Rodney Howerton v. Department of Defense ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODNEY HOWERTON, DOCKET NUMBER
Appellant, PH-0752-13-0292-I-1
v.
DEPARTMENT OF DEFENSE, DATE: August 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Randolph A. Elliott, Camp Hill, Pennsylvania, for the appellant.
Karen L. Saxton, New Cumberland, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
sustained the agency’s sole charge of Conduct Unbecoming a Federal Employee
but mitigated the penalty to a 90-day suspension. For the reasons discussed
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
below, we GRANT the agency’s petition for review, AFFIRM the initial decision
IN PART, VACATE it IN PART, and reinstate the agency’s penalty of removal.
¶2 Following his arrest at work for off-duty misconduct, the agency placed the
appellant on administrative leave and then indefinitely suspended him. Initial
Appeal File (IAF), Tab 6 at 22-32, 43. The appellant did not appeal his
suspension. He pleaded guilty in state court to a single felony count of
possession with intent to deliver cocaine and was sentenced to 2 years of
probation. Id. at 43. The agency issued a notice of proposed removal and,
following the appellant’s oral and written replies, removed him on a single charge
of Conduct Unbecoming a Federal Employee. Id. at 51-56. The appellant
appealed to the Board. IAF, Tab 1. Following a hearing, the administrative judge
found that the agency established the charged off-duty misconduct and a nexus
between the misconduct and the efficiency of the service. IAF, Tab 17, Initial
Decision (ID) at 5. Although the administrative judge rejected the appellant’s
affirmative defense of race discrimination regarding the agency’s choice of
penalty, he mitigated the appellant’s removal to a 90-day suspension because the
agency was unable to explain why it had failed to discipline the comparator
employees identified by the appellant, whose misconduct, although not identical
to the appellant’s, was (in the administrative judge’s estimation) of similar or
greater culpability, and, more importantly, for which those employees, unlike the
appellant, received significant jail time. ID at 6-11.
¶3 In its petition for review, the agency argues that the administrative judge
erred in his interpretation and application of Board law regarding disparate
penalties, improperly concluded that the agency’s search for comparators was
inadequate, and failed to give proper deference to the agency’s choice of penalty.
Petition for Review (PFR) File, Tab 1. Because the Board must base its analysis
of disparate penalties on a fully-developed record, see Davis v. U.S. Postal
Service, 120 M.S.P.R. 457, ¶ 8 (2013) (citing Williams v. Social Security
Administration, 586 F.3d 1365 (Fed. Cir. 2009)), the Board issued an Order to
3
Clarify the Record requesting additional information from the parties, PFR File,
Tab 4. Specifically, the Board requested supplemental information concerning:
(1) the duties and supervisory chains of the four comparator employees identified
by the appellant; (2) whether any of these comparator employees had prior
criminal convictions and, if so, what effect, if any, that information might have
on the penalty analysis; (3) whether the difference in treatment was knowing and
intentional, or whether the agency began levying a more severe penalty for a
charged offense without giving notice of a change in policy; (4) the actual court
documents concerning the comparators’ convictions; and (5) why the deciding
official came to the conclusion that the appellant lacked rehabilitative potential
and what, if any, impact the appellant’s prior conviction for engaging in similar
conduct had on the deciding official’s conclusion. Id. We have considered both
parties’ responses to the Board’s order. PFR File, Tabs 7-17. 2
¶4 Where, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Woebcke v. Department of Homeland
Security, 114 M.S.P.R. 100, ¶ 7 (2010); Douglas v. Veterans Administration, 5
M.S.P.R. 280, 306 (1981). 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.
Woebcke, 114 M.S.P.R. 100, ¶ 7. The Board recognizes that its function is not to
2
We agree with the administrative judge’s disposition of the appellant’s affirmative
defense of race discrimination. In order to prevail on such a claim, the comparator
employees’ circumstances must be “nearly identical” to that of the appellant, i.e., that
they reported to the same supervisor, were subject to the same standards of discipline,
and engaged in conduct similar to the appellant’s without differentiating or mitigating
circumstances. See, e.g., McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 17
(2013). The administrative judge correctly found, and the record on review confirms,
that none of the comparator employees reported to the same supervisor or engaged in
conduct that was conduct similar to the appellant’s without differentiating or mitigating
circumstances.
4
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. 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. However, if the deciding
official failed to appropriately consider the relevant factors, the Board need not
defer to the agency’s penalty determination. Id.¶5 The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the supervisor’s confidence in the
employee’s ability to perform his assigned duties, the consistency of the penalty
with the agency’s table of penalties, and the consistency of the penalty with those
imposed on other employees for the same or similar offenses. Lewis v.
Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010); Douglas,
5 M.S.P.R. at 305–06. Not all of the factors will be pertinent in every instance,
and so the relevant factors must be balanced in each case to arrive at the
appropriate penalty. Douglas, 5 M.S.P.R. at 306. The seriousness of the
appellant’s offense is always one of the most important factors in assessing the
reasonableness of an agency’s penalty determination. Schoemer v. Department of
the Army, 81 M.S.P.R. 363, ¶ 12 (1999).
¶6 We agree with the administrative judge that the appellant’s
misconduct--possession of cocaine with intent to distribute—was very serious.
ID at 11; see Brook v. Corrado, 999 F.2d 523, 527-28 (Fed. Cir 1993). 3 We also
find that the deciding official’s conclusion that the appellant lacked rehabilitative
3
In its response to the Board’s order, the deciding official stated that he did not
consider the appellant’s pre-appointment conviction for a similar offense as part of his
penalty analysis. PFR File, Tab 7 at 9 (affidavit of the deciding official). Accordingly,
the appellant’s prior conviction is not pertinent to the penalty determination in this
case.
5
potential resulted from the proper exercise of his management judgment.
Woebcke, 114 M.S.P.R. 100, ¶ 7. Specifically, in its response to the Board’s
order, the deciding official explained that, in his view, the appellant demonstrated
a complete lack of candor in the disciplinary process. PFR File, Tab 7 at 7. We
agree. For example, in response to the agency’s proposed indefinite suspension,
the appellant denied that he engaged in the misconduct and stated that “[i]f I was
guilty I would resign and accept any punishment.” IAF, Tab 11 at 10. Although
the appellant later pleaded guilty to the offense, id. at 8, rather than accepting
responsibility, he instead claimed in his oral response to the notice of proposed
removal that he had been falsely accused by another drug dealer, PFR File, Tab 7
at 9 (affidavit of the deciding official). Under the circumstances, we find no
basis for questioning the deciding official’s opinion that the appellant’s prospects
for rehabilitation were low.
¶7 As stated above, however, the appellant has also raised a claim of disparate
penalties. In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), the Board
clarified the criteria necessary for showing disparate penalties. Specifically, the
Board held that an appellant must show that 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, but the Board will not have hard and fast rules regarding the
“outcome determinative” nature of these factors. Id., ¶ 20. The agency’s burden
to prove a legitimate reason for the difference in treatment between employees is
triggered by the appellant’s initial showing that there is enough similarity
between both the nature of the conduct and the other factors to lead a reasonable
person to conclude that the agency treated similarly-situated employees
differently. Id., ¶ 24. 4
4
The agency complains that the administrative judge improperly concluded that its
search for comparators was inadequate, characterizing its complaint in the context of
discovery. PFR File, Tab 1 at 15-16. However, the comment at issue instead has to do
6
¶8 In its response to the Board’s order, the agency reasserts its position below
that it imposed the same discipline in this case that it had imposed with respect to
a nearly identical comparator employee. PFR File, Tab 7 at 4, 9 (affidavit of the
deciding official); IAF, Tab 11 at 22-28. Specifically, the agency states that, in
2010, it also removed an employee based on a charge of conduct unbecoming
after the employee pleaded guilty to charges of Possession with Intent to Deliver.
PFR File, Tab 7 at 9. The agency further states that, although the comparator
employee had no prior discipline and 6 years of service, the deciding official
considered the criminal misconduct to be very serious and determined that the
employee had no potential for rehabilitation. Id. We note that this comparator
employee’s criminal misconduct resulted in his long-term imprisonment. IAF,
Tab 11 at 22.
¶9 The agency also contends in its response that there is not enough similarity
between the appellant and the four comparators he identified to lead a reasonable
person to conclude that the agency treated similarly-situated employees
differently. PFR File, Tab 7 at 4, 9-12. We disagree. PFR File, Tab 7 at 39-42.
The appellant and comparator S.Y. both worked at the same installation, Naval
Supply Center in Mechanicsburg, PA, where the appellant served as a GS-9
Distribution Facilities Specialist and S.Y. served as a GS-7 Lead Supply
Technician. Id. at 39-40. However, the appellant and S.Y. did not have the same
first or second-level supervisors. Id. at 12. Comparators V.O., F.O., and D.O.
worked at a separate installation—the Defense Distribution Center, in New
Cumberland PA—as a WG-5 Distribution Process Worker, a GS-12 Supply
Management Specialist, and a GS-12 Distribution Facilities Manager,
with the agency’s responsibility to defend its choice of penalty and the administrative
judge’s assessment of the agency’s evidence. See ID at 8; see also Lewis, 113 M.S.P.R.
657, ¶ 6. Nevertheless, we find nothing inappropriate in the administrative judge’s
remarks.
7
respectively, and none shared common first or second-level supervisors with the
appellant. Id. at 11, 41-42. 5
¶10 Although one comparator, S.Y., was convicted of possession of a small
amount of marijuana for personal use, see PFR File, Tab 11 at 5, none of the
proffered comparators were convicted of possession with intent to deliver
cocaine. Each of the comparators had a history of criminal misconduct.
Comparator S.Y. previously pleaded guilty to (1) misdemeanor driving under the
influence (DUI) and was ordered confined for a sentence of 72 hours to 6 months,
(2) misdemeanor possession and use of drug paraphernalia and confined for 1 to
12 months, (3) misdemeanor simple assault and received probation, (4) one count
of first degree misdemeanor DUI and was ordered confined for a maximum of
90-days. IAF, Tab 12, Exhibit 3; PFR File, Tabs 9-13. Comparator D.O. pleaded
guilty twice in 2005 to first degree misdemeanor DUI and appears to have been
sentenced to imprisonment (60 months maximum). IAF, Tab 12, Exhibits 2-5. In
2007, V.O. pleaded guilty to one count of first degree misdemeanor DUI (highest
blood alcohol level) and was sentenced to 45 days to 60 months of
incarceration. IAF, Tab 12, Exhibit 4; PFR File, Tab 14-15. In 2009, F.O. was
found guilty of Insurance Fraud and Theft, both third degree felonies, and
sentenced to 23 months of probation. In 2011, F.O. pleaded guilty to
(1) misdemeanor DUI (high rate of blood alcohol) and was ordered confined for
between 30 days and 6 months and (2) a second degree misdemeanor count of
recklessly endangering another person and sentenced to probation. IAF, Tab 12,
Exhibit 5; PFR File, Tab 16. It is undisputed that none of these individuals
received any punishment from the agency for their criminal conduct. 6
5
As the administrative judge correctly noted, an agency’s action is fairly subject to
question if the comparator receiving more lenient treatment is a supervisor. ID at 11;
see Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 19 (2012).
6
The appellant also submits for the first time on review information concerning another
comparator, BS. PFR File, Tab 17. Because comparator BS’s alleged misconduct
occurred in 2013 after the appellant’s misconduct, the deciding official could not have
8
¶11 In light of the foregoing, we believe that the appellant identified individuals
who were similarly situated to him in terms of their criminal records but whom
the agency treated differently. As such, the burden shifts to the agency to proffer
a legitimate reason for removing the appellant, who received no jail time for his
off-duty misconduct, while imposing no discipline at all on the comparators,
some of whom received jail time for off-duty misconduct that was equally, if not
more serious, than his misconduct. ID at 10-11. We find that the agency has met
this burden here. In his affidavit, the deciding official explained that none of the
comparator employees identified by the appellant were arrested at work and that
he was unaware of their off-duty misconduct until he was presented with
information concerning these employees from the appellant. Id. In this regard,
we note that the information provided by the appellant concerning these
comparators was derived from his search of public court records; there is no
indication that any of this information could have been discovered by reviewing
the agency’s personnel records; and there is no evidence that the comparator
employees’ supervisors were aware of the comparator employees’ off-duty
misconduct. Id. By contrast, the deciding official stated that he was directly
aware of the appellant’s off-duty misconduct because he was arrested on the
agency’s Mechanicsburg, PA installation during duty hours and in the presence of
his coworkers and because his arrest, which involved multiple law enforcement
officers, created a “spectacle” on the installation that resulted in an official report
concerning the incident and an order barring the appellant from the facility. PFR
File, Tab 7 at 9-10.
¶12 The deciding official also stated in his declaration that it appeared from his
review of the appellant’s materials that the four comparators had lesser-graded
offenses than the appellant; that every conviction except one was either a
considered this information in making his penalty determination. Accordingly, we have
not considered the appellant’s submission concerning comparator BS on review.
9
misdemeanor or a summary offense; and that the jail time served by the
comparators appeared to be because the four comparators each had DUIs. PFR
File, Tab 7 at 10. The deciding official further stated that the agency has never
considered a DUI to be as serious of a criminal offense as drug dealing. Id. at 11.
Thus, whereas the agency has granted work releases to employees who pleaded
guilty to DUIs that resulted in incarceration and would potentially grant a work
release to an employee involving drug use if the employee enrolled in its alcohol
and drug prevention program, the deciding official stated that the agency has
never approved a work release request for an employee with a drug distribution
conviction and he would not do so. PFR File, Tab 7 at 10, 16-31, 33-35.
¶13 Considering the record as a whole, we find that the deciding official
conscientiously considered the consistency of the penalty as required by Douglas.
The agency has established that it imposed the same discipline in this case that it
had imposed with respect to a nearly identical comparator employee. Moreover,
there is no evidence in the record indicating that the difference in treatment
between the appellant and the comparators he identified was knowing or
intentional or because the agency began levying a more severe penalty for a
charged offense without giving notice of a change in policy. Rather, it appears
that the lack of discipline in those employees’ cases was either because the
agency was unaware of the nature of their misconduct, or, to the extent that it was
aware, it had reason to believe that the jail time served by these employees was
for lesser offenses such as a DUI.
¶14 Based on the foregoing, we conclude that, in making its penalty
determination, the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness.
Woebcke, 114 M.S.P.R. 100, ¶ 7. Moreover, our reviewing court has long made
clear that removal for the type of misconduct at issue here is well within the
bounds of reasonableness. See, e.g., Brook, 999 F.2d at 527-28 (reversing the
arbitrator’s reinstatement of an employee removed after being convicted of
10
possessing cocaine with intent to distribute, holding that the nexus between the
misconduct and the efficiency of service is presumed where the employee is
involved with drug trafficking, even if limited to off-duty hours, and that removal
is not so harsh and unconscionably disproportionate to the offense that it amounts
to an abuse of discretion).
¶15 Accordingly, we VACATE that portion of the initial decision mitigating the
agency’s penalty and SUSTAIN the appellant’s removal. This constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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.
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
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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
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. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.