Richard Figueroa v. Department of Homeland Security
Background
- Appellant Richard Figueroa, a Customs and Border Patrol Officer at JFK Airport, was suspended for 45 days after a deciding official sustained two charges: failure to follow supervisory instructions (three specifications) and disrespectful conduct toward a supervisor.
- Spec. 1: Refused to stamp a document and complete inspections after repeated orders; Spec. 2: Left an overtime shift claiming illness without signing out after being told to do so; Spec. 3: Refused to provide requested medical documentation after an email instruction.
- Agency proposed suspension based on conduct during and after an overtime shift; appellant submitted oral and written replies arguing policy ambiguity and other defenses.
- Administrative judge sustained all charges, found appellant’s credibility inferior to the supervisory CBPO, rejected affirmative defenses (EEO retaliation, sex and national-origin discrimination, Weingarten/other procedural error), and affirmed the 45-day suspension as reasonable under the Douglas factors.
- MSPB denied the petition for review, deferring to the AJ’s credibility findings and concluding the agency properly requested sign-out and medical documentation and had a sufficient nexus to efficiency of the service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to follow instructions — refusing to complete procedures (Spec. 1) | Policy was unclear; supervisor’s instructions were mistaken, so appellant need not comply | Supervisor gave lawful, proper instructions; appellant was required to follow then grieve later | Sustained — appellant required to follow instructions absent unlawful/dangerous orders; AJ credibility favored supervisor |
| Failure to sign out (Spec. 2) | Because it was overtime, appellant should not have been required to sign out | Appellant was instructed to sign out and was required to do so | Sustained — appellant failed to sign out; credible testimony established the instruction and requirement |
| Failure to provide medical documentation (Spec. 3) | Agency had no basis to request documentation for overtime/illness; request was improper | Agency may request documentation where leave abuse is suspected; appellant was ordered to provide it and failed to do so | Sustained — agency had reasonable grounds and contractual/management authority to request documentation |
| Disrespectful conduct charge | Appellant denies making disrespectful comments; disputes characterization | Supervisor credibly testified about appellant’s disrespectful remarks and refusal to comply | Sustained — AJ found supervisor more credible and proved the essence of the charge |
| Affirmative defenses: EEO retaliation, discrimination, Weingarten/procedural error | Appellant alleges retaliation and disparate treatment based on prior EEO activity, sex, national origin; asserts investigatory/representation rights violated | Agency and AJ: no evidence decisionmakers knew of EEO activity; no comparators showing disparate treatment; no Weingarten violation shown | Denied — appellant failed to prove knowledge, comparators, or procedural violation; AJ’s findings upheld |
| Penalty appropriateness | Suspension excessive | Deciding official considered Douglas factors; law enforcement standard and prior misconduct justify discipline | Upheld — 45-day suspension within reasonable bounds given misconduct and law-enforcement duties |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (Board must defer to AJ credibility findings based on witness demeanor absent sufficiently sound reasons to overturn)
- Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015) (an employee’s failure to follow instructions can affect an agency’s ability to carry out its mission)
- National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975) (employees have a right to union representation during investigatory interviews)