                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 15

                             Docket No. SF-0752-15-0560-I-1

                                  Zachary M. Batara,
                                        Appellant,
                                             v.
                                Department of the Navy,
                                         Agency.
                                      March 7, 2016

           Robert D. Lillis, Honolulu, Hawaii, for the appellant.

           Jason Zhao, Esquire, Pearl Harbor, Hawaii, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 30-day suspension. For the reasons set
     forth below, the Board GRANTS the agency’s petition, REVERSES the initial
     decision, and SUSTAINS the appellant’s removal.

                                     BACKGROUND
¶2         On August 6, 2014, the agency proposed to remove the appellant from his
     position as WT-5 Student Trainee (Marine Machinery Mechanic) at the agency’s
     Pearl Harbor Naval Shipyard based on his involvement in illegal drug activity.
     Initial Appeal File (IAF), Tab 5 at 58-63.        The agency alleged that, on
                                                                                           2

     January 23, 2014, during an investigative interview, the appellant admitted to
     using marijuana frequently since becoming a Shipyard employee and to daily use
     during the period leading up to the interview, including the night before, and he
     stated that he believed he was addicted. Id. at 58; see IAF, Tab 12 at 4-6. After
     the appellant replied to the proposal orally and in writing, IAF, Tab 5 at 31-37,
     the agency issued a decision on April 29, 2015, sustaining the charge and finding
     removal warranted, effective May 4, 2015. Id. at 9-14. On appeal to the Board,
     the appellant argued that the penalty of removal was too harsh. IAF, Tab 1 at 5.
¶3         After convening the requested hearing, the administrative judge issued an
     initial decision. IAF, Tab 18, Initial Decision (ID). She found that, because the
     appellant did not dispute the charge and stipulated to all the facts necessary to
     prove it, the charge was sustained and the agency proved that the action promoted
     the efficiency of the service. ID at 5-6. She found, however, that the agency’s
     penalty determination was not entitled to deference, that removal was not within
     the tolerable limits of reasonableness, and that the maximum reasonable penalty
     for the sustained charge was a 30-day suspension. ID at 6-21.
¶4         The agency has filed a petition for review, arguing that its penalty
     determination was entitled to deference and that, even if it were not, removal
     remains the maximum reasonable penalty for the sustained charge. 1 Petition for
     Review (PFR) File, Tab 1 at 4-5, 7-22. The appellant has filed a response to the
     agency’s petition. 2 PFR File, Tab 3.


     1
       With its petition, the agency certified its compliance with the administrative judge’s
     interim relief order. PFR File, Tab 1 at 23; see ID at 22-23. The appellant does not
     challenge the provision of interim relief and thus we need not further discuss that
     matter. See 5 C.F.R. § 1201.116.
     2
       The appellant has not filed a cross petition for review or otherwise challenged the
     administrative judge’s findings that the agency proved the charge and established
     nexus. PFR File, Tab 3. Because the appellant has not challenged these findings and
     because we discern no error in the administrative judge’s well-reasoned findings
     regarding these matters, we will not disturb them. See Crosby v. U.S. Postal Service,
                                                                                         3

                                         ANALYSIS
¶5         If the Board sustains an agency’s charges, it will defer to the agency’s
     penalty determination unless the penalty exceeds the range of allowable
     punishment specified by statute or regulation, or unless the penalty is “so harsh
     and unconscionably disproportionate to the offense that it amounts to an abuse of
     discretion.”   Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 5 (2015);
     Batten v. U.S. Postal Service, 101 M.S.P.R. 222, ¶ 9 (quoting Parker v. U.S.
     Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987)), aff’d, 208 F. App’x 868
     (Fed. Cir. 2006). That is because the employing agency, and not the Board, has
     primary discretion in maintaining employee discipline and efficiency.           Saiz,
     122 M.S.P.R. 521, ¶ 5; Balouris v. U.S. Postal Service, 107 M.S.P.R. 574, ¶ 6
     (2008), aff’d, No. 2008-3147, 2009 WL 405827 (Fed. Cir. 2009); Batten,
     101 M.S.P.R. 222, ¶ 9. The Board will not displace management’s responsibility,
     but instead will ensure that managerial judgment has been properly exercised.
     Saiz, 122 M.S.P.R. 521, ¶ 5 (2015); Balouris, 107 M.S.P.R. 574, ¶ 6; Batten,
     101 M.S.P.R. 222, ¶ 9. Mitigation of an agency-imposed penalty is appropriate
     only where the agency failed to weigh the relevant factors 3 or where the agency’s
     judgment clearly exceeded the limits of reasonableness. Saiz, 122 M.S.P.R. 521,
     ¶ 5; Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 11.             The
     deciding official need not show that he considered all the mitigating factors, and
     the Board will independently weigh the relevant factors only if the deciding
     official failed to demonstrate that he considered any specific, relevant mitigating



     74 M.S.P.R. 98, 105-06 (1997) (finding no basis to disturb the administrative judge’s
     findings where she considered the evidence as a whole, drew appropriate inferences,
     and made reasoned conclusions).
     3
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of factors, both aggravating and mitigating, that are
     relevant to the penalty determination in adverse action cases.
                                                                                       4

     factors before deciding on a penalty.       Saiz, 122 M.S.P.R. 521, ¶ 5; Balouris,
     107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 11.

     The agency’s penalty determination was entitled to deference.
¶6         The administrative judge found that the agency’s penalty determination
     was not entitled to deference because the deciding official failed to consider as a
     mitigating factor the confidence of the appellant’s supervisors in his ability to
     perform the functions of his position.          ID at 7-10.    In so finding, the
     administrative judge referred to letters of reference from three individuals in the
     appellant’s chain of command, his work leader, first-line supervisor, and
     second-line supervisor; evidence that the appellant submitted in reply to the
     notice of proposed removal.        ID at 8-9; see IAF, Tab 5 at 46-49.   The three
     individuals attested to the appellant’s strong work ethic, his skills and abilities,
     and his dedication to the job, and, based on their confidence in him, they all
     urged that he be given a second chance. IAF, Tab 5 at 46-49. The administrative
     judge further found that the deciding official erred in giving more weight to the
     proposing official’s statement that he had lost confidence in the appellant’s
     ability to perform his duties and to exercise good judgment and follow the most
     basic of rules and procedures, reasoning that the statement of supervisory
     nonconfidence appeared to have no basis in fact in that it was not derived from
     his personal interactions with the appellant. ID at 9; IAF, Tab 5 at 10, 60. The
     administrative judge acknowledged that the proposing official was in the
     appellant’s line of supervision during the relevant time period, but found that he
     was at least three levels above the appellant and had conceded that he was
     unlikely to have had frequent contact with him. ID at 7-8. Because of the way in
     which the deciding official weighed the evidence on this particular Douglas
     factor, the administrative judge found that the agency’s penalty selection was not
     entitled to deference. ID at 10.
¶7         The Board has held that the penalty judgment belongs to the agency, not to
     an appellant’s supervisor, and that, in the absence of an agency’s failure to
                                                                                       5

     consider the relevant Douglas factors adequately, a supervisor’s opinions are
     insufficient to overcome the agency’s judgment concerning the seriousness of the
     misconduct and the appropriateness of the agency-imposed penalty. Gebhardt v.
     Department of the Air Force, 99 M.S.P.R. 49, ¶¶ 19-20 (2005); Edwards v.
     Department of the Army, 87 M.S.P.R. 27, ¶ 9 (2009), aff’d sub nom. Rodriguez v.
     Department of the Army, 25 F. App’x 848 (Fed. Cir. 2011). Because the record
     reflects that the deciding official weighed the relevant factors in arriving at the
     removal penalty, IAF, Tab 5 at 10-11, the opinions of the three agency officials
     were insufficient to overcome the agency’s judgment, which was made and
     explained by the deciding official.    Therefore, we find that the administrative
     judge erred in failing to defer to the agency’s penalty determination. See Saiz,
     122 M.S.P.R. 521, ¶ 5; Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R.
     222, ¶ 11.

     The penalty of removal is within the tolerable limits of reasonableness.
¶8         Even if we agreed with the administrative judge that the deciding official
     failed to afford proper weight to the opinions of the appellant’s work leader, and
     first-line and second-line supervisors, such that his penalty determination is not
     entitled to deference, we still would find, based on our independent analysis of
     the appropriate penalty, that removal is reasonable in this case. In assessing the
     reasonableness of a penalty, the Board places primary importance upon the nature
     and seriousness of the offense and its relation to the appellant’s duties, position,
     and responsibilities, including whether the offense was intentional or was
     frequently repeated. Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014);
     Rackers v. Department of Justice, 79 M.S.P.R. 262, 282 (1998), aff’d, 194 F.3d
     1336 (Fed. Cir. 1999) (Table).     In his position, the appellant’s work directly
     supported and enhanced the welfare of warfighters using submarines in military
     operations. Hearing Compact Disc (HCD) (testimony of the deciding official).
     Therefore, the agency reasonably concluded that the appellant’s frequent use of
     an illegal drug presented a substantial risk to safety and demonstrated a reckless
                                                                                              6

      disregard for Shipyard policy. 4        IAF, Tab 5 at 10.      We find, as did the
      administrative judge, ID at 11, that the appellant’s repeated misconduct was
      serious and directly related to the duties and responsibilities of his position.
      Patterson v. Department of the Air Force, 77 M.S.P.R. 557, 563-64 (explaining
      that removal is a reasonable penalty for drug use when the employee performs
      work that, if he were impaired, could result in substantial danger to the safety and
      lives of others), aff’d, 168 F.3d 1322 (Fed. Cir. 1998) (Table).
¶9             In her analysis of the penalty, the administrative judge found that the
      agency treated a similarly situated employee less harshly.         ID at 14-18.       The
      agency challenges that conclusion on review. PFR File, Tab 1 at 15-17.
¶10            Although acknowledging that there were differences in the offenses
      involved, the agency found that the appellant’s removal was consistent with the
      penalty imposed upon another employee who was removed in 2012 for illegal
      drug use. IAF, Tab 5 at 10, 64. The administrative judge found, however, that
      the surrounding circumstances were so significantly different as to render the
      employee not a relevant comparator. ID at 13-14. Specifically, she found that,
      unlike the appellant, the comparator was in possession of methamphetamines,
      marijuana, and paraphernalia on government property and that he also engaged in
      attempted theft of agency property, apparently while under the influence.             ID
      at 14. The administrative judge further found that there was no evidence that the
      comparator was in the same job classification or chain of command as the
      appellant. Id. at 14.
¶11            Rather, the administrative judge found that another employee, K.L., offered
      by the appellant as a comparator, was similarly situated for disparate penalty
      analysis purposes because he held the same position as the appellant, the same
      official decided both cases, and the two actions were proximate in time.              ID


      4
          Pearl Harbor Naval Shipyard is a Drug-Free Federal Workplace. IAF, Tab 5 at 73.
                                                                                            7

      at 14-18. The administrative judge found that, instead of being removed, K.L.
      received a 30-day suspension for drug-related misconduct and that the agency
      failed to prove a legitimate explanation for the difference in treatment. ID at 18.
¶12         To establish disparate penalties, the appellant must show that the charges
      and circumstances surrounding the charged behavior are substantially similar.
      Ly v. Department of the Treasury, 118 M.S.P.R. 481, ¶ 13 (2012); Lewis v.
      Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010). If an appellant
      shows that the charges and circumstances surrounding the charged behavior are
      substantially similar, the agency must prove a legitimate reason for the difference
      in treatment by a preponderance of the evidence before the penalty can be upheld.
      Ly, 118 M.S.P.R. 481, ¶ 13.      To trigger the agency’s burden, there must be
      enough similarity between both the nature of the misconduct and other factors to
      lead a reasonable person to conclude that the agency treated similarly situated
      employees differently, but the Board will not have hard and fast rules regarding
      the outcome determinative nature of these factors. Id., ¶ 14.
¶13         As the administrative judge found, K.L. occupied the same position as the
      appellant, the same agency official decided K.L.’s case and the appellant’s, and
      both actions occurred fairly contemporaneously.       ID at 15-16.    However, the
      agency proposed to remove K.L. for one drug-related offense, refusing to take a
      drug test, and one nondrug-related offense (engaging on several occasions in
      inappropriate behavior toward a female employee) whereas the appellant was
      charged with involvement in illegal drug activity, specifically, using marijuana
      repeatedly and on a regular basis over time, which was misconduct to which he
      admitted. ID at 15 n.8. Notwithstanding the similarity of some of the factors set
      forth above, we find that, on their face, the charges in the two cases were not
      substantially similar. Even if the agency suspected K.L. of drug involvement, the
      drug-related charge brought against him was failing to comply with a directive
      that he be tested. Under the circumstances, we find that the appellant and K.L.
      were not similarly situated and that the agency’s burden to establish a legitimate
                                                                                             8

      reason for the difference in treatment has not been triggered. At the same time,
      however, we agree with the administrative judge that the agency has not
      established that the comparator employee it proffered was similarly situated to
      the appellant. ID at 13-14. As the administrative judge found, the comparator
      employee was charged with possession of drugs and drug paraphernalia on duty,
      and with theft of government property. ID at 14.
¶14         Thus, based on the above, we find that neither party has identified a valid
      comparator employee, and we are left with no persuasive evidence as to the
      consistency of the penalty imposed on the appellant with those imposed on others
      for the same or similar offenses. That does not, however, cause us to conclude
      that the penalty of removal exceeds the bounds of reasonableness. 5
¶15         The administrative judge also considered as a mitigating factor the fact that
      the agency did not, upon discovering the appellant’s drug use, take down or
      re-inspect any systems on which he worked. ID at 12. The administrative judge
      cites nothing to support her finding that this is a mitigating factor, and we are
      unaware of any support for this theory. 6 See Douglas, 5 M.S.P.R. at 305-06. An
      agency need not wait until it discovers that an employee’s misconduct has had
      significant or even catastrophic consequences before acting.             See generally
      Carosella v. U.S. Postal Service, 816 F.2d 638, 643 (Fed. Cir. 1987) (stating that
      an employer need not place its own liability at risk by not timely acting when it
      learns of misconduct); Lentine v. Department of the Treasury, 94 M.S.P.R. 676,
      ¶ 13 (2003) (stating that an agency need not wait to discipline an employee until


      5
        Based on the entire record in this appeal, the agency’s reliance on the invalid
      comparator employee does not cause us to find that the agency’s penalty determination
      was not entitled to deference or that the penalty of removal was unreasonable.
      6
        Even to the extent that the agency’s decision not to inspect the appellant’s work could
      be viewed as a mitigating factor, based on our review of all of the record evidence, we
      find removal a reasonable penalty.
                                                                                         9

      his sexually offensive conduct becomes so pervasive and offensive that it
      constitutes unlawful discrimination under a hostile work environment theory).
¶16         Although the appellant specifically denied any mitigating circumstances
      surrounding the offense such as unusual job tensions, personality problems, or
      mental impairment, IAF, Tab 5 at 36, the administrative judge considered the
      appellant’s age when the events at issue occurred (19-21 years old) and that the
      cultural and social mores regarding drug use for people of that age group
      constituted evidence of tension and pressure to engage in drug use. ID at 19-20.
      Again, the administrative judge cites no support for this as a mitigating factor,
      and we are unaware of any. Id.; see Douglas, 5 M.S.P.R. at 305-06.
¶17         Another factor relevant to our penalty analysis is that the agency’s
      Schedule of Offenses and Recommended Remedies provides that removal is
      within the range of penalties for a first offense of unlawful use, being under the
      influence, or possession of drugs or drug paraphernalia, on or off-duty. 7 IAF,
      Tab 5 at 76; see Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 18
      (2004) (sustaining an agency’s penalty determination where, among other things,
      it was consistent with the agency’s table of penalties), aff’d, 139 F. App’x 280
      (Fed. Cir. 2005). In addition, regarding the clarity with which the employee was
      on notice of any rules that were violated in committing the offense or had been
      warned about the conduct in question, the appellant acknowledged being aware
      that Federal employees are expected to refrain from using illegal drugs. IAF,
      Tab 5 at 36.
¶18         There are, however, a number of factors that weigh in the appellant’s favor.
      They include his lack of prior discipline, his satisfactory past work record, his
      ability to work well with others, and his demonstrated reliability. IAF, Tab 5


      7
       An employee can be removed for off-duty possession and use of illegal drugs. Rice v.
      Department of the Treasury, 998 F.2d 997, 999 (Fed. Cir. 1993).
                                                                                       10

      at 10, Tab 14 at 22-27; HCD (testimony of the appellant’s work leader, first-line
      supervisor, and second-line supervisor). However, he had only 3 years of service
      with the agency. Cf. Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, ¶ 18 (2002)
      (finding that 13 years of discipline-free service was a significant mitigating
      factor). Additionally, the appellant’s actions after the agency learned of his drug
      use merit consideration as a potential for rehabilitation.        Specifically, he
      successfully completed a drug treatment program, IAF, Tab 14 at 30, provided
      two negative drug test results, id. at 31-32, and expressed his willingness to be
      voluntarily placed into a drug-testing program, id. at 39. While commendable,
      the appellant did not undertake these efforts, or any efforts, until after the
      agency’s action.     That significantly reduces the mitigating value of the
      appellant’s actions. Saiz, 122 M.S.P.R. 521, ¶ 14 (sustaining a removal where the
      appellant successfully completed inpatient and outpatient drug treatment only
      after his arrest and conviction for a drug-related offense). The same may be said
      for the appellant’s sentiments of remorse. IAF, Tab 5 at 31; see Singletary v.
      Department of the Air Force, 94 M.S.P.R. 553, ¶ 15 (2003) (stating that an
      employee’s expression of remorse constitutes a significant mitigating factor only
      when he informs the agency of his wrongdoing of his own volition and not after
      the agency’s investigation has already occurred), aff’d, 104 F. App’x 155 (Fed.
      Cir. 2004).
¶19         In sum, while we believe that the agency’s penalty determination is entitled
      to deference, even if it were not, we find, based on our independent review of the
      Douglas factors, that the mitigating factors are outweighed by the seriousness of
      the appellant’s repeated misconduct, especially considering that it presented a
      substantial risk to safety and a reckless disregard for Shipyard policy.        We
      conclude, therefore, that removal is a reasonable penalty for the sustained charge.
                                                                                       11

                                           ORDER
¶20         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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:
                                   U.S. 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 this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the U.S. 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 U.S. 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
                                                                                 12

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:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
