                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 40

                             Docket No. SF-0752-14-0054-I-1

                                      Mike A. Saiz,
                                       Appellant,
                                            v.
                               Department of the Navy,
                                         Agency.
                                       June 8, 2015

           Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

           Loren L. Baker, Esquire, Barstow, California, 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 60-day suspension.       For the reasons
     discussed below, we GRANT the agency’s petition for review, REVERSE the
     initial decision, and SUSTAIN the appellant’s removal.

                                     BACKGROUND
¶2         On September 10, 2013, the agency proposed the appellant’s removal from
     his WG-7 Painting Worker position for “Possession of a Controlled Substance
     Aboard a Military Installation and Testing Positive for Amphetamine(s),
     Methamphetamine and Marijuana (THC) While in a Duty Status.” Initial Appeal
                                                                                           2

     File (IAF), Tab 4, Subtab 4c. After the appellant replied to the proposal, id.,
     Subtab 4b, the agency issued a decision sustaining the charges and finding
     removal warranted, 1 id., Subtabs 4, 4a.    The appellant app ealed to the Board and
     argued that the agency did not remove others who had been similarly charged, but
     rather offered them last chance agreements, and that this disparity in treatment
     was based on his age (58) and race (Hispanic). IAF, Tabs 1, 8.
¶3         After convening the requested hearing, the administrative judge issued an
     initial decision. IAF, Tab 13, Initial Decision (ID). She first found that, because
     the appellant did not dispute the charges and stipulated to all of the facts
     necessary to prove them, they were sustained. ID at 4. The administrative judge
     then considered the appellant’s affirmative defense s of discrimination based on
     age and race, rejecting the claims on the basis that neither of the comparator
     employees identified by the appellant was similarly situated to him. ID at 4-8.
     The administrative judge also found that the agency proved that the action
     promoted the efficiency of the service. ID at 8 -9. However, she found that the
     agency’s penalty determination was not entitled to defer ence, that removal was
     not within the tolerable limits of reasonableness, and that the maximum
     reasonable penalty for the sustained charges was a 60 -day suspension (30 days for
     each offense). ID at 9-19.
¶4         The agency has filed a petition for review, arguing that the administrative
     judge impermissibly usurped the role of the deciding official in selecting the
     penalty and abused her discretion in mitigating the removal to a 60 -day




     1
      The appellant pled guilty in United States District Court to one count of possession of
     a controlled substance, and was fined, sentenced to 1 year summary probation, and
     ordered to successfully complete a drug treatment program. IAF, Tab 11 at 44-47.
                                                                                            3

     suspension. 2 See Petition for Review (PFR) File, Tab 1 at 6-18. The appellant
     has filed a response, 3 and the agency has replied to the appellant’s response. PFR
     File, Tabs 6, 7.

                                          ANALYSIS
¶5         Where the Board sustains an agency’s charges, it will defer to the agency’s
     penalty determination unless the penalty exceeds the range of allowab le
     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.” 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.
     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. Balouris, 107 M.S.P.R.
     574, ¶ 6; Batten, 101 M.S.P.R. 222, ¶ 9.           Mitigation of an agency-imposed



     2
       With its petition, the agency has submitted proof of its compliance with the
     administrative judge’s interim relief order. Petition for Review (PFR) File, Tab 1 at
     19-22; see ID at 21.
     3
        The appellant has not filed a petition for review or otherwise challenged the
     administrative judge’s findings that the agency proved the charges, that the appellant
     failed to establish his affirmative defenses, and that the agency established nex us. PFR
     File, Tab 6. Because the appellant has not challenged these findings and because we
     discern no error in the admin istrative judge’s well-reasoned initial decision regarding
     these matters, we will not disturb the findings. See Crosby v. U.S. Postal Service,
     74 M.S.P.R. 98, 105-06 (1997) (findin g no reason to d isturb the administrative judge’ s
     findin gs where she considered the evidence as a whole, drew appropriate references,
     and made reasoned conclusions); see also Broughton v. Department of Health & Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
                                                                                       4

     penalty is appropriate only where the agency failed to weigh the relevant factors
     or where the agency’s judgment clearly exceeded the limits of reasonableness.
     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 factors before
     deciding on a penalty. Balouris, 107 M.S.P.R. 574, ¶ 6; Batten, 101 M.S.P.R.
     222, ¶ 11.

     The agency did not have a zero tolerance policy for possession and use of illegal
     drugs and the deciding official did not apply such a policy on his own.

¶6         When an agency imposes removal under a zero tolerance policy without
     giving bona fide consideration to the appropriate Douglas4 factors, its penalty
     determination is not entitled to deference.        Wiley v. U.S. Postal Service,
     102 M.S.P.R. 535, ¶ 15 (2006), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007); Omites
     v. U.S. Postal Service, 87 M.S.P.R. 223, ¶ 11 (2000). In such a case, the Board
     will independently weigh the relevant         Douglas factors to evaluate the
     reasonableness of the penalty.        Wiley, 102 M.S.P.R. 535, ¶ 15; Omites,
     87 M.S.P.R. 223, ¶ 11.
¶7         Here, the administrative judge found that, in presenting its case, the agency
     emphasized that it has a zero tolerance policy concerning drugs in the workplace .
     ID at 10. The administrative judge determined that the deciding official testified
     that such a policy is provided for in the Master Labor Agreement, which contains
     the agency’s Drug Free Workplace Program, and that, in the past, he has removed
     employees who brought drugs to the workplace and who were under the influence
     of such drugs.    Id.    The administrative judge found, however, that, despite

     4
       In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of factors relevant to the penalty determination in
     adverse actions.
                                                                                          5

     references to a zero tolerance policy, there is no evidence in the record that one
     exists. She determined that, nevertheless, the deciding official acted as if there
     was such a policy, failing to give any consideration to imposing a penalty less
     than removal, and giving only a cursory evaluation of the Douglas factors,
     particularly the mitigating factors. ID at 11. On that basis, the administrative
     judge determined that the agency’s penalty selection was not entitled to
     deference. ID at 11-19.
¶8           The agency’s policy against drugs in the workplace is reflected in its
     Civilian Human Resources Manual, Subchapter 792.3, Drug-Free Workplace
     Program of October 2005, IAF, Tab 11 at 9 -20, and is specifically referenced in
     the Master Labor Agreement, id. at 36-41.                The policy provides that
     “[a]ppropriate administrative action will be taken in every instance of illegal drug
     use.”    Id. at 10.   A December 13, 2005 Memorandum for Distribution titled
     General Notice of Drug Testing for New Employees under Department of the
     Navy Drug-Free Workplace Program provides that the agency will not tolerate the
     use of illegal drugs and that disciplinary action up to and including removal will
     be initiated for the first failure to remain drug-free. Id. at 22-23. In addition, the
     agency’s Table of Penalties provides for a range in penalties from a 14 -day
     suspension to a removal for a first offense of unlawful use, being under the
     influence, or possession of drugs or drug paraph ernalia on or off duty.          IAF,
     Tab 4, Subtab 4e at 8. These documents do not suggest a zero tolerance policy
     whereby any drug violation will result in removal of the offending employee. We
     therefore agree with the administrative judge ’s finding that the agency did not, in
     fact, have a fully documented, agency-specific zero tolerance policy. 5

     5
       Although we need not reach the issue here, we note that Executive Order 12564
     (Sept. 15, 1986), and a recent memorandum issued by the Director of the Office of
     Personnel Management, “Federal Laws and Policies Prohibiting Marijuana Use,”
     May 26, 2015, available at http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?
     TransmittalID=6766, require federal employees to refrain from the use of illegal drugs.
                                                                                           6

¶9         As noted, however, the administrative judge found that, notwithstanding
     the lack of an agency zero tolerance policy, the deciding official nonetheless
     applied such a policy.     ID at 11.    After a thorough review, we find that the
     administrative judge’s finding is not supported by the record. Appended to the
     removal notice issued to the appellant by the deciding official was a three-page
     Douglas factors analysis, which reflects that the deciding official carefully
     considered the Douglas factors and how each one applied to the appellant’s
     situation.   IAF, Tab 4, Subtab 4a at 3-5.          The deciding official’s hearing
     testimony was in accord; he testified that not every case of illegal drug use
     mandates removal, that it is necessary to look at the facts and circumstances of
     each case, and that he did so here. Hearing Compact Disc (HCD) (testimony of
     the deciding official). Because the deciding official weighed the relevant factors
     in arriving at the penalty of removal, we find, under these circumstances, that the
     administrative judge erred by failing to afford the agency’s penalty determination
     deference. 6 See Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010)
     (stating that, where all of an agency’s 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); Harris v. U.S. Postal Service, 100 M.S.P.R. 613, ¶ 13
     (2005) (same).

     6
       We are aware that our reviewing court, the United States Court of Appeals for the
     Federal Circuit, has held that the Board must defer to an administrative judge’s
     credib ility determinations when they are based on the demeanor of witnesses testifying
     at a hearing and that we may overturn such determinations only based on “sufficiently
     sound” reasons. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
     Sufficiently sound reasons include findings that are incomplete, inconsistent with the
     weight of the evidence, and do not reflect the record as a whole. Faucher v.
     Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). Here, the administrative
     judge’s findings are not based on the demeanor of the deciding official, and our finding
     is based on a careful weighing of the record as a wh ole, including the deciding
     official’s testimony and the Douglas factors analysis attached to the decision notice.
                                                                                             7

      Even if the agency’s penalty determination was not entitled to deference, the
      penalty of removal is within the tolerable limits of reasonableness.

¶10         Even if we agreed with the administrative judge that the deciding official
      operated under the mistaken belief that any drug violation mandated removal such
      that his penalty determination is not entitled to the Board’s deference, we would
      still find that removal is a reasonable penalty in this case.         Our independent
      analysis of the appropriate penalty is set forth below.
¶11         In selecting a reasonable penalty, the Board must consider, first and
      foremost, the nature and seriousness of the misconduct and its relation to the
      employee’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); Wynne v. Department of Veterans Affairs ,
      75 M.S.P.R. 127, 135 (1997). Here, the agency found, and the appellant did not
      deny, that he was in possession, and visibly under the influence, of illegal drugs
      while on duty at the military installation. The appellant’s position description
      emphasizes its considerable physical demands, including working from ladders,
      scaffolds, and on top of equipment at heights up to 18 feet and underneath
      vehicles.   IAF, Tab 4, Subtab 4d.         The position description also identifies
      workplace hazards caused by acids, fluids, and lubricants and states that
      employees must follow proscribed safety practices and use safety equipment. Id.
      Thus, we agree with the deciding official’s concern about the potential for injury
      to the appellant and others if he performed his duties while impaired. 7 HCD
      (testimony of the deciding official ).         Accordingly, we conclude that the
      appellant’s misconduct was serious and directly related to the duties and


      7
        The admin istrative judge recognized that, “[i]n the context of the military industrial
      environment” in which the appellant worked, “the safety of the appellant and his
      coworkers was of paramount concern.” ID at 12; see HCD (testimony of the deciding
      official).
                                                                                        8

      responsibilities of his position.    See Cole v. Department of the Air Force,
      120 M.S.P.R. 640, ¶ 16 (2014) (finding drug use by an aircraft mechanic a serious
      act of misconduct). In addition, in light of the misconduct admitted to by the
      appellant, it is understandable that the deciding official has lost trust and
      confidence in him. IAF, Tab 4, Subtab 4a at 4.
¶12         Also significant in our penalty analysis is the agency’s Table of Penalties,
      which provides that removal is w ithin the range of penalties for a first offense of
      unlawful use, being under the influence, or in possession of drugs or drug
      paraphernalia on or off duty. Id., Subtab 4e at 8; see Dunn v. Department of the
      Air Force, 96 M.S.P.R. 166, ¶ 18 (2004) (noting that the agency-imposed penalty
      was consistent with the Table of Penalties and that fact supported reversal of the
      administrative judge’s mitigation of the penalty) , aff’d, 139 F. App’x 280 (Fed.
      Cir. 2005).   It is particularly noteworthy here that the appellant was both in
      possession of drugs and under their influence while on duty. In addition, not only
      is removal within the range of penalties provided for in the Table o f Penalties for
      the sustained misconduct, but the deciding official has imposed removal on other
      employees who committed the same or similar offenses. HCD (testimony of the
      deciding official). Finally, the agency’s commitment to a drug-free workplace is
      long standing, as evidenced by its Civilian Human Resources Manual, its General
      Notice of Drug Testing, and the Master Labor Agreement , and the appellant has
      not argued that he was unaware of the policy. IAF, Tab 11 at 8-23, 36-42.
¶13         While the facts set forth above support the appellant’s removal, we must
      weigh them against the mitigating factors present in this case. The appellant has
      9 years of acceptable, discipline-free service with the agency, and submitted a
      number of letters of support from a super visor, coworkers, friends, and a union
      steward.   IAF, Tab 8 at 27-34, 72, 75.       These facts merit consideration in
      determining the appropriate penalty.        See 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).   In addition, he has expressed remorse for his
                                                                                           9

      actions, although the weight given to that remorse must be reduced because he
      did so only after his misconduct was discovered. 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
      investigation already has occurred), aff’d, 104 F. App’x 155 (Fed. Cir. 2004).
¶14         The appellant also has submitted evidence showing that he successfully
      completed inpatient and outpatient drug treatment, as well as treatment for
      alcoholism.    IAF, Tab 8 at 24, 75, 90-91.          Although these efforts on the
      appellant’s part are commendable and could be viewed as evidence of his
      potential for rehabilitation, it remains true that he did not undertake such efforts,
      or any efforts, until after the incidents in question, which resulted in his arrest
      and conviction for a drug-related offense. Nor has he argued that he was under
      unusual job tensions, or suffered any personality problems, mental impairment,
      harassment, bad faith, malice, or provocation on the part of others that might
      have affected his behavior.
¶15         As discussed above, while we believe that the agency’s penalty
      determination is entitled to deference, even if it is not entitled to deference, based
      on our independent review of the record and the relevant Douglas factors, we find
      that the mitigating factors are outweighed by the seriousness of the appellant’s
      intentional misconduct, particularly given the agency’s well -supported position
      that he must be able to carry out his duties in a safe manner and the obvious
      potential danger to himself and others should he fail to do so. The penalty of
      removal is consistent with prior Board decisions, which have upheld removal as a
      reasonable penalty for drug-related offenses. 8 See, e.g., Thomas v. U.S. Postal


      8
       The administrative judge did not cite any cases to support her decision to find that a
      60-day suspension was the maximum reasonable penalty. ID at 19.
                                                                                     10

      Service, 96 M.S.P.R. 179, ¶¶ 2, 18 (2004) (reversing an initial decision that
      mitigated the removal of a Postal worker for, among other things, use of
      marijuana while on duty); Spotti v. Department of the Air Force, 49 M.S.P.R. 27,
      29, 34 (1991) (finding removal reasonable where an Instrument Worker used
      marijuana on his lunch breaks), overruled on other grounds by Scott v.
      Department of Justice, 69 M.S.P.R. 211, 228-29 (1995), aff’d, 99 F.3d 1160 (Fed.
      Cir. 1996) (Table). We conclude, therefore, that removal is a reasonable penalty
      for the sustained charges.

                                            ORDER
¶16         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 further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) ( 5 U.S.C. § 7702(b)(1)). If you
      submit your request 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 your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                                                                   11

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this o rder
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, co lor,
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
                                                                         12

repayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.



FOR THE BOARD:


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