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