by Mark Wilson

The United States Court of Appeals for the Federal Circuit upheld the termination of a federal prison guard, finding that he waived any claim of prejudice from a 1,265-day delay between commencement of the investigation and termination.

Leonardo Villareal was employed as a Bureau of Prisons (BOP) guard from 2007 until May 23, 2016. He had no disciplinary record and his evaluations were all rated satisfactory or higher.

While employed as a senior guard at BOP’s Federal Detention Center Houston, a prisoner complained to BOP’s internal affairs about Villareal in November 2012. The matter was referred to the Office of the Inspector General (OIG), which initiated a December 6, 2012, investigation into: Villareal’s relationship with two female prisoners, Claudia Solis and Andee Santana; improper contact with Solis’s family; preferential treatment toward prisoners; breach of computer security; and inattention to duty.

While the OIG investigation was pending, Villareal was reassigned to a phone monitor position outside the facility’s secure perimeter in January 2013. He was not allowed to interact with prisoners or to work overtime.

Following a seven-month investigation, the OIG concluded that Villareal violated several BOP policies. The inspector general found most troubling that Villareal placed and failed to report several calls on his cellular phone to Solis’ family members. The OIG also found that Villareal engaged in an inappropriate relationship with Solis and showed her and Santana preferential treatment by offering them leftover cookies, allowing them to take early showers and allowing them to distribute toiletries. The OIG finally found that Villareal made derogatory remarks to prisoners, misused his work computer and failed to properly monitor prisoners around computers and secure his office.

In July 2014, Villareal’s supervisor, Captain Fauver, drafted a proposed disciplinary letter suggesting a 30-day suspension. The letter was never signed or sent, but Warden Michael Babcock told Villareal’s union representative in August 2014, that Villareal would receive a 30-day suspension.

Soon thereafter, Michael Pearce replaced Babcock as warden. During a November 2014 transition meeting, Babcock referred to Villareal’s case as a “potential termination case.”

On June 18, 2015, Captain Fauver issued a letter proposing Villareal’s removal. Eleven months later, Warden Pearce issued a May 23, 2016, letter determining that Villareal should be terminated.

Villareal’s union filed a grievance, claiming that: the discipline was untimely; there was no just and sufficient cause for the discipline imposed; the accuracy of the alleged facts were questionable; Villareal was subject to double jeopardy; and the discipline was excessively harsh and disproportionate.

The union emphasized that 1,265 days—almost 3½ years—had elapsed between commencement of the investigation and Villareal’s removal.

The BOP denied the grievance, and the union invoked the right to arbitration. Following a two-day hearing, the arbitrator found Villareal’s termination was justified and rejected his due-process claims.

The Federal Circuit affirmed. The only claim the appellate court seriously considered related to the delay between investigation and termination.

“We are concerned by the untimeliness of the Bureau’s decision,” the court explained. “The Bureau’s explanation for the delay is not satisfactory, and the 1,265 day delay in removing Villareal was patently unreasonable.”

Finding that “delay of this sort could vitiate an agency decision if it was prejudicial,” the court found that “no such claim of prejudice was made here.” The court found that Villareal waived his claim of prejudice by raising it for the first time on appeal. See: Villareal v. Bureau of Prisons,_ F3d _ (Fed Cir. 2018).

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