Posted on Friday, August 01, 2003 at 12:00PM

Agent Juan Serna is a Senior Patrol Agent with the United States Border Patrol assigned to the El Centro, California Border Patrol Sector. On June 3, 2002, Serna was working the midnight shift and was serving as an acting supervisory Border Patrol agent for the shift. As an acting supervisor, Serna would periodically visit his fellow agents assigned to still-watch or stationary positions along the border to relieve them for breaks and to provide much needed human contact. At a little after 6 a.m., Serna was traveling east along the bank of the All American Canal and in the direction of the rising morning sun. Serna took his eyes off of the road for two to three seconds and, when he looked up, noticed another Border Patrol vehicle parked perpendicular to the canal directly in his path. Serna slammed on the brakes and attempted to stop short of the parked vehicle, but ended up hitting the rear bumper and trailer hitch of the other service vehicle.

Serna immediately contacted his supervisor and requested that the supervisor respond to the scene with a camera to document the vehicle damage. The supervisor responded. Serna explained what had happened, was completely truthful and did not attempt to hide the fact that he had taken his eye off the road. All of the necessary paperwork was completed and Serna thought and hoped that was the end of the matter.

More than two months after the incident, Serna received a proposal to suspend him for 12 days for “failing to exercise proper caution while operating a government motor vehicle.” In order to get to the 12-day suspension, the Border Patrol alleged that the proposed suspension was progressive discipline relying on two prior incidents in which Serna was charged with the catchall “conduct unbecoming an officer” charge. The two prior cases were minor in nature and completely unrelated to the current charge.

Serna contacted the LDF and his case was assigned to LDF Panel Attorney Michael Baranic, of the law firm Gattey Baranic, LLP. After obtaining all of the supporting documents regarding the case and investigating the level of discipline received by other agents and supervisors for similar vehicle accidents, Serna and Baranic attended a Loudermill hearing (the federal version of a Skelly hearing) with the assistant chief patrol agent.

During the Loudermill hearing, Baranic pointed out that Serna had been consistently rated as an outstanding employee, that he received the Agent of the Month award for April 2002 and that he volunteered for not one, but three 60-day rotations as an acting supervisor, at no additional pay, when the sector was short on staffing. Baranic also pointed out that their investigation revealed that, of the last nine cases involving failure to exercise proper caution while operating a government motor vehicle, agents received either an official reprimand or a one-day suspension in eight of the nine cases. The one case that resulted in discipline greater than one day involved an agent who had a history of vehicle accidents, and the Border Patrol used the agent’s prior vehicle accident cases as part of the progressive discipline process in arriving at the higher level suspension for that agent. Baranic argued that the Border Patrol could not use Serna’s prior discipline for completely unrelated charges as part of the progressive discipline process in order to impose a 12-day suspension for a minor vehicle accident when other similarly situated agents received either an official reprimand or a one-day suspension.

On December 2, 2002, the Border Patrol issued its decision letter reducing the 12-day suspension to a one-day suspension. In keeping with his practice of accepting responsibility for his actions, Serna chose not to appeal the matter and accepted the one day suspension.

LDF Panel Attorney Michael Baranic is a partner in the law firm of Gattey Baranic, LLP, and is admitted to practice in California, Arizona and the District of Columbia.

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