NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3088 HOWARD M. ZWAGIL, Petitioner,

v. GENERAL SERVICES ADMINISTRATION, Respondent.

___________________________ DECIDED: February 1, 2006

___________________________ Before MICHEL, Chief Judge , BRYSON, and DYK, Circuit Judges

. BRYSON, Circuit Judge

. Until his removal in March 2004, Howard Zwagil was employed as a police officer with the Federal Protective Service, an agency within the Department of Homeland Security. He was removed from his pos ition based on two charges: (1) deliberate refusal to carry out assigned duties where t he safety of persons and/or property is involved; and (2) making a threatening comm ent in the workplace. He appealed the removal action to the Merit Systems Prot ection Board, but the Board sustained the agency’s action. Docket No. PH-0752-04-0421- I-1. We uphold the Board’s finding sustaining the charge of deliberate refusa l to carry out assigned duties, but we vacatethe Board’s final decision and remand to the Board for further proceedings with regard to the appropriateness of the penalty of removal.
I As a police officer with the Federal Pr otective Service (“FPS”), Mr. Zwagil was responsible for patrolling and inspecting build ings occupied by federal employees and agencies. Mr. Zwagil’s employment record contained several disciplinary actions for failure to carry out his patrol duties. In June 2000, he was suspended for five days for failing to follow supervisory instructions to visit all buildings and offices in accordance with governing orders. In May 2003, Mr. Zwagil was again suspended for failing to follow required patrol procedures. In August 2003, the FPS cr eated a performance improvement plan for Mr. Zwagil that set forth specific performance standar ds. Included among those standards was the requirement that Mr. Zwagil ca rry out his patrol duties. In November 2003, according to the agency, Mr. Zwagil failed to complete t he inspection of his assigned buildings on several occasions. As a result, his super visor issued a notice of proposed removal, charging him with deliberate refusal to carry out assigned duties. The notice stated that Mr. Zwagil “repeatedly failed to complete inspection and patrol of [his] assigned buildings,” and it alleged that his “continuing failure to carry out [his] assigned patrol, despite many counseling sessions and training, is a gross violation of [his] sworn duty, and could have a serious impact on the protec tion of people and property, as well as on the professional image of [the FPS].” The notice concluded that “removal of a Police Officer who is capable of complying with or ders, but who, after many counseling

05-3088 2sessions and training does not comply, is for su ch cause as promotes the efficiency of the Federal Service.” Mr. Zwagil did not respond to the notice of proposed removal. Upon receiving the notice of proposed remo val, Mr. Zwagil stated to a co-worker that he “was going to take the rest of the day off because if I don’t and hang around here, I will probably end up hurting someone.” That statement was reported to Mr. Zwagil’s supervisor, who subsequently am ended the notice of proposed removal to include a second charge of making a thr eatening comment in the workplace. In March 2004, the deciding official, Deputy Regional Director Michael Grieco, issued a notice of removal. The notice stated that Mr. Zwagil had “exhibited a continuous pattern of misconduct and poor performanc e for at least the last four years.” It noted that Mr. Zwagil’s “well-documented hist ory of failing to perform even the most basic of assignments is highly detrimental to the mission of this organization” and that “[r]epeated, painstaking, and time-consuming e fforts . . . to correct [Mr. Zwagil’s] behavior and performance have been fruitless.” T he notice further stated that “[m]ore importantly, as a law enforcement officer in the Department of Homeland Security, Federal Protective Service, for you to make a threatening comment in the workplace is so entirely contrary to our mission and values that I cannot possibly have you continue as a representative of this agency.” Mr. Zwagil appealed his removal to the Merit Systems Protection Board. The administrative judge who was assigned to the case sustain ed the charge of deliberate refusal to carry out assigned duties. She explained that “[b]ecause there is no evidence that the appellant’s failure to inspect and monitor the buildings was the result of oversight or was inadvertent, I fi nd the appellant’s actions were deliberate.”

05-3088 3However, the administrative judge did not sustain the char ge of making a threatening comment in the workplace. Although she found that Mr. Zwagil had made the statement in question, she concluded that his stat ement was not intended to be threatening. The administrative judge then evaluat ed the penalty imposed by the agency, observing that “when not all of the agency’ s charges are sust ained, the Board will independently and responsibly balance the relevant factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981), in order to determine a reasonable penalty.” The admin istrative judge explained that “[i]n determining whether the selected penalty is r easonable, the Board gives due deference to the agency’s discretion in exercising its managerial functi on of maintaining employee discipline and efficiency” and that 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 t hat the penalty selected by the agency does not exceed the maximum limits of reasonableness.” The administrative judge noted that the deciding official, Deputy Director Grieco, testified that he had considered the Douglas factors in determining the appropriate penalty. She ex plained that “Mr. Grieco concluded that the agency’s obligation to protect the people who work, visi t, or come into . . . government facilities . . . outweighed the mitigating factors of the appellant’s long Federal service record.” Furthermore, the administrative judge stated that the “agency properly consi dered the appellant’s prior disciplinary record consisting of a 5-day and a 10-day suspension.” The administrative judge also rejected Mr. Zwagil’s argument that the removal action could not be sustained because a co-worker, Officer Graham, had not been

05-3088 4disciplined for failing to inspect all of the buildings assigned to her. The administrative judge explained that “the Board has held that where the punish ment is appropriate to the seriousness of the offense, an allegation of disparate penalties is not a basis for reversal or mitigation.” Because the adm inistrative judge concl uded that removal was an appropriate penalty under the circumstances , she sustained the penalty. Mr. Zwagil then petitioned this court for review of the Board’s decision.
II Mr. Zwagil first contends that the admin istrative judge erred in sustaining the charge of deliberate refusal to carry out assigned duties. He argues that a memorandum from his supervisor instructed offi cers that they did not have to patrol every assigned building and that it was therefore permissible for him not to patrol every building each day. That is a misinterpretation of the memorandum in question. The memorandum states: “You will check each build ing you are assigned at different times each day . . . . This doesn’t mean you check every floor but observe/patrol the interior of the building, the l obby, guard posts, etc.” Officers thus were not required to patrol each floor of each building, but were instru cted that they must “check each building you are assigned at different times each day.” Mr. Zwagil also argues that his failure to patrol the buildings assigned to him was not deliberate. The adminis trative judge, however, found t hat there was no evidence that Mr. Zwagil’s failure to inspect and moni tor the buildings “was the result of an oversight or was inadvertent,” and she relied on the testimon y of Mr. Zwagil’s supervisor that Mr. Zwagil had the ability to do his job, but “does what he wants to do rather than doing what is required.” We conclude that substantial ev idence supports the

05-3088 5administrative judge’s finding t hat Mr. Zwagil deliberately refused to carry out his assigned duties. Mr. Zwagil next argues that the penalty of removal was unreasonably harsh. The administrative judge, however, reviewed t he evidence regarding the penalty in detail and concluded that “the agency has shown t hat the appellant’s misconduct seriously impacted the supervisors’ ability to accomplis h the goals of the agency.” She noted that “where it is demonstrated that an employee deliberately faile d to carry out assigned work orders, the Board has found that remo val action promotes t he efficiency of the service.” In addition, she found that it was proper for the agency to take into consideration those aspects of Mr. Zwagil’s di sciplinary record that were part of the record before the Board. With respect to Mr. Zwagil’s contenti on that he was subjected to disparate treatment because another police officer was not disciplined for similar misconduct, the evidence did not show that the other officer was similarly sit uated. The other officer was much less experienced than Mr. Zwagil, and the evidence did not reflect that she had a similar disciplinary record or that she was working under a performance improvement plan. Moreover, as the admin istrative judge explained, the Board has held that if an employee’s punishment is determined to be appropriate to the seriousness of the offense, the fact that some other employee may not have been given the same punishment for similar misconduct does not require that the penalty imposed on the charged employee must be reversed or mitigated. Finally, Mr. Zwagil argues that the adm inistrative judge did not properly assess the appropriateness of the penalty in light of the fact that only one of the two charges

05-3088 6was sustained. Citing the reference in the removal notice to the threatening comment charge, Mr. Zwagil contends t hat the agency might have imposed a lesser penalty if the deliberate refusal charge had stood alone. In the removal notice, after sustaining the charge of refusing to carry out assigned dutie s, Deputy Director Grieco turned to the charge of making a threateni ng comment in the workplace, and stated: “More importantly, as a law enforcement officer . . . , for you to make a threatening comment in the workplace is so entirely contrary to our mission and values that I cannot possibly have you continue as a representative of this agency.” Based on Deputy Director Grieco’s characterization of the unsustai ned charge as “more impor tant[ ],” Mr. Zwagil argues that it was improper fo r the Board to uphold the penalty of removal based solely on the sustained charge. This court has held that “[w]hen the Boar d sustains fewer than all of the agency’s charges, the Board may mitigate to the ma ximum reasonable penalty so long as the agency has not indicated either in its final decision or during proceedings before the Board that it desires that a lesser penalty be imposed on fewer charges.” LaChance v. Devall , 178 F.3d 1246, 1260 (Fed. Cir. 1999) . If the Board “discerns from the record or the proceedings that the agency desires imposition of a le sser penalty the Board must accord the agency an opportunity to in stitute such a lesser penalty.” Id. B u t i f t h e Board determines that the agency “ has not indicated either in its final decision or during proceedings before the Board that it desires a lesser penalty be imposed on fewer charges,” the Board may uphold the penalty of removal if it regards that penalty as falling within the maximum reasonable penalty for the sustained charge. Id. ; see also Russo v. U.S. Postal Serv. , 284 F.3d 1304, 1310 (Fed. Cir. 2002).

05-3088 7In one respect, the administrative judge in this case did not follow the procedure set forth in LaChance v. Devall . That is, the administrative judge did not focus on whether there was any indication in the re cord that the agency would have imposed a lesser penalty if the penalty determinati on had been based solely on the sustained charge. Instead, citing the Board’s decision in White v. United States Postal Service , 71 M.S.P.R. 521, 525-27 (1996), t he administrative judge stated that “when not all of the agency’s charges are sustained, the Boar d will independently and responsibly balance the relevant factors . . . to determine a reasonable penalty.”
In LaChance v. Devall , this court rejected the approac h set forth by the Board in the White case, in which the Board announced that, in cases in which fewer than all the charges were sustained, it would independent ly determine what penalty to impose. See 178 F.3d at 1249; see also Negron v. Dep’t of Justice , 95 M.S.P.R. 561, 572 (2004). In this case, rather than independently det ermining the appropriate penalty, the administrative judge should have first dete rmined whether the record contained any indication that the agency would have im posed a lesser penalty based only on the sustained charge. Because that inquiry is a highly fa ctual one, we decline to make that determination ourselves and instead remand th is case to the Board to determine whether anything in the record indicates that the agency would have imposed a lesser penalty based solely on the char ge of deliberate refusal to carry out assigned duties. The Board’s inquiry into whether the agency would have imposed a lesser penalty should include consideration of the decision letter itself and in particular the portion stating “[m]ore importantly . . . for you to make a threat ening comment in the workplace

05-3088 8is so entirely contrary to our mission and values that I cannot possibly have you continue as a representative of this agency.” If the Board finds that the record indicates the agency would have imposed a lesser penalty , the Board must give the agency an opportunity to institute a lesser penalty. On t he other hand, if the B oard finds that there is no indication in the record that the agency would have imposed a lesser penalty if it had considered only the sustained charge, t he Board may uphold the penalty imposed if it concludes that the penalty was not in excess of the maximum reasonable penalty for the sustained offense.

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