                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KARLA ANN RODRIGUEZ,                            DOCKET NUMBER
                 Appellant,                          AT-0752-14-0655-I-1

                  v.

     CONSUMER PRODUCT SAFETY                         DATE: May 29, 2015
       COMMISSION,
                  Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Karla Ann Rodriguez, Miami Springs, Florida, pro se.

           Monica L. Garcia, Bethesda, Maryland, 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 her 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


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of 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. See 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, and based on the following points and authorities, 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.       Except as
     expressly MODIFIED by this Final Order concerning specification 2 of the
     charge, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        Effective May 5, 2014, the agency removed the appellant from her position
     as a Compliance Investigator with the Office of Import Surveillance based on a
     charge of conduct unbecoming a federal employee.        Initial Appeal File (IAF),
     Tab 6 at 25. The charge is based on the following specifications: (1) failure to
     report her arrest on October 21, 2012, for driving under the influence (DUI) and
     leaving the scene of an accident; (2) operating a government owned vehicle
     (GOV) and government equipment in an impaired state on September 13, 2013;
     and (3) answering her telephone while driving and ignoring her supervisor’s
     request to pull over. See id. at 29-30, 56-60.
¶3        The appellant filed an appeal challenging her removal and asserting an
     affirmative defense of disability discrimination based on alcoholism. IAF, Tab 1,
     Tab 4 at 1. After holding the appellant’s requested hearing, the administrative
     judge issued an initial decision affirming the removal action. IAF, Tab 47, Initial
     Decision (ID). The administrative judge found that the agency proved that the
     appellant failed to report her arrest for a DUI in violation of agency directive and
                                                                                          3

     operated a GOV while impaired, but did not prove that she answered her
     telephone while driving and ignored her supervisor’s request to pull over.          ID
     at 3-10. Consequently, the administrative judge sustained the charge of conduct
     unbecoming, found a nexus between the charge and the efficiency of the service,
     and determined that removal was within the bounds of reasonableness.                ID
     at 10-13. The administrative judge also found that the appellant failed to prove
     her affirmative defense of disability discrimination. 2 ID at 14-15.
¶4        The appellant has filed a petition for review in which she asserts that the
     administrative judge erred in finding that the agency established two of the three
     specifications in support of its charge and in determining that the penalty of
     removal was reasonable. Petition for Review (PFR) File, Tab 1. The agency has
     filed a response in opposition to the appellant’s petition. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        When taking an adverse action against an employee, an agency must
     establish that: (1) the charged conduct occurred; (2) a nexus exists between the
     conduct and the efficiency of the service; and (3) the particular penalty imposed
     is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
     389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). To prove a charge
     of conduct unbecoming a federal employee, an agency is required to demonstrate
     that the appellant engaged in the underlying conduct alleged in support of the



     2
       Specifically, the administrative judge found that the appellant did not allege that
     another individual, who did not seek treatment for alcohol dependency, was treated less
     harshly than her and the appellant failed to prove that she was subjected to a hostile
     work environment based on her alcoholism. ID at 15. The appellant does not challenge
     these findings on review.       Nevertheless, we d iscern no basis to d isturb the
     administrative judge’s finding that the appellant failed to establish her claim of
     disability discrimination based on alcoholism. See Burton v. U.S. Postal Service,
     112 M.S.P.R. 115, ¶ 16 (2009) (anti-discrimination statutes do not immunize disab led
     employees from discipline for misconduct, provided the agency would impose the same
     discip line on an employee without a disab ility).
                                                                                            4

     broad label.   Scheffler v. Department of Army, 117 M.S.P.R. 499, ¶ 4 (2012),
     aff’d, 522 F. App’x 913 (Fed. Cir. 2013).
¶6         As set forth below, we agree with the administrative judge that the agency
     proved the conduct underlying specifications 1 and 2. However, we modify the
     initial decision by finding that specification 2 is not sustained because, under the
     circumstances of this appeal, the appellant’s behavior in driving a GOV in an
     impaired state did not constitute conduct unbecoming. We otherwise affirm the
     agency’s removal action because proof of specification 1 alone is sufficient to
     sustain the charge and we find that it justifies the penalty of removal in this case.
     The administrative judge properly sustained the charge of conduct unbecoming.
¶7         In its first specification, the agency alleged that the appellant failed to
     report her October 21, 2012 arrest for a DUI in violation of agency Directive
     0860.2, Section 6(c)(5), issued in January 2002, and revised on March 5, 2013.
     IAF, Tab 6 at 30, 82, 89. The administrative judge found that, while the appellant
     did not violate the 2002 directive, she did violate the revised March 5, 2013
     directive, which requires employees who drive a GOV to report “any arrest or
     conviction for operation of any motor vehicle, government or privately owned,
     under the influence of alcohol or illegal drugs . . . ” ID at 3-4. On review, the
     appellant reiterates her testimony below that she had no knowledge of the revised
     directive’s reporting requirements because she never received a copy of the
     revised directive. 3 PFR File, Tab 1 at 4.
¶8         The administrative judge considered the appellant’s testimony that she was
     unaware that she was required to report her DUI arrest because she did not
     receive a copy of the revised directive, but found that it conflicted with the
     appellant’s response to her proposed removal in which she asserted that she did

     3
       On review, the appellant also contends that she did not violate the 2002 directive
     because it did not require her to report a DUI unless it occurred in relation to official
     work activity. PFR File, Tab 1 at 4. However, we need not address this argument
     because the administrative judge found that the appellant did not violate the 2002
     directive. ID at 3-4.
                                                                                         5

      not report her arrest, not because she was unaware of the requirement to do so,
      but because her attorney advised her not to report it because the DUI charge
      would likely be reduced. ID at 4-5. On review, the appellant has not identified
      any evidence of record casting doubt on the administrative judge’s analysis and,
      thus, we find that the administrative judge correctly found that the agency proved
      this specification.
¶9          Regarding the second specification, the administrative judge found that the
      agency proved that on September 13, 2013, the appellant operated a GOV in an
      impaired state and that such behavior constituted conduct unbecoming because
      the appellant’s explanation that her behavior was unintentional and the result of
      her discontinuing Lexapro, a prescription anti-depressant, did not excuse her
      behavior. ID at 8-9. In finding that the appellant operated a GOV in an impaired
      state, the administrative judge credited the testimony of four Customs and Border
      Protection (CBP) officers who witnessed the appellant slurring her speech,
      sweating, shaking, and having trouble walking just prior to driving her GOV
      home over the appellant’s testimony that she “did not feel that bad.” ID at 5-8.
      The administrative judge further found that the appellant did not dispute the
      testimony of the four officers, and she herself testified that as the day went on she
      began to feel cloudy, a bit off, and jittery or shaky. ID at 8.
¶10         Applying the factors for making credibility determinations set forth in
      Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the
      administrative judge found the officers’ testimony more credible than the
      appellant’s because each officer’s individual testimony was corroborated by the
      other officers’ testimony, and because three of the officers had submitted written
      statements shortly after the incident on September 13, 2013, in which they
      described their first-hand observations of the appellant’s impaired state in a
      manner consistent with their testimony at the hearing. ID at 8-9. Further, the
      administrative judge found no reason to question the officers’ credibility and
                                                                                       6

      determined that their description of the appellant’s behavior was not inherently
      improbable. ID at 9.
¶11        On review, the appellant asserts that the testimony of the four officers was
      replete with erroneous statements, predetermination, conjecture, and innuendo
      and that they were prejudiced against her due to her history of alcoholism. PFR
      File, Tab 1 at 4-5. Further, the appellant asserts that the officers’ testimony was
      the result of a “tainted prejudicial work environment” orchestrated by her
      supervisors and coworker.    Id. Lastly, she argues that the officers’ testimony
      regarding her impaired state should be discredited as unreasonable because they
      failed to contact a medical professional or the local police, which, according to
      the appellant, reasonable people would have done if they truly believed she were
      impaired. Id.
¶12        The appellant, however, has not identified any specific testimony which she
      contends is false and has not explained how or why the CBP officers would have
      been prejudiced by her supervisors and coworker.       The appellant’s arguments
      amount to her here disagreement with the administrative judge’s credibility
      findings and do not provide a basis to disturb the initial decision. Because the
      administrative judge’s credibility conclusions were complete, based on proper
      considerations, and consistent with the record, we defer to them on review. See
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (the Board will
      give due deference to the credibility findings of the administrative judge where
      she considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions).    Accordingly, we discern no basis for disturbing the
      administrative judge’s finding that the agency proved that the appellant drove her
      GOV while impaired.
¶13        We disagree, however, with the administrative judge’s finding that “[t]he
      appellant’s explanation that her behavior was unintentional and that it was caused
      because she stopped taking Lexapro does not excuse her behavior.” ID at 9. To
      the contrary, we find that the appellant’s explanation is supported by medical
                                                                                           7

      documentation in the record, including two letters from her physician, which
      indicate that discontinuing taking one of her medications may cause symptoms
      consistent with those she experienced on September 13, 2013.              IAF, Tab 6
      at 48-49. Further, the agency does not contend that the appellant knew or should
      have known of the possible side effects of discontinuing Lexapro and the deciding
      official specifically found that the appellant was “not capable of making a sound
      decision” concerning her fitness to drive. Id. at 32. As such, we find that the
      appellant’s decision to report to duty and operate a GOV and government
      property while impaired does not support the charge of conduct unbecoming.
      Regardless, specification 1 concerning the appellant’s failure to report her DUI
      arrest is sufficient to sustain the conduct unbecoming charge. See Burroughs v.
      Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (where more than
      one event or factual specification supports a single charge, proof of one or more,
      but not all, of the supporting specification is sufficient to sustain the charge).
      The administrative judge correctly found that the agency established nexus.
¶14         The nexus requirement, for purposes of whether an agency has shown that
      its action promotes the efficiency of the service, means there must be a clear and
      direct relationship between the articulated grounds for an adverse action and
      either the employee’s ability to accomplish his or her duties satisfactorily or some
      other legitimate government interest.          Merritt v. Department of Justice,
      6 M.S.P.R. 585, 596 (1981), modified by Kruger v. Department of Justice,
      32 M.S.P.R. 71, 75 n.2 (1987). Here, there is a direct relationship between the
      appellant’s conduct and her job duties, which require her to drive a GOV to
      various port facilities throughout South Florida. Further, the agency has a clear
      interest in requiring employees who drive a GOV to report any DUI arrest.
      Accordingly, we find a nexus between the appellant’s conduct and the efficiency
      of the service.
                                                                                        8

      The administrative judge correctly found that the penalty of removal was
      reasonable.
¶15        When the agency’s only charge is sustained, but some of the underlying
      specifications of that charge are not sustained, the agency’s penalty determination
      is entitled to deference and should be reviewed only to determine whether it is
      within the parameters of reasonableness.         Payne v. U.S. Postal Service,
      72 M.S.P.R. 646, 650 (1996). In applying this standard, the Board must take into
      consideration the failure of the agency to sustain all of its supporting
      specifications. Id. at 651. That failure may require, or contribute to, a finding
      that the agency’s penalty is not reasonable. Laniewicz v. Department of Veterans
      Affairs, 83 M.S.P.R. 477, ¶ 9 (1999). In such a case, the Board will look for
      evidence showing that the agency would have imposed the same penalty for the
      sustained specification. Id.
¶16        Nevertheless, 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. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013).
      In 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. Id. Thus, the Board will modify
      a penalty only when it finds that the agency failed to weigh the relevant factors or
      that the penalty the agency imposed clearly exceeded the bounds of
      reasonableness.   Id.   However, if the deciding official failed to appropriately
      consider the relevant factors, the Board need not defer to the agency’s penalty
      determination. Id.
                                                                                            9

¶17         On review, the appellant argues that the penalty of removal is too severe
      because: the agency does not have a table of penalties, 4 the agency failed to
      properly consider that her impairment on September 13, 2013, was involuntary
      and the result of her discontinuing Lexapro, and she had 18 years of service
      without any prior disciplinary action. PFR File, Tab 1 at 5-6. Contrary to the
      appellant’s contention, the deciding official considered the appropriate mitigating
      factors, including the appellant’s 18 years of service and lack of prior discipline,
      but determined that they did not outweigh the seriousness of the appellant’s
      behavior given that her position requires her to drive a GOV throughout South
      Florida in the normal course of her duties. IAF, Tab 6 at 35-37. In light of the
      appellant’s job duties, we agree and find that removal based on the sustained
      specification concerning the appellant’s failure to report her DUI arrest alone is
      within the tolerable limits of reasonableness in this case. Accordingly, we affirm
      the removal action.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS 5
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.




      4
        To the extent the appellant alleges that removal is arbitrary because the agency does
      not have a table of penalties, she has not pointed to anything requiring the agency to
      have a table of penalties and we are unaware of such a requirement. Further, she has
      not offered any evidence demonstrating that removal is an excessive penalty or that a
      lesser penalty has been imposed upon other employees for similar offenses.
      5
        The administrative judge failed to inform the appellant of her mixed-case right to
      appeal from the initial decision on her discrimination claims to the Equal Employment
      Opportunity Commission and/or the United States District Court. This was error, but it
      does not constitute reversible error, because we notify the appellant of her m ixed-case
      appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,
      186-87 (1988).
                                                                                   10

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:
                           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 order
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, color,
                                                                             11

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
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
