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Villareal v. Bureau of Prisons

United States Court of Appeals, Federal Circuit

August 24, 2018


          Petition for review of an arbitrator's decision in No. 16-56932-3 by Noel B. Berman.

          Lilliam Mendoza, Rockville, MD, argued for petitioner.

          Domenique Grace Kirchner, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by A. Bondurant Eley, Robert Edward Kirschman, Jr., Patricia M. McCarthy, Chad A. Readler.

          Before O'Malley, Clevenger, and Reyna, Circuit Judges.


         Petitioner Leonardo Villareal seeks review of an arbitrator's decision sustaining his removal from employment as a corrections officer with the Bureau of Prisons, claiming that his termination was unjustified and that his due process rights were violated. Because Villareal made no claim of prejudice resulting from the delay between the date he first received notice of the employment infractions and the date of termination, and because his other arguments are unpersuasive, we affirm.


         Villareal was employed by the Bureau of Prisons (the "Bureau") from 2007 until his termination on May 23, 2016. Prior to his termination, Villareal had no disciplinary record and all of his supervisory evaluations were rated satisfactory or higher. In December 2012, while Villareal was a Senior Corrections Officer at the Federal Detention Center Houston ("FDC Houston"), the Office of the Inspector General ("OIG") initiated an investigation focusing on Villareal's relationship with two female inmates, Claudia Solis and Andee Santana, improper contact with Solis's family, preferential treatment towards inmates, breach of computer security, and inattention to duty. In January 2013, while OIG's investigation was pending, Villareal was reassigned to a phone monitor position outside the facility's secure perimeter. In his new position, Villareal was not allowed to interact with the inmates or to work overtime.

         After a seven-month investigation, OIG issued a report concluding that Villareal violated several Bureau policies. The most significant finding in the report was that Villareal placed and failed to report several calls on his cellular phone to Solis's family members. The report further concluded that Villareal had engaged in an inappropriate relationship with Solis and showed preferential treatment towards Solis and Santana by offering them leftover cookies, allowing them to take an early shower, and allowing them to distribute toiletries. Finally, the report stated that Villareal misused his work computer, failed to properly monitor inmates around computers, failed to properly secure his office, and made derogatory remarks to inmates.

         In July 2014, Villareal's supervisor, Captain Fauver, drafted a proposal letter suggesting a thirty-day suspension for Villareal. See App'x 93-97. This draft proposal letter, dated "July XX, 2014," was never signed nor sent. At this time, Michael Babcock was the warden of FDC Houston. In August 2014, then-Warden Babcock stated to Villareal's union representative that Villareal would be given a thirty-day suspension. Michael Pearce succeeded Babcock as warden and testified that during their transition meeting in November 2014, Babcock referred to Villareal's case as a "potential termination case." Supp. App'x 42-43.

         On June 18, 2015, nearly two years after the conclusion of the OIG investigation, Captain Fauver submitted a letter proposing Villareal's removal, identifying six charges based on several specifications: inappropriate contact with an inmate, inmate's family members, and associates; preferential treatment of inmates; misuse of a government computer; unprofessional conduct; inattention to duty; and failure to exercise sound correctional judgment. Charge I, inappropriate contact with an inmate, inmate's family members, and associates, was the only charge serious enough by itself to support termination and was based on several phone calls made from Villareal's phone to inmates' family members.

         When evaluating Villareal's charges, Warden Pearce conducted an informal experiment, timing how long it would take to relay sensitive information over the phone. Id. at 33. Based on the experiment, Warden Pearce determined that sensitive messages could be relayed in only a few seconds, and therefore "the duration of a call doesn't necessarily mitigate the seriousness of the communication." App'x 76.

         On May 23, 2016, eleven months after Captain Fauver's proposed removal letter, Warden Pearce issued a letter determining that Villareal should be terminated. The decision letter emphasized that Villareal committed an "extremely serious [offense], especially given [Vil-lareal's] position as a law enforcement officer." App'x 47. In the decision letter, Warden Pearce recognized that Villareal's past work record had been satisfactory, but did not "shield [his] serious infraction." Id. Warden Pearce further wrote that Villareal's "misconduct has destroyed my confidence in [Villareal's] ability to carry out the responsibilities of [his] position," and that Villareal had "betrayed the trust placed in [him] by this Agency." Id. Warden Pearce noted in the letter that removal was consistent with the Bureau's table of penalties, which Villareal, as an employee, was "fully aware of," and given Villareal's lack of remorse, he had no potential for rehabilitation, and alternative sanctions would not have "sufficient corrective effect." Id. The letter concluded with "[y]our removal is in the interest of the efficiency of the service." Id.

         Villareal's union, AFGE Local 1030, promptly filed a formal grievance, claiming that the discipline was untimely, there was no just and sufficient cause for the discipline imposed, the accuracy of the alleged facts were questionable, Villareal was subject to double jeopardy, and the discipline was excessively harsh and disproportionate. The union emphasized that 1, 265 days, nearly three and a half years, had passed between the start of the OIG ...

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