Hearing held on January 10, 2012, in Baltimore, MD.
Before: Stephen E. Alpern, Arbitrator
For the Union For the Employer
Statement of the Case
As parties to a collective bargaining agreement (“the Agreement”), the Union and the Employer (“the Agency”) submitted this matter to arbitration. The dispute involves the thirty-day suspension of the Grievant.
Issues Presented
The parties stipulated that the following are the issues presented to the Arbitrator:
1. Whether the Appellant engaged in the charged misconduct (misuse of government equipment and failure to follow agency policies)?
2. Whether the Agency's penalty of a 30-day suspension was reasonable for the charged misconduct?
Facts
The Grievant is employed at the Agency’s Maryland Health Care System ("VAMHCS") as a Program Support Assistant for the Home Telehealth Program. The Grievant’s performance of his regular duties is not at issue in this case. By all accounts his work performance was excellent.
As a regular practice, the Information Resources Management (“IRM”) staff at the VAMHCS generates a daily report on the status of the VAMHC computer servers. On April 16, 2010, L. N. an IT Specialist determined that there was an exceedingly large number of files on three network drives controlled by the Grievant. Only the Grievant, and presumably IRM personnel, had access to these drives. The volume of the material was of concern, because if the server becomes full it could cause the system to crash. L. N. testified that it was his practice to review servers that were becoming full and determine whether there were unauthorized files on the server, such as image files, movies and music files. L. N. did this with the Grievant’s drives and determined that there were approximately 22,000 image files on the Grievant’s share. L. N. spent approximately two days reviewing these files (or at least thumbnail images of them) and determined that virtually all of them were sexually explicit.[1] While L. N. would generally just delete unauthorized files from employees’ drives, because of the volume and nature of the files on the Grievant’s server, L. N. saved the files to two cd-rom’s and notified L. F., who at the time was the Lead Information Security Officer.
L. F. testified that she reviewed about 1,000 of the files which took her about a day. According to L. F. only about three of the files were work related. L. F. reported the matter to a number of management officials, including the Chief Nurse Executive and the Associate Director of VAMHCS.
Based on the report, S. W., Director of the Home Telehealth Program and the Grievant’s immediate supervisor, conducted a fact-finding investigation. S. W. first spoke with L. N. about what he had discovered and she viewed two of the files. She then, on May 21, 2010, interviewed the Grievant who was accompanied by two Union representatives. According to S. W., the Grievant stated that he had obtained the files from a non-VA person, but did not really explain how or why they were placed on his share. He stated that when he remembered that the files we on his share, he tried to remove them, but was “locked out” of the folders and couldn’t remove the files.
Thereafter, on July 7, 2010, the Chief Nurse Executive issued a proposal to suspend the Grievant based on two charges. The two charges were:
CHARGE 1: Misuse of Government Equipment Specification:
On April 16.2010, during a periodic IRMS review of VAMHCS network drives, pornographic or sexually explicit materials were discovered on your network drive. The Information Security Office (ISO) has determined you had three (1) folders located on your network drive that contained approximately 21,000 files, containing sexually oriented material, some of them explicit in nature. On May 21, 2010, during the fact finding investigation, you indicated that you stored the pornographic or sexually explicit material in the folders located on the network drive on your computer. Your actions constitute misuse of government equipment.
CHARGE 2: Failure to Follow Agency Policies
Specification:
On November 7, 2009 and Monday, 8, 2008 [sic.], you completed VA Information Security Awareness and Rules of Behavior training course. Notwithstanding, the ISO determined that you had three (3) folders located on your network drives that contained approximately 21,000 files containing sexually oriented material, some of them explicit in nature. Your actions constitute a failure to follow Agency policies.
On July 29, 2010, the Grievant, accompanied by two Union representatives, made an oral reply to the proposal to the VAMHCS Director. According to the Director, the Grievant did not deny that he placed the material on his share. After the meeting, on August 9, Smith issued a decision sustaining the thirty-day suspension. The Union filed a Step 3 grievance challenging the suspension, which was denied. The appeal to arbitration followed.
Contentions of the Parties
A. The Agency
The Agency contends that the evidence was overwhelming that the Grievant placed approximately 21,000 pornographic or sexually explicit files on an Agency computer. This was misuse of the Agency computer and the first charge is thus proven, according to the Agency. The second charge, Failure to Follow Agency Policies, was also proven, because the Grievant had attended Agency training where he was made aware that placing pornographic material on Agency computers was prohibited, and thereafter he placed such material on his share.
In this case, discipline promoted the efficiency of the service because the Grievant misused Agency equipment and storage of such a large number of files on the computer system actually negatively impacted the Agency’s computer system.
The thirty-day suspension was reasonable and should not be modified by the Arbitrator. The Agency contends that it properly weighed the Douglas[2] factors established by the Merit Systems Protection Board (“MSPB”) and that the seriousness of the charges and the extent and nature of the materials the Grievant places on the server outweighed the mitigating factors.
B. The Union
The Union initially contends that the Agency’s fact-finding investigation was deficient because it failed to determine how long it took to place the materials on the server, whether the Grievant did so during duty hours, and whether the Grievant ever viewed the materials during work hours. Further, the facts shown at the arbitration hearing were insufficient to prove how long it took to load the materials on the server or that the Grievant loaded the materials during duty hours or looked at the materials during duty hours. Absent proof of such facts the Agency is unable to demonstrate the necessary nexus with the efficiency of the service. The Union asserts that the Agency has failed to articulate any nexus or adverse impact on Agency operations. Because the Agency failed to articulate any nexus in the proposal or decision letters, the Grievant’s due process rights were violated and the suspension must be overturned. The testimony showed that other employees were discovered placing a greater amount of personal material on the servers than the Grievant, yet they presumably were not disciplined. The Agreement requires that discipline be administered fairly and equitable and here that was not the case.
The Union also asserts that the Agency failed to comply with the established table of penalties. Under the table, the maximum penalty for the offense of unauthorized use of government property is a fifteen-day suspension, unless it is shown that the employee maliciously or intentionally misused the property. Here, according to the Union, the Agency could not show that the Grievant’s actions were other than unintentional or negligent.
The two charges against the Grievant should be merged into one, because the charges are neither legally nor factually distinct. If the charges are merged there is only one charge remaining and, accordingly, the penalty should be cut in half.
Finally, the Union urges that the Agency misapplied the Douglas factors. The deciding official considered non-facts in his determination and did not properly weigh other Douglas factors. Under such circumstances, the Arbitrator should give no deference to the Agency’s penalty choice.
Discussion
The Union urges that the two charges should be merged because the necessary factual and legal elements of the two charges are the same. The two charges are essentially the same and are, in fact, duplicative. The two charges are based on the same incident and involved essentially the same misconduct. The Agency policy that the Grievant was charged with violating was the policy on use of government equipment. Thus, proof of the misuse of government property charge necessarily proved the second charge. The two charges therefor will be treated as a single charge of misconduct.[3]
There is no dispute that the Grievant placed the materials on his share. However, the Grievant contends that he thought the material was work-related and that he placed it on the share during a break. After carefully considering the record, and especially the Grievant’s testimony, the Arbitrator is unable to accept his claims. During the fact-finding investigation the Grievant stated that he put the material in the folder, but that he didn’t remember when he did it. He claimed that some of the material was given to him by a non-agency individual. Further, when asked whether he was aware that he was prohibited from having pornographic material on the share, he said he wasn’t. He also stated that when he later remembered that he had the material in his folders, he tried to remove it, but was locked out.
In his direct testimony in the arbitration hearing, the Grievant stated that it took him about 10 to 15 minutes to download the material from a cd-rom to his share, that he did so while on a break, that he thought it was work-related material and that he did not know the cd-rom contained pornographic material. On cross-examination, when asked whether he obtained the material from a non-Agency person, he replied “I rightfully can't recall. I might have, but like I said, I can't be 100 percent certain.”
When asked whether he stated during the fact-finding meeting that he couldn’t remember when he downloaded the material or put the material in the folder, he replied, “I may have at that time.”
The Arbitrator has carefully examined the Grievant’s testimony and cannot credit his statement that he thought the material was work-related.[4] There are a number of reasons for this conclusion. First, his testimony was inconsistent with prior statements. He testified that he could not recall if he obtained the material from a non-Agency individual, even though he stated that he did in the fact-finding hearing. He testified that he could not recall because “[i]t’s been a while.” The notes of the fact-finding hearing reflected that the Grievant stated that he could not recall when he downloaded the material. The Grievant testified that he “may have” have said that in the fact-finding hearing. Yet, almost two years later, at the arbitration hearing, the Grievant claimed to recall that he downloaded the material during a break and that it took him ten to fifteen minutes to do so. The Grievant’s claim that he did not know the nature of the material on the cd-rom is highly improbable. He did not claim ignorance of the nature of the material in the fact-finding hearing, even when asked if he knew that the downloading of pornographic material was prohibited. (He claimed then that he was not aware of the prohibition.) It is inexplicable that the Grievant would not, at that time, claim that he was unaware of the nature of the material, if that were the case. He gave no reason why he would download such a significant amount of data without at least viewing some of it. Further, in the fact-finding hearing, he stated that at some point he remembered that the files were on his share, and tried to remove them, but was locked out of the system. If he thought the material was work-related, there was no need to suddenly try to erase it from the computer system. Finally, the Arbitrator considered the Grievant’s demeanor in the arbitration hearing. The Arbitrator came to the definite impression that the Grievant was being evasive with respect to his knowledge of the nature of the material that he downloaded. Based on all of these factors, the Arbitrator concludes that the Grievant knew the nature of the material that he placed on the share.
The Union argues that because the material was placed on the share by the Grievant during a work break there is no nexus between the Grievant’s conduct and the efficiency of the service. Although the Grievant testified that he downloaded the material during a break, the Arbitrator has generally not credited his testimony. However, the Agency offered no evidence that the material was downloaded during work time and, in fact, did not charge the Grievant with doing so. Instead, the merged charges are that he misused government property in violation of Agency policies. The Agency policies are clear. The VAMHC policy on use of government-owned office equipment states:
Employees may not use Government office equipment for activities that are inappropriate, such as:
(1) Any personal use that could cause congestion, delay, or disruption of service to any Government system or equipment, e.g., continuous data streams, video, sound, other large file attachments that can degrade the performance of the network.
***
(5) Creating, downloading, viewing, storing, copying, or transmitting sexually explicit or sexually oriented material. (Emphasis in original.)
The Agency has proven by a preponderance of the evidence that the Grievant stored approximately 21,000 sexually explicit images on his share. By doing so, he violated both paragraphs of the policy quoted above. The evidence showed that the Grievant received training in these policies. Based on the testimony of L. N., which the Arbitrator credits, if a server runs out of disk space it can crash causing disruption to the computer system. L. N. examined the contents of disks when he received an automatic report that they were running out of space. When he receives such reports, he examines the server to determine if there is unauthorized material, and if such material is found he routinely deletes it. In the case of the material found in the Grievant’s folder, L. N. did not delete it because he viewed it as pornographic and felt that it should be reported. L. N. spent about two days viewing thumbnails of the files to determine the nature of each. L. N. determined that almost all of the files were sexually explicit or sexually oriented. That the Grievant purportedly was on a break when he downloaded the material is not exculpatory, because the Grievant was charged with misusing Agency property in a manner that violated the Agency’s regulations. Proof of this charge is not dependent upon the Grievant’s duty status. Accordingly, the Arbitrator finds that the Agency proved by a preponderance of the evidence that the Grievant’s conduct was related to the efficiency of the service.
The Union argues that the Agency violated the Grievant’s due process rights when the Agency’s Deciding Official, in determining a penalty, relied on matters that were not in the proposed suspension notice.
In the decision letter the Deciding Official stated:
I considered your past disciplinary records, other factors including your years of service, your past work record, the nature and seriousness of the offenses with which you have been charged. I also took into consideration whether there are any mitigating or extenuating circumstances which would justify mitigation of the proposed penalty. I have concluded by preponderance of evidence.
Presumably, this was the Deciding Official explanation of his application of the Douglas factors. Even if this explanation were insufficient to determine whether the Agency properly weighed the Douglas factors, it was not fatal to the Agency’s penalty determination. Where the Agency fails to properly weigh the Douglas factors, the MSPB instructs that the reviewing authority must correct the agency’s penalty when all of the charges are sustained only to the extent necessary to bring it to the maximum penalty or the outermost boundary of the range of reasonable penalties.[5]
However, in his testimony the Deciding Official further explained how he weighed the Douglas factors. The Deciding Official testified that the seriousness of the charges actually warranted removal, in his judgment. He further testified with respect to the seriousness of the offense:
Well, as I said earlier, obviously he had to take a tremendous amount of time to put these files on his computer, and he put them on there for a reason, so I think it's obvious that he was probably looking at them, so that means that there was times during the day that he wasn't working. I don't know how long it would take somebody to put 21,000 files on there. Probably weeks.
In arguing that the Agency failed to prove nexus, the Union relies on a recent MSPB case.[6] The Union urges that the Agency never informed the Grievant of the basis upon which there was nexus, this violating the Grievant’s due process rights. The Arbitrator disagrees. The basis for the nexus is self-evident in the charge. The Grievant was charged with conduct which violated Agency regulations and which constituted misuse of Agency property. The connection between the efficiency of the service and both the proper use of government property and the compliance with Agency regulations is ineluctable.
Solis, however, is relevant to this case. In Solis the Agency relied on the fact that the employee, a Drug Enforcement Administration agent, would be subject to impeachment in criminal matters as a basis for its penalty consideration. The Agency, however, did not raise this consideration in its proposal to remove the employee. The MSPB held that the Agency violated the employee’s due process rights by denying him notice of the specific information considered and an opportunity to respond.[7] As a result, the MSPB determined that the removal must be reversed and the employee “must be afforded a ‘new constitutionally correct removal procedure’.”[8] In this case, Smith testified that in assessing the discipline to be imposed on the Grievant, he considered that it probably took weeks for the Grievant to download the material. He also testified that it was “obvious” that the Grievant was spending time viewing the material, and thus there were times during the day when he wasn’t working. There is no evidence in the record to support these assertions. Further, even if the record supported these claims, the Grievant was not charged with spending a significant amount of time downloading the material or with viewing the material during working hours. Similarly, he was not informed that such activities would be considered in assessing the penalty against him.
Although this appears to be a technical error on the Agency’s part, and the discipline imposed on the Grievant was arguably well within permissible perimeters based on the nature of his misconduct, the error cannot be considered harmless. When a due process violation occurs the harmful error doctrine does not come into play. Instead the employee is automatically entitled to a new constitutionally correct proceeding. [9] Under these circumstances, the Arbitrator has no choice but to reverse the action against the Grievant.
AWARD
1. The Grievance is sustained.
2. The Agency shall cancel the Grievant’s thirty day suspension and amend its records to reflect the rescission of the suspension
3. The Grievant shall receive all pay, benefits and entitlements provided under the Back Pay Act arising out of the rescission of the suspension.
4. The Arbitrator will retain jurisdiction for sixty days from the date of this Award to resolve any disputes regarding compliance with this Award.
Dated this 13th day of April, 2012
______________________________
Stephen E. Alpern
Arbitrator
[1] The material was alternately described as “pornographic” or “sexually explicit” or “sexually oriented.” The Arbitrator had neither the inclination nor the need to review all of the images. Two randomly chosen images were at the least sexually explicit or sexually oriented, and were arguably pornographic.
[2] Douglas, et al. v. Veterans Administration, et al., 5 MSPB 313 (1991).
[3] See, Beaudoin v. Veterans Administration, 98 MSPR 489, ¶ 11 (2005).
[4] See, Hillen v. Dep’t of the Army, 35 M.S.P.R. 453, 458 (1987).
[5] Stuhlmacher v. Unites States Postal Service, 89 M.S.P.R. 272, ¶ 14 (2001), and cases cited therein.
[6] Solis v. Department of Justice, 2012 MSPB 21 (2012)
[7] Id., at ¶ 10.
[8] Id., at ¶ 10, quoting Ward v. U.S. Postal Service, 634 F.3d 1274, at 1280 (Fed. Cir. 2011)..
[9] Ward, 634 F. 3d at 1279.