Harold E. Brooks v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD E. BROOKS, DOCKET NUMBER
Appellant, SF-0752-14-0752-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 2, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry Provencio, Barstow, California, for the appellant.
Loren Baker, Barstow, 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 his 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
erroneous application of the law to the facts of the case; the judge’s rulings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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).
¶2 The agency removed the appellant, a Heavy Mobile Equipment Repairer,
WG-08, with the agency’s Marine Corps Logistics Command in Barstow,
California, on two of four proposed charges, possession of a controlled substance
and drug paraphernalia aboard a military installation, and testing positive for
amphetamine(s), methamphetamine, and marijuana while in a duty status. Initial
Appeal File (IAF), Tab 3, Subtabs 4, 4a-4c. The appellant filed a timely Board
appeal. IAF, Tab 1. In a prehearing conference, the appellant stipulated that, as
charged, he possessed a controlled substance and drug paraphernalia aboard a
military installation and that he tested positive for amphetamine(s),
methamphetamine, and marijuana while in a duty status. IAF, Tab 9 at 2; IAF,
Tab 3, Subtab 4c. The appellant also stipulated to the facts set forth in supporting
paragraphs e-f of the possession charge, and to supporting paragraphs g-j of the
positive test charge, specifically acknowledging that he had used “weed” and
“speed” before work that very morning. Id.
¶3 After holding a hearing, the administrative judge sustained both charges
based on the appellant’s stipulations, the appellant’s failure to dispute them, and
the evidentiary record. IAF, Tab 14, Initial Decision (ID) at 6. The
administrative judge also rejected the appellant’s affirmative defenses of age and
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race discrimination, individually analyzing each of the potential comparators to
find that none of them were similarly situated to the appellant for the purpose of
an affirmative defense of discrimination on the basis of disparate treatment and
determining that the appellant failed to prove that either racial or age
discrimination motivated the agency to remove him. ID at 4-10; see, e.g.,
Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (for
employees to be deemed similarly situated for an affirmative defense of
discrimination on the basis of disparate treatment, all relevant aspects of the
appellant’s employment situation must be nearly identical to those of the
comparators, including reporting to the same supervisor, being subjected to the
same standards, and engaging in conduct similar to the appellant’s without
differentiating or mitigating circumstances).
¶4 The administrative judge also found that any delay in the appellant’s
referral to the agency’s Employee Assistance Program was consistent with the
requirements of the parties’ collective bargaining agreement and had no effect on
the agency’s decision, especially considering that the appellant self-referred to
the program on the day after the specified misconduct occurred. ID at 10-11.
The administrative judge further found that the agency established a nexus
between the appellant’s misconduct and the efficiency of the service and that the
agency both considered all the relevant Douglas factors and exercised its
managerial discretion such that the penalty of removal was well within the
tolerable limits of reasonableness. ID at 12-18. The administrative judge also
rejected the appellant’s claim of disparate penalty, finding that the proffered
comparators were not valid ones, as their proposed removals were resolved
through settlements or involved misconduct that was either less serious or too
remote in time to the appellant’s misconduct. ID at 15-16.
¶5 In his timely filed petition for review, the appellant does not challenge the
administrative judge’s findings that the agency proved the charges, that the
appellant failed to establish his affirmative defenses, and that the agency
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established nexus. 2 Petition for Review (PFR) File, Tab 1. His sole assertion on
review is that the Board should mitigate the penalty in this appeal based on the
initial decision of a different administrative judge in a different case in which the
appellant’s contentions are both similar as to the charge as well as to the tenure
and work history of the employee involved therein. Id. at 3-4, 6-30. In that other
initial decision, rendered the week after the hearing on the appellant’s appeal, the
administrative judge mitigated the penalty from a removal to a 60-day suspension.
See Saiz v. Department of the Navy, MSPB Docket No. SF-0752-14-0054-I-1,
Initial Decision (Nov. 6, 2014). The agency responds in opposition to the
appellant’s petition for review. PFR File, Tab 3.
¶6 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Evidence submitted with a petition for review, in addition to being new, must also
be material to the appeal. 5 C.F.R. § 1201.115(d). Although the initial decision
in Saiz was issued after the conclusion of the hearing in this appeal, and therefore
was unavailable before the close of the record in the appellant’s appeal, see
5 C.F.R. § 1201.58, the Board has long held that an initial decision issued in
another case does not constitute new and material evidence, e.g., Taggart v. U.S.
Postal Service, 3 M.S.P.R. 108, 110 (1980); Berry v Department of Energy,
21 M.S.P.R. 95, 96 (1984).
¶7 Moreover, the agency filed a petition for review of the initial decision in
Saiz, which the Board granted. The Board reversed the administrative judge’s
2
Because the appellant has not challenged these findings and because we discern no
error in the administrative judge’s well-reasoned initial decision regarding these
matters, we will not disturb the findings. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings where she considered the evidence as a whole, drew appropriate references,
and made reasoned conclusions); see also Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
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mitigation of the penalty and sustained the agency’s removal action, affording
deference to the deciding official’s penalty determination. Saiz v. Department of
the Navy, 2015 MSPB 40. Like the appellant in this matter, Mr. Saiz was found
in possession and under the influence of the same illegal drugs that the appellant
admitted to using, also while on duty at a military installation. Id., ¶ 11, see ID
at 3-4. In sustaining the removal penalty, the Board commented that, even if the
penalty determination of the deciding official in Saiz, who was the same deciding
official as in the instant matter, was not entitled to deference, its independent
analysis found that the penalty of removal was within the tolerable limits of
reasonableness for the misconduct established. Saiz, 2015 MSPB 40, ¶¶ 10-12.
¶8 We find that the same is true in this appeal. The appellant’s serious
misconduct was directly related to the duties and responsibilities of his position
repairing heavy mobile equipment and the safety of those who use the equipment
he repaired. See, e.g., Saiz, 2015 MSPB 40, ¶ 11; Cole v. Department of the
Air Force, 120 M.S.P.R. 640, ¶ 16 (2014) (finding drug use by an aircraft
mechanic a serious act of misconduct). Additionally, we agree that the
appellant’s mitigating factors, including his previously clean disciplinary record
and long record of acceptable performance, simply do not outweigh the serious
misconduct established in this matter. ID at 17. Accordingly, we DENY the
appellant’s petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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:
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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,
religion, sex, national origin, or a disabling condition, you may be entitled to
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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.