UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILBERT J. MARCEAU,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-0752-16-0215-I-1

DATE: November 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Edelblute, Esquire, Kennewick, Washington, for the appellant.

Anna Roe, Esquire, Portland, Oregon, 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 his 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 

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

¶2 The appellant served as an irrigation system manager with the agency’s 

Bureau of Indian Affairs (BIA), and was required to regularly operate a 

Government owned vehicle (GOV) as part of his job duties. Initial Appeal File 

(IAF), Tab 8 at 16, 67-72. The appellant was arrested for driving under the 

influence on January 29, 2015, and subsequently pled guilty to negligent driving 

in the first degree on March 6, 2015. Id. at 35-37, 41-42. The agency suspended 

the appellant’s driving privileges of a GOV following his arrest, and it 

temporarily detailed him to an alternative position. Id. at 43-44. Following his 

guilty plea, the agency reevaluated the appellant’s driving eligibility and 

determined that he was ineligible to operate a GOV under the agency’s motor 

vehicle operation policy because he was “convicted of a criminal offense related 

to a traffic incident involving alcohol or drugs, including but not limited to 

vehicular homicide, vehicular manslaughter, or endangerment.” Id. at 38-39, 62. 

¶3 The agency proposed the appellant’s removal on one charge of failure to 

maintain a requirement of his position. Id. at 28-34. The appellant submitted a 

written reply, and the deciding official issued a decision letter sustaining the 

charge and finding the appellant’s removal reasonable. Id. at 17-22, 25-27. The 

appellant thereafter filed an initial appeal raising due process and harmful error 

affirmative defenses concerning the manner in which the agency revoked his 
3

driving privileges. IAF, Tab 30.

2

 The administrative judge held a hearing at the 

appellant’s request and issued an initial decision sustaining his removal, finding 

that the agency proved its charge, nexus, and that the penalty of removal was 

reasonable. IAF, Tab 45, Initial Decision (ID) at 5-8, 12-18. The administrative 

judge rejected the appellant’s due process and harmful error affirmative defenses 

insofar as he challenged the agency’s terminating his driving privileges, and she 

found that he received adequate notice of the charge against him and an 

opportunity to reply, and that he failed to establish harmful procedural error as to 

the removal action. ID at 10-12. 

¶4 The appellant has filed a petition for review arguing that his guilty plea to a 

charge of negligent driving in the first degree should not have terminated his 

driving privileges because it was not as serious as the other offenses listed in the 

agency’s policy requiring the immediate termination of driving privileges. 

Petition for Review (PFR) File, Tab 1 at 4-5. The appellant also argues he

did not have to operate a GOV in order to perform the essential duties of his 

position, and that the agency therefore cannot establish nexus, and he asserts he 

was subjected to a harsher penalty as compared to other employees who also lost 

their driving privileges. Id. at 6-7. The agency has filed a response in opposition 

to the petition for review. PFR File, Tab 5. 

¶5 We agree with the administrative judge that the agency proved its charge 

that the appellant failed to maintain a requirement of his position. The 

appellant’s position description provides that he was responsible for overseeing 

the “equitable water delivery to 800 to 1033 water users on 43,000 to 51,000 

acres,” and that he was “[r]equired to operate a government owned or leased 

motor vehicle on official business.” IAF, Tab 8 at 69, 71. As a supervisor, the 

appellant was also responsible for overseeing the delivery of water, as well as 

 

2 As explained below, although the appellant also asserted a discrimination affirmative 

defense, he withdrew that defense prior to the completion of the hearing. See infra

at n.5. 
4

construction and maintenance activities within one of three geographic districts, 

and he supervised a team of employees working in the field, which required him 

to travel the district on a regular basis. Id. at 70-71; see ID at 2 (citing 

hearing testimony). 

¶6 Pursuant to the agency’s motor vehicle operation policy, the driving 

privileges of employees who hold positions requiring the operation of a GOV will

be terminated immediately upon their arrest or conviction for certain criminal 

offenses. IAF, Tab 8 at 57, 62. Among the grounds for immediate termination 

are being “arrested for, charged with, or convicted of a criminal offense related to 

a traffic incident involving alcohol or drugs, including but not limited to 

vehicular homicide, vehicular manslaughter, or endangerment.” Id. at 62. Here, 

the appellant pled guilty to negligent driving in the first degree, which under 

Washington state law is defined as operating “a motor vehicle in a manner that is 

both negligent and endangers or is likely to endanger any person or property, [by 

a person who] exhibits the effects of having consumed liquor or marijuana[.]” 

Wash. Rev. Code § 46.61.5249(a)(1) (2013). 

¶7 We concur with the administrative judge that the appellant’s plea of guilty 

to negligent driving in the first degree qualifies as a criminal offense related to a 

traffic incident involving alcohol under the agency’s policy, and that the agency 

properly relied upon his guilty plea in revoking his driving privileges. ID at 5-8. 

We disagree with the appellant’s argument that negligent driving in the first 

degree is a less serious offense than those specifically listed in the agency’s 

policy, namely “vehicular homicide, vehicular manslaughter, or endangerment.” 

IAF, Tab 8 at 62. The agency’s policy makes clear that an employee’s driving 

privileges will be terminated if he is “convicted of a criminal offense related to a 

traffic incident involving alcohol or drugs,” and the examples listed are preceded 

by the caveat that they “includ[e] but [are] not limited to” certain offenses. Id. 

Negligent driving in the first degree under Washington law, moreover, involves 

operating “a motor vehicle in a manner that is both negligent and 
5

endangers . . . any person or property.” Wash. Rev. Code § 46.61.5249(a)(1). 

We thus find that his guilty plea to negligent driving in the first degree falls 

within the explicit reference to a criminal offense related to a traffic incident 

involving endangerment, and that the agency proved its charge by preponderant 

evidence.3 IAF, Tab 8 at 62; ID at 6‐8. 

¶8 The Board has previously found that an adverse action based on an 

employee’s failure to maintain a requirement of his position, such as a license or 

certification, promotes the efficiency of the service, and we find no reason to 

depart from this principle in this case. See Penland v. Department of the Interior, 

115 M.S.P.R. 474, ¶ 11 (2010); Adams v. Department of the Army, 105 M.S.P.R. 

50, ¶ 19 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008). Additionally, the 

agency’s temporary accommodation of the appellant’s inability to operate a GOV 

neither requires the agency to continue that accommodation nor precludes it from 

taking an adverse action based on the appellant’s failure to maintain a 

requirement of his position. See Benally v. Department of the Interior, 

71 M.S.P.R. 537, 540 (1996). We find the appellant’s argument on review that 

the agency could have continued accommodating his inability to operate a GOV, 

and thus should not have removed him, unpersuasive. Id. 

¶9 We have also considered the appellant’s due process and harmful error 

arguments and discern no error with the administrative judge’s findings that the 

appellant failed to prove either defense. ID at 9-12. We concur with the 

administrative judge that the appellant received notice and an opportunity to 

respond to the charge against him under chapter 75, and we agree that the 

 

3 We similarly find that the agency properly revoked the appellant’s driving privileges 

under its motor vehicle operation policy upon learning of his guilty plea. See Adams v. 

Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007) (stating that when a charge is 

based on an employing agency’s withdrawing or revoking a certification or approval of 

the employee’s qualifications to hold his position, the Board’s authority generally 

extends to a review of the merits of the withdrawal or revocation), aff’d, 273 F. App’x 

947 (Fed. Cir. 2008); ID at 6-8. 
6

appellant has failed to demonstrate he has a vested property interest in operating a 

GOV under the agency’s motor vehicle operation policy that is subject to due 

process protections. See Gajdos v. Department of the Army, 121 M.S.P.R. 361, 

¶ 13 (2014) (explaining that a property interest subject to due process can be 

created by statutes or rules); ID at 10; IAF, Tab 8 at 56-66. The appellant, 

moreover, has failed to demonstrate that the agency erred in applying any of its 

procedural protections that likely had a harmful effect on his removal, and thus

has failed to prove harmful procedural error. See Goeke v. Department of Justice, 

122 M.S.P.R. 69, ¶ 7 (2015). 

¶10 Finally, we have considered the appellant’s challenge to the reasonableness 

of his removal, and we find no basis to disturb the agency’s penalty 

determination. The administrative judge found that the deciding official 

conscientiously weighed all of the factors in considering the proposed penalty, 

including the seriousness of the charge, the appellant’s inability to perform the 

functions of his position, and the availability of alternative sanctions, such as 

reassignment. ID at 13. The Board has found removal for failure to maintain a 

requirement of a position reasonable under similar circumstances. See Penland, 

115 M.S.P.R. 474, ¶¶ 11-12; Adams, 105 M.S.P.R. 50, ¶ 19; Benally, 71 M.S.P.R. 

at 542. We defer to the administrative judge’s factual findings that there existed 

no alternative positions to which the appellant could be transferred, and that the 

agency could not continue accommodating the appellant by having other 

employees drive the appellant around the district. See Benally, 71 M.S.P.R. 

at 540; ID at 13. 

¶11 The appellant also challenges the administrative judge’s consideration of 

his claim of disparate penalties. PFR, Tab 1 at 7. To prove a claim of disparate 

penalties, the appellant must first show that there is enough similarity between 

the nature of the misconduct and other relevant factors to lead a reasonable 

person to conclude that the agency treated similarly situated employee s

differently. See O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340, 
7

¶ 21 (2016). If the appellant meets this showing, the burden shifts to the agency 

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

the evidence. Id. 

¶12 In her initial decision, the administrative judge conducted a detailed 

analysis of the appellant’s claim of disparate penalties based upon four proffered 

comparators. ID at 14-18. On review, the appellant challenges the administrative 

judge’s findings with regard to two of the comparators.4 PFR File, Tab 1 at 7. 

Based on our review of the record, we agree with the administrative judge that 

one of the comparators, D.D., is not a similarly situated comparator because he 

voluntarily resigned from employment with the agency in 2007 following a motor 

vehicle accident and was rehired in 2013 after receiving his certification to 

operate a GOV based on an absence of disqualifying criminal offenses during the 

preceding 4-year period. IAF, Tab 38 at 8-11; ID at 17 (citing hearing 

testimony). We concur with the administrative judge that the appellant did not 

meet his initial burden on his claim of disparate penalties with respect to 

comparator D.D. ID at 17. 

¶13 We find, however, that the appellant met his initial burden of proving a 

disparate penalties claim with respect to comparator M.F. The record 

demonstrates that comparator M.F. was reassigned to a work location that did not 

require driving after being arrested for driving under the influence in 2007 and 

being disqualified from operating a GOV between 2010 and 2012. ID at 15 

(citing hearing testimony); IAF, Tab 39 at 15-16. In finding comparator M.F.

dissimilar from the appellant, the administrative judge explained that M.F. was a 

nonsupervisory employee, whereas the appellant was a supervisor; M.F. was 

assigned to a different work unit; and that the deciding official involved in the 

appellant’s removal was not involved in making any decisions with regard to 

 

4 We agree with the reasons cited by the administrative judge in her initial de cision that 

the appellant did not meet his initial burden of proving disparate penalties with regard 

to the remaining comparators. ID at 16-17. 
8

comparator M.F. ID at 16. Based on the similarity of the charges and the 

differing penalties imposed on M.F. and the appellant, however, we find that the 

appellant met his initial burden of demonstrating his claim of disparate penalties. 

See Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 12 (2014).

¶14 We rely, however, on the reasons cited by the administrative judge in her 

initial decision in concluding that the agency has presented a legitimate reason for 

the differing treatment. See, e.g., Davis v. U.S. Postal Service, 120 M.S.P.R. 457, 

¶¶ 13-15 (2013) (concluding that the agency demonstrated a legitimate basis for 

imposing differing penalties). Specifically, we agree that the appellant’s 

supervisory status, the attenuation between M.F.’s reassignment in 2007 and the 

appellant’s removal in 2015 (approximately 8 years), and the different agency 

officials involved in both cases provide a legitimate reason for the difference in 

penalties. We additionally defer to the administrative judge’s factual findings

that the deciding official consistently imposed removal in similar cases in which 

he served as the deciding official, and that he considered reassigning the 

appellant but determined that there were no vacant positions into which the 

appellant could be transferred. See ID at 13, 16.

¶15 We accordingly find that the agency did not subject the appellant to a 

disparate penalty in effecting his removal, and that the penalty of removal is 

otherwise reasonable under the circumstances of this case and should be affirmed. 

See Davis, 120 M.S.P.R. 457, ¶ 6 (finding that when all of the charges have been 

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). 
9

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS5

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: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 United States 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 

United States 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 

 

5 Although the initial decision contains notice of mixed-case appeal rights, see ID 

at 22-23, the appellant withdrew his discrimination affirmative defense during the 

hearing. Accordingly, in the absence of any discrimination claims, we provide the 

appellant proper non-mixed appeal rights to the U.S. Court of Appeals for the Federal 

Circuit. See Johnson v. U.S. Postal Service, 120 M.S.P.R. 87, ¶ 12 (2013); ID at 9 n.3. 
10

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.

______________________________

Jennifer Everling

Acting Clerk of the Board