UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL L. MACIAS,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-15-0385-I-2

DATE: June 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joel J. Kirkpatrick, Esquire, Plymouth, Michigan, for the appellant. 

Michael L. Halperin, Esquire, Monterey, California, 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 

affirmed the agency’s removal action. 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 erroneous application of the law to the facts of the case; the administrative 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly 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 Parties may cite nonprecedential orders, 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

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 and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 Prior to his removal, the appellant was a Police Officer, GS-0083-06, at the 

U.S. Army Garrison Presidio of Monterey, California. Macias v. Department of 

the Army, MSPB Docket No. SF-0752-15-0385-I-1, Initial Appeal File (IAF),

Tab 8 at 6. He was removed based on four charges, which are summarized 

as follows: 

1. Failure to observe written regulations, orders, rules or 

procedures (where safety to persons or property is

endangered), a charge arising from the appellant’s unsafe 

operation of his police vehicle during the overnight shift on 

September 26, 2014 (four specifications). Such activity 

violated the California Vehicular Code and agency Standard 

Operating Procedures (SOPs). 

2. Failure to observe written regulations, orders, rules or 

procedures (where safety to persons or property is not 

endangered), a charge arising from the appellant’s second 

offense of engaging in police operations outside of the 

jurisdiction of the department during the overnight shift on 

September 26, 2014 (two specifications). Such activity 

potentially violated restrictions on military aid to civilian law 

enforcement imposed by 18 U.S.C. § 1385, commonly known 
3

as the Posse Comitatus Act, and violated agency SOPs 4.15 

and 5.18. 2

 

3. Misuse of government property (patrol vehicle), a charge 

based on the appellant’s use of his vehicle for other than 

official purposes during the overnight shift on 

September 26, 2014. 

4. Conduct Unbecoming a Federal Employee, a charge based on 

the appellant’s allegedly untruthful responses during an 

agency investigation of his activity on September 26, 2014 

(2 specifications). 

IAF, Tab 9 at 7-9. 

¶3 On appeal, the administrative judge found that witness testimony and 

dashboard videos clearly substantiated the first charge. Macias v. Department of 

the Navy, MSPB Docket No. SF-0752-15-0385-I-2, Appeal File (I-2 AF), Tab 17, 

Initial Decision (ID) at 3. Indeed, the appellant admitted to the underlying facts. 

See, e.g., IAF, Tab 12 at 22-23. The administrative judge sustained the second

charge after finding the appellant’s account of his activities during his shift on 

September 26, 2014, to be less than credible. ID at 4-6. The administrative judge

sustained the third charge, as the appellant had admitted to the underlying facts. 

ID at 7. The administrative judge declined to sustain the fourth charge because 

he could not discern how the appellant had been untruthful during the 

investigation. ID at 8. The administrative judge found that the agency 

established nexus and the three sustained charges warranted the penalty of 

removal. 3

 ID at 9-13. 

¶4 The appellant challenged the removal penalty and proffered evidence 

regarding several comparator employees. ID at 11-12; I-2 AF, Tab 4 at 20-106,

Tab 5 at 4-34. The administrative judge found that the agency proved by 

 2 These SOPs are located at IAF, Tab 17 at 4-7, 15-21. 

3 The appellant does not appear to challenge the administrative judge’s findings 

regarding the charges and nexus on review. Thus, we do not further address these 

findings on review. 
4

preponderant evidence the legitimate reasons for the difference in treatment 

between the appellant and the comparators. ID at 12-13. The administrative 

judge further found that the penalty of removal in this case did not exceed the 

bounds of reasonableness in light of the proposing and deciding officials’ careful 

consideration of all the relevant factors. ID at 13. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant argues on review that the deciding official failed to consider 

all of the relevant factors set forth in Douglas v. Veterans Administration, 

5 M.S.P.R. 280, 305-06 (1981), because he did not actually request or review 

records from several disciplinary cases involving similarly situated police officers 

before he issued the removal decision. Petition for Review (PFR) File, Tab 1 

at 5, 11-19. Yet, the appellant explains, the deciding official stated in the 

decision notice that he found “the penalty of removal . . . consistent with the table 

of penalties (as cited in the proposal letter) and with other actions at this 

installation.” Id. at 18; IAF, Tab 8 at 9. Thus, the decision notice, he concludes, 

was faulty. PFR File, Tab 1 at 18. The appellant further explains that he only

became aware of comparator employees during discovery. Id. at 16; see I-2 AF,

Tab 5 at 35-67. For these reasons, he argues, the agency violated his right of 

procedural due process. PFR File, Tab 1 at 16; see id. at 26-28. 

¶6 The appellant also contends that the administrative judge ignored the 

agency’s failure to consider comparator evidence, which he asserts supports 

mitigation of the penalty. Id. at 11, 16. Although the administrative judge 

examined the comparator evidence, the appellant argues, he “sidestepped any 

meaningful analysis concerning the discipline comparators, and [the] deciding 

official’s complete ignorance concerning [disparate] penalty.” Id. at 16. 

¶7 The Board will review an agency-imposed penalty only to determine if the 

agency considered all the relevant factors and exercised management discretion 

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. When, as 
5

here, the agency fails to prove all of its charges, the administrative judge must 

carefully consider whether the sustained charges merit the penalty imposed by the 

agency. Id. at 308. Additionally, where the appellant alleges disparate penalties 

without a claim of prohibited discrimination, he must show that the charges and 

circumstances surrounding the charged behavior are substantially similar to 

trigger the agency’s evidentiary burden on the matter. Lewis v. Department of 

Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 5-6 (2010). The Board will consider such 

an allegation in determining the reasonableness of the penalty, but an allegation 

of disparate penalties is not itself an affirmative defense. Id., ¶ 5. 

¶8 The record shows that the deciding official gave careful consideration to the 

Douglas factors. IAF, Tab 8 at 8-9; see IAF, Tab 9 at 10-11; Douglas, 

5 M.S.P.R. at 305-06. He especially considered the nature and seriousness of the 

misconduct and its relation to the appellant’s duties, position, and responsibilities 

as a law enforcement officer. IAF, Tab 8 at 8; see Edwards v. U.S. Postal 

Service, 116 M.S.P.R. 173, ¶ 14 (2010) (holding that the most important factor in 

assessing whether the agency’s chosen penalty is within the tolerable bounds of 

reasonableness is the nature and seriousness of the misconduct and its relation to 

the employee’s duties, position, and responsibilities). The agency also considered 

that the appellant, though only having served since 2009, already had a history of 

disciplinary actions. IAF, Tab 8 at 8-9, Tab 9 at 10; see Douglas, 5 M.S.P.R.

at 305 (holding that the agency, when assessing the penalty, will consider the 

employee’s past disciplinary record and his past work record, including length of 

service, performance on the job, ability to get along with fellow workers, and 

dependability). The appellant had received a 7-day suspension for failure to 

observe written regulations, orders, rules or procedures where safety of a person 

was endangered in November 2011, IAF, Tab 15 at 13; a letter of counseling for 

two instances of Absence Without Official Leave in June 2014, IAF, Tab 14

at 35; and a letter of counseling for failure to follow instructions in July 2014, id.

at 33. Additionally, he had been advised on the night of the events not to initiate 
6

interactions, but merely to respond to calls for service. IAF, Tab 11 at 14-16, 18. 

The administrative judge carefully reweighed all of these factors in light of the 

fact that one charge had not been sustained. 4

 ID at 9-11. 

¶9 As for the appellant’s proffer of comparator employees, the deciding 

official admitted that he did not ask the Civilian Personnel Office for comparator 

cases, and instead relied upon the institutional memory of the Deputy Chief, who 

was a 30-year employee of the department. I-2 AF, Tab 5 at 85-86. He explained 

that the Deputy Chief told him that he had never seen a situation as serious as this 

one. Id. at 85. The appellant asserts that the deciding official’s failure to identify 

and consider the alleged comparators violated his right of procedural due process. 

PFR File, Tab 1 at 16. 

¶10 The deciding official, however, did not deprive the appellant of the 

information upon which the penalty decision was based. See Stone v. Federal 

Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999) (holding 

that procedural due process guarantees are not met if the employee has notice of 

only certain charges or portions of the evidence and the deciding official 

considers new and material information; therefore, it is constitutionally 

impermissible to allow a deciding official to receive additional material

information that may undermine the objectivity required to protect the fairness of 

the process). The appellant clearly was aware of the Deputy Chief’s 

considerations regarding the penalty factors, because the Deputy Chief also was 

the proposing official and he included a relevant Douglas analysis in the proposal 

notice. IAF, Tab 9 at 10-11. 

¶11 Even if erroneous, the deciding official’s failure to find and address the 

specific comparators that the appellant proffered is not fatal. An agency’s error is 

harmful only where the record shows that the procedural error was likely to have 

caused the agency to reach a conclusion different from the one it would have 

 4 The administrative judge characterized the unsustained charge as “the ‘least’ of the 

four charges, under all the circumstances.” ID at 8. 
7

reached in the absence or cure of the error. Stephen v. Department of the 

Air Force, 47 M.S.P.R. 672, 681, 685 (1991). Here, the appellant has asserted 

little more than a theoretical possibility of prejudice. The Board has long held 

that such assertions are an insufficient basis for inferring actual prejudice. 

Parker v. Defense Logistics Agency, 1 M.S.P.R. 505, 514 (1980). Additionally, 

several documents related to the comparator cases show that the Chief, Deputy 

Chief, or Watch Commander in this case was the proposing or deciding official. 

See, e.g., I-2 AF, Tab 4 at 26, 42, 55, 59, 62, 73, 77, 89, 102, 106; I-2 AF, Tab 5

at 13, 21. The appellant thus cannot legitimately assert that the proposing and 

deciding officials were unfamiliar with the comparator cases. 

¶12 In any event, the administrative judge reweighed the Douglas factors in 

light of his decision not to sustain one of the charges. ID at 9-13; see Reid v. 

Department of the Navy, 118 M.S.P.R. 396, ¶ 24 (2012) (citing Douglas, 

5 M.S.P.R. at 308). In doing so, the administrative judge fully considered the 

comparator evidence. When an appellant raises an allegation of disparate 

penalties in comparison to specified employees, the agency must prove a 

legitimate reason for the difference in treatment by a preponderance of the 

evidence before the penalty can be upheld. Woebcke v. Department of Homeland 

Security, 114 M.S.P.R. 100, ¶ 20 (2010). An appellant will not make his case for 

disparate penalties unless there is enough similarity between both the nature of 

the misconduct and the other factors to lead a reasonable person to conclude that 

the agency treated similarly situated employees differently. Boucher v. U.S. 

Postal Service, 118 M.S.P.R. 640, ¶ 24 (2012). There are, however, no hard and 

fast rules regarding the “outcome determinative” nature of such factors as to 

whether the proffered comparator was in the same work unit, with the same 

supervisor, and was subjected to the same standards governing discipline. Lewis, 

113 M.S.P.R. 657, ¶¶ 12, 15. 

¶13 The appellant’s comparator evidence pertained to 14 persons, who were or 

are officers in the same department. I-2 AF, Tab 4 at 24-106, Tab 5 at 4-34. In 
8

examining the documents, which include proposal and decision letters and 

Douglas factor worksheets, the administrative judge noted that none of the 

comparators had as many as three charges levied against them, and that, unlike 

the appellant, none had three instances of prior discipline, much less already had 

been disciplined for similar misconduct. ID at 13; see IAF, Tab 9 at 10, Tab 14

at 33, 35, Tab 15 at 13. Although some comparators had been charged with 

violations related to the Posse Comitatus Act, see, e.g., I-2 AF, Tab 5 at 26, none 

had three such violations during the same shift. ID at 13; cf., IAF, Tab 9 at 8-9. 

The administrative judge noted that several comparators had expressed remorse 

for their actions, but the appellant had not. ID at 13. The administrative judge 

further noted that, unlike the appellant, some of the comparators were 

longstanding employees with outstanding performance records. Id. The 

administrative judge thus found by preponderant evidence that the comparators 

were not similarly situated and that the agency had legitimate reasons for the 

differences in treatment between the appellant and the comparators. Id.; see 

Lewis, 113 M.S.P.R. 657, ¶¶ 12, 15. Our examination of the record leads us to 

the same conclusion. 5 

¶14 The appellant raises two additional issues regarding the second charge, 

which arose from his engagement in police operations outside the department’s 

jurisdiction. He argues that the agency failed to prove that he had participated in 

such activity and instead only established that he had monitored the activities of 

another police department. PFR File, Tab 1 at 19-22. He notes that it is 

sometimes necessary for officers to travel outside of the department’s geographic 

boundaries while on duty, and that a limited amount of interaction with and 

monitoring of the activities of other police departments is acceptable. Id. at 19, 

21-22. He further argues that, although he operated his vehicle at a high rate of 

 5 The agency considered and rejected a lesser penalty. The appellant’s Watch 

Commander stated that he initially proposed a 14-day suspension with a 30-day driving 

restriction and later rescinded that proposal. IAF, Tab 11 at 27-28. 
9

speed while outside of the department’s jurisdictional boundaries, he did not 

crash his vehicle or harm pedestrians. Id. at 22. He asserts that the agency 

improperly considered what might have occurred as a result of his actions rather 

than what actually occurred. Id. The appellant’s argument is unavailing. Even if 

we were to consider only the aspects of this charge pertaining to the unsafe 

operation of the appellant’s vehicle, we find that the agency was not obligated to 

wait for tragedy to occur before disciplining an employee for dangerous behavior. 

Moreover, the appellant committed similar misconduct three times during a single 

shift. IAF, Tab 9 at 8-9. 

¶15 Similarly, the appellant argues that the agency exaggerated any possible 

violation of the Posse Comitatus Act. PFR File, Tab 1 at 26. He explains that the 

agency acknowledged that the department’s jurisdictional coverage is intertwined 

with civilian geography and reiterates his argument that comparators who violated 

the Posse Comitatus Act received lesser penalties. Id. His argument is 

unavailing. The record shows that the appellant received extensive training and 

frequent reminders regarding prevention of Posse Comitatus violations and the 

violation of SOP 5.18. I-2 AF, Tab 5 at 86-87, Tab 6 at 15-16. Additionally, as 

noted above, he committed three separate violations—more than any

comparator—on a night when the department was short staffed and he had been 

warned not to initiate police activity. IAF, Tab 9 at 8-9, Tab 11 at 14-16, 18. 

Accordingly, we affirm the initial decision. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439
10

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board