                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                         05-3088

                                 HOWARD M. ZWAGIL,

                                                 Petitioner,

                                            v.

                       GENERAL SERVICES ADMINISTRATION,

                                                 Respondent.

                            ___________________________

                            DECIDED: February 1, 2006
                            ___________________________


Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.

BRYSON, Circuit Judge.

      Until his removal in March 2004, Howard Zwagil was employed as a police officer

with the Federal Protective Service, an agency within the Department of Homeland

Security.   He was removed from his position based on two charges: (1) deliberate

refusal to carry out assigned duties where the safety of persons and/or property is

involved; and (2) making a threatening comment in the workplace. He appealed the

removal action to the Merit Systems Protection Board, but the Board sustained the

agency’s action.    Docket No. PH-0752-04-0421-I-1. We uphold the Board’s finding

sustaining the charge of deliberate refusal to carry out assigned duties, but we vacate
the Board’s final decision and remand to the Board for further proceedings with regard

to the appropriateness of the penalty of removal.

                                             I

       As a police officer with the Federal Protective Service (“FPS”), Mr. Zwagil was

responsible for patrolling and inspecting buildings occupied by federal employees and

agencies. Mr. Zwagil’s employment record contained several disciplinary actions for

failure to carry out his patrol duties. In June 2000, he was suspended for five days for

failing to follow supervisory instructions to visit all buildings and offices in accordance

with governing orders. In May 2003, Mr. Zwagil was again suspended for failing to

follow required patrol procedures.

       In August 2003, the FPS created a performance improvement plan for Mr. Zwagil

that set forth specific performance standards. Included among those standards was the

requirement that Mr. Zwagil carry out his patrol duties. In November 2003, according to

the agency, Mr. Zwagil failed to complete the inspection of his assigned buildings on

several occasions. As a result, his supervisor issued a notice of proposed removal,

charging him with deliberate refusal to carry out assigned duties. The notice stated that

Mr. Zwagil “repeatedly failed to complete inspection and patrol of [his] assigned

buildings,” and it alleged that his “continuing failure to carry out [his] assigned patrol,

despite many counseling sessions and training, is a gross violation of [his] sworn duty,

and could have a serious impact on the protection of people and property, as well as on

the professional image of [the FPS].” The notice concluded that “removal of a Police

Officer who is capable of complying with orders, but who, after many counseling




05-3088                                     2
sessions and training does not comply, is for such cause as promotes the efficiency of

the Federal Service.” Mr. Zwagil did not respond to the notice of proposed removal.

      Upon receiving the notice of proposed removal, Mr. Zwagil stated to a co-worker

that he “was going to take the rest of the day off because if I don’t and hang around

here, I will probably end up hurting someone.” That statement was reported to Mr.

Zwagil’s supervisor, who subsequently amended the notice of proposed removal to

include a second charge of making a threatening comment in the workplace.

      In March 2004, the deciding official, Deputy Regional Director Michael Grieco,

issued a notice of removal.     The notice stated that Mr. Zwagil had “exhibited a

continuous pattern of misconduct and poor performance for at least the last four years.”

It noted that Mr. Zwagil’s “well-documented history of failing to perform even the most

basic of assignments is highly detrimental to the mission of this organization” and that

“[r]epeated, painstaking, and time-consuming efforts . . . to correct [Mr. Zwagil’s]

behavior and performance have been fruitless.” The notice further stated that “[m]ore

importantly, as a law enforcement officer in the Department of Homeland Security,

Federal Protective Service, for you to make a threatening comment in the workplace is

so entirely contrary to our mission and values that I cannot possibly have you continue

as a representative of this agency.”    Mr. Zwagil appealed his removal to the Merit

Systems Protection Board.

      The administrative judge who was assigned to the case sustained the charge of

deliberate refusal to carry out assigned duties. She explained that “[b]ecause there is

no evidence that the appellant’s failure to inspect and monitor the buildings was the

result of oversight or was inadvertent, I find the appellant’s actions were deliberate.”




05-3088                                    3
However, the administrative judge did not sustain the charge of making a threatening

comment in the workplace. Although she found that Mr. Zwagil had made the statement

in question, she concluded that his statement was not intended to be threatening.

       The administrative judge then evaluated the penalty imposed by the agency,

observing that “when not all of the agency’s charges are sustained, the Board will

independently and responsibly balance the relevant factors set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 306 (1981), in order to determine a

reasonable penalty.” The administrative judge explained that “[i]n determining whether

the selected penalty is reasonable, the Board gives due deference to the agency’s

discretion in exercising its managerial function of maintaining employee discipline and

efficiency” and that the “Board recognizes that its function is not to displace

management’s responsibility or to decide what penalty it would impose, but to assure

that management judgment has been properly exercised and that the penalty selected

by the agency does not exceed the maximum limits of reasonableness.”

       The administrative judge noted that the deciding official, Deputy Director Grieco,

testified that he had considered the Douglas factors in determining the appropriate

penalty.   She explained that “Mr. Grieco concluded that the agency’s obligation to

protect the people who work, visit, or come into . . . government facilities . . . outweighed

the mitigating factors of the appellant’s long Federal service record.” Furthermore, the

administrative judge stated that the “agency properly considered the appellant’s prior

disciplinary record consisting of a 5-day and a 10-day suspension.”

       The administrative judge also rejected Mr. Zwagil’s argument that the removal

action could not be sustained because a co-worker, Officer Graham, had not been




05-3088                                      4
disciplined for failing to inspect all of the buildings assigned to her. The administrative

judge explained that “the Board has held that where the punishment is appropriate to

the seriousness of the offense, an allegation of disparate penalties is not a basis for

reversal or mitigation.” Because the administrative judge concluded that removal was

an appropriate penalty under the circumstances, she sustained the penalty. Mr. Zwagil

then petitioned this court for review of the Board’s decision.

                                             II

       Mr. Zwagil first contends that the administrative judge erred in sustaining the

charge of deliberate refusal to carry out assigned duties.            He argues that a

memorandum from his supervisor instructed officers that they did not have to patrol

every assigned building and that it was therefore permissible for him not to patrol every

building each day. That is a misinterpretation of the memorandum in question. The

memorandum states: “You will check each building you are assigned at different times

each day . . . . This doesn’t mean you check every floor but observe/patrol the interior

of the building, the lobby, guard posts, etc.” Officers thus were not required to patrol

each floor of each building, but were instructed that they must “check each building you

are assigned at different times each day.”

       Mr. Zwagil also argues that his failure to patrol the buildings assigned to him was

not deliberate. The administrative judge, however, found that there was no evidence

that Mr. Zwagil’s failure to inspect and monitor the buildings “was the result of an

oversight or was inadvertent,” and she relied on the testimony of Mr. Zwagil’s supervisor

that Mr. Zwagil had the ability to do his job, but “does what he wants to do rather than

doing what is required.”       We conclude that substantial evidence supports the




05-3088                                      5
administrative judge’s finding that Mr. Zwagil deliberately refused to carry out his

assigned duties.

       Mr. Zwagil next argues that the penalty of removal was unreasonably harsh. The

administrative judge, however, reviewed the evidence regarding the penalty in detail

and concluded that “the agency has shown that the appellant’s misconduct seriously

impacted the supervisors’ ability to accomplish the goals of the agency.” She noted that

“where it is demonstrated that an employee deliberately failed to carry out assigned

work orders, the Board has found that removal action promotes the efficiency of the

service.”   In addition, she found that it was proper for the agency to take into

consideration those aspects of Mr. Zwagil’s disciplinary record that were part of the

record before the Board.

       With respect to Mr. Zwagil’s contention that he was subjected to disparate

treatment because another police officer was not disciplined for similar misconduct, the

evidence did not show that the other officer was similarly situated. The other officer was

much less experienced than Mr. Zwagil, and the evidence did not reflect that she had a

similar disciplinary record or that she was working under a performance improvement

plan. Moreover, as the administrative judge explained, the Board has held that if an

employee’s punishment is determined to be appropriate to the seriousness of the

offense, the fact that some other employee may not have been given the same

punishment for similar misconduct does not require that the penalty imposed on the

charged employee must be reversed or mitigated.

       Finally, Mr. Zwagil argues that the administrative judge did not properly assess

the appropriateness of the penalty in light of the fact that only one of the two charges




05-3088                                     6
was sustained. Citing the reference in the removal notice to the threatening comment

charge, Mr. Zwagil contends that the agency might have imposed a lesser penalty if the

deliberate refusal charge had stood alone. In the removal notice, after sustaining the

charge of refusing to carry out assigned duties, Deputy Director Grieco turned to the

charge of making a threatening comment in the workplace, and stated: “More

importantly, as a law enforcement officer . . . , for you to make a threatening comment in

the workplace is so entirely contrary to our mission and values that I cannot possibly

have you continue as a representative of this agency.”       Based on Deputy Director

Grieco’s characterization of the unsustained charge as “more important[ ],” Mr. Zwagil

argues that it was improper for the Board to uphold the penalty of removal based solely

on the sustained charge.

      This court has held that “[w]hen the Board sustains fewer than all of the agency’s

charges, the Board may mitigate to the maximum reasonable penalty so long as the

agency has not indicated either in its final decision or during proceedings before the

Board that it desires that a lesser penalty be imposed on fewer charges.” LaChance v.

Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). If the Board “discerns from the record or

the proceedings that the agency desires imposition of a lesser penalty the Board must

accord the agency an opportunity to institute such a lesser penalty.” Id. But if the

Board determines that the agency “has not indicated either in its final decision or during

proceedings before the Board that it desires a lesser penalty be imposed on fewer

charges,” the Board may uphold the penalty of removal if it regards that penalty as

falling within the maximum reasonable penalty for the sustained charge. Id.; see also

Russo v. U.S. Postal Serv., 284 F.3d 1304, 1310 (Fed. Cir. 2002).




05-3088                                     7
       In one respect, the administrative judge in this case did not follow the procedure

set forth in LaChance v. Devall. That is, the administrative judge did not focus on

whether there was any indication in the record that the agency would have imposed a

lesser penalty if the penalty determination had been based solely on the sustained

charge. Instead, citing the Board’s decision in White v. United States Postal Service, 71

M.S.P.R. 521, 525-27 (1996), the administrative judge stated that “when not all of the

agency’s charges are sustained, the Board will independently and responsibly balance

the relevant factors . . . to determine a reasonable penalty.”

       In LaChance v. Devall, this court rejected the approach set forth by the Board in

the White case, in which the Board announced that, in cases in which fewer than all the

charges were sustained, it would independently determine what penalty to impose. See

178 F.3d at 1249; see also Negron v. Dep’t of Justice, 95 M.S.P.R. 561, 572 (2004). In

this case, rather than independently determining the appropriate penalty, the

administrative judge should have first determined whether the record contained any

indication that the agency would have imposed a lesser penalty based only on the

sustained charge.

       Because that inquiry is a highly factual one, we decline to make that

determination ourselves and instead remand this case to the Board to determine

whether anything in the record indicates that the agency would have imposed a lesser

penalty based solely on the charge of deliberate refusal to carry out assigned duties.

The Board’s inquiry into whether the agency would have imposed a lesser penalty

should include consideration of the decision letter itself and in particular the portion

stating “[m]ore importantly . . . for you to make a threatening comment in the workplace




05-3088                                      8
is so entirely contrary to our mission and values that I cannot possibly have you

continue as a representative of this agency.” If the Board finds that the record indicates

the agency would have imposed a lesser penalty, the Board must give the agency an

opportunity to institute a lesser penalty. On the other hand, if the Board finds that there

is no indication in the record that the agency would have imposed a lesser penalty if it

had considered only the sustained charge, the Board may uphold the penalty imposed if

it concludes that the penalty was not in excess of the maximum reasonable penalty for

the sustained offense.




05-3088                                     9
