                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILBERT J. MARCEAU,                             DOCKET NUMBER
                   Appellant,                        SF-0752-16-0215-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: November 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William Edelblute, Esquire, Kennewick, Washington, for the appellant.

           Anna Roe, Esquire, Portland, Oregon, 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
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the administrative

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse o f 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).
¶2        The appellant served as an irrigation system manager with the agency’s
     Bureau of Indian Affairs (BIA), and was required to regularly operate a
     Government owned vehicle (GOV) as part of his job duties. Initial Appeal File
     (IAF), Tab 8 at 16, 67-72.    The appellant was arrested for driving under the
     influence on January 29, 2015, and subsequently pled guilty to negligent driving
     in the first degree on March 6, 2015. Id. at 35-37, 41-42. The agency suspended
     the appellant’s driving privileges of a GOV following his arrest, and it
     temporarily detailed him to an alternative position. Id. at 43-44. Following his
     guilty plea, the agency reevaluated the appellant’s driving eligibility and
     determined that he was ineligible to operate a GOV under the agency’s motor
     vehicle operation policy because he was “convicted of a criminal offense related
     to a traffic incident involving alcohol or drugs, including but not limited to
     vehicular homicide, vehicular manslaughter, or endangerment.” Id. at 38-39, 62.
¶3        The agency proposed the appellant’s removal on one charge of fail ure to
     maintain a requirement of his position. Id. at 28-34. The appellant submitted a
     written reply, and the deciding official issued a decision letter sustain ing the
     charge and finding the appellant’s removal reasonable. Id. at 17-22, 25-27. The
     appellant thereafter filed an initial appeal raising due process and harmful error
     affirmative defenses concerning the manner in which the agency revoked his
                                                                                          3

     driving privileges. IAF, Tab 30. 2 The administrative judge held a hearing at the
     appellant’s request and issued an initial decision sustaining his removal, finding
     that the agency proved its charge, nexus, and that the penalty of removal was
     reasonable. IAF, Tab 45, Initial Decision (ID) at 5-8, 12-18. The administrative
     judge rejected the appellant’s due process and harmful error affirmative defenses
     insofar as he challenged the agency’s terminating his driving privileges, and she
     found that he received adequate notice of the charge against him and an
     opportunity to reply, and that he failed to establish harmful procedural error as to
     the removal action. ID at 10-12.
¶4         The appellant has filed a petition for review arguing that his guilty plea to a
     charge of negligent driving in the first degree should not have terminated his
     driving privileges because it was not as serious as the other offenses listed in the
     agency’s policy requiring the immediate termination of driving privileges.
     Petition for Review (PFR) File, Tab 1 at 4-5.         The appellant also argues he
     did not have to operate a GOV in order to perform the essential duties of his
     position, and that the agency therefore cannot establish nexus, and he asserts he
     was subjected to a harsher penalty as compared to other employees who also lost
     their driving privileges. Id. at 6-7. The agency has filed a response in opposition
     to the petition for review. PFR File, Tab 5.
¶5         We agree with the administrative judge that the agency proved its charge
     that the appellant failed to maintain a requirement of his position.              The
     appellant’s position description provides that he was responsible for overseeing
     the “equitable water delivery to 800 to 1033 water users on 43,000 to 51,000
     acres,” and that he was “[r]equired to operate a government owned or leased
     motor vehicle on official business.” IAF, Tab 8 at 69, 71. As a supervisor, the
     appellant was also responsible for overseeing the delivery of water, as well as

     2
       As explained below, although the appellant also asserted a discrimination affirmative
     defense, he withdrew that defense prior to the completion of the hearing. See infra
     at n.5.
                                                                                           4

     construction and maintenance activities within one of three geographic districts,
     and he supervised a team of employees working in the field , which required him
     to travel the district on a regular basis.       Id. at 70-71; see ID at 2 (citing
     hearing testimony).
¶6         Pursuant to the agency’s motor vehicle operation policy, the driving
     privileges of employees who hold positions requiring the operation of a GOV will
     be terminated immediately upon their arrest or conviction for certain criminal
     offenses. IAF, Tab 8 at 57, 62. Among the grounds for immediate termination
     are being “arrested for, charged with, or convicted of a criminal offense related to
     a traffic incident involving alcohol or drugs, including but not limited to
     vehicular homicide, vehicular manslaughter, or endangerment.” Id. at 62. Here,
     the appellant pled guilty to negligent driving in the first degree, which under
     Washington state law is defined as operating “a motor vehicle in a manner that is
     both negligent and endangers or is likely to endanger any person or property, [by
     a person who] exhibits the effects of having consumed liquor or marijuana[.]”
     Wash. Rev. Code § 46.61.5249(a)(1) (2013).
¶7         We concur with the administrative judge that the appellant’s plea of guilty
     to negligent driving in the first degree qualifies as a criminal offense related to a
     traffic incident involving alcohol under the agency’s policy, and that the agency
     properly relied upon his guilty plea in revoking his driving privileges. ID at 5-8.
     We disagree with the appellant’s argument that negligent driving in the first
     degree is a less serious offense than those specifically listed in the agency’s
     policy, namely “vehicular homicide, vehicular manslaughter, or endangerment.”
     IAF, Tab 8 at 62. The agency’s policy makes clear that an employee’s driving
     privileges will be terminated if he is “convicted of a criminal offense related to a
     traffic incident involving alcohol or drugs,” and the examples listed are preceded
     by the caveat that they “includ[e] but [are] not limited to” certain offenses. Id.
     Negligent driving in the first degree under Washington law, moreover, involves
     operating   “a   motor   vehicle   in   a   manner   that   is   both   negligent   and
                                                                                          5

     endangers . . . any person or property.”     Wash. Rev. Code § 46.61.5249(a)(1).
     We thus find that his guilty plea to negligent driving in the first degree falls
     within the explicit reference to a criminal offense related to a traffic incident
     involving endangerment, and that the agency proved its charge by preponderant
     evidence. 3 IAF, Tab 8 at 62; ID at 6‑8.
¶8         The Board has previously found that an adverse action based on an
     employee’s failure to maintain a requirement of his position, such as a license or
     certification, promotes the efficiency of the service, and we find no reason to
     depart from this principle in this case. See Penland v. Department of the Interior,
     115 M.S.P.R. 474, ¶ 11 (2010); Adams v. Department of the Army, 105 M.S.P.R.
     50, ¶ 19 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008).          Additionally, the
     agency’s temporary accommodation of the appellant’s inability to operate a GOV
     neither requires the agency to continue that accommodation nor precludes it from
     taking an adverse action based on the appellant’s failure to maintain a
     requirement of his position.        See Benally v. Department of the Interior,
     71 M.S.P.R. 537, 540 (1996). We find the appellant’s argument on review that
     the agency could have continued accommodating his inability to operate a GOV,
     and thus should not have removed him, unpersuasive. Id.
¶9         We have also considered the appellant’s due process and harmful error
     arguments and discern no error with the administrative judge’s findings that the
     appellant failed to prove either defense.       ID at 9-12.     We concur with the
     administrative judge that the appellant received notice and an opportunity to
     respond to the charge against him under chapter 75, and we agree that the


     3
       We similarly find that the agency properly revoked the appellant’s driving privileges
     under its motor vehicle operation policy upon learning of his guilty plea. See Adams v.
     Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007) (stating that when a charge is
     based on an employing agency’s withdrawing or revoking a certification or approval of
     the employee’s qualifications to hold his position, the Board’s authority generally
     extends to a review of the merits of the withdrawal or revocation), aff’d, 273 F. App’x
     947 (Fed. Cir. 2008); ID at 6-8.
                                                                                        6

      appellant has failed to demonstrate he has a vested property interest in operating a
      GOV under the agency’s motor vehicle operation policy that is subject to due
      process protections. See Gajdos v. Department of the Army, 121 M.S.P.R. 361,
      ¶ 13 (2014) (explaining that a property interest subject to due process can be
      created by statutes or rules); ID at 10; IAF, Tab 8 at 56-66.       The appellant,
      moreover, has failed to demonstrate that the agency erred in applying any of its
      procedural protections that likely had a harmful effect on his removal, and thus
      has failed to prove harmful procedural error. See Goeke v. Department of Justice,
      122 M.S.P.R. 69, ¶ 7 (2015).
¶10         Finally, we have considered the appellant’s challenge to the reasonableness
      of his removal, and we find no basis to disturb the agency’s penalty
      determination.      The administrative judge found that the deciding official
      conscientiously weighed all of the factors in considering the proposed penalty,
      including the seriousness of the charge, the appellant’s inability to perform the
      functions of his position, and the availability of alternative sanctions , such as
      reassignment. ID at 13. The Board has found removal for failure to maintain a
      requirement of a position reasonable under similar circumstances. See Penland,
      115 M.S.P.R. 474, ¶¶ 11-12; Adams, 105 M.S.P.R. 50, ¶ 19; Benally, 71 M.S.P.R.
      at 542. We defer to the administrative judge’s factual findings that there existed
      no alternative positions to which the appellant could be transferred, and that the
      agency could not continue accommodating the appellant by having other
      employees drive the appellant around the district.       See Benally, 71 M.S.P.R.
      at 540; ID at 13.
¶11         The appellant also challenges the administrative judge’s consideration of
      his claim of disparate penalties. PFR, Tab 1 at 7. To prove a claim of disparate
      penalties, the appellant must first show that there is enough similarity between
      the nature of the misconduct and other relevant factors to lead a reasonable
      person to conclude that the agency treated similarly situated employee s
      differently. See O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340,
                                                                                               7

      ¶ 21 (2016). If the appellant meets this showing, the burden shifts to the agency
      to prove a legitimate reason for the difference in treatment by a preponderance of
      the evidence. Id.
¶12         In her initial decision, the administrative judge conducted a detailed
      analysis of the appellant’s claim of disparate penalties based upon four proffered
      comparators. ID at 14-18. On review, the appellant challenges the administrative
      judge’s findings with regard to two of the comparators. 4 PFR File, Tab 1 at 7.
      Based on our review of the record, we agree with the administrative judge that
      one of the comparators, D.D., is not a similarly situated comparator because he
      voluntarily resigned from employment with the agency in 2007 following a motor
      vehicle accident and was rehired in 2013 after receiving his certification to
      operate a GOV based on an absence of disqualifying criminal offenses during the
      preceding 4-year period.         IAF, Tab 38 at 8-11; ID at 17 (citing hearing
      testimony). We concur with the administrative judge that the appellant did not
      meet his initial burden on his claim of disparate penalties with respect to
      comparator D.D. ID at 17.
¶13         We find, however, that the appellant met his initial burden of proving a
      disparate penalties claim with respect to comparator M.F.                    The record
      demonstrates that comparator M.F. was reassigned to a work location that did not
      require driving after being arrested for driving under the influence in 2007 and
      being disqualified from operating a GOV between 2010 and 2012.                   ID at 15
      (citing hearing testimony); IAF, Tab 39 at 15-16.          In finding comparator M.F.
      dissimilar from the appellant, the administrative judge explained that M.F. was a
      nonsupervisory employee, whereas the appellant was a supervisor; M.F. was
      assigned to a different work unit; and that the deciding official involved in the
      appellant’s removal was not involved in making any decisions with regard to

      4
        We agree with the reasons cited by the administrative judge in her initial de cision that
      the appellant did not meet his initial burden of proving disparate penalties with regard
      to the remaining comparators. ID at 16-17.
                                                                                        8

      comparator M.F.     ID at 16.    Based on the similarity of the charges and the
      differing penalties imposed on M.F. and the appellant, however, we find that the
      appellant met his initial burden of demonstrating his claim of disparate penalties.
      See Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 12 (2014).
¶14        We rely, however, on the reasons cited by the administrative judge in her
      initial decision in concluding that the agency has presented a legitimate reason for
      the differing treatment. See, e.g., Davis v. U.S. Postal Service, 120 M.S.P.R. 457,
      ¶¶ 13-15 (2013) (concluding that the agency demonstrated a legitimate basis for
      imposing differing penalties).      Specifically, we agree that the appellant’s
      supervisory status, the attenuation between M.F.’s reassignment in 2007 and the
      appellant’s removal in 2015 (approximately 8 years), and the different agency
      officials involved in both cases provide a legitimate reason for the difference in
      penalties. We additionally defer to the administrative judge’s factual findings
      that the deciding official consistently imposed removal in similar cases in which
      he served as the deciding official, and that he considered reassigning the
      appellant but determined that there were no vacant positions into which the
      appellant could be transferred. See ID at 13, 16.
¶15        We accordingly find that the agency did not subject the appellant to a
      disparate penalty in effecting his removal, and that the penalty of removal is
      otherwise reasonable under the circumstances of this case and should be affirmed.
      See Davis, 120 M.S.P.R. 457, ¶ 6 (finding that when all of the 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).
                                                                                     9

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS 5
      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 th an 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 this decision to
court, you should refer to the Federal law that gives you this 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 as well as 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

5
  Although the initial decision contains notice of mixed-case appeal rights, see ID
at 22-23, the appellant withdrew his discrimination affirmative defense during the
hearing. Accordingly, in the absence of any discrimination claims, we provide the
appellant proper non-mixed appeal rights to the U.S. Court of Appeals for the Federal
Circuit. See Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 12 (2013); ID at 9 n.3.
                                                                                 10

http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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.
