Too Little, Too Late

The appeals court sustained an arbitration decision upholding removal of a Senior Corrections Officer from his job due to his unacceptable fraternization with two female inmates.

In Villareal v Bureau of Prisons (C.A.F.C. No. 2017-2275, 8/24/18), a prison guard who got way too chummy with two female prisoners and their family members found himself fired some 2 ½ years after the investigation into his misconduct was opened.

The six charges against him included inappropriate contact with an inmate and her family; preferential treatment of an inmate; misuse of government computer; unprofessional conduct; inattention to duty; and failure to exercise sound judgment. Villareal’s union, after unsuccessfully filing a grievance in his behalf to challenge the removal, invoked arbitration.

Arbitrator Noel Berman, following a two-day hearing, found removal was justified. He rejected claims of due process violations.

The federal appeals court has now upheld the arbitrator and Villareal’s removal stands. 

Among other things, AFGE Local 1030 argued the removal subjected their unit member to double punishment. This argument pointed to the fact that when the investigation was ongoing, Villareal was put in a position that kept him from having further contact with any prisoners. That constituted punishment particularly since the new position denied him the overtime he was able to serve in his corrections position. Therefore to remove him two plus years later amounted to double punishment. The court agreed with the arbitrator and found this argument “lacks merit.” Agencies often reassign employees who are under investigation. Further, Villareal’s pay and grade were not reduced. This was not, therefore, punitive.

The union also contended that the inordinate time between initiation of the investigation and the ultimate agency decision to remove Villareal violated his due process rights. Apparently when the investigation was initially concluded the then Warden Babcock indicated to the union that Villareal would be suspended for 30 days. However, by the time the personnel action was initiated there was a new Warden Pearce who took a removal action against Villareal. Moreover it took the prison almost 2 ½ years to get on with it.

The court indicated its concern with “the untimeliness of the Bureau’s decision,” pointing to the Bureau providing “no legitimate justification for the …delay of over a year” beyond the time needed for completion of the investigation. (Opinion p. 8).

In the court’s words, “While difficulties associated with personnel changes may in certain circumstances result in delay, they do not explain why it took over three years to identify charges and issue a decision in Villareal’s case. The Bureau’s explanation for the delay is not satisfactory, and the 1,265 day delay in removing Villareal was patently unreasonable…” (pp. 8-9), pointing out that such a delay, if prejudicial, could defeat the agency’s removal action. But, no one in the case–neither the union nor Villareal—argued or made that case to the arbitrator. The formal grievance form merely said the discipline was “untimely” and failed to follow procedures. (p. 9)

The union’s brief to the arbitrator talked about the “reckless, unreasonable” untimeliness of the discipline and that it violated the union’s agreement with the agency. However, the union did not raise a claim of prejudice. Once Villareal went to the appeals court, he argued that the delay prejudiced him for the first time. As practitioners know, that’s too late. “While the extreme delay in this case may certainly have been harmful to Villareal, it is too little too late; arguments raised for the first time on appeal are generally waived….Accordingly, although we condemn the delay and find the Bureau’s explanation unavailing, because Villareal made no claim of prejudice below, we will not disturb the arbitrator’s decision.” (p. 9)

It has got to be tough for Mr. Villareal to read the court’s opinion and realize just how close he came to winning his appeal. He stays fired.

Villareal v. BOP (2017-2275) by FedSmith Inc. on Scribd

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.