Karla Ann Rodriguez v. Consumer Product Safety Commission

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KARLA ANN RODRIGUEZ, DOCKET NUMBER

Appellant, AT-0752-14-0655-I-1

v.

CONSUMER PRODUCT SAFETY DATE: May 29, 2015

COMMISSION,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Karla Ann Rodriguez, Miami Springs, Florida, pro se.

Monica L. Garcia, Bethesda, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained her 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 the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. Except as

expressly MODIFIED by this Final Order concerning specification 2 of the

charge, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective May 5, 2014, the agency removed the appellant from her position

as a Compliance Investigator with the Office of Import Surveillance based on a

charge of conduct unbecoming a federal employee. Initial Appeal File (IAF),

Tab 6 at 25. The charge is based on the following specifications: (1) failure to

report her arrest on October 21, 2012, for driving under the influence (DUI) and

leaving the scene of an accident; (2) operating a government owned vehicle

(GOV) and government equipment in an impaired state on September 13, 2013;

and (3) answering her telephone while driving and ignoring her supervisor’s

request to pull over. See id. at 29-30, 56-60.

¶3 The appellant filed an appeal challenging her removal and asserting an

affirmative defense of disability discrimination based on alcoholism. IAF, Tab 1,

Tab 4 at 1. After holding the appellant’s requested hearing, the administrative

judge issued an initial decision affirming the removal action. IAF, Tab 47, Initial

Decision (ID). The administrative judge found that the agency proved that the

appellant failed to report her arrest for a DUI in violation of agency directive and

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operated a GOV while impaired, but did not prove that she answered her

telephone while driving and ignored her supervisor’s request to pull over. ID

at 3-10. Consequently, the administrative judge sustained the charge of conduct

unbecoming, found a nexus between the charge and the efficiency of the service,

and determined that removal was within the bounds of reasonableness. ID

at 10-13. The administrative judge also found that the appellant failed to prove

her affirmative defense of disability discrimination. 2 ID at 14-15.

¶4 The appellant has filed a petition for review in which she asserts that the

administrative judge erred in finding that the agency established two of the three

specifications in support of its charge and in determining that the penalty of

removal was reasonable. Petition for Review (PFR) File, Tab 1. The agency has

filed a response in opposition to the appellant’s petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 When taking an adverse action against an employee, an agency must

establish that: (1) the charged conduct occurred; (2) a nexus exists between the

conduct and the efficiency of the service; and (3) the particular penalty imposed

is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.

389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). To prove a charge

of conduct unbecoming a federal employee, an agency is required to demonstrate

that the appellant engaged in the underlying conduct alleged in support of the

2

Specifically, the administrative judge found that the appellant did not allege that

another individual, who did not seek treatment for alcohol dependency, was treated less

harshly than her and the appellant failed to prove that she was subjected to a hostile

work environment based on her alcoholism. ID at 15. The appellant does not challenge

these findings on review. Nevertheless, we d iscern no basis to d isturb the

administrative judge’s finding that the appellant failed to establish her claim of

disability discrimination based on alcoholism. See Burton v. U.S. Postal Service,

112 M.S.P.R. 115, ¶ 16 (2009) (anti-discrimination statutes do not immunize disab led

employees from discipline for misconduct, provided the agency would impose the same

discip line on an employee without a disab ility).

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broad label. Scheffler v. Department of Army, 117 M.S.P.R. 499, ¶ 4 (2012),

aff’d, 522 F. App’x 913 (Fed. Cir. 2013).

¶6 As set forth below, we agree with the administrative judge that the agency

proved the conduct underlying specifications 1 and 2. However, we modify the

initial decision by finding that specification 2 is not sustained because, under the

circumstances of this appeal, the appellant’s behavior in driving a GOV in an

impaired state did not constitute conduct unbecoming. We otherwise affirm the

agency’s removal action because proof of specification 1 alone is sufficient to

sustain the charge and we find that it justifies the penalty of removal in this case.

The administrative judge properly sustained the charge of conduct unbecoming.

¶7 In its first specification, the agency alleged that the appellant failed to

report her October 21, 2012 arrest for a DUI in violation of agency Directive

0860.2, Section 6(c)(5), issued in January 2002, and revised on March 5, 2013.

IAF, Tab 6 at 30, 82, 89. The administrative judge found that, while the appellant

did not violate the 2002 directive, she did violate the revised March 5, 2013

directive, which requires employees who drive a GOV to report “any arrest or

conviction for operation of any motor vehicle, government or privately owned,

under the influence of alcohol or illegal drugs . . . ” ID at 3-4. On review, the

appellant reiterates her testimony below that she had no knowledge of the revised

directive’s reporting requirements because she never received a copy of the

revised directive. 3 PFR File, Tab 1 at 4.

¶8 The administrative judge considered the appellant’s testimony that she was

unaware that she was required to report her DUI arrest because she did not

receive a copy of the revised directive, but found that it conflicted with the

appellant’s response to her proposed removal in which she asserted that she did

3

On review, the appellant also contends that she did not violate the 2002 directive

because it did not require her to report a DUI unless it occurred in relation to official

work activity. PFR File, Tab 1 at 4. However, we need not address this argument

because the administrative judge found that the appellant did not violate the 2002

directive. ID at 3-4.

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not report her arrest, not because she was unaware of the requirement to do so,

but because her attorney advised her not to report it because the DUI charge

would likely be reduced. ID at 4-5. On review, the appellant has not identified

any evidence of record casting doubt on the administrative judge’s analysis and,

thus, we find that the administrative judge correctly found that the agency proved

this specification.

¶9 Regarding the second specification, the administrative judge found that the

agency proved that on September 13, 2013, the appellant operated a GOV in an

impaired state and that such behavior constituted conduct unbecoming because

the appellant’s explanation that her behavior was unintentional and the result of

her discontinuing Lexapro, a prescription anti-depressant, did not excuse her

behavior. ID at 8-9. In finding that the appellant operated a GOV in an impaired

state, the administrative judge credited the testimony of four Customs and Border

Protection (CBP) officers who witnessed the appellant slurring her speech,

sweating, shaking, and having trouble walking just prior to driving her GOV

home over the appellant’s testimony that she “did not feel that bad.” ID at 5-8.

The administrative judge further found that the appellant did not dispute the

testimony of the four officers, and she herself testified that as the day went on she

began to feel cloudy, a bit off, and jittery or shaky. ID at 8.

¶10 Applying the factors for making credibility determinations set forth in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the

administrative judge found the officers’ testimony more credible than the

appellant’s because each officer’s individual testimony was corroborated by the

other officers’ testimony, and because three of the officers had submitted written

statements shortly after the incident on September 13, 2013, in which they

described their first-hand observations of the appellant’s impaired state in a

manner consistent with their testimony at the hearing. ID at 8-9. Further, the

administrative judge found no reason to question the officers’ credibility and

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determined that their description of the appellant’s behavior was not inherently

improbable. ID at 9.

¶11 On review, the appellant asserts that the testimony of the four officers was

replete with erroneous statements, predetermination, conjecture, and innuendo

and that they were prejudiced against her due to her history of alcoholism. PFR

File, Tab 1 at 4-5. Further, the appellant asserts that the officers’ testimony was

the result of a “tainted prejudicial work environment” orchestrated by her

supervisors and coworker. Id. Lastly, she argues that the officers’ testimony

regarding her impaired state should be discredited as unreasonable because they

failed to contact a medical professional or the local police, which, according to

the appellant, reasonable people would have done if they truly believed she were

impaired. Id.

¶12 The appellant, however, has not identified any specific testimony which she

contends is false and has not explained how or why the CBP officers would have

been prejudiced by her supervisors and coworker. The appellant’s arguments

amount to her here disagreement with the administrative judge’s credibility

findings and do not provide a basis to disturb the initial decision. Because the

administrative judge’s credibility conclusions were complete, based on proper

considerations, and consistent with the record, we defer to them on review. See

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (the Board will

give due deference to the credibility findings of the administrative judge where

she considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions). Accordingly, we discern no basis for disturbing the

administrative judge’s finding that the agency proved that the appellant drove her

GOV while impaired.

¶13 We disagree, however, with the administrative judge’s finding that “[t]he

appellant’s explanation that her behavior was unintentional and that it was caused

because she stopped taking Lexapro does not excuse her behavior.” ID at 9. To

the contrary, we find that the appellant’s explanation is supported by medical

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documentation in the record, including two letters from her physician, which

indicate that discontinuing taking one of her medications may cause symptoms

consistent with those she experienced on September 13, 2013. IAF, Tab 6

at 48-49. Further, the agency does not contend that the appellant knew or should

have known of the possible side effects of discontinuing Lexapro and the deciding

official specifically found that the appellant was “not capable of making a sound

decision” concerning her fitness to drive. Id. at 32. As such, we find that the

appellant’s decision to report to duty and operate a GOV and government

property while impaired does not support the charge of conduct unbecoming.

Regardless, specification 1 concerning the appellant’s failure to report her DUI

arrest is sufficient to sustain the conduct unbecoming charge. See Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (where more than

one event or factual specification supports a single charge, proof of one or more,

but not all, of the supporting specification is sufficient to sustain the charge).

The administrative judge correctly found that the agency established nexus.

¶14 The nexus requirement, for purposes of 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 or her duties satisfactorily or some

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

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

32 M.S.P.R. 71, 75 n.2 (1987). Here, there is a direct relationship between the

appellant’s conduct and her job duties, which require her to drive a GOV to

various port facilities throughout South Florida. Further, the agency has a clear

interest in requiring employees who drive a GOV to report any DUI arrest.

Accordingly, we find a nexus between the appellant’s conduct and the efficiency

of the service.

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The administrative judge correctly found that the penalty of removal was

reasonable.

¶15 When the agency’s only charge is sustained, but some of the underlying

specifications of that charge are not sustained, the agency’s penalty determination

is entitled to deference and should be reviewed only to determine whether it is

within the parameters of reasonableness. Payne v. U.S. Postal Service,

72 M.S.P.R. 646, 650 (1996). In applying this standard, the Board must take into

consideration the failure of the agency to sustain all of its supporting

specifications. Id. at 651. That failure may require, or contribute to, a finding

that the agency’s penalty is not reasonable. Laniewicz v. Department of Veterans

Affairs, 83 M.S.P.R. 477, ¶ 9 (1999). In such a case, the Board will look for

evidence showing that the agency would have imposed the same penalty for the

sustained specification. Id.

¶16 Nevertheless, the Board recognizes that its function is not to displace

management’s responsibility or to decide what penalty it would impose but to

assure that management judgment has been properly exercised and that the

penalty selected by the agency does not exceed the maximum limits of

reasonableness. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (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. Thus, 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.

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¶17 On review, the appellant argues that the penalty of removal is too severe

because: the agency does not have a table of penalties, 4 the agency failed to

properly consider that her impairment on September 13, 2013, was involuntary

and the result of her discontinuing Lexapro, and she had 18 years of service

without any prior disciplinary action. PFR File, Tab 1 at 5-6. Contrary to the

appellant’s contention, the deciding official considered the appropriate mitigating

factors, including the appellant’s 18 years of service and lack of prior discipline,

but determined that they did not outweigh the seriousness of the appellant’s

behavior given that her position requires her to drive a GOV throughout South

Florida in the normal course of her duties. IAF, Tab 6 at 35-37. In light of the

appellant’s job duties, we agree and find that removal based on the sustained

specification concerning the appellant’s failure to report her DUI arrest alone is

within the tolerable limits of reasonableness in this case. Accordingly, we affirm

the removal action.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request further review of this final decision.

4

To the extent the appellant alleges that removal is arbitrary because the agency does

not have a table of penalties, she has not pointed to anything requiring the agency to

have a table of penalties and we are unaware of such a requirement. Further, she has

not offered any evidence demonstrating that removal is an excessive penalty or that a

lesser penalty has been imposed upon other employees for similar offenses.

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The administrative judge failed to inform the appellant of her mixed-case right to

appeal from the initial decision on her discrimination claims to the Equal Employment

Opportunity Commission and/or the United States District Court. This was error, but it

does not constitute reversible error, because we notify the appellant of her m ixed-case

appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,

186-87 (1988).

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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

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,

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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. § 2000e-5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.