The facts are drawn from the appeals court opinion in Ybarra v. Department of Justice (CAFC No. 2024-1848 (nonprecedential), 1/10/2025)
Mr. Ybarra joined the FBI as a Criminal Investigator in 1998 and was later promoted to Special Agent. In 2003, he was charged with threatening a coworker, making inappropriate sexual remarks, and other unprofessional actions. The Department’s Office of Professional Responsibility (OPR) proposed Ybarra’s removal. The charges were sustained, but the penalty was mitigated to a 45-day suspension and Ybarra was warned that any further misconduct could lead to his removal. (Opinion pp. 2-3)
A few years later, Ybarra was assigned to investigate crimes against children in the FBI’s Detroit Division, Lansing Resident Agency. However, between 2014 and 2016, Ybarra was involved in several misconduct incidents, which luckily for him resulted in suspensions but not removal. Things became more problematic when in 2016 a police complaint was filed against Ybarra by a female cashier for persistent unwanted advances, and another similar complaint was filed by a minor employee at a local Dairy Queen and her mother. The FBI’s Office of Professional Responsibility (OPR) investigated and recommended Ybarra’s removal for “Unprofessional Conduct-Off Duty” leading to his removal. (Pp. 3-4)
Ybarra appealed this decision to the FBI’s Disciplinary Review Board (DRB), which affirmed his removal. He then appealed to the Merit Systems Protection Board (MSPB).
The MSPB found that Ybarra’s off-duty misconduct was proven by a preponderance of evidence and that there was a significant nexus between his misconduct and his job at the FBI, especially since his actions compromised the agency’s mission to protect and serve the public: Ybarra’s misconduct “contravened the agency’s primary mission—protecting people, especially…children under the age of 18.” (p. 4)
The Board evaluated the penalty applied to Ybarra based on the Douglas factors, which include the nature of the offense, the employee’s disciplinary and work record, and the potential for rehabilitation, among others. The Board determined that removal was justified, considering the seriousness of his misconduct and his history of previous discipline. (p. 4)
Ybarra petitioned the federal appeals court for review, arguing that the MSPB erred in considering his 2003 suspension as an aggravating factor and failed to properly assess his potential for rehabilitation. The court reviewed these claims, explaining the standard for overturning the MSPB decision, namely the decision must be found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
The court affirmed the MSPB’s decision, stating that the MSPB’s consideration of Ybarra’s 2003 suspension as an aggravating factor was reasonable given the nature of the past and current offenses. The court also found that the MSPB adequately considered Ybarra’s rehabilitative potential and found it lacking despite his otherwise excellent work performance.
The court concluded that the MSPB’s decision was supported by substantial evidence and was not arbitrary or capricious. The court underscored the applicability of the Douglas factors in assessing the appropriateness of employment-related penalties within federal agencies, particularly concerning law enforcement officers such as Ybarra, who rightfully may be held to higher standards of conduct.
In short, Ybarra’s removal from the FBI was affirmed.
