United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on Plaintiff's Opening Brief on Third Claim for Relief [Docket No. 75] filed by plaintiff/appellant Francisco Altamirano. This case arises out of Mr. Altamirano's termination from his position as a Chemical Incident Investigator for defendant/appellee the Chemical Safety and Hazard Investigation Board (the "CSB") on the basis that he misused his government travel charge card and government electronic equipment. Mr. Altamirano contends that the decision of the Merit Systems Protection Board upholding his termination lacked a rational basis in law and substantial evidentiary support. The Court's jurisdiction is based on 28 U.S.C. § 1331 and 5 U.S.C. § 7703(b)(2).
Mr. Altamirano began working for the CSB on July 15, 2002. R. at 23. As a Chemical Incident Investigator, Mr. Altamirano was responsible for organizing and conducting onsite investigations of chemical spills and reporting on his factual and analytical findings. Id. at 188-89. His work required him to travel all over the country. Id. at 3377. On July 16, 2002, Mr. Altamirano signed a Government Travel Charge Card Setup Form for a SmartPay 1 ("SP1") government travel charge card. Id. at 857, 3379. Above the signature line on the Setup Form, it says "[b]y signing this application, I acknowledge I have read the Citibank Government Card Services Travel Program Cardholder Account Agreement and agree to be bound by the terms and conditions as set forth in the Agreement." Id. at 857. The Cardholder Account Agreement states: "I agree to use the Card only for official travel and official travel related expenses away from my official station/duty station in accordance with my Agency/Organization policy. I agree not to use the Card for personal, family or household purposes." Id. at 858.
On September 11, 2007, Mr. Altamirano sent an email to another CSB employee stating that he had completed an ethics training module on the use of his government charge card. R. at 87. Slide number two of the training states: " ONLY official Government expenses incurred as a result of official duty travel may be charged to the Government travel charge card." Id. at 90 (emphasis in original). Slide number six lists the following employee responsibilities: "2. Use the Travel Card only for the purchase of official travel-related services. 3. Pay all charges by the statement due date, regardless of reimbursement by the agency." Id. at 94.
In April 2008, Mr. Altamirano confirmed that he had reviewed a Travel Refresher Power Point presentation. R. at 863. Mr. Altamirano later testified that he did not pay attention to the slides he reviewed. Id. at 3380.
In December 2008, the SP1 card was replaced by the SmartPay 2 ("SP2") card. R. at 3380. On or about December 8, 2008, Mr. Altamirano signed a Statement of Cardholder Responsibility form for the SP2 card. Id. at 876, 878, 3380. The statement provides that the "Government travel charge card can only be used for authorized official travel expenses such as transportation, lodging, and meals.... The card may not be used for personal expenses at any time. Misuse of the card is subject to disciplinary action." Id. at 878. The face of both the SP1 and SP2 cards carries the following notice: "For Official Government Travel Only." R. at 3381.
The CSB's travel charge card program is administered by the Bureau of Public Debt (the "BPD"), an agency within the United States Treasury Department. R. at 3381. Before March 2009, the CSB did not receive any notices from the BPD regarding Mr. Altamirano's use of his travel charge card. Id. On March 4, 2009, the BPD sent Anna Johnson (now Anna Brown), the CSB's Director of Administration, a Citibank Monthly Delinquency Report indicating that Mr. Altamirano and five other CSB employees were past due on their SP2 accounts. Id. at 880-81. On March 9, 2009, the BPD sent Ms. Brown a Delinquency Report for SP1 cardholders, on which Mr. Altamirano was also listed as carrying a past due balance. Id. at 889-90. Ms. Brown and Elizabeth Robinson, the CSB's Director of Financial Operations, reviewed the Delinquency Reports and noticed that Mr. Altamirano had made a number of purchases while he was not traveling for work. Id. at 3382. The CSB obtained a report from the BPD listing Mr. Altamirano's government travel charge card transactions since September 2005. Id. at 892. The report confirmed that Mr. Altamirano had made charges on his government travel charge card that were not related to his work. Id. at 3382. This information led the CSB to place him on administrative leave on March 19, 2009 so it could investigate the matter further. Id.
After further investigation, the CSB determined that, between September 30, 2005 and November 30, 2008, Mr. Altamirano used his SP1 card for 322 transactions unrelated to government travel, amounting to $22, 843.09. R. at 3380. Between December 1, 2008 and March 10, 2009, he used his SP2 card for 27 transactions unrelated to government travel, for a total of $2, 626.04. Id. at 3381. He did not timely pay his SP1 card balance for 64 out of 80 billing cycles; he did not timely pay his SP2 card balance for three out of six billing cycles. Id. at 3382. His total past due balances accounted for sixty-one percent of all past due balances for CSB employees between January 2007 and February 2009. Id. at 2395.
The CSB further found that Mr. Altamirano's accounts were past due fifteen times between January 2007 and February 2009. Docket No. 75 at 6. During the same period, the CSB found that an employee referred to as Male 6 was past due on his travel charge card account seven times; an employee referred to as Female 7 was past due five times; an employee referred to as Female 3 was past due four times; and employees referred to as Female 6, Male 11, and Female 11 were each past due one time. R. at 3397. The CSB investigated the nature of the charges incurred between January 1, 2008 and March 13, 2009 by Female 3, Female 6, Female 7, Female 11, Male 6, and Male 11. Docket No. 75 at 7; R. at 2361-381. The CSB found only one other incident of card misuse-a charge for $3.04 at a Starbucks. R. at 2383, ¶ 5.
Two other CSB employees also had issues with past due travel card balances. On February 27, 2006, the CSB informed Mr. Altamirano's supervisor, Donald Holmstrom, that Mr. Holmstrom's charge card had been placed in pre-suspension status because of an overdue balance. R. at 2610-11; 3397. On July 25, 2005, the CSB informed an investigator named Randy McClure that Citibank had closed his account on May 20, 2005 because his card had been suspended twice and his balance was past due once during a twelve-month period. Id. at 3397-98. On October 14, 2005, the CSB requested that Citibank reopen Mr. McClure's account. Id. at 3398. Between January 2007 and February 2009, Mr. Holmstrom paid his balance late six times and Mr. McClure paid his balance late five times. Id. The CSB did not investigate the nature of the charges incurred by Mr. Holmstrom or Mr. McClure. Id. at 2357, ¶¶ 2-3.
None of the other individuals who paid their balances late were removed from employment. Id. at 3398.
During the investigation, Mr. Altamirano told an investigator that a co-worker had told him that he could use the cards for purposes unrelated to travel so long as he paid the balance. Id. at 3388. The CSB hired a computer forensic company to search Mr. Altamirano's government-issued laptop and email account to verify this statement. Id. The forensics company found eight picture and video files on his laptop containing sexually-oriented materials, in violation of the CSB's policy governing the use of electronic equipment. Id. at 3383-84. Mr. Altamirano admitted to sending and receiving sexually explicit emails from his government email account between March 16 and March 18, 2009. Id. at 3384. The search also revealed that Mr. Altamirano had used his government laptop to visit sexually-oriented websites. Id.
On July 29, 2009, the CSB issued a proposal to remove Mr. Altamirano from his position. Id. at 3385. The proposal was based on four charges: (1) using his government travel charge card for personal expenses; (2) failing to timely pay his travel card balance; (3) using government equipment to send, solicit, and download sexually explicit materials and communications; and (4) exhibiting a lack of candor during the investigation. Id. at 3377, 3385. On November 16, 2009, John Bresland, the Chairperson of the CSB, issued a decision to remove Mr. Altamirano. Id. at 3376-77.
Mr. Altamirano appealed the Removal Decision to the Merit Systems Protection Board ("MSPB" or the "Board"). Id. at 3387. An Administrative Law Judge ("ALJ") held a hearing on April 14 and 15, 2010. R. at 3376. The ALJ affirmed the CSB's decision. R. at 3376-3403. Mr. Altamirano appealed the ALJ's decision to the full Board, which affirmed the ALJ. Id. at 3501-506. The Board found that the ALJ properly weighed the applicable factors and that Mr. Altamirano's "mere disagreement with the administrative judge's findings is insufficient to disturb the initial decision." Id. at 3502.
On July 1, 2011, Mr. Altamirano filed a complaint in this Court. Docket Nos. 1 and 2. His complaint included a claim for employment discrimination pursuant to Title VII of the Civil Rights Act of 1964; the Court granted defendant summary judgment on this claim. Docket No. 147. The complaint also requests review of the MSPB's decision under 5 U.S.C. § 7703, on the grounds that the "penalty of removal was too harsh" and that the ALJ failed to "properly consider all the applicable mitigating factors as required by law and regulation." Docket No. 2 at 4, ¶¶ 22-24. The CSB opposes plaintiff's request for reversal of the MSPB's decision. Docket No. 91.
II. STANDARD OF REVIEW
A federal employee "adversely affected or aggrieved by a final order or decision" of the MSPB and alleging employment discrimination may seek judicial review of the MSPB's decision in federal district court. 5 U.S.C. § 7703(a)(1); Kloeckner v. Solis, 133 S.Ct. 596, 604 (2012). In such "mixed" cases, claims not related to discrimination are reviewed under the standard set forth in 5 U.S.C. § 7703(c):
the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be-
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence[.]
Substantial evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).
Under this standard, the "MSPB's decision needs only to have a rational basis in law." Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1933) (internal citation omitted). The Court is not permitted to "substitute its judgment for that of the MSPB, " id., "reweigh the evidence, " or "reevaluate the ALJ's credibility determination." Thunderbird Propellers, Inc. v. F.A.A., 191 F.3d 1290, 1297 (10th Cir. 1999). The Court will "affirm a decision of the MSPB sustaining the termination of a federal employee if the decision complies with the applicable statute and regulations and [if] it has a rational basis supported by substantial evidence from the record taken as a whole." Jones v. Sec'y, Dept. of Army, 912 F.Supp. 1397, 1413 (D. Kan. 1995) (quoting Martin v. Fed. Aviation Admin., 795 F.2d 995, 997 (Fed. Cir. 1986)).
A. Zero-Tolerance Policy
Mr. Altamirano argues that the ALJ and the MSPB "erred in deferring to the CSB's penalty determination and in not making an independent determination of the appropriate penalty in this case." Docket No. 75 at 13.
Mr. Bresland testified at the April 2010 hearing before the ALJ that "we make it a practice in the Chemical Safety Board to have a very low tolerance for any abuses of the travel regulations or the use of the government credit card." R. at 2955. Mr. Altamirano's counsel subsequently asked:
Q. Would you have characterized that as close to a zero tolerance?
Q. And would it be accurate to say that the Agency has a zero tolerance for misuse of the travel charge card?
A. I would say it's close to a zero tolerance. It would depend, that there may be some circumstances where someone made a mistake.
Q. Would you say that the Agency has a zero tolerance for failure to pay balances on a travel charge card in a timely manner?
A. From time to time, that has come up as an issue, so I wouldn't say we have a zero tolerance for it. There are some times where it is an issue and we find out about it and we ...