Thomas T. Taul,
Department of Justice,
Docket Number CH-0752-04-0507-I-1
2004 MSPB Lexis 1764
September 10, 2004
The appellant was a Supervisory Correctional Officer, GS-11, at the agency’s Federal Correctional Institution in Pekin, Illinois. Effective May 2, 2004, the agency demoted him to Supervisory Correctional Officer, GS-09, for “Being Under the Influence of Alcohol While on Duty.” See Agency File, Tab 4(f). The appellant appealed his removal to the Board on May 14, 2004. See Appeal File, Tab 1. The Board has jurisdiction over the appellant’s timely appeal. See 5 U.S.C.A. §§ 7511-7513 (West 1996). I held a hearing on July 29, 2004.
The agency’s action is AFFIRMED.
Analysis and Findings
The appellant began working for the agency in 1985 and has an excellent work record. During the time period at issue in this appeal, he was a GS-11 “Lieutenant” at the Pekin, Illinois Federal Correctional Institution [FCI]. One of his responsibilities was supervising the Chicago airlift operation, a procedure in which between 5 and 40 inmates are exchanged with U.S. Marshals en route to Chicago O’Hare International Airport. At the airport, inmates are then loaded onto a plane with its engine running. See Report of Proceedings of July 29, 2004 [hereinafter “Report of Proceedings”] at 27. The agency views airlift operations as significant opportunities for inmate escape. See Report of Proceedings at 82. The appellant and his staff members are heavily armed for these occasions, with, among other things, nine-millimeter pistols, shotguns, chemical agents, a log chain, and an axe. See Report of Proceedings at 14, 28.
On July 31, 2003 the appellant reported for work at 7:30 a.m. noticeably under the influence of alcohol. Lieutenant Dayna Buck administered blood alcohol testing with an Alco-Sensor III breathalyzer device at 9:45 a.m., which revealed the appellant’s blood alcohol level to be .131. See Agency File, Tab 5(o). Mr. Eddie Samalio administered a second test, which revealed the appellant’s blood alcohol level to be .110. See Agency File, Tab 5(m). After the appellant’s second positive test, Associate Warden Sherry L. Robare relieved him of duty and sent him home. See Agency File, Tab 4(p). The appellant went home and drank beer. n1
The appellant was the highest-ranking officer due to report for the 12:00 a.m. morning watch. When he returned for the morning watch shift, he was still intoxicated. Captain Greg Baysinger tested his blood alcohol. n2 The appellant’s first test, conducted at 11:30 p.m., showed his blood alcohol level was .080. The second test, at 11:45, showed positive results of .100. See Agency File, Tabs 5(l) & (r). The appellant told Captain Baysinger he had not been drinking for over 8 hours. See Agency File, Tabs 5(l)& (r).
On August 27, 2003, Associate Warden Jack Atherton proposed to suspend the appellant for five days for being under the influence of alcohol while on duty and reporting to work under the influence of alcohol. On September 22, 2003, Warden Suzanne R. Hastings sustained the charges, but mitigated the penalty to a 2-day suspension. See Agency File, Tab 5(g). The appellant served his suspension on September 26-27, 2003, then continued supervising the Chicago airlift. See Agency File, Tab 5(f).
On November 13, 2003, the appellant reported to work for his 6:00 a.m. shift in preparation for the Chicago airlift. During his first half hour on duty, he spent time in the FCI Armory, preparing weapons with Senior Officer Specialist David M. McDonough, one of the staff members assigned to transport inmates that day. Officer McDonough noticed the appellant tap an empty magazine against the safe, which seemed odd to him. See Report of Proceedings at 9, 19. He then thought he noticed a smell of alcohol emanating from the appellant. See Report of Proceedings at 10. After watching the appellant unsuccessfully attempt to load a 15-round magazine, Officer McDonough became nervous about the airlift and asked the other officers who would be travelling with them that day, Victor Lisenko and Senior Officer Specialist Nashina Fisher, who was processing female inmates for transport in a van, whether they had noticed anything unusual about the appellant. See Report of Proceedings at 10-11.
Officer Lisenko had been in another part of the facility preparing inmates for the airlift and had not noticed anything about the appellant except the smell of cigar smoke. n3 See Agency File, Tab 4(n). When he and Officer Fisher told Officer McDonough they had not observed anything unusual, Officer McDonough reported his concerns to Lieutenant Baird, who advised him to see Lieutenant Mike Doyle, who was acting as Captain that day. See Report of Proceedings at 12; see also Agency File, Tab 4(l).
Officer McDonough spoke to Lieutenant Doyle and said he did not want to get anyone in trouble, but asked if Lieutenant Doyle would be willing to speak with appellant himself to form his own opinion about the situation. See Report of Proceedings at 12; see also Agency File, Tab 4(y). Lieutenant Doyle went outside to speak with the appellant, and did not notice any outward signs of intoxication, n4 but felt compelled to report Officer McDonough’s concerns to the Associate Warden Atherton. See Agency File, Tab 4(w). Mr. Atherton contacted Warden Hastings, who gave her authorization to conduct an Alco-Sensor III test to determine the appellant’s blood alcohol level. See Agency File, Tab 4(q).
Lieutenant Doyle administered the breathalyzer test at 7:50 a.m., with Associate Warden Atherton and Human Resources Manager Bart Masters present. See Agency File, Tab 4(s). According to Lieutenant Doyle, although previously he smelled only cigar smoke on the appellant’s breath, he smelled alcohol on the appellant’s breath when the appellant blew into the machine. See Report of Proceedings at 32; see also Agency File, Tab 4(o). The appellant’s test result was .055. See Agency File, Tab 4(w).
They waited fifteen minutes in silence for a second test to make sure the first positive result was not the result of mouthwash or a recent swig. See Report of Proceedings at 32, 35. Lieutenant Doyle then administered the second test at 8:06 a.m., which was .047. See Agency File, Tab 4(w); see also Report of Proceedings at 33.
Mr. Atherton asked Lieutenant Doyle and Mr. Masters to leave, then told the appellant he could not go on the Chicago bus run. The appellant told Mr. Atherton he had not been drinking and that he believed his mouthwash or Nyquil he was taking for a cold had contributed to the positive breathalyzer results. See Agency File, Tab 4(s). Mr. Atherton then referred the appellant to EAP.
On March 24, 2004, Chief Correctional Supervisor D. Gonzalez proposed the appellant’s demotion to Supervisory Correctional Officer, GS-09, step 1, and 3-day suspension for “Being Under the Influence of Alcohol While on Duty.” See Agency File, Tab 4(i).
The appellant responded to the charge in writing on March 22, 2004. See Agency File, Tab 4(h). He disputed Officer McDonough’s statement that he struck the bus safe with an empty magazine. He also asked the deciding official to consider inconsistencies in the statements of officers who observed him and smelled his breath.
The appellant responded orally on April 2, 2004. See Agency File, Tab 4(g). He stated he had not been drinking alcohol the prior night and that he could not explain the Alco-Sensor test results. He also told Warden Hastings the last time he had been in the wrong, but this time he was not. He also told Warden Hastings he did not have a drinking problem.
On April 23, 2003, Warden Hastings sustained the charge. She elected not to suspend the appellant, but to demote him. She mitigated the demotion from Supervisory Correctional Officer, GS-09, step 1, to step 7 of the same position. See Agency File, Tab 4(f). The appellant’s demotion became effective May 2, 2004. See Agency File, Tab 4(d).
To justify its discipline of the appellant, the agency must prove its charges by a preponderance of the evidence. Diaz v. Department of the Army, 56 M.S.P.R. 415, 417 (1993); Smith v. United States Postal Service, 55 M.S.P.R. 348, 356 (1992). A preponderance of the evidence is the “degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.56(c)(2)(2004).
The appellant testified he did not drink alcohol prior to coming to work on November 13, 2003. See Report of Proceedings at 83. According to the appellant, he does not drink between shifts. See Agency File, Tab 4(m). He argues that usage of an over-the-counter drug, Nyquil, could have elevated his blood alcohol level. In an affidavit given on January 23, 2004, the appellant attested he took a double dose of Nyquil between 12:15 and 12:30 a.m. before going to sleep at approximately 1:00 a.m. n5 See Agency File, Tab 4(m). He further attested he did not know that Nyquil had a high alcohol content “until I was advised by my EAP counselor.” He testified “Nyquil is equivalent to three times what whiskey is.” Report of Proceedings at 87. The appellant has not presented any evidence to support his claim that two doses of Nyquil could cause .055 and .047 levels of alcohol in his blood approximately seven hours later.
The appellant claims Officer McDonough dragged in his peers as a ploy to get him in trouble. n6 See Report of Proceedings at 85-86. He points out that other agency employees working in the vicinity, Tammy Gerard and Don Schneider, did not complain about his breath. See Report of Proceedings at 85. It is true that Lieutenant Doyle did not smell alcohol on the appellant’s breath until the appellant blew into the Alco-Sensor III machine. Nonetheless, the agency’s program statement provides for disciplinary action against employees found to have .02 blood alcohol levels or greater while on duty. See Agency File, Tab 5(z) at 9. The appellant’s blood alcohol levels more than doubled the allowable limit. Accordingly, I sustain the agency’s sole charge of “Being Under the Influence of Alcohol While on Duty.”
Harmful Procedural Error
The appellant alleges Warden Hastings committed a harmful procedural error by relying on Lieutenant Doyle’s Alco-Sensor III examination results. The appellant bears the burden of proving this affirmative defense by a preponderance of the evidence. To do so, he must show the agency committed an error in the application of its procedures likely to have caused it to reach a decision different from the one it would have reached in the absence or cure of the error. See 5 C.F.R. § 1201.56(c)(3) (2004).
The appellant alleges agency employees (1) failed to calibrate the Alco-Sensor III properly; (2) Lieutenant Doyle failed to check the Alco-Sensor III to see if it was at room temperature; and (3) Lieutenant Doyle failed to clear the room of radio equipment. According to the appellant, these errors rendered the results of his Alco-Sensor III test unreliable. The appellant did not raise any of these concerns with Warden Hastings, but rather brings them to the Board’s attention for the first time on appeal. See Report of Proceedings at 75.
The appellant first alleges the agency failed to calibrate the Alco-Sensor III properly. Lieutenant Doyle testified he asked Lieutenant Felix Sansisteban for a good machine that had been calibrated. See Report of Proceedings at 30. Record evidence shows the Alco-Sensor III’s manufacturer recommends monthly calibration checks and that the devices “generally hold their calibration for months.” Agency Exhibit 1 at 3. Special Investigations Phone Monitor Tammy Sue Phillips testified she is responsible for calibrating the FCI Alco-Sensor III machines. See Report of Proceedings at 91. She testified her practice is to calibrate each machine sometime during each month. See Report of Proceedings at 92. Ms. Phillips testified her logbook shows she calibrated all the FCI machines for the month of October on October 13, 2003. See Report of Proceedings at 93. Lieutenant Doyle testified that immediately following the appellant’s tests, he returned the Alco-Sensor III to Lieutenant Sansisteban, who checked the calibration to eliminate any possibility of doubt. See Report of Proceedings at 47. The appellant has not shown the agency failed to calibrate the Alco-Sensor III properly.
The appellant next alleges Lieutenant Doyle failed to check the Alco-Sensor III to see if it was at room temperature. The record shows the Alco-Sensor III is designed to operate at room temperature and can lose sensitivity at temperatures under 20 [degrees] C. See Agency Exhibit 1 at 3. The Alco-Sensor III manual describes the procedures used to insure the machine is at a proper working temperature. See Agency Exhibit 1 at 3. Lieutenant Doyle testified he looked at the temperature pad on the back of the machine to make sure it was in the proper temperature range. See Report of Proceedings at 31. He further testified he pressed the instrument’s button, held it down for ten seconds, and observed zeros, which he then showed to the appellant, Mr. Masters and Mr. Atherton. See Report of Proceedings at 31. Lieutenant Doyle’s testimony, that the presence of numbers indicates proper operating temperature, see Report of Proceedings at 36, comports with the Alco-Sensor III manual. See Agency Exhibit 1 at 3. Moreover, Lieutenant Doyle testified he retrieved the Alco-Sensor III machine from an office in the same building as the appellant’s test and thus did not take the machine outdoors. See Report of Proceedings at 38. The appellant has not shown Lieutenant Doyle failed to check the Alco-Sensor III to see if it was at room temperature.
The appellant further alleges Lieutenant Doyle failed to clear the room of radio equipment. According to the appellant, radio equipment in Mr. Masters’s officer could have elevated his test results. He testified he “found out” about an updated Alco-Sensor manual that mentions radio equipment. See Report of Proceedings at 76. He did not provide evidence to support his claim that the manufacturers of Alco-Sensor III suggest removal of radio equipment for accurate breathalyzer results. Lieutenant Doyle testified he has conducted thousands of breathalyzer tests during his career with the agency. See Report of Proceedings at 31, 33. He further testified the machines are widely used in corrections and law enforcement by individuals wearing radios. See Report of Proceedings at 39. Although evidence shows Lieutenant Doyle did not clear Mr. Masters’ office of radio equipment before administering the appellant’s breathalyzer test, the appellant has not shown the existence of any error on the part of the agency in this regard.
Because the appellant has not shown the agency committed any procedural errors, he has not met his burden of proving harmful procedural error.
Efficiency of the Service
To uphold discipline, the agency must show the appellant’s misconduct was connected in some way with the agency’s ability to accomplish its mission. See Young v. Hampton, 568 F.2d 1253, 1257 (7th Cir. 1977). The appellant’s appearance at work under the influence of alcohol, especially while engaged in the high-risk activities connected with his position, is directly related to the agency’s ability to accomplish its mission. I therefore find disciplining the appellant for “Being Under the Influence of Alcohol While on Duty” promotes the efficiency of the service.
Even if an appellant’s misconduct clearly warrants discipline, I must look to the agency’s chosen penalty to determine whether removal is within the tolerable bounds of reasonableness. “The penalty for employee misconduct is generally left to the sound discretion of the agency.” Merchant v. United States Postal Service, 52 M.S.P.R. 330, 333, aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table). Where, as here, the agency’s charge was 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. Fowler v. United States Postal Service, 77 M.S.P.R. 8, 12, review dismissed, 135 F.3d 773 (Fed.Cir. 1997) (Table); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). The penalty will not be overturned by the Board unless it is clearly excessive. Hayes v. Department of the Navy, 727 F.2d 1535, 1540 (Fed. Cir. 1984). The Board will disturb an agency’s penalty only where the agency failed to weigh relevant factors or its judgment clearly exceeded the limits of reasonableness. Toth v. United States Postal Service, 76 M.S.P.R. 36, 39 (1997).
In Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), the Board set forth the means by which an administrative judge may determine whether the penalty imposed is within the tolerable bounds of reasonableness. The administrative judge must take into consideration, where applicable: (1) the type of offense the appellant committed, (2) the appellant’s type of employment, (3) his past disciplinary record, (4) his past work record, (5) the effect of his conduct upon the service, (6) penalties imposed for similar offenses, (7) standard agency penalties, (8) any notoriety, (9) whether the appellant was on notice to avoid the particular misconduct at issue, (10) his potential for rehabilitation, (11) any mitigating circumstances, and (12) the availability of alternative sanctions. Id. at 305-06.
The appellant’s offense is serious and compounded by the nature of his duties. “An employee in a law enforcement position is held to a higher standard of conduct than that applied to other employees.” Rackers v. Department of Justice, 79 M.S.P.R. 262, 283 (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table). In particular, the appellant’s prisoner transportation duties were extremely hazardous. Warden Hastings testified the FCI staff is particularly vulnerable when taking inmates outside the secure perimeter of the facility. See Report of Proceedings at 61.
The appellant has approximately nineteen years of service and an excellent work record, but a history of similar offenses. On September 22, 2003, Warden Hastings suspended the appellant for two days, for two consecutive instances of reporting to work under the influence of alcohol. See Agency File, Tab 5(g). The record shows he has been aware of the agency’s blood alcohol policy since March 7, 2002. See Agency File, Tab 5(a).
Warden Hastings testified she lost confidence in the appellant’s “ability to run a shift or take a bus.” See Report of Proceedings at 64. She points to the appellant’s continued refusal to admit he had been drinking. She further testified the FCI employees no longer respect him. See Report of Proceedings at 64. According to Warden Hastings, GS-11 Lieutenants have a high degree of responsibility and are called upon to run the facility when the executive staff is not available. See Report of Proceedings at 64. I note the appellant’s continued attempts to blame those whom duty called to report and test him cast further doubt on his ability to function as a supervisor.
The agency’s table of penalties for employee misconduct sets forth “14-day suspension to removal” as acceptable penalties for a second offense of reporting for duty under the influence of intoxicants. See Agency File, Tab 5(z) at 25.
Warden Hastings considered the relevant Douglas factors and exercised discretion within tolerable limits of reasonableness. I therefore decline to disturb her chosen penalty. See Edwards v. Department of the Army, 87 M.S.P.R. 27, P11 (2000) (administrative judge erred in mitigating removals to 120-day suspensions where helicopter mechanics tested positive for alcohol while on duty, despite appellants’ long tenure and spotless disciplinary records), aff’d sub nom. Rodriguez v. Department of the Army, 25 Fed. Appx. 848 (Fed. Cir. 2001).
The agency’s action is AFFIRMED.
1 At his oral response, the appellant stated he drank six beers. See Agency File, Tab 5(h). In his affidavit given August 14, 2003, he stated he had 1.5 beers. See Agency File, Tab 5(k).
2 Warden Hastings instructed Captain Baysinger to meet the appellant at the morning watch to make sure he was fit for duty. See Report of Proceedings at 65.
3 After hearing Officer McDonough’s concerns, Officer Lisenko paid closer attention and decided he smelled alcohol, too. See Agency File, Tabs 4(n) & (x). Officer Fisher later reported smelling alcohol coming from the appellant’s face while they discussed paperwork. See Agency File, Tab 4(u).
4 According to Lieutenant Doyle, it was a blustery morning and appellant was standing on the side of a door facing out with the wind blowing. See Report of Proceedings at 41, 54.
5 In his closing argument, the appellant estimated he took Nyquil approximately four hours before reporting for duty. See Report of Proceedings at 103.
6 Officer McDonough testified he “dreaded pointing a finger at anyone.” See Report of Proceedings at 17.
For The Board: