Cruz v. Department of Homeland Security ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILMER CRUZ,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2013-3083
______________________
Petition for review of an arbitrator's decision in No.
AR-11-16 by Louise B. Wolitz.
______________________
Decided: October 11, 2013
______________________
WILMER CRUZ, of Pharr, Texas, pro se.
K. ELIZABETH WITWER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
PATRICIA M. MCCARTHY, Assistant Director.
______________________
2 CRUZ v. DHS
Before DYK, MOORE, and WALLACH, Circuit Judges.
PER CURIAM.
Wilmer Cruz appeals from the arbitration decision af-
firming the Department of Homeland Security’s (DHS)
removal of Mr. Cruz from his position as an Immigration
Enforcement Agent. Because the arbitrator’s decision is
in accordance with law, we affirm.
BACKGROUND
Mr. Cruz was an Immigration Enforcement Agent
employed by DHS’s Immigration and Customs Enforce-
ment in Enforcement and Removal Operations. Mr. Cruz
married Ms. Salas and filed for divorce almost six years
later. Prior to the dissolution of his marriage to Ms.
Salas, however, Mr. Cruz married Ms. Gruber. The
marriage between Mr. Cruz and Ms. Gruber was annulled
three months later, when Ms. Gruber learned that Mr.
Cruz was already married. Mr. Cruz was indicted by a
Texas Grand Jury for bigamy, but the state subsequently
dismissed the charge. Mr. Cruz was never tried for, or
found criminally guilty of, bigamy.
After his marriage to Ms. Gruber was annulled, Mr.
Cruz made plans to marry another woman, Ms. De Leon.
Mr. Cruz enrolled Ms. De Leon and her daughter in his
federal health benefits plan as his spouse and stepchild,
respectively. Mr. Cruz ultimately elected not to go for-
ward with the marriage to Ms. De Leon, but Ms. De Leon
and her daughter continued to be listed as dependents on
Mr. Cruz’s federal health benefits plan and each received
benefits under the plan.
DHS proposed to remove Mr. Cruz from his position
and from federal service based on two charges: (1) bigamy
and (2) conduct unbecoming a law enforcement officer.
The charge of bigamy alleged that Mr. Cruz married or
attempted to marry Ms. Gruber while he was legally
married to Ms. Salas. The charge of conduct unbecoming
CRUZ v. DHS 3
a law enforcement officer alleged that Mr. Cruz improper-
ly enrolled Ms. De Leon and her daughter as family
members under his federal benefits plan. That charge
further alleged that Mr. Cruz was aware that Ms. De
Leon and her daughter were receiving health benefits and
that he knew or should have known that they were not
entitled to receive them.
In sustaining the removal of Mr. Cruz, DHS consid-
ered the seriousness of Mr. Cruz’s misconduct and its
nexus to his position as a law enforcement officer in its
decision. Mr. Cruz’s union requested arbitration and the
arbitrator affirmed DHS’s removal of Mr. Cruz. Mr. Cruz
appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We apply the same substantive standards of review to
arbitration decisions as to Merit Systems Protection
Board decisions. 5 U.S.C. § 7121(f). We must affirm the
arbitrator’s decision unless it is “(1) arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c).
On appeal, Mr. Cruz argues, first, that the arbitrator
erred by imposing on him the burden of proof to show he
reasonably believed he was divorced when he married Ms.
Gruber. He argues this showing should have been DHS’s
burden and that DHS wrongfully faulted him for not
submitting any documentary evidence of the divorce
paperwork he allegedly sent Ms. Salas. Next, Mr. Cruz
contends that the arbitrator abused her discretion by
refusing to draw a negative inference against DHS after it
failed to provide the disciplinary records of similarly
situated employees. Mr. Cruz argues that he requested
that DHS release all disciplinary records of other employ-
ees nationwide charged with bigamy and/or conduct
4 CRUZ v. DHS
unbecoming for the previous five years, but that DHS did
not do so. Mr. Cruz contends that those records should
have been turned over to Mr. Cruz in response to his
request pursuant to DHS’s duty to negotiate in good faith.
See 5 U.S.C. § 7114(b)(4).
First, we agree with DHS that the arbitrator did not
improperly shift the burden of proof from DHS to Mr.
Cruz. Under the Texas Penal Code, an individual has
committed the offense of bigamy if “he is legally married
and he purports to marry or does marry a person other
than his spouse.” V.T.C.A., Penal Code § 25.01(a) (2005).
It is a “defense to prosecution” that “the actor reasonably
believed” that he was “legally eligible to be married
because the actor’s prior marriage was void or had been
dissolved by death, divorce, or annulment.” Id. § 25.01(c).
The same section of the Texas Penal Code states that
“[f]or the purposes of this subsection, an actor’s belief is
reasonable if the belief is substantiated by a certified copy
of a death certificate or other signed document issued by a
court.” Id. Mr. Cruz has not provided any death certifi-
cate or other court-issued document. The arbitrator
concluded:
So there is no evidence to support Mr. Cruz’s rep-
resentation that he thought he was divorced from
Helen [Salas]. There is no divorce decree. Mr.
Cruz never checked for a divorce decree. There is
no documentation of his claim that he sent the
necessary paperwork to Helen Cruz. There is no
documentation of his claim that Helen Cruz told
him she had filed the paperwork.
J.A. 26. Thus, Mr. Cruz has not shown that he reasona-
bly believed he was eligible to be married and we find that
the arbitrator’s decision was supported by substantial
evidence.
We further agree with DHS that Mr. Cruz’s request
for the records of all employees charged with “conduct
CRUZ v. DHS 5
unbecoming” was overly broad. DHS has an obligation to
provide information “which is reasonably available and
necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective
bargaining.” 5 U.S.C. § 7114(b)(4)(B). However, Mr. Cruz
sought information that was not necessary for the arbitra-
tor’s consideration of his grievance. Mr. Cruz attempted
to establish a disparate penalty claim, but such a claim
requires that the charges and circumstances surrounding
the charged behavior are substantially similar. Reid v.
Dep’t of Navy, 118 M.S.P.R. 396, 407 (2012) (citations
omitted). DHS searched for cases in which employees
were charged with conduct unbecoming based on benefit
misconduct and found no other case. Because cases
involving conduct unbecoming unrelated to benefit mis-
conduct are not substantially similar to Mr. Cruz’s case,
DHS had no obligation to provide that data. Further-
more, for the charges and the circumstances to be sub-
stantially similar, the employee must be charged with
both offenses: bigamy and conduct unbecoming. See
Bencomo v. Dep’t of Homeland Security, 115 M.S.P.R. 621,
628 (2011), aff’d, 468 F. App’x 986 (Fed. Cir. 2012).
Because DHS confirmed that there were no other employ-
ees charged with both bigamy and conduct unbecoming,
there were no comparable cases. Thus, the arbitrator’s
refusal to draw a negative inference against DHS as a
result of its failure to produce comparable cases was not
an abuse of discretion.
CONCLUSION
For the foregoing reasons, the arbitrator’s decision is
affirmed.
AFFIRMED
COSTS
No costs.