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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
3
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.
4
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
5
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
6
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.
7
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
8
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.
9
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
10
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.