Raymond L. McClaskey v. United States Department of Energy , 720 F.2d 583 ( 1983 )

WALLACE, Circuit Judge:

McClaskey appeals from an order of the Merit Systems Protection Board (board) affirming his discharge by the Bonneville Power Administration (agency) for “knowingly participating in a plan to prevent Government investigators from learning the truth about the unauthorized acquisition and use of wire paid for by the Bonneville Power Administration.” McClaskey contends that the penalty of dismissal constituted excessive punishment, that the board failed to follow its own precedent in upholding the dismissal, and that his dismissal did not promote the efficiency of the service. We affirm.

I

McClaskey was an agency electrician with fourteen years of service and no disciplinary record. Two of McClaskey’s co-employees, Lapp and Rhew, unlawfully used agency purchase documents to acquire wire for their personal use. The value of the wire was later estimated to be $418. Upon discovering this fraudulent use of its doeuments, the agency commenced an investigation. When Lapp and Rhew learned of it, they met with McClaskey to discuss ways to prevent the agency from discovering the theft The three employ¿es agreed to buy wire from a local electrical store to replace the stolen wire. McClaskey purchased the replacement wire with a personal check and on the following morning, placed it in the appropriate storage bins at the agency. Later that day, Rhew informed McClaskey that the Presence of the wire would not deceive the investigators, who already knew that the original wire had not been properly delivered. McClaskey removed the wire from the storage bins.

In response to the agency charge, McClaskey admitted knowing that Lapp had secured the wire without authorization using agency purchasing orders and that the incident was being investigated by government investigators. He further admitted using his personal check to purchase substitute wire and putting it in an agency storage bin for the purpose of ending the investigation and helping his friends. In his own words, McClaskey had attempted to “cover-up” the crimes of his two friends, All three men were discharged,

McClaskey appealed the agency’s decision to the board’s Seattle Regional Office. The presiding officer at the regional level reversed the agency’s dismissal and suspended McClaskey for thirty days. The agency then petitioned the board for review and it reversed the regional presiding officer and reinstated McClaskey’s dismissal.¹

II

McClaskey admits committing the offense with which he was charged. His primary argument, and the only contention advanced at oral argument, is that the penalty of removal was excessively harsh and so disproportionate to his wrongdoing as to be unconscionable.

Our standard of review of the board’s decision is set forth in 5 U.S.C. § 7703(c):

[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

Under section 7703(c), our review of the board’s choice of sanctions is extremely limited. We defer to the board’s judgment unless the penalty is so harsh or disproportionate to the offense as to constitute an abuse of discretion. Debose v. United States Department of Agriculture, 700 F.2d 1262, 1269 (9th Cir.1983) (Debose); Francisco v. Campbell, 625 F.2d 266, 267, 269 (9th Cir.1980); Albert v. Chafee, 571 F.2d 1063, 1068 (9th Cir.1977) (per curiam); accord Gipson v. Veterans Administration, 682 F.2d 1004, 1011 (D.C.Cir.1982); Brewer v. United States Postal Service, 647 F.2d 1093, 1098, 227 Ct.Cl. 276 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982); Power v. United States, 531 F.2d 505, 507, 209 Ct.Cl. 126 (1976).

We have found the penalty of dismissal to be excessively harsh only when the offense committed was extremely minor. In Francisco v. Campbell, for example, the only charge proved against a civilian naval educational counselor was her failure to comply with an order that she not become involved in university administrative affairs. 625 F.2d at 267-69. We stated that the penalty of dismissal may have been excessively harsh, but left this question to be resolved by the board on remand. Id. at 270.

Likewise, in Albert v. Chafee the most serious offense against a naval employee was that he had used an official vehicle for a one-mile private errand to buy his son a cadet uniform. 571 F.2d at 1065. Although other charges were also brought, we stated that “[the] record supporting [the dismissal] when challenged develops into trivia.” Id. at 1068. We concluded that “the discipline invoked is so harsh when compared with the transgressions charged that it is simply illegal. De minimis wrongdoing is made completely disproportionate to the punishment.” Id.

McClaskey relies upon Power v. United States, a Court of Claims case which we cited with approval in Albert v. Chafee, 571 F.2d at 1068. In Power, an employee submitted false information on travel claims, including overstating his payment for temporary lodging by $50 and requesting reimbursement for certain meals for his wife. The agency was unable to prove, however, that the employee had acted in bad faith in submitting the claims; indeed, the court found it doubtful that he knew of the discrepancies. 531 F.2d at 508-09. The court found that dismissal for such minor offenses was “clearly too harsh and out of all proportion.” Id. at 509.

McClaskey’s case is clearly distinguishable from these cases. His offense is more serious. He admits deliberately committing the offense. Furthermore, because of the nature of his job, his deception will have a more deleterious effect on the agency-

McClaskey emphasizes that he did not participate in the original theft and that his only motivation for participating in the cover-up was to help his friends. These facts, however, do not negate the seriousness of his offense. When Lapp and Rhew approached McClaskey, they both informed him that the agency had already commenced an investigation. At that point, McClaskey did not merely fail to report his knowledge of the theft, but became actively involved in the attempt to deceive the agency and thwart its investigation.

McClaskey also stresses that he has worked for the agency for fourteen years, has had no disciplinary record, and is highly regarded by his supervisors and fellow employees. The board considered these factors in MeClaskey’s favor, but concluded that they were outweighed by other factors. Relying on the testimony of an agency official, the board stated that the “agency’s mission requires that its employees be delegated a substantial amount of authority to make purchases of expensive tools and equipment, and that the only way in which the agency’s system of allowing employees such purchasing authority can work effectively is to require each employee to meet a very high standard of honesty.” The board found further that such a rigorous standard could only be maintained if employees were made aware that untrustworthy or dishonest employees would be disciplined quickly and firmly. Thus, the board did not automatically approve McClaskey’s dismissal, but concluded that the penalty was reasonable in light of the seriousness of the offense, the agency’s legitimate goal of fostering honesty on the part of its employees, and the damage the offense would have on the relationship between McClaskey and his employer. We cannot say that in striking the balance as it did the board abused its discretion.

We observe finally that both this and other circuits have upheld dismissals in other cases involving offenses which appear less serious or concerning employees with longer service records than McClaskey’s. See Book v. United States Postal Service, 675 F.2d 158 (8th Cir.1982) (per curiam) (postmaster discharged for unofficial use and unauthorized possession of Postal Service property worth approximately $22); Brewer v. United States Postal Service, 647 F.2d 1093, 227 Ct.Cl. 276 (postal employee of 25 years discharged for falsifying another employee’s timecard and removing an undeliverable piece of third-class mail from the post office); Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir.1976) (employee discharged for removing several items of postal property upon his transfer to a new post office).

We conclude that the penalty imposed by the board here was not so disproportionate to the offense as to amount to an abuse of discretion.

Ill

McClaskey next argues that in imposing the dismissal sanction the board failed to follow its own precedent as set forth in Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981) (Douglas). Generally, an agency must follow its own precedent or explain its reasons for refusing to do so in a particular case. Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412 U.S. 800, 807-08, 93 S.Ct. 2367, 2374-75, 37 L.Ed.2d 350 (1973); Secretary of Agriculture v. United States, 347 U.S. 645, 652-54, 74 S.Ct. 826, 830-32, 98 L.Ed. 1015 (1954); see Public Interest Research Group v. FCC, 522 F.2d 1060, 1064 (1st Cir.1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976). If the board has failed to follow its own precedent, without offering a sufficient explanation, we may be required to reverse its decision.

In Douglas the board articulated twelve factors that may be considered in determining the appropriate sanction for a particular offense. 5 M.S.P.B. at 332. McClaskey argues in his brief that the agency and the board failed to balance these factors: At oral argument, however, McClaskey conceded that the board did properly weigh the Douglas factors. We find this concession appropriate. The board’s order and opinion indicates that it explicitly considered at least five of the Douglas criteria: (1) the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, (2) the employee’s past disciplinary record, (3) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability, (4) the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties, and (5) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others. See id. The board is not required to consider all twelve factors in every case; it need only consider those relevant to the individual case. Nagel v. Department of Health and Human Services, 707 F.2d 1384 at 1386 (Fed.Cir.1983); Gip-son v. Veterans Administration, 682 F.2d at 1012 n. 15; see Douglas, 5 M.S.P.B. at 332-33. We conclude that the board did not fail to follow its own precedent in choosing the appropriate sanction for McClaskey.²

McClaskey, in his brief, stressed the agency’s failure to weigh the Douglas factors. We conclude, however, that the relevant inquiry for us to make is whether the board applied the Douglas criteria, rather than whether or not the agency applied those criteria. Accord Nagel v. Department of Health and Human Services, 707 F.2d at 1386-87; cf. Gipson v. Veterans Administration, 682 F.2d at 1012 n. 15. At oral argument, McClaskey conceded that the relevant inquiry is whether the board considered those factors.

IV

McClaskey finally contends that his punishment does not “promote the efficiency of the service.” 5 U.S.C. § 7513. Our inquiry here is distinct from our inquiry into whether the penalty is excessive as compared to the offense. See Weiss v. United States Postal Service, 700 F.2d 754, 757 & n. 6 (1st Cir.1983); Debose, 700 F.2d at 1269; Young v. Hampton, 568 F.2d 1253, 1264 (7th Cir.1977). The agency need not demonstrate that a particular penalty is required to promote the efficiency of the service, but only that it will, in fact, accomplish that result. See Weiss v. United States Postal Service, 700 F.2d at 757 & n. 7. We defer to the board’s resolution of this issue, provided there is substantial evidence to support its determination. De-bose, 700 F.2d at 1269.

When an employee is dismissed for an offense involving deliberate deception, the required nexus between the conduct and the efficiency of the service is obvious. See Phillips v. Bergland, 586 F.2d 1007, 1011 (4th Cir.1978); accord Gipson v. Veterans Administration, 682 F.2d at 1011-12; Book v. United States Postal Service, 675 F.2d at 161; Young v. Hampton, 568 F.2d at 1257 & n. 5, 1260-61. Such is the case here. We have recently stated that a nexus between the conduct and the efficiency of the agency may not be presumed from actions which are both off duty and not job-related. D.E. v. Department of the Navy, MSPB, 707 F.2d 1049, 1051-53 (9th Cir.1983) (agency failed to show that conduct of civilian naval employee who pleaded nolo contendere to charges of sexual abuse of a child required dismissal to promote the efficiency of the service). Here, McClaskey’s misconduct involved his co-employees, other agency personnel, and agency property. It was, as the dissent also admits, clearly job-related. We hold that such serious on-duty misconduct raises a presumption that the required nexus has been met.

[H] Moreover, even if a more particularized inquiry were necessary in this case, the board has clearly established the need for absolute honesty in McClaskey’s particular job at the agency; hence, it has provided substantial evidence that McClaskey’s dismissal will promote the efficiency of the service.³

AFFIRMED.

1 . In response to the dissent’s criticism, we emphasize that we have reported the facts as objectively as possible, based on the record before us. Indeed, our conclusions seem consistent with McClaskey’s own characterization of his conduct. We do not go farther, as does the dissent, to draw conclusions from a silent record that McClaskey had an untarnished record — there was no evidence before the Board on this issue one way or the other. The agency sought dismissal of McClaskey based only on ® cover-up.

The Board’s comment that McClaskey’s conduct could not have prevented the investigators “from learning the truth about this matter”, does not change the facts. The cover-up of a crime is no less reprehensible merely because the Plan ever had any chance of succeeding, The dissent attempts to distinguish McClaskey’s actions from those for which employees face criminal prosecution, e.g., Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir.1976). McClaskey could have faced cnminal prosecution for conspiracy under 18 U.S.C. § 371. See Baker v. United States, 393 F.2d 604, 609 (9th Cir.), cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106 (1968) (“if ... [an employee who assists his employer in receiving and concealing stolen property] ... has knowledge that the property has been stolen and that his employer intends to convert it to his own use, and if he conspires with his employer and others to effectuate that plan and actively participates therein, he is guilty of engaging in an unlawful conspiracy as defined in 18 U.S.C. § 371”).

2 . In its reaction to parts II and III of our opinion, the dissent forgets that our task is to review the Board, not its presiding officer, and that our review is extremely limited. As long as the Board considered the proper factors, we overturn its balancing of those factors only if the agency’s punishment is completely disproportionate to the offense. This narrow standard is based on our recognition that management expertise resides with the agency, not with the Board or this court. Thus, just as we defer to the Board, the Board defers to the “agency’s primary discretion in exercising the managerial function of maintaining employee discipline and efficiency.” Douglas v. Veterans Administration, 5 M.S.P.B. 313, 329 (1981); see Weiss v. United States Postal Service, 700 F.2d 754, 758-59 (1st Cir.1983) (“Once the charges are sustained, ... efficient management is served by allowing the agency, within broad limits, to assess the severity of the penalty necessary .... ”). The dissent’s failure to understand this principle is clear from its statement that “[dismissal] should be reserved for the most serious of offenses or for cases in which it has been demonstrated that lesser punishment is ineffective.” We are not free, however, to substitute our view of personnel management techniques for that of the agency.

Nor is it relevant that the presiding officer’s report was longer or more specific than the Board’s order. The Board did not need to respond in detail to every point in the officer’s report because, in its view, the officer misunderstood her mission and exceeded her authority by failing to give sufficient deference to the agency’s discretion. It is clear from the record that the officer reversed the agency’s decision because she considered the penalty unwise and believed that the agency could have accomplished its objectives with a more lenient penalty. Such judgments, however, are not within the discretion of the presiding officer, the Board, or this court.

Finally, in its “progressive discipline” argument, the dissent again substitutes its judgment for the Board’s. Nothing in the record indicates that, if indeed the agency did have some policy of “progressive discipline,” McClaskey’s dismissal violated that policy. Nor did McClaskey argue such a position. The record contains no evidence of a specific “common law” of the agency on “progressive discipline,” Norfolk Shipbuilding and Drydock v. Local No. 684, 671 F.2d 797, 799 (4th Cir.1982), or an established or published “personnel policy ... providing] for progressive degrees of discipline,” American Thread Co. v. NLRB, 631 F.2d 316, 319 n. 3 (4th Cir.1980). The specifics of such principles adopted by an employer are a matter of choice, custom, or bargaining, not judicial prescription from an empty record. At best, the government’s attorney in this case, also obviously unaware of any specific policy on the part of the agency, said the agency followed “a principle” of progressive discipline. Unlike the dissent, we cannot claim to divine from this that McClaskey’s discharge violated some specific agency policy.

3 . Without citing any authority, the dissent asserts that the “efficiency of the service” issue is subject to a two-part test and that the nexus requirement refers not to “whether the particular punishment imposed will promote the efficiency of the service,” but to the question “whether the efficiency of the service justifies the imposition of any discipline whatsoever for the particular offense.” This assertion is clearly refuted by D.E. v. Department of the Navy, MSPB, 707 F.2d 1049 (9th Cir.1983), in which we stated:

An agency may remove an employee “only for such cause as will promote the efficiency of the service.” An agency must make two determinations before removing an employee for off-duty misconduct: (1) that the employee actually committed the conduct; and (2) that removal will promote the efficiency of the service. The second requirement has been framed as requiring a "nexus” between the misconduct and the efficiency, of the service. Because E. does not dispute the child molestation charge, the issue here is whether a nexus was established.

Id. at 1050 (emphasis added; citations and footnote omitted); accord Sherman v. Alexander, 684 F.2d 464, 468 (7th Cir.1982) (citing additional cases), cert. denied, — U.S. —, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983).

Thus, the nexus requirement is exactly as we have described it above. Moreover, the “efficiency” analysis is two-pronged only to the extent that we must also consider whether the employee actually committed the offense. Because McClaskey does not contest that he committed the offense, and because we have already considered the proportionality issue, the only question to be determined here is whether the penalty of dismissal will promote the efficiency of the service, or, put another way, whether there is a nexus between the misconduct and the efficiency of the service.

The dissent also misunderstands the relevance of whether the misconduct is job-related. Under D.E. v. Department of the Navy, MSPB, if the conduct is not job-related we may not presume that it has impaired the efficiency of the service. However, when misconduct is job-related and its effect on the efficiency of the service is obvious, as with deliberate deception, many circuits have held that the required nexus is presumed. See Phillips v. Bergland, 586 F.2d 1007, 1011 (4th Cir.1978); accord Gipson v. Veterans Administration, 682 P.2d 1004, 1011-12 (D.C.Cir.1982); Book v. United States Postal Service, 675 F.2d 158, 161 (8th Cir.1982) (per curiam); Young v. Hampton, 568 F.2d 1253, 1257, 1260-61 (7th Cir.1977). This rule is designed to relieve the Board from expending its resources on a particularized inquiry into the nexus between the misconduct and the efficiency of the service when that relationship is obvious.

The wisdom of this approach is demonstrated by this case. The dissent claims that the presiding officer cited evidence suggesting the lack of a nexus. This “evidence” consists of responses by agency employees to hypothetical questions as to whether McClaskey’s involvement in the cover-up of a crime would change their view of him. First, it is inefficient to require the agency to engage in such inquiries every time it decides to discharge an employee. Such extensive factfinding should be reserved for cases in which the employee’s conduct is off-duty or the effect on the agency is unclear. Second, that some employees condone a fellow employee’s misconduct should not prevent the agency from discharging the wrongdoer.