The facts as summarized are taken from the appeals court opinion (Torres v Department of Homeland Security, CAFC No. 2022-2003, 12/20/2023).
Mr. Torres was a 10-year employee of Department of Homeland Security (DHS) when he got creative with his official travel orders on a particular international assignment. At the time, he was a Deportation Officer with ICE (Immigration and Customs Enforcement) in Enforcement and Removal Operations. (Opinion P. 2)
In 2019, he was given travel orders to escort a person who had been determined to be in the U.S. without authorization back to Santiago, Chile, from Las Vegas. His travel orders had him returning to Las Vegas on April 18 with a return to the office the next day, April 19. (Opinion P. 2)
Wanting to spend the 18th with his family, Torres on his own initiative changed his flight to April 17th. He did not seek or receive permission to do this. “To conceal his unauthorized travel and leave of absence,” Torres reported to his office as scheduled on the 19th. He also filed and certified three records in the agency’s automated time and attendance system, including false information on overtime, travel voucher, and time records. When he was caught, Torres owned up to falsifying official records and being absent without approved leave, accepted his culpability, said he was sorry, and, having no prior disciplinary problems, threw himself on the mercy of his agency bosses. (Opinion pp. 2-3)
Nevertheless, the agency proposed Torres’s removal, citing three instances of falsifying certified records, and two instances of absence without approved leave (AWOL). After hearing Torres’s reply, the deciding official sustained the two reasons and all specifications, and after reviewing the “Douglas” factors (Douglas v Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981)), determined that removal was the appropriate penalty. Of particular “aggravation” to the decision maker was that what Torres did was “part of a ruse to make it appear he had completed his foreign escort detail according to schedule and concealed his unauthorized early return.” (P. 4)
Using words such as “deliberate, intentional and exhibited a lack of truthfulness toward the Agency…” and “I have no confidence in his ability to perform his duties given the lack of truthfulness in his dealings with the Agency,” the Deciding Official ordered Torres removed. (P. 4)
Represented by his union, Torres took his case before an arbitrator but did not get the outcome he wanted. Arbitrator Samuel A. Vitaro found that there was sufficient evidence to sustain the agency’s decision and that removal was the reasonable penalty. (P. 4)
The appeals court has now ruled on Mr. Torres’s appeal. The court first explains the standard for its review of an arbitration decision, pointing out it may only reverse if arbitrary or capricious or not in accordance with law; did not adhere to procedures required by law, rule or regulation, or “unsupported by substantial evidence.” (Citations omitted; pp. 4-5)
The court then agreed with Mr. Torres’s contention that the arbitrator did not adequately weigh Douglas factors 6 and 10, vacated the decision, and remanded to Arbitrator Vitaro. Factor 6 relates to the consistency of the penalty with other employees who committed same or similar offenses. Factor 10 related to the potential for the employee to be rehabilitated. (P. 8)
Without getting into a detailed analysis as to why the court so concluded (it is available in the court’s opinion), just note that the court found these two factors significant in this case. The court remanded for “the arbitrator to consider Mr. Torres’s evidence that his imposed discipline is inconsistent with similarly situated federal employees and that his rehabilitation is possible by reapplying the Douglas factors.” (p. 8)
The case is important for underscoring the weight of the Douglas factors and how underestimating these factors by the arbitrator or the agency can lead to problems on appeal. The case is not over, but Mr. Torres has won this round and in the process was awarded his costs by the court. The ball is in the agency’s court.
