Jose A Parra v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSE A. PARRA, DOCKET NUMBER
Appellant, SF-0752-20-0421-I-1
v.
DEPARTMENT OF HOMELAND DATE: October 16, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ryan C. Nerney , Ladera Ranch, California, for the appellant.
Brian P. Olfato and Diana Mondragon , Chula Vista, California,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action. 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 of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly MODIFIED to
address the appellant’s claim regarding the consistency of the penalty, we
AFFIRM the initial decision.
In alleging that the administrative judge erred in finding that the agency
proved its charge of conduct unbecoming, the appellant primarily challenges the
administrative judge’s credibility determinations regarding several witnesses.
Petition for Review (PFR) File, Tab 1 at 12-13, 21-27. We find, however, that
the appellant’s arguments do not set forth sufficiently sound reasons to disturb
the administrative judge’s well-reasoned credibility determinations, which are
supported by the record. Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). Moreover, we discern no reason to disturb the administrative
judge’s factual findings and legal conclusions, as she properly considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016).
Thus, we agree with the administrative judge that the agency proved its charge of
conduct unbecoming.
The appellant also argues that the penalty exceeded the bounds of
reasonableness and that the deciding official and the administrative judge did not
properly weigh the factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 306 (1981). PFR File, Tab 1 at 14-21. Among other things, the
3
appellant asserts that the deciding official and the administrative judge
“completely ignored” that the appellant submitted “a plethora of other comparator
evidence that does not support a removal for similar conduct.” Id. at 18. Below,
he identified three alleged comparator employees who were given lesser
penalties. Initial Appeal File (IAF), Tab 5 at 30-32, 51-68. Because the
administrative judge did not address the appellant’s claim regarding the
consistency of the penalties, we modify the initial decision to address this issue,
nonetheless finding that the appellant has not met his burden. See McNab v.
Department of the Army, 121 M.S.P.R. 661, ¶¶ 10–11 (2014).
Among the factors that an agency should consider in setting the penalty for
misconduct is the “consistency of the penalty imposed with those imposed upon
other employees for the same or similar offenses.” Douglas, 5 M.S.P.R. at 305.
While no single factor is outcome determinative, the fact that two employees
come from different work units or supervisory chains remains an important factor
in determining whether it is appropriate to compare the penalties they are given.
Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 13. In most cases, employees
from another work unit or supervisory chain will not be proper comparators. Id.There must be a close connection between the misconduct or some other factor
for an employee from another work unit or supervisory chain to be a proper
comparator. Id. Although the universe of potential comparators will vary from
case to case, it should be limited to those employees whose misconduct or other
circumstances closely resemble those of the appellant. Id. The relevant inquiry
is whether the agency knowingly and unjustifiably treated employees differently.
Id., ¶ 14. In addition, the 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; Douglas, 5 M.S.P.R. at 305-06.
As noted above, the appellant identified three alleged comparator
employees and provided decision letters of their disciplinary actions. IAF, Tab 5
4
at 54-56, 60-61, 66-68. Two of the comparators engaged in misconduct that is
widely different from the sole sustained charge in this case, and thus, they are not
valid comparators for consistency of the penalty purposes. Id. at 60-61, 66-68.
Regarding the third comparator, he was suspended for 5 days for use of poor
judgment; he received double reimbursement (in the amount of $1,665) for
repairs to a rental car from a rental car company and insurance company. Id.
at 54-56. Although the third comparator was also a law enforcement officer and
engaged in insurance fraud, he worked at a different office location and was
under a different supervisory chain. Moreover, the scale of the misconduct was
greater in the appellant’s case, as it involved the submission of an altered invoice
that enhanced the cost of carpet repairs to a rental property he owned by $10,000
and resulted in multiple investigations and felony charges in state court. IAF,
Tab 6 at 6, 8, 85-86, Tab 11 at 48-51, 53-54. Unlike the appellant, the third
comparator did not seek double reimbursement; instead, the insurance company
mistakenly paid him, and he accepted its error. IAF, Tab 5 at 51. The appellant
has failed to identify another comparator employee whose misconduct or other
circumstances closely resemble those of the appellant. He also has not
established that the agency knowingly and unjustifiably treated employees
differently. Therefore, the appellant has not established that he was subjected to
an inconsistent penalty. For the reasons stated in the initial decision, we agree
with the administrative judge’s finding that removal is the maximum reasonable
penalty for the sustained charge.
NOTICE OF APPEAL RIGHTS 2
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
2
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
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
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate 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 applicable 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 choices 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 particular
6
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 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 .
7
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
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
8
of appeals of competent jurisdiction. 3 The court of appeals must receive your
petition for 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 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.
3
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
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.
9
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.