Ricardo Lozoya v. Department of Homeland Security
DA-0752-22-0373-I-2
| MSPB | Sep 23, 2024Background
- Ricardo Lozoya appealed his removal from the Department of Homeland Security (DHS) to the Merit Systems Protection Board (MSPB).
- The administrative judge affirmed Lozoya’s removal, grounding the decision on a charge of “conduct unbecoming.”
- Lozoya challenged the initial decision, claiming the judge misapplied the definition of "conduct unbecoming" and erroneously found facts regarding the nexus between his conduct and the agency's efficiency.
- On review, Lozoya also objected to the reliance on hearsay evidence and asserted that the nexus finding was not based on witness demeanor.
- The MSPB reviewed the petition under standard criteria, including legal error and procedural irregularities, ultimately denying Lozoya’s request for further review and affirming his removal as final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of "conduct unbecoming" | Wrong definition applied (not agency’s own) | Board definition is proper | Board definition upheld |
| Nexus between conduct and agency’s mission | Nexus finding relies on hearsay, not demeanor evidence | Sufficient evidence supports nexus | Nexus finding affirmed |
| Application of legal standards / procedure | Improper application and review | Proper application | No basis to overturn; affirmed |
| Consideration of new/material evidence | New evidence/argument justifies review | No new material evidence | No new basis to grant review |
Key Cases Cited
- Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017) (clarifies appellate review options for cases involving discrimination claims)