Appealed from Merit Systems Protection Board.
Kashiwa, Circuit Judge, Nichols, Senior Circuit Judge, and Bennett, Circuit Judge. Nichols, Senior Circuit Judge, concurring and dissenting.
Maria S. Miguel (petitioner) appeals from a final order of the Merit Systems Protection Board (MSPB), No. SF07528110898 (January 31, 1983), that denied review of the presiding official's decision sustaining her removal based on unauthorized possession of government property. Petitioner asserts that her removal was unlawful for the following reasons: (1) the penalty imposed was so disproportionately harsh as to constitute an abuse of discretion; (2) the Department of the Army's (agency) failure to provide the MSPB with a full agency record was in violation of civil service law and regulations; and (3) the agency's denial of petitioner's right to union representation under a collective bargaining agreement constituted reversible error. We reverse and remand.
At the time of her removal, petitioner was a civilian employee of the United States Army who was employed as a commissary cashier at the Presidio, San Francisco, California. Due to pilferage at the commissary, management officials initiated certain security measures, including the installation of a camera security system and posting of notices warning employees that they were subject to dismissal for theft.
A cabinet in the manager's office at the commissary was used for temporary storage of misplaced, damaged and returned items. On January 13, 1981, Mr. Trapalis, Assistant Commissary Officer, put two bars of soap on one of the shelves of the salvage cabinet. When Mr. Trapalis returned the next morning, he noticed that the soap was missing. For this reason, he asked Mr. Carroll, Security Manager, to review the video tape taken by a security camera located in the manager's office. The tape showed a woman removing the soap, and Mr. Trapalis, Mr. Carroll and Mr. Rose, Commissary Officer, all identified petitioner as the woman seen on the tape.
On January 14, 1981, Mr. Carroll requested a meeting with petitioner. At the meeting, attended also by the commissary officers, he informed her that a tape had been made which showed her theft of the soap. Mr. Carroll told petitioner that she had a choice of either retiring or having the matter turned over to the police. Petitioner was very upset at the meeting and said words to the effect, "I have done a bad thing, I should not have done it." Mrs. Brabo, Chief Cashier Supervisor, testified that on January 15, 1981, she received a telephone call from petitioner, who stated that she had done a bad thing, she had taken the soap.
On March 19, 1981, a notice of proposed removal was presented to petitioner by Mr. Rose. The reason given for the proposed action was "unauthorized possession of U.S. Government property." The notice stated:
Specifically, at approximately 6:12 p.m. on 13 January 1981 you placed 2 bars of Neutrogena Beauty Soap, valued at $1.05 each, into your purse. The soap in question was U.S. Government property. You did not pay for the soap.
When petitioner was informed that Mr. Rose wanted to see her concerning her proposed removal, petitioner requested that a union representative be present. Mr. Rose told her to report to his office immediately and that her refusal to do so would border on insubordination. Petitioner complied, and received the notice of proposed removal.
By a memorandum dated June 12, 1981, petitioner was notified of the decision to remove her, effective June 15, 1981. Petitioner appealed the removal action to the MSPB on June 19, 1981.
In a decision dated September 29, 1981, the presiding official of the MSPB affirmed the agency's decision to remove petitioner. The presiding official found that the charge of theft of government property was proven by a preponderance of the evidence based on the following: (1) the video tape of the theft; (2) the three identifications of petitioner by her supervisors; (3) petitioner's admission to her immediate supervisor, Mrs. Brabo; and (4) petitioner's voluntary confession. With regard to petitioner's contention that the agency committed harmful error in that she was not notified of her right to union representation, the presiding official stated that:
in view of the seriousness of the offense, and the strong evidence against the appellant, I find that the agency would have reached the same result in appellant's case even if her union representative had been present. Accordingly, I find that the procedural error complained of was not harmful.
The presiding official also concluded that petitioner's removal was taken for such cause as would promote the efficiency of the service. Finally, on the issue of mitigation of the penalty, the presiding official concluded that removal was reasonable, based on the following factors: (1) the nature and seriousness of the offense; (2) the clarity with which petitioner was on notice regarding the seriousness of the offense; (3) ...