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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
3
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).
4
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.
5
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
6
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
7
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.
8
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.
9
¶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.
5
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).
10
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,
11
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.