Michael L. Macias v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL L. MACIAS, DOCKET NUMBER

Appellant, SF-0752-15-0385-I-2

v.

DEPARTMENT OF THE ARMY, DATE: June 17, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant.

Michael L. Halperin, Esquire, Monterey, California, 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

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;

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 administrative

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 Prior to his removal, the appellant was a Police Officer, GS-0083-06, at the

U.S. Army Garrison Presidio of Monterey, California. Macias v. Department of

the Army, MSPB Docket No. SF-0752-15-0385-I-1, Initial Appeal File (IAF),

Tab 8 at 6. He was removed based on four charges, which are summarized

as follows:

1. Failure to observe written regulations, orders, rules or

procedures (where safety to persons or property is

endangered), a charge arising from the appellant’s unsafe

operation of his police vehicle during the overnight shift on

September 26, 2014 (four specifications). Such activity

violated the California Vehicular Code and agency Standard

Operating Procedures (SOPs).

2. Failure to observe written regulations, orders, rules or

procedures (where safety to persons or property is not

endangered), a charge arising from the appellant’s second

offense of engaging in police operations outside of the

jurisdiction of the department during the overnight shift on

September 26, 2014 (two specifications). Such activity

potentially violated restrictions on military aid to civilian law

enforcement imposed by 18 U.S.C. § 1385, commonly known

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as the Posse Comitatus Act, and violated agency SOPs 4.15

and 5.18. 2

3. Misuse of government property (patrol vehicle), a charge

based on the appellant’s use of his vehicle for other than

official purposes during the overnight shift on

September 26, 2014.

4. Conduct Unbecoming a Federal Employee, a charge based on

the appellant’s allegedly untruthful responses during an

agency investigation of his activity on September 26, 2014

(2 specifications).

IAF, Tab 9 at 7-9.

¶3 On appeal, the administrative judge found that witness testimony and

dashboard videos clearly substantiated the first charge. Macias v. Department of

the Navy, MSPB Docket No. SF-0752-15-0385-I-2, Appeal File (I-2 AF), Tab 17,

Initial Decision (ID) at 3. Indeed, the appellant admitted to the underlying facts.

See, e.g., IAF, Tab 12 at 22-23. The administrative judge sustained the second

charge after finding the appellant’s account of his activities during his shift on

September 26, 2014, to be less than credible. ID at 4-6. The administrative judge

sustained the third charge, as the appellant had admitted to the underlying facts.

ID at 7. The administrative judge declined to sustain the fourth charge because

he could not discern how the appellant had been untruthful during the

investigation. ID at 8. The administrative judge found that the agency

established nexus and the three sustained charges warranted the penalty of

removal. 3 ID at 9-13.

¶4 The appellant challenged the removal penalty and proffered evidence

regarding several comparator employees. ID at 11-12; I-2 AF, Tab 4 at 20-106,

Tab 5 at 4-34. The administrative judge found that the agency proved by

2

These SOPs are located at IAF, Tab 17 at 4-7, 15-21.

3

The appellant does not appear to challenge the administrative judge’s findings

regarding the charges and nexus on review. Thus, we do not further address these

findings on review.

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preponderant evidence the legitimate reasons for the difference in treatment

between the appellant and the comparators. ID at 12-13. The administrative

judge further found that the penalty of removal in this case did not exceed the

bounds of reasonableness in light of the proposing and deciding officials’ careful

consideration of all the relevant factors. ID at 13.

DISCUSSION OF ARGUMENTS ON REVIEW

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

all of the relevant factors set forth in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981), because he did not actually request or review

records from several disciplinary cases involving similarly situated police officers

before he issued the removal decision. Petition for Review (PFR) File, Tab 1

at 5, 11-19. Yet, the appellant explains, the deciding official stated in the

decision notice that he found “the penalty of removal . . . consistent with the table

of penalties (as cited in the proposal letter) and with other actions at this

installation.” Id. at 18; IAF, Tab 8 at 9. Thus, the decision notice, he concludes,

was faulty. PFR File, Tab 1 at 18. The appellant further explains that he only

became aware of comparator employees during discovery. Id. at 16; see I-2 AF,

Tab 5 at 35-67. For these reasons, he argues, the agency violated his right of

procedural due process. PFR File, Tab 1 at 16; see id. at 26-28.

¶6 The appellant also contends that the administrative judge ignored the

agency’s failure to consider comparator evidence, which he asserts supports

mitigation of the penalty. Id. at 11, 16. Although the administrative judge

examined the comparator evidence, the appellant argues, he “sidestepped any

meaningful analysis concerning the discipline comparators, and [the] deciding

official’s complete ignorance concerning [disparate] penalty.” Id. at 16.

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

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. When, as

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here, the agency fails to prove all of its charges, the administrative judge must

carefully consider whether the sustained charges merit the penalty imposed by the

agency. Id. at 308. Additionally, where the appellant alleges disparate penalties

without a claim of prohibited discrimination, he must show that the charges and

circumstances surrounding the charged behavior are substantially similar to

trigger the agency’s evidentiary burden on the matter. Lewis v. Department of

Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 5-6 (2010). The Board will consider such

an allegation in determining the reasonableness of the penalty, but an allegation

of disparate penalties is not itself an affirmative defense. Id., ¶ 5.

¶8 The record shows that the deciding official gave careful consideration to the

Douglas factors. IAF, Tab 8 at 8-9; see IAF, Tab 9 at 10-11; Douglas,

5 M.S.P.R. at 305-06. He especially considered the nature and seriousness of the

misconduct and its relation to the appellant’s duties, position, and responsibilities

as a law enforcement officer. IAF, Tab 8 at 8; see Edwards v. U.S. Postal

Service, 116 M.S.P.R. 173, ¶ 14 (2010) (holding that the most important factor in

assessing whether the agency’s chosen penalty is within the tolerable bounds of

reasonableness is the nature and seriousness of the misconduct and its relation to

the employee’s duties, position, and responsibilities). The agency also considered

that the appellant, though only having served since 2009, already had a history of

disciplinary actions. IAF, Tab 8 at 8-9, Tab 9 at 10; see Douglas, 5 M.S.P.R.

at 305 (holding that the agency, when assessing the penalty, will consider the

employee’s past disciplinary record and his past work record, including length of

service, performance on the job, ability to get along with fellow workers, and

dependability). The appellant had received a 7-day suspension for failure to

observe written regulations, orders, rules or procedures where safety of a person

was endangered in November 2011, IAF, Tab 15 at 13; a letter of counseling for

two instances of Absence Without Official Leave in June 2014, IAF, Tab 14

at 35; and a letter of counseling for failure to follow instructions in July 2014, id.

at 33. Additionally, he had been advised on the night of the events not to initiate

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interactions, but merely to respond to calls for service. IAF, Tab 11 at 14-16, 18.

The administrative judge carefully reweighed all of these factors in light of the

fact that one charge had not been sustained. 4 ID at 9-11.

¶9 As for the appellant’s proffer of comparator employees, the deciding

official admitted that he did not ask the Civilian Personnel Office for comparator

cases, and instead relied upon the institutional memory of the Deputy Chief, who

was a 30-year employee of the department. I-2 AF, Tab 5 at 85-86. He explained

that the Deputy Chief told him that he had never seen a situation as serious as this

one. Id. at 85. The appellant asserts that the deciding official’s failure to identify

and consider the alleged comparators violated his right of procedural due process.

PFR File, Tab 1 at 16.

¶10 The deciding official, however, did not deprive the appellant of the

information upon which the penalty decision was based. See Stone v. Federal

Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (holding

that procedural due process guarantees are not met if the employee has notice of

only certain charges or portions of the evidence and the deciding official

considers new and material information; therefore, it is constitutionally

impermissible to allow a deciding official to receive additional material

information that may undermine the objectivity required to protect the fairness of

the process). The appellant clearly was aware of the Deputy Chief’s

considerations regarding the penalty factors, because the Deputy Chief also was

the proposing official and he included a relevant Douglas analysis in the proposal

notice. IAF, Tab 9 at 10-11.

¶11 Even if erroneous, the deciding official’s failure to find and address the

specific comparators that the appellant proffered is not fatal. An agency’s error is

harmful only where the record shows that the procedural error was likely to have

caused the agency to reach a conclusion different from the one it would have

4

The administrative judge characterized the unsustained charge as “the ‘least’ of the

four charges, under all the circumstances.” ID at 8.

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reached in the absence or cure of the error. Stephen v. Department of the

Air Force, 47 M.S.P.R. 672, 681, 685 (1991). Here, the appellant has asserted

little more than a theoretical possibility of prejudice. The Board has long held

that such assertions are an insufficient basis for inferring actual prejudice.

Parker v. Defense Logistics Agency, 1 M.S.P.R. 505, 514 (1980). Additionally,

several documents related to the comparator cases show that the Chief, Deputy

Chief, or Watch Commander in this case was the proposing or deciding official.

See, e.g., I-2 AF, Tab 4 at 26, 42, 55, 59, 62, 73, 77, 89, 102, 106; I-2 AF, Tab 5

at 13, 21. The appellant thus cannot legitimately assert that the proposing and

deciding officials were unfamiliar with the comparator cases.

¶12 In any event, the administrative judge reweighed the Douglas factors in

light of his decision not to sustain one of the charges. ID at 9-13; see Reid v.

Department of the Navy, 118 M.S.P.R. 396, ¶ 24 (2012) (citing Douglas,

5 M.S.P.R. at 308). In doing so, the administrative judge fully considered the

comparator evidence. When an appellant raises an allegation of disparate

penalties in comparison to specified employees, the agency must prove a

legitimate reason for the difference in treatment by a preponderance of the

evidence before the penalty can be upheld. Woebcke v. Department of Homeland

Security, 114 M.S.P.R. 100, ¶ 20 (2010). An appellant will not make his case for

disparate penalties unless there is enough similarity between both the nature of

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

the agency treated similarly situated employees differently. Boucher v. U.S.

Postal Service, 118 M.S.P.R. 640, ¶ 24 (2012). There are, however, no hard and

fast rules regarding the “outcome determinative” nature of such factors as to

whether the proffered comparator was in the same work unit, with the same

supervisor, and was subjected to the same standards governing discipline. Lewis,

113 M.S.P.R. 657, ¶¶ 12, 15.

¶13 The appellant’s comparator evidence pertained to 14 persons, who were or

are officers in the same department. I-2 AF, Tab 4 at 24-106, Tab 5 at 4-34. In

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examining the documents, which include proposal and decision letters and

Douglas factor worksheets, the administrative judge noted that none of the

comparators had as many as three charges levied against them, and that, unlike

the appellant, none had three instances of prior discipline, much less already had

been disciplined for similar misconduct. ID at 13; see IAF, Tab 9 at 10, Tab 14

at 33, 35, Tab 15 at 13. Although some comparators had been charged with

violations related to the Posse Comitatus Act, see, e.g., I-2 AF, Tab 5 at 26, none

had three such violations during the same shift. ID at 13; cf., IAF, Tab 9 at 8-9.

The administrative judge noted that several comparators had expressed remorse

for their actions, but the appellant had not. ID at 13. The administrative judge

further noted that, unlike the appellant, some of the comparators were

longstanding employees with outstanding performance records. Id. The

administrative judge thus found by preponderant evidence that the comparators

were not similarly situated and that the agency had legitimate reasons for the

differences in treatment between the appellant and the comparators. Id.; see

Lewis, 113 M.S.P.R. 657, ¶¶ 12, 15. Our examination of the record leads us to

the same conclusion. 5

¶14 The appellant raises two additional issues regarding the second charge,

which arose from his engagement in police operations outside the department’s

jurisdiction. He argues that the agency failed to prove that he had participated in

such activity and instead only established that he had monitored the activities of

another police department. PFR File, Tab 1 at 19-22. He notes that it is

sometimes necessary for officers to travel outside of the department’s geographic

boundaries while on duty, and that a limited amount of interaction with and

monitoring of the activities of other police departments is acceptable. Id. at 19,

21-22. He further argues that, although he operated his vehicle at a high rate of

5

The agency considered and rejected a lesser penalty. The appellant’s Watch

Commander stated that he initially proposed a 14-day suspension with a 30-day driving

restriction and later rescinded that proposal. IAF, Tab 11 at 27-28.

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speed while outside of the department’s jurisdictional boundaries, he did not

crash his vehicle or harm pedestrians. Id. at 22. He asserts that the agency

improperly considered what might have occurred as a result of his actions rather

than what actually occurred. Id. The appellant’s argument is unavailing. Even if

we were to consider only the aspects of this charge pertaining to the unsafe

operation of the appellant’s vehicle, we find that the agency was not obligated to

wait for tragedy to occur before disciplining an employee for dangerous behavior.

Moreover, the appellant committed similar misconduct three times during a single

shift. IAF, Tab 9 at 8-9.

¶15 Similarly, the appellant argues that the agency exaggerated any possible

violation of the Posse Comitatus Act. PFR File, Tab 1 at 26. He explains that the

agency acknowledged that the department’s jurisdictional coverage is intertwined

with civilian geography and reiterates his argument that comparators who violated

the Posse Comitatus Act received lesser penalties. Id. His argument is

unavailing. The record shows that the appellant received extensive training and

frequent reminders regarding prevention of Posse Comitatus violations and the

violation of SOP 5.18. I-2 AF, Tab 5 at 86-87, Tab 6 at 15-16. Additionally, as

noted above, he committed three separate violations—more than any

comparator—on a night when the department was short staffed and he had been

warned not to initiate police activity. IAF, Tab 9 at 8-9, Tab 11 at 14-16, 18.

Accordingly, we affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the

court at the following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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The court must receive your request for review no later than 60 calendar days

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held

that normally it does not have the authority to waive this statutory deadline and

that filings that do not comply with the deadline must be dismissed. See Pinat v.

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,

2012). You may read this law as well as other sections of the U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained

within the court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Merit Systems Protection Board neither endorses the services provided by any

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.