Cir. 1985)

(assault with a deadly weapon constitutes egregious circumstances warranting the

presumption of nexus); see also Arthur v. Department of Army, 10 M.S.P.R. 239,

243 (1982) (conviction of the charge of disorderly conduct is not so egregious

that an adverse effect on the efficiency of the service by the appellant's retention

can reasonably be presumed). 6

¶8 Regarding the second prong of the Kruger test, it is undisputed that the

appellant’s misconduct did not affect her performance and she received favorable

performance ratings both before and after the misconduct. ID at 4; B-1 PFR File,

Tab 1 at 9. In this regard, it is significant that the record evidence submitted to

the Board does not show that the appellant operated a motor vehicle as part of her

official duties. Nor does the agency challenge the administrative judge’s finding

that the appellant’s misconduct did not affect her coworkers’ job performance. In

addition, we find unavailing the agency’s contention that the administrative judge

ignored testimony by the deciding official that management had a low level of

confidence in the appellant’s ability to perform her assigned duties. Though the

deciding official generally testified that the FBI simply could not tolerate having

employees who work for a law enforcement agency violating the law themselves,

she did not specifically address how the appellant’s off-duty misconduct affected

the agency’s trust and confidence in her ability to perform her job duties. B-1

IAF, Tab 15, June 12, 2014 Hearing Compact Disc (CD) at 1:02 (testimony of the

deciding official); I-2 IAF, Tab 35, August 1, 2012 Hearing CD at 47:24; 1:10

(testimony of the deciding official). Nor did the agency call any of the

6

Our finding that the appellant’s misconduct was not so egregious as to create a

presumption of a nexus should in no way be viewed as condoning her behavior. To the

contrary, the appellant’s off-duty conduct was extremely troubling and she was

sentenced to criminal punishment by the State of Georgia. Her conduct did not,

however, rise to the level so as to create the presumption of a nexus to her government

job.

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appellant’s supervisors to testify on this subject. See B-1 IAF, Tab 12 at 11; see

also I-2 IAF, Tab 18 at 10.

¶9 Moreover, as the administrative judge correctly noted, the agency’s analysis

of the Douglas factors specifically states that, “[t]he offense has no relation to

[the appellant’s] duties, position and responsibilities” and, significantly, that

“[t]he offense has not affected the employee’s ability to perform her duties at the

satisfactory level.” I-1 IAF, Tab 14, subtab 4(g) at 2-3; see ID at 4. Although the

deciding official’s Douglas factors analysis indicated that, considering the

appellant’s “long line of disciplinary issues” and her “ethical conduct in the

past,” management did not have a high level of confidence that she would act

according to FBI principles unless closely supervised, the deciding official did

not address if or how the appellant’s misconduct diminished the agency’s trust

and confidence in her job performance, with specific reference to her duties and

to the impact of her misconduct on those duties. Id. at 3.

¶10 As to the third prong, the agency contended that the appellant’s misconduct

in violating the law was generally contrary to the FBI’s mission as a law

enforcement agency. We note, however, that the appellant is not a law

enforcement officer, specifically charged with enforcing the law. Although the

Board has found a nexus between off-duty criminal misconduct by law

enforcement agents and the efficiency of the service, law enforcement agents, due

to the nature of their duties, are held to a higher standard of conduct than other

employees. See, e.g., Todd v. Department of Justice, 71 M.S.P.R. 326, 330

(1996). As such, we find that the administrative judge properly found that the

agency failed to prove that the appellant’s removal for off-duty misconduct

promotes the efficiency of the service.

ORDER

¶11 We ORDER the agency to cancel the removal action and to restore the

appellant effective January 4, 2012. See Kerr v. National Endowment for the

8

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶12 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶13 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it

took to carry out the Board’s Order. The appellant, if not notified, should ask the

agency about its progress. See 5 C.F.R. § 1201.181(b).

¶14 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶15 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

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Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

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:

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

10

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

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.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium,

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay

System), a statement certifying any lump sum payment with number of hours and

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if app licable.

4. Statement certified to be accurate by the employee which includes:

a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work durin g the period.

c. Statement of erroneous payments employee received such as; lump sum leave, severance

pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as

ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise

information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63)

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to

be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and

amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address

to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay

Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.

DISSENTING OPINION OF MEMBER MARK A. ROBBINS

in

Leovetta Taylor v. Department of Justice

MSPB Docket No. AT-0752-12-0253-B-1

¶1 I respectfully dissent.

¶2 Although my colleagues agree with the administrative judge’s finding that

the agency failed to establish nexus, it is problematic for me to find no nexus

where a Federal Bureau of Investigation (FBI) employee violates the law,

especially given the special nature of the agency’s mission. According to the

FBI’s website:

The mission of the FBI is to protect and defend the United States

against terrorist and foreign intelligence threats, to uphold and

enforce the criminal laws of the United States, and to provide

leadership and criminal justice services to federal, state, municipal,

and international agencies and partners; and to perform these

responsibilities in a manner that is responsive to the needs of the

public and is faithful to the Constitution of the United States.

The United States Department of Justice, Organization, Mission and Functions

Manual: Federal Bureau of Investigation, http://www.justice.gov/jmd/

organization-mission-and-functions-manual-federal-bureau-investigation.

¶3 At the outset, I agree with the agency’s argument that the appellant’s

misconduct in violating the law was contrary to the FBI’s mission as a law

enforcement agency. Where misconduct is based on a criminal conviction, as it is

here, an agency must show a nexus between the conviction and the job

requirements. The nexus requirement applicable to disciplinary actions taken

under chapter 75 stems from 5 U.S.C. § 2302(b)(10), which sets forth that an

agency may not “discriminate for or against any employee or applicant for

employment on the basis of conduct which does not adversely affect the

performance of the employee or applicant or the performance of others . . . . ”

According to Congress, criminal convictions must be considered under this

2

provision. See H.R. CONF. REP. No. 1717, 95th Cong., 2d Sess. 131, reprinted

in 1978 U.S. CODE CONG. & ADMIN. NEWS 2723, 2864.

¶4 In the past, the courts and the Board have followed Congressional intent and

found nexus between an employee’s off-duty criminal misconduct and the

efficiency of the service due to the nature of the employees’ positions and the

agency’s mission. See, e.g., Hayes v. Department of the Navy, 727 F.2d 1535,

1538-39 (Fed. Cir. 1984) (the court affirmed the Board’s decision to sustain the

firing of a Mechanical Planner Estimator based on his criminal conviction for

assaulting a child, even though his job did not always require interaction with

children; the egregious nature of the misconduct raised a presumption of nexus);

Masino v. United States, 589 F.2d 1048 (Ct. Cl. 1978) (sustaining the removal of

a Customs Inspector convicted of the personal use and transportation of

marijuana); Todd v. Department of Justice, 71 M.S.P.R. 326, 330 (1996)

(correctional counselor’s removal for two driving while intoxicated (DWI)

convictions, failure to report his arrest, and improper use of his identification

card promoted the efficiency of the service as it is an extremely serious offense

when a correctional officer violates federal or state laws against drunk driving

because it compromises the integrity of personnel in the federal prison system and

correctional or law enforcement officers are held to a higher standard of conduct);

Thompson v. Department of Justice, 51 M.S.P.R. 43, 50 (1991) (removal of a

recreational specialist from a federal correctional institution for off-duty DWI

conviction and marijuana possession was reasonable because, as a law

enforcement officer, it was appropriate to hold this employee to a higher standard

of conduct than other employees and his involvement with illegal drugs was

antithetical to the duties of his position and the agency’s mission).

¶5 Alternatively, I would find that the agency met its burden of proving that

the appellant’s criminal misconduct under the facts of this case had a connection

to the efficiency of the service. To that end, the agency provided evidence that

established that the appellant’s conduct violated the FBI offense code, the

3

appellant lied to the arresting officer and said that she had taken an overdose of a

medication for depression and insomnia, when in fact the results of the blood test

indicated that she had been drinking excessively, the appellant endangered herself

and others by driving a motor vehicle while under the influence, and she

recklessly destroyed property as a result of her drunk driving. In recent years,

society has begun to take driving while drunk as a serious criminal act. In

addition, the deciding official testified that, as a result of the appellant’s

misconduct, the agency had lost trust in her ability to perform her job duties.

¶6 Based on the above, I would reverse the initial decision and sustain the

agency’s decision to remove the appellant under the circumstances of this case.

______________________________

Mark A. Robbins

Member