Gustavo Terrazas v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GUSTAVO TERRAZAS, DOCKET NUMBER
Appellant, DA-0752-17-0378-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 2, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Megan Zeller, Esquire, and Bobby R. Devadoss, Esquire, Dallas, Texas, for
the appellant.
Robert H. Moore, Esquire, Del Rio, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initia l decision, which
sustained his removal. 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 interpretation o f statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. Except as expressly MODIFIED to
address the Board’s recent decision in Singh v. U.S. Postal Service, 2022 MSPB
15, we AFFIRM the initial decision.
¶2 In his petition for review, the appellant contends that the administrative
judge erred in denying his motion to strike the agency’s closing bri ef, which was
filed 1 day after the deadline due to the agency’s inadvertent failure to send it by
overnight delivery. Initial Appeal File (IAF), Tabs 22-25. We discern no abuse
of discretion on the part of the administrative judge, and the appellant has not
shown that his substantive rights were adversely affected by the ruling, which
also provided him a corresponding 1-day extension to file a rebuttal. IAF,
Tab 26; see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981)
(holding that an administrative judge’s procedural error is of no legal
consequence unless it is shown to have adversely affected a party’s substantive
rights). We have considered the appellant’s other arguments on review but find
they provide no basis for overturning the administrative judge’s findings and
conclusions of law. 2 See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
2
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
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(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); Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶3 In addressing appellant’s claim of disparate penalties, the administrative
judge cited Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010),
for the proposition that an appellant alleging disparate treatment must show that
there is enough similarity between both the nature of the misconduct and other
relevant factors to lead a reasonable person to conclude that the agency treated
similarly situated employees differently but that the Board will not have hard and
fast rules regarding the “outcome determinative” nature of those factors. Id.,
¶ 15; IAF, Tab 28, Initial Decision at 20. In our recent decision in Singh,
2022 MSPB 15, ¶ 14, the Board overruled Lewis to the extent it is contrary to
Facer v. Department of the Air Force, 836 F.2d 535 (Fed. Cir. 1988), in which
our reviewing court held that the proper inquiry is whether the agency knowingly
treated employees “in a way not justified by the facts, and intentionally for
reasons other than the efficiency of the service,” id. at 536. The Board also
reaffirmed the standard set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305 (1981), which requires that similarly situated employees
must have engaged in the same or similar offenses, and overruled case law to the
contrary, Singh, 2022 MSPB 15, ¶ 17. In addition, the Board reiterated that
consistency of the penalty with those imposed on other employees for the same or
similar offenses is only one of many factors to be considered in determining an
appropriate penalty and is not necessarily outcome determinative. Id., ¶ 18.
¶4 For the same reasons the administrative judge found the appellant did not
meet his burden under Lewis, we conclude he did not meet his burden under the
standard set forth in Singh. The first of the three alleged comparators, Employee
A, was suspended for 2 days for conduct unbecoming based on an incident in
which he was involved in a public disturbance while publicly intoxicated, was
4
taken into custody for allegedly hitting a woman with his fist, and subsequently
“made facial gestures” at the woman while in custody. IAF, Tab 21 at 38-43.
The charges against Employee A were later dropped, however, id. at 41, and he
was not charged with any misconduct involving a lack of candor. Thus, we find
he did not engage in the same or similar conduct as the appellant. Employee B
was suspended for 30 days for lack of candor, failure to follow procedures, and
conduct unbecoming. Id. at 45-51. However, Employee B was not charged with
any crime and also had nearly twice as many years of service as the appellan t. Id.
at 47, 49. Again, we find the alleged comparator did not engage in the same or
similar conduct as the appellant. In the case of Employee C, who was charged
with failure to cooperate in an official investigation, conduct unbecoming, and
failure to report missing and recovered property, the agency sustained the
proposed removal action but permitted him to return to duty pursuant to a last
chance agreement. Id. at 58. However, with exceptions not applicable here, the
Board will not require an agency to explain lesser penalties imposed against
employees whose charges were resolved by settlements, despite apparent
similarities in circumstances. Hulett v. Department of the Navy, 120 M.S.P.R. 54,
¶ 7 (2013). Thus, we agree with the administrative judge’s conclusion that the
appellant failed to identify any proper comparator s.
NOTICE OF APPEAL RIGHTS 3
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriat e for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applica ble to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choice s of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar
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, 10, and 11.
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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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
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EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8 ), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
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review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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 th e Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.