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DAVID R. McLEOD Petitioner
vs.
DEPARTMENT OF THE ARMY SHARPE ARMY DEPOT AND THE MERIT SYSTEMS PROTECTION BOARD Respondents
 
Case:
No. 82-7566
 
Location:
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
 
Date:
May 11, 1983 Argued and Submitted August 30, 1983
 
Attorneys:
Craig S. Marks Stockton California for Appellant/Petitioner.
Judith A. Whetstine San Francisco California for Appellee/Respondent.
 
Court:
Anderson Skopil and Norris Circuit Court.
 
Author:
The Hon. Justice Skopil
 

McLeod a civilian warehouse worker appeals a final Merit Systems Protection Board (MSPB or Board) after affirming his removal by the Department of the Army for lunchtime possession of marijuana.

FACTS

David McLeod is a veteran who was employed by the Army for nearly three years. McLeod was removed from his position as Warehouse Worker for the Sharpe Army Depot in Lathrop California pursuant to charges of possession of marijuana on a government installation. Using field glasses an Army investigator observed McLeod and a co-worker drive onto the Army grounds during the lunch hour. The investigator then saw the co-worker take a brown paper bag from the trunk of his car and place a plastic baggie in McLeod's lunch pail.

The Chief of the Security Division determined that the facts did not warrant a search of McLeod or his co-worker and allowed the two to pass unquestioned. The car remained under surveillance however and a later search revealed a brown paper bag containing six baggies of marijuana in the car trunk and marijuana roaches and cigarette papers in the car ashtray. No search was ever made of McLeod his lunch pail or his work area nor were the contents of the plastic baggie allegedly received by McLeod ever seized or presented in evidence by the MSPB. McLeod denied under oath any involvement in the transaction.

ISSUES

McLeod's appeal raises three issues: (1) Does substantial evidence support the MSPB's charge of possession of marijuana? (2) Was the finding of nexus between McLeod's misconduct and the efficiency of the service arbitrary and capricious? (3) Was the penalty of removal an abuse of discretion?

DISCUSSION

The Seventh Circuit in Young v. Hampton 568 F.2d 1253 (7th Cir. 1977) established a two-prong test governing review of agency actions adversely affecting government employees. This test is based on 5 U.S.C. SEC. 7513(a) (1976 & Supp. V 1981) which requires that agency action be taken "only for such cause as will promote the efficiency of the service." An agency must first determine that the employee actually committed the conduct complained of and second that removal based on the misconduct will promote the efficiency of the service. Young 568 F.2d at 1257; D.E. v. Dept. of the Navy 707 F.2d 1049 1050 (9th Cir. 1983). We approve this test. *fn1

Evidence before the MSPB included six marijuana baggies seized from the car and the investigator's testimony that McLeod had possessed a similar baggie. Given our narrow scope of review of MSPB factual findings we conclude the Board's finding that McLeod possessed marijuana is supported by substantial evidence. 5 U.S.C. SEC. 7703(c)(3) (1976 & Supp. V 1981). Thus the first prong of the Young test is satisfied.

The second prong of the Young test requires a reasonable connection or nexus between the employee's misconduct and the efficiency of the service. Young 568 F.2d at 1262.

"Efficiency of the service" is not defined although some guidance is provided by 5 U.S.C. SEC. 2302(b)(10) (1976 & Supp. V 1981) which prohibits employment discrimination on the basis of conduct which does not adversely affect the performance of the employee or the performance of others at the agency.

In certain egregious circumstances the effect of the conduct on the efficiency of the service is so obvious that the nature of the conduct "speaks for itself." *fn2 Young 568 F.2d at 1257. The Board however may not rely on a presumption. D.E. 707 at 1052. Evidence on the nexus requirement must be introduced; conclusionary statements are insufficient. Id. at 1053-54.

The government argues that the three factors relied on by the Board establish nexus. They are (1) marijuana possession is illegal; (2) marijuana use affects perception; and (3) marijuana use adversely affects the work environment. We cannot agree these factors are enough to establish nexus.

First illegal conduct even a criminal conviction does not automatically supply nexus. Instead a connection to job performance must be demonstrated. Young 568 F.2d at 1262; Phillips v. Bergland 586 F.2d 1007 1011 (4th Cir. 1978).

Second the government argues that marijuana has effects commonly recognized as affecting people's perception and ability to operate mechanical equipment. McLeod's job required the operation of heavy warehouse equipment. The hearing examiner made no findings on the use of marijuana. His decision appears to be limited strictly to the fact of possession. There are no witnesses to marijuana use and although the evidence before the Board might support an inference that McLeod was under the influence of the drug see Borsari v. FAA 699 F.2d 106 111 (2d Cir. 1983) we believe that finding should be made explicitly by the hearing examiner.

The government's third contention is that permitted use of marijuana creates a work environment that leads to poor discipline in the work force. This argument is based on the limitation in 5 U.S.C. SEC. 2302(b)(10) (1976 & Supp. V 1981) that actionable misconduct must adversely affect the employee's job performance or the performance of others at the agency.

There is no evidence that McLeod's job performance suffered from alleged marijuana use. Instead supervisor recommendations both before and after the possession incident are uniformly good. See D.E. 707 F.2d at 1054.

McLeod's misconduct was never publicized. See Bonet v. United States Postal Service 661 F.2d 1071 1076 (5th Cir. 1981); cf. Sherman v. Alexander 684 F.2d 464 466 (7th Cir. 1982)(six newspaper articles identifying Sherman and his employer). There was no evidence other employees were aware of the incident which occurred away from the work area. See Phillips 586 F.2d at 1013. Their work was unaffected. Cf. Sherman 684 F.2d at 469 (fear and mistrust of employee disrupted office morale).

Because of the lack of publicity the general public as likewise unaware of McLeod's misconduct. McLeod was not in an authoritative position with responsibility and contact with the public. Cf. Yacovone v. Bolger 207 U.S. App. D.C. 103 645 F.2d 1028 1032 (1981) cert. denied 454 U.S. 844 70 L. Ed. 2d 130 102 S. Ct. 159 (1981)(postmaster); Borsari v. FAA 699 F.2d 106 111 (2d Cir. 1983)(air traffic controller). Thus the public's trust and confidence in the righteousness of the Army was unaffected and its operations undisturbed.

The only support for the Army's discipline of McLeod would be a finding of use of marijuana while at work. We remand for a determination whether the evidence supports such an inference and whether it adversely affected the job performance of McLeod or others. Because the hearing examiner may find the evidence sufficient in that respect we must review the penalty imposed by the Army.

A reviewing court must defer to an agency's choice of penalty unless the agency abuses its discretion. Brewer v. United States Postal Service 227 Ct. Cl. 276 647 F.2d 1093 1098 (1981) cert. denied 454 U.S. 1144 71 L. Ed. 2d 296 102 S. Ct. 1005 (1982). Such abuse occurs when the discipline imposed is harsh and disproportionate in comparison to the misconduct. Francisco v. Campbell 625 F.2d 266 269 (9th Cir. 1980). We find that the Army abused its discretion in ordering McLeod's dismissal.

The Army failed to consider several factors which are relevant in determining the appropriateness of a penalty. See Weiss v. United States Postal Service 700 F.2d 754 756 (1st Cir. 1983); Douglas v. Veterans Administration MSPB N. AtO75299006 at 31-32 (April 10 1981). Foremost is the consistency of the penalty imposed with the agency's table of penalties. Gipson v. Veterans Administration 221 U.S. App. D.C. 55 682 F.2d 1004 1011 (D.C. Cir. 1982).

In the Tables Pertaining to the Penalties of Various Offenses CPR 700 (C 14) 751.A March 2 1973 there is no mention of possession or use of drugs. There are however penalties listed for drinking intoxicants while on duty where safety of personnel or property is endangered thereby. These penalties are a one to three-day suspension for the first offense a two to five-day suspension for the second offense and a five to ten-day suspension to removal for the third offense. Drug and alcohol use are similar. Both result in unsafe operation of heavy machinery. The Army was unreasonable in ignoring the short term suspension recommended in the tables of penalties. Ordering removal for the first offense of marijuana possession was an abuse of discretion.

The Army ignored other relevant factors in its penalty determination. First McLeod's offense was not serious. See Weiss 700 F.2d at 756; cf. Gipson 682 F.2d at 1011 (falsifying government records). Under California law possession of one or less ounces of marijuana warrants a maximum penalty of $100. Cal. Health and Safety Code SEC. 11357 (West 1982). Second McLeod held a low-level job with little public contact and no supervisory duties. Cf. Borsari 699 F.2d at 110-11 (air traffic controller); Yacovone 645 F.2d at 1032 (postmaster). Third McLeod's misconduct was generally unknown. See Bonet 661 F.2d at 1076.

The Army's reputation was therefore unaffected. Cf. Sherman 684 F.2d at 466 (six newspaper articles identifying Sherman and his employer). Fourth McLeod's work record is satisfactory. See D.E. 707 F.2d at 1054. Supervisor recommendations both before and after the possession incident are uniformly good. Fifth potential rehabilitation of McLeod was not addressed. See Weiss 700 F.2d at 756; see also D.E. 707 F.2d at 1054. This omission was in spite of the specific recommendation in the Army's table of penalties that participation in the Alcohol and Drug Abuse Prevention and Control Program should be considered before penalties are imposed. Finally the Army failed to consider the effect of an alternative sanction such as a reprimand or a suspension. McLeod was not a habitual offender. A lesser penalty may have been sufficient. Cf. McKowen v. Merit Systems Protection Board 703 F.2d 14 17 (1st Cir. 1983)(lesser sanctions were ineffective in stopping repeated violations).

CONCLUSION

Without specific findings concerning McLeod's use of marijuana on the job it is arbitrary and capricious to discipline McLeod. The Army's penalty of removal of McLeod for lunchtime possession of marijuana was an abuse of discretion. We REMAND this case to the Board with orders to determine whether an inference of marijuana used by McLeod may be made and whether it adversely affected the job performance of McLeod or others and if so to assess a penalty consistent with the Army's table of penalties and to determine the appropriate award of back pay and beneficial entitlements.

McLeod may be entitled to reasonable costs under 28 U.S.C. SEC. 2412 (1976 & Supp. V 1981) and we REMAND to the Board for that determination. We REMAND to the Board also to decide whether an award of Counsel's fees is appropriate under 5 U.S.C. SEC. 7701(g)(1) (1976 & Supp. V 1981) and if so to determine the amount.

 
Notes:

*fn1 Three other circuits also have approved the Young test: Phillips v. Bergland 586 F.2d 1007 1010 (4th Cir. 1978); Bonet v. United States Postal Service 661 F.2d 1071 1074 (5th Cir. 1981); and Giesler v. Merit Systems Protection Board 686 F.2d 844 849 (10th Cir. 1982).

*fn2 Generally such egregious conduct occurs on-duty and will be clearly work related i.e. falsifying work records Alers v. United States 224 Ct. Cl. 560 633 F.2d 559 (1980); falsifying expense accounts Tucker v. United States 224 Ct. Cl. 266 624 F.2d 1029 (1980); theft of government property Alsbury v. United States Postal Service 530 F.2d 852 (9th Cir. 1976) cert. denied 429 U.S. 828 50 L. Ed. 2d 91 97 S. Ct. 85 (1976); insubordination Henkle v. Campbell 626 F.2d 811 (10th Cir. 1980); and an Counseling psychologist having sexual contact with patients

Doyle v. Veterans Administration 229 Ct. Cl. 261 667 F.2d 70 (Ct. Cl. 1981). Off-duty conduct which has been found to be so outrageous as to "speak for itself" include an immigration official who employed illegal aliens in her home Wroblaski v. Hampton 528 F.2d 852 (7th Cir. 1976); a customs inspector who used and transported marijuana Masino v. United States 589 F.2d 1048 (Ct. Cl. 1978); an IRS agent responsible for overseeing delinquent tax returns who failed to file timely returns Giles v. United States 213 Ct. Cl. 602 553 F.2d 647 (1977); and homicide Wathen v. United States 208 Ct. Cl. 342 527 F.2d 1191 cert. denied 429 U.S. 821 50 L. Ed. 2d 82 97 S. Ct. 69 (1975). However a recent case D.E. v. Dept. of the Navy 707 F.2d 1049 1052-53 (9th Cir. 1983) rejects any presumption of nexus and casts doubt on whether off-duty conduct can ever "speak for itself."