Alonzo Flournoy v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALONZO FLOURNOY, DOCKET NUMBER
Appellant, SF-0752-16-0411-I-1
v.
DEPARTMENT OF HOMELAND DATE: December 22, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Henry E. Leinen, Pacific Grove, California, for the appellant.
Talia Falk, San Francisco, 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 30-day suspension. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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. 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, 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).
DISCUSSION OF ARUGMENTS ON REVIEW
¶2 On January 28, 2015, the agency proposed to remove the appellant, a GS-12
Customs and Border Protection (CBP) Officer, on the basis of one charge of
conduct unbecoming a CBP officer and one charge of failure to honor just
financial obligations in a timely manner. Initial Appeal File (IAF), Tab 4 at 41.
In support of the conduct unbecoming charge, the proposal notice provided two
specifications: (1) on July 2, 2012, a police officer discovered a “small clear bag
containing a white crystal-like substance” in the appellant’s backpack; he “was
arrested, and later charged with, possession of a controlled substance, namely
.3 grams of methamphetamine, pursuant to California Health and Safety Code
§ 11377(A)”; and (2) on September 16, 2013, he was “convicted of the infraction
of malicious disturbance of another person, pursuant to California Penal Code
§ 415(2).” Id. In support of the failure to honor just financial obligations in a
timely manner charge, the proposal notice set forth one specification, which
asserted that, as a result of the appellant’s permanent change of station move
from the agency’s Nassau, Bahamas Preclearance Office to the San Francisco
Field Office, he incurred expenses on his Government-issued travel card,
3
ultimately resulting in a balance of $13,354.23; he failed to pay the balance due
on the travel card; and, on May 1, 2013, his travel card account was closed and
charged off. Id.
¶3 The appellant responded orally to the proposal notice, in which he denied
that he had ever done drugs, stated that his behavior had been “off” but he did not
know why at the time, and stated that he “should have known better than to mix
those medications with alcohol.” Id. at 34-40. His union representative stated
that, after the July 2, 2012 incident, the appellant “reached out to the
San Francisco Veterans Affairs Medical Center for diagnosis, and more than
13 hours of corrective spine surgery.” Id. at 36. The appellant also explained
that he only used the travel card for his authorized relocation expenses, but that
the agency did not reimburse him at the correct per diem rate. Id. at 37-38. He
stated that he continually raised the issue of the per diem rate with his chain of
command and the National Finance Center, but the issue was never resolved. Id.
He averred that, as soon as he received reimbursements of his relocatio n
expenses, he put the funds toward the travel card or toward the hotel, and that he
has “not kept a single dime from this.” Id. at 38.
¶4 On March 3, 2016, the deciding official issued a decision letter sustaining
the charges but mitigating the penalty to a 30-day suspension. Id. at 29-31. The
appellant timely appealed the 30-day suspension to the Board and requested a
hearing. 2 IAF, Tab 1. After holding the requested hearing, the administrative
2
In his initial appeal, the appellant challenged both the 30 -day suspension at issue here
and a separate indefinite suspension based on the agency’s belief that he committed a
crime for which a sentence of imprisonment may be imposed. IAF, Tab 1 at 6, 14-15.
The Board’s regional office docketed the appeal of the 30-day suspension as the instant
appeal and docketed the appeal of the indefinite suspension as MSPB Docket
No. SF-0752-16‑0410-I-1. IAF, Tab 2. On May 9, 2016, the administrative judge
dismissed the appellant’s indefinite suspension appeal for lack of jurisdiction, finding
that he elected to challenge his indefinite suspension through the negotiated grievance
procedure, thereby divesting the Board of jurisdiction over his subsequently filed Board
appeal. Flournoy v. Department of Homeland Security, MSPB Docket No. SF-0752-16-
0410-I-1, Final Order (May 9, 2016).
4
judge issued an initial decision finding that the agency proved the charges, nexus,
and that the 30-day suspension was within the limits of reasonableness. IAF,
Tab 27, Initial Decision (ID) at 5-12, 14-18. The administrative judge also
determined that the appellant received the requisite due process. ID at 12-14.
Accordingly, she sustained the agency’s action. ID at 18. The appellant has filed
a petition for review of the initial decision, arguing that the administrative judge
erred in sustaining the charges and that the 30-day suspension was unreasonable.
Petition for Review (PFR) File, Tab 1. The agency has responded in opposition.
PFR File, Tab 3.
¶5 A charge of “conduct unbecoming” has no specific elements of proof; it is
established by proving that the employee committed the acts alleged in support of
the broad label. Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 22
(2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009) aff’d, 490 F. App’x 932 (10th
Cir. 2012); see Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202 (1997).
Accordingly, to prove a charge of conduct unbecoming a CBP officer, the agency
is required to demonstrate that: (1) the appellant was a CBP officer; (2) he
engaged in the underlying conduct alleged in support of the broad label ; and
(3) such conduct was improper or unsuitable for a CBP officer. See Raco v.
Social Security Administration, 117 M.S.P.R. 1, ¶ 7 (2011); Crouse v. Department
of the Treasury, 75 M.S.P.R. 57, 63 (1997) (setting forth the essential elements of
the charges of unacceptable supervisory conduct and conduct unbecoming a
Federal employee), rev’d and remanded on other grounds sub nom. Lachance v.
Merit Systems Protection Board, 147 F.3d 1367 (Fed. Cir. 1998); Miles v.
Department of the Army, 55 M.S.P.R. 633, 637 (1992) (explaining that, to sustain
a charge of conduct unbecoming a Federal employee, the agency must
demonstrate that the conduct in question was unattractive, unsuitable, or
detracting from the employee’s character).
¶6 In sustaining the conduct unbecoming charge, the deciding official observed
that, although the appellant, through his union representative, expressed regret
5
and remorse for his “part in the ordeal,” there was no dispute that he had
committed the misconduct as charged. IAF, Tab 4 at 30. The administrative
judge agreed, finding that the appellant stipulated to the factual basis of this
charge. ID at 6 (citing IAF, Tab 19 at 3-4). Although the appellant testified at
the hearing that he never used or possessed an illegal substance and that someone
planted the bag in his backpack, the administrative judge explained that she
did not find the appellant to be a credible witness and did not credit his testimony
that he never possessed or used an illegal substance or his version of the events
leading up to his arrest. ID at 6-8. The administrative judge further found that,
as the agency is charged with enforcing drug laws, it is unbecoming for an officer
of the agency to be found with, arrested for, and charged with posses sion of an
illegal drug. ID at 9.
¶7 On review, the appellant argues that the administrative judge erred in
sustaining the conduct unbecoming charge because there was no evidence that
would be admissible in California courts proving that the “white crystal-like
substance from the appellant’s backpack was in fact methamphetamine.” 3 PFR
File, Tab 1 at 4-5. However, the agency did not charge the appellant with
possessing methamphetamine; rather, the first specification stated that the
appellant was found with a “small clear bag containing a white crystal -like
substance” and that he “was arrested, and later charged with, possession of a
controlled substance, namely .3 grams of methamphetamine, pursuant to
California Health and Safety Code § 11377(A).” IAF, Tab 4 at 41. The appellant
does not dispute that he was found with the described clear bag containing a
3
The appellant does not challenge the administrative judge’s decision not to credit his
hearing testimony denying that he ever used or possessed illegal drugs or his version of
events leading up to his arrest on July 2, 2012. PFR File, Tab 1. We find no basis to
disturb these findings on review. See Haebe v. Department of Justice, 288 F.3d 1288,
1301 (Fed. Cir. 2002) (stating that the Board must defer an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on observing
the demeanor of witnesses testifying at a hearing, and that the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so).
6
white crystal-like substance or that he was arrested and charged with possession
of a controlled substance. PFR File, Tab 1. Moreover, as the administrative
judge correctly stated in the initial decision, this is not a criminal proceeding. ID
at 8. Accordingly, the appellant’s arguments regarding the admissibility of the
methamphetamine test results in California criminal proceedings are unavailing.
¶8 The appellant also argues on review that, during the hearing, “he testified
that he pled guilty to an infraction only after he had depleted hi s life savings and
could no longer defend against the erroneous charge. The [administrative judge]
failed to properly apply the Frye test when she ruled that the A ppellant accepted a
‘plea deal.’” 4 PFR File, Tab 1 at 5. As set forth above, the second specification
of the conduct unbecoming charge stated that, on September 16, 2013, the
appellant was “convicted of the infraction of malicious disturbance of another
person, pursuant to California Penal Code § 415(2).” IAF, Tab 4 at 41. The fact
that the appellant’s conviction of a lesser offense resulted from a plea deal has no
bearing on the issues in this appeal. Furthermore, contrary to the appellant’s
contention, the administrative judge did not “rule” that the appellant accepted a
plea deal. PFR File, Tab 1 at 5 (citing ID at 2). Rather, in the background
section of the initial decision, the administrative judge stated that, “as part of a
plea deal, the appellant was convicted of the infraction of malicious disturbance
of another person[.]” ID at 2. The appellant does not challenge the factual
accuracy of the statement. PFR File, Tab 1.
4
The “Frye test” or “general acceptance” is derived from a 1923 case, in which the
court stated that expert opinion based on a scientific technique is inadmissible unless
the technique is “generally accepted” as reliable in the relevant scientific community.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 584 (1993) (discussing
Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923)). The relevance
of the Frye test to the appellant’s acceptance of a plea deal, however, is unclear. In any
event, the Frye test has since been superseded by the Federal Rules of Evidence. Id.
at 586-87. While the Federal Rules may be used to provide guidance, they are not
binding on the Board. Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 35
(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011).
7
¶9 Next, the appellant argues that the administrative judge erred in sustaining
the failure to honor just financial obligations in a timely manner charge because
he did not misuse the travel card but “was simply reimbursed at the incorrect
amount.” Id. at 5-7. As stated above, the essence of this specification is that, as
a result of a change in duty station, the appellant incurred expenses on his
Government-issued travel card; he failed to pay the balance due; and his travel
card account was closed and charged off. IAF, Tab 4 at 41. To prove the charge
of “failure to honor just financial obligations in a timely manner,” the agency
must prove that the appellant committed the acts alleged in support of the label.
See Otero, 73 M.S.P.R. at 202-03.
¶10 The administrative judge found that the factual bases of the specification
were undisputed and that there was no evidence that any of the charges on the
travel card were fraudulent or that the appellant disputed the accuracy of any of
the charges. ID at 10. She considered the appellant’s contention that the unpaid
balance resulted from the agency’s failure to reimburse him at the correct rate,
but concluded that the agency properly calculated the appellant’s entitlements.
ID at 10-11. In any event, the administrative judge found that, as of July 19,
2012, 5 the appellant knew how much the agency would reimburse him for his
expenses each day, but that he nonetheless elected to spend far more than that
amount each day and then decided not to pay the credit card for those expenses.
ID at 12. The administrative judge concluded that, under these circumstances, it
is clear that the appellant failed to honor just financial obligations in a timely
manner. Id.
¶11 On review, the appellant does not challenge the administrative judge’s
findings that he was aware of the per diem rate approved by the agency, that he
5
Although the administrative judge wrote “July 19, 2014,” rather than “July 19, 2012,”
in several places, it is clear from the context and the preceding paragraph that this is a
typographical error. ID at 11-12. In the preceding paragraph, the administrative judge
explained that the appellant signed the employee relocation expenses authorization on
July 19, 2012. ID at 11 (citing IAF, Tab 6 at 67-70).
8
nonetheless chose to spend in excess of that amount, and that he failed to pay the
balance due. PFR File, Tab 1 at 5-7. Because the appellant does not dispute the
factual bases underlying the charge of failure to honor just financial obligations
in a timely manner, we find no basis to disturb the admin istrative judge’s decision
to sustain the charge. Nonetheless, we consider the appellant’s arguments
regarding the agency’s failure to reimburse him at the correct per diem rate,
which he appears to argue caused his inability to pay the outstanding balance on
the Government-issued travel card.
¶12 The appellant argues, as he did below, that the agency was required to pay
him at the San Francisco locality rate, rather than the standard Contiguous
United States (CONUS) rate, pursuant to 41 C.F.R. § 301.11. PFR File, Tab 1
at 6. He argues that “[t]he fact that lodging rates are established by [the General
Services Administration (GSA)] and not [the agency] is the gravamen of the
issues before the Board. It is not misconduct to incur more in reimbursable
expenses than the agency’s pre-travel estimate.” Id.
¶13 We agree, however, with the administrative judge and the agency that the
appellant was not entitled to a per diem rate for the San Francisco locality. The
regulations cited by the appellant apply to temporary duty travel allowances for,
among others, employees traveling on official business. 41 C.F.R. § 301-1.3. For
an employee, like the appellant, who has been permanently relocated, the
applicable regulations are located in 41 C.F.R. chapter 302. As the administrative
judge correctly explained, an employee who has been relocated can be reimbursed
for temporary quarters subsistence expenses and may choose between being
reimbursed through the actual expense method or through a lump ‑sum payment.
ID at 11; IAF, Tab 6 at 72; 41 C.F.R. §§ 302-6.4, 302‑6.11. The appellant chose
the actual expense method and, on the election form, was advised that the
governing regulations were located in 41 C.F.R. chapter 302. IAF, Tab 6 at 72.
Under the actual expense method, the “applicable per diem rate” for all locations
9
within CONUS is the “standard CONUS rate.” 41 C.F.R. § 302-6.102. In 2012,
as correctly determined by the agency and the administrative judge, the maximum
per diem rate in CONUS was $123. ID at 12; IAF, Tab 17 at 94. Thus, we find
no merit to the appellant’s arguments that he was not reimbursed at the
correct rate.
¶14 The appellant also cursorily asserts that the 30-day suspension is
unreasonable under the circumstances. PFR File, Tab 1 at 7. When, as here, all
of the agency’s charges are sustained, the Board will review the agency-imposed
penalty only to determine if the agency considered all the relevant factors and
exercised management discretion within the tolerable limits of reasonableness.
Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 7 (2010); Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (articulating a
nonexhaustive list of 12 factors that are relevant in assessing the penalty to be
imposed for an act of misconduct). In making this determination, the Board must
give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility, but to ensure that managerial judgment has been
properly exercised. Penland, 115 M.S.P.R. 474, ¶ 7. The Board will modify or
mitigate an agency-imposed penalty only when it finds that the agency failed to
weigh the relevant factors or that the penalty clearly exceeds the bounds of
reasonableness. Id.
¶15 In determining the appropriate penalty, the deciding official considered,
among other things, the “extremely serious” nature of the misconduct, the
notoriety of the offense, the fact that the appellant was on notice of his obligation
to pay the debt on this travel card, and the fact that his failure to comply with the
travel card policy violated the agency’s policy. IAF, Tab 4 at 30. The deciding
official indicated that he considered the agency’s table of offenses and penalties
and the consistency of the penalty imposed on other employees for the same or
similar offenses. Id. As mitigating factors, the deciding official considered the
10
appellant’s 15 years of Federal service, his successful performance ratings
throughout his career, his cash and time off awards for his work performance, the
fact that he made a “number of positive contributions towards [the agency’s]
mission,” and the fact that he received a temporary promotion to a supervisory
position during his career. Id. The deciding official also considered that the
appellant was experiencing health issues during July 2012. Id. Based on these
considerations, the deciding official determined that a 30 -day suspension was
“the appropriate suspension to correct such behavior in the future” and that it
would promote the efficiency of the service. Id. at 30-31.
¶16 The administrative judge found that the deciding official properly
considered the relevant factors and that a 30-day suspension does not exceed the
tolerable limits of reasonableness. ID at 16. The appellant’s bare assertion on
review that the suspension was “not reasonable” provides no basis to disturb this
finding. PFR File, Tab 1 at 7. As described above, the deciding official
conducted a thorough analysis of the relevant Douglas factors and, based on his
consideration of those factors, mitigated the removal penalty to a 30 -day
suspension. We agree with the administrative judge that a 30-day suspension
is not outside the tolerable limits of reasonableness for the sustained charges.
¶17 The appellant does not challenge the administrative judge’s other findings
that the agency established nexus between the charge and the efficiency of the
service and that the agency afforded the appellant the requisite due process. PFR
File, Tab 1. We find no basis to disturb these well-reasoned 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 when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on issues
of credibility); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
11
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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 thi s decision to
court, you should refer to the Federal law that gives you th is right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
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
12
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.