Kugler v. Department of Agriculture , 397 F. App'x 634 ( 2010 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
RHONDA S. KUGLER,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2010-3124
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0752090186-I-1.
___________________________
Decided: October 12, 2010
___________________________
RHONDA S. KUGLER, of Bee Spring, Kentucky, pro se.
JOSEPH A. PIXLEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARK A. MELNICK,
Assistant Director.
__________________________
KUGLER v. AGRICULTURE 2
Before GAJARSA, MAYER, and MOORE, Circuit Judges.
PER CURIAM.
Rhonda Kugler petitions for review of a final order
from the Merit Systems Protection Board (the “Board”).
The Board declined to review the initial decision of the
Administrative Judge (“AJ”) upholding the decision of the
Great Onyx Job Corps Center (the “Center”) to remove
Kugler from her position as a Social Services Assistant
(“SSA”). The AJ’s initial decision thus became final when
the petition for review was denied. Because the final
order is not an abuse of discretion and is supported by
substantial evidence, and there is no legal error, we
affirm.
BACKGROUND
Prior to her removal, Kugler worked for the Center
since 1992. The Center is a residential program charged
with furthering education and teaching employability
skills to disadvantaged students ages sixteen to twenty-
four. Center students are subjected to a “zero tolerance”
policy regarding alcohol and drugs. As an SSA, Kugler
supervised residential students, directed their activities,
and served as their role model. In July of 2008, supervi-
sory control of the Center was transferred from the De-
partment of the Interior to the Department of Agriculture
Forest Service.
I. Misconduct & Removal from Employment
On December 13, 2005, Kugler reported for duty while
under the influence of alcohol. The Associate Director
suspended her for five days effective March 18, 2006. On
November 13, 2006, Kugler again reported for duty while
under the influence of alcohol. She was suspended by the
Acting Program Manager for 30 days effective February
22, 2007.
3 KUGLER v. AGRICULTURE
On May 23, 2007, Kugler was arrested by the police in
Bowling Green, Kentucky for driving under the influence
(“DUI”) while off-duty. On January 31, 2008, she pled
guilty and was convicted of DUI. The Warren District
Court suspended her commercial driver’s license (“CDL”)
for one year, which was not reinstated as of June 15,
2009. On August 21, 2008, the Center Director proposed
to remove Kugler for “Improper Conduct,” i.e. her DUI
conviction. On October 29, 2008, Ms. Sharon M. Dehart,
Assistant Director of the National Office of Job Corps for
the Forest Service, sustained the charge and removed
Kugler from employment.
II. Merit Systems Protection Board Decision
On December 5, 2008, Kugler appealed her removal to
the Board. The initial decision by the AJ affirmed the
agency’s action finding that 1) the action promoted the
efficiency of the service and 2) the penalty of removal was
within tolerable bounds of reasonableness. According to
the AJ, the agency showed, by a preponderance of the
evidence, that the discipline of removing Kugler promoted
the efficiency of service because a sufficient correlation
was established between her off-duty misconduct and her
employment. This correlation was shown clearly through
Kugler’s alcohol-related crime, her loss of a CDL, and Ms.
DeHart’s testimony that she lost confidence in Kugler’s
ability to represent or model appropriate behavior.
The AJ reviewed the penalty to determine whether it
was within tolerable bounds of reasonableness. This
involved a consideration of the Douglas factors. Douglas
v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (M.S.P.B.
1981). The AJ found that Kugler’s position, requiring her
to be a life-model and also requiring her to transport
students, especially in the case of an emergency, weighed
against her in assessing the seriousness of the offense.
KUGLER v. AGRICULTURE 4
The AJ considered Kugler’s admission to being a recover-
ing alcoholic, but found that Kugler was not entitled to
mitigation of the penalty based on her potential for reha-
bilitation. Thus the AJ held that removal was reasonable
for the sustained offense given Kugler’s prior disciplinary
history.
Kugler petitioned for review by the Board, but it de-
nied her petition. Although the Board did not grant
review, it specifically added to footnotes to the denial. It
first noted that the AJ did not abuse her discretion by
limiting discovery. Second, it noted that there was no
legal basis to support Kugler’s argument that the De-
partment of Agriculture did not have the authority to
remove her for misconduct that occurred while employed
by the Department of the Interior. Therefore the AJ’s
initial decision became final when the petition for review
was denied.
A timely appeal to this court followed. This court has
jurisdiction over her appeal pursuant to 5 U.S.C.
§ 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of judicial review of Board decisions is nar-
rowly defined and limited by statute. We must affirm a
decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; obtained without procedures required by law, rule, or
regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c) (2006). Kugler
primarily raises four issues on appeal: first, that the AJ
and Board were incorrect in finding that Kugler’s SSA
position required a CDL; second, that the Board erred in
not considering the off-duty nature of her DUI or her
subsequent job performance; third, that the Department
of Agriculture had no authority to discipline her for her
5 KUGLER v. AGRICULTURE
actions which occurred while an employee of the Depart-
ment of the Interior; and finally, that the Board erred
when affirming the AJ’s response to Kugler’s motion to
compel discovery.
With respect to the first issue, Kugler asserts that the
SSA position does not require a CDL. The Center’s Job
Description for an SSA lists the major duties of the posi-
tion. Maintaining a valid CDL is included among the
major duties for the position. Additionally, the parties
stipulated to certain material facts, including that the
SSA position description requires a CDL. Finally, Ms.
Dehart testified that the SSA position requires a CDL.
The AJ’s determination that the SSA position requires a
CDL is clearly supported by substantial evidence.
Kugler’s second argument, that her DUI did not im-
pact her ability to carry out her duties, similarly fails.
The record contains substantial evidence that Kugler’s
misconduct caused legitimate safety concerns and caused
her supervisor to lose confidence in Kugler’s abilities.
Kugler’s DUI conviction resulted in the loss of her CDL,
which is a requirement for the SSA position, as noted
above. Kugler was also suspended for alcohol related
problems on two different occasions prior to the DUI. As
the AJ correctly found, “[Kugler’s] job duties are inconsis-
tent with alcohol-related crimes.” Kugler v. Dep’t of
Agric., CH0752090186-I-1 at 4 (M.S.P.B. Aug. 28, 2009)
(“Initial Decision”). A DUI conviction is contravened by
Kugler’s clear duty to “guide the development of individu-
als learning the skills and attitude necessary to maintain
employment.” Id.Not only was her DUI conviction anti-ethical to her
position as a role model, it severely undercut her supervi-
sor’s confidence in her abilities. Ms. Dehart was the
deciding Center official that testified before the AJ about
KUGLER v. AGRICULTURE 6
Kugler’s removal. The AJ found that Ms. Dehart testified
credibly, a finding which should not be disturbed by this
court. See Bieber v. Dep’t of the Army, 287 F.3d 1358,
1364 (Fed. Cir. 2002) (“The credibility determinations of
an administrative judge are virtually unreviewable on
appeal”). Ms. Dehart testified “that she lost confidence in
[Kugler’s] ability to guide or model appropriate behavior”
and that “she did not trust [Kugler] to drive students.”
Initial Decision, slip op. at 4. Therefore, substantial
evidence supports the AJ’s determination that a sufficient
nexus was established by the agency between Kugler’s
DUI and her employment.
Kugler next argues that because her DUI conviction
occurred while an employee of the Department of the
Interior, the Department of Agriculture lacked the au-
thority to remove her. The Board specifically addressed
this argument and stated that it could not find, nor did
Kugler provide, “any legal support for the proposition that
a successor agency is precluded from initiating discipli-
nary action for misconduct occurring prior to the transfer
of functions from the predecessor agency.” Kugler v. Dep’t
of Agric., CH0752090186-I-1 at 2 n.* (M.S.P.B. Mar. 19,
2010) (“Final Order”). We too find no legal authority to
support Kugler’s argument. Therefore, the Board did not
abuse its discretion when finding that Kugler’s third
argument lacked merit.
Finally, Kugler’s argument that the AJ improperly
limited the scope of Kugler’s motion to compel discovery is
unpersuasive. “Procedural matters relative to discovery
and evidentiary issues fall within the sound discretion of
the board and its officials.” Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). The Board’s
decision on procedural matters will not be overturned
unless there is a clear and harmful abuse of discretion.
Id. If an abuse of discretion did occur, the petitioner
7 KUGLER v. AGRICULTURE
bears the burden of proving that “the error caused sub-
stantial harm or prejudice to his rights which could have
affected the outcome of the case.” Id. at 1379.
Prior to the hearing before the AJ, Kugler “submitted
a discovery request in which she sought, in several inter-
rogatories, to identify every employee of the agency in the
last twenty years who had engaged in misconduct similar
to that charged against her.” Final Order, slip op. at 2
n.*. The AJ considered Kugler’s motion to compel and
ordered the agency to provide the names of employees at
the Center who were disciplined during the last five years
for failing to maintain a position requirement. The Board
found that the AJ did not abuse her discretion in limiting
the discovery. Id. Before this court, Kugler failed to set
forth any evidence that the AJ’s discovery order caused
substantial harm that affected the outcome of her case.
CONCLUSION
Kugler’s remaining arguments have been considered
and were found unpersuasive. Accordingly, the decision
of the Board is affirmed.
No Costs.