Sean P. O'Hara was employed as a Supervisory Detention and Deportation Officer in the Enforcement and Removal Operations Directorate of
the Department of Homeland Security's Immigration and Customs Enforcement Agency. O’Hara v. Department of
Homeland Security, 2015 WL 1865692 (U.S. Court of Appeals for the Federal Circuit 2015).
But, as the result of events outlined below, the Merit Systems Protection Board upheld his “removal for lack of candor and misuse of
government property”. O’Hara v. Department of Homeland Security,
supra. In the opinion this post
examines, the Court of Appeals for the Federal Circuit is reviewing the
propriety of that decision.
As Wikipedia explains, the
Merit
Systems Protection Board (MSPB)
is an independent quasi-judicial agency established in 1979 to
protect federal merit systems against partisan political and other prohibited
personnel practices and to ensure adequate protection for federal
employees against abuses by agency management.
When an employee of most Executive
Branch agencies is separated from his or her position, or suspended for more
than 14 work days, the employee can request that an employee of MSPB conduct
a hearing into the matter by submitting an appeal, generally within
30 days. In that hearing, the agency will have to prove that the
action was warranted and the employee will have the opportunity to present
evidence that it was not. A decision of MSPB is binding unless set aside on
appeal to federal court.
The Court of Appeals begins its opinion by explaining that O’Hara
was
employed as a Supervisory Detention and
Deportation Officer in the Enforcement and Removal Operations Directorate of
the Department of Homeland Security's Immigration and Customs Enforcement
Agency. On February 28, 2012, an employee reported that O'Hara was viewing
sexually explicit images on his government computer.
The Department began an investigation
into the matter. It conducted a forensic analysis of the government computers
used by O'Hara, which revealed that over a four-month period he had accessed
over 500 sexually explicit images, websites, and links, and conducted numerous
searches for sexually explicit materials.
During the investigation, O'Hara was
interviewed, under oath, and asked several questions about the allegations that
he viewed pornographic materials. He, at first, denied that he deliberately
viewed such images, but then, after being shown the images discovered during
the forensic analysis, admitted that he had accessed them.
O’Hara v. Department
of Homeland Security, supra.
On April 12, 2013, the Department of Homeland Security
notified O'Hara of its intention to
remove him based on two charges: (1) his lack of candor during his interview;
and (2) his unauthorized use of government computers to view sexually explicit
images. The lack of candor charge contained two specifications. One asserted
that O'Hara was initially less than truthful when he denied viewing pornography
on his government computer, because he later admitted having viewed them when
confronted with the sexually explicit images.
The second asserted that O'Hara was
less than truthful when he stated that he did not think it was a violation to
access unblocked sexually explicit images on his government computers, because
he had received annual training on what use is authorized on government
equipment that explained that such use is prohibited. The
unauthorized-use-of-government-computers charge contained seventeen
specifications, based on different dates that O'Hara downloaded or viewed
sexually explicit materials or conducted sexually explicit searches.
O’Hara v. Department
of Homeland Security, supra.
The opinion goes on to explain that O’Hara
submitted a sworn oral reply to the
proposed removal. Thereafter, on August 23, 2013, the Department notified
O'Hara that it continued to believe the evidence supported the counts against
him and dismissed him from his position. O'Hara appealed to the [Merit Systems
Protection] Board, contesting guilt on all of the charges and the
reasonableness of the removal penalty.
O’Hara v. Department
of Homeland Security, supra.
The Court of Appeals began its analysis of the issues O’Hara
raised on appeal by explaining that
[o]ur review of the Board's decision is
limited. Under 5 U.S. Code § 7703(c), we must affirm any action, finding,
or conclusion that is not: (1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with the law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported
by substantial evidence.
O’Hara v. Department
of Homeland Security, supra.
It wen on to note that in his appeal, O’Hara asserted that “the
[Merit Systems Protection] Board erred in affirming the lack of candor charge
and removal penalty.” O’Hara v.
Department of Homeland Security, supra.
The Court of Appeals then began its analysis of O’Hara’s
appeal by explaining that the
Board's affirmance of the lack of
candor charge was supported by substantial evidence, because the record contains
`such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’ Wrocklage v. Dep't of Homeland Security, 769 F.3d
1363 (U.S. Court of Appeals for the Federal Circuit 2014).
As the Board explained, O'Hara's
assertion that his lack of candor was due to a misunderstanding is
unpersuasive. In defense of his false statement that he had not used government
computers to view pornography, O'Hara asserted that he thought Mr. Lam was
asking him about distribution and downloading, not viewing.
But this is contradicted by the plain
language of the question, which did not ask O'Hara about whether he downloaded
or distributed pornographic images, but whether he `viewed’ them. . . . It is
also contradicted by his own answers about deleting email messages containing
`off-color’ material, J. . . which show that he understood Mr. Lam's questions
were not merely about downloading and distributing.
O’Hara v. Department
of Homeland Security, supra.
You can, if you are interested, find the Merit Systems
Protection Board’s opinion in this case here.
The Court of Appeals went on to point out that
[m]oreover, substantial evidence supports
the Board's finding that O'Hara lacked candor when he claimed that he did not
think that viewing sexually explicit images on government computers is
prohibited because the sites where they came from were not automatically
blocked. O'Hara admitted he received mandatory training on the proper use of
government computers, and thus O'Hara knew or should have known that accessing
such materials was prohibited.
Additionally, the Board correctly
concluded that it is inherently improbable that O'Hara did not understand that
viewing pornography on government computers is prohibited, since he was a GS–13
supervisor with over twenty-four years of government service. Accordingly,
substantial evidence supports the Board's affirmance of the lack of candor
charge.
O’Hara v. Department
of Homeland Security, supra.
It also found that the Merit Systems Protection Board’s
affirmance of the removal penalty was not
arbitrary or capricious. O'Hara argues that the Board erred because it rejected
some of his submitted comparators involving last-chance settlement agreements,
and because the removal penalty outweighed the disciplinary infraction under
the factors set forth by Douglas v. Veterans Admin., 5
M.S.P.R. 280 (1981). Both of these arguments are unpersuasive.
As we have explained, `[d]isparate
treatment is not shown by comparing a penalty imposed by an agency with one
emanating from a settlement agreement.’ Dick v. U.S. Postal Serv., 975
F.2d 869 (U.S. Court of Appeals for the Federal Circuit 1992) (Table).
Thus, the Board did not act arbitrarily
or capriciously in refusing to use last-chance settlement agreements as
comparators.
O’Hara v. Department
of Homeland Security, supra.
The Court of Appeals went on to explain that it did
not find that the Board acted
arbitrarily or capriciously in affirming the Department's removal penalty.
Although a removal penalty is severe, it is within the Board's discretion so
long as the decision `reflects a reasoned concern for the factors appropriate
to evaluating a penalty.’ Kumferman v. Dep't of Navy, 785 F.2d 286 (U.S.
Court of Appeals for the Federal Circuit 1986). . . . That is precisely the
situation here.
When analyzing the Douglas v.
Veterans Admin., supra factors, the Department identified O'Hara's
mitigating factors, including his 24 years of government experience and good
job performance, his emotional issues resulting from his divorce, and the fact
that the offense was not high profile.
However, the Department also identified
several aggravating factors, such as O'Hara's prior and fairly recent
discipline for misuse of a government-issued travel credit card, his position
as a law enforcement officer and supervisory official, the deciding official's
loss of confidence in O'Hara's ability to perform his job duties, the fact that
O'Hara knew his conduct was prohibited, the deciding official's assessment that
he was not a good rehabilitation candidate, and the fact that other sanctions
were insufficient to deter his or other employees' future misconduct.
The Department carefully weighed these
considerations and determined that removal was appropriate. The Board's review
of this analysis shows a reasoned concern for applying the Douglas v.
Veterans Admin. factors appropriately, and accordingly we decline to
disturb its affirmance of the removal penalty.
O’Hara v. Department
of Homeland Security, supra.
The Court of Appeals therefore held that “because the
Board's decision was supported by substantial evidence and was not arbitrary or
capricious, we affirm.” O’Hara v.
Department of Homeland Security, supra.
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