Luis Martinez v. Department of Homeland Security

CourtMerit Systems Protection Board
DecidedNovember 21, 2025
DocketAT-114M-23-0129-Y-1
StatusUnpublished

This text of Luis Martinez v. Department of Homeland Security (Luis Martinez v. Department of Homeland Security) is published on Counsel Stack Legal Research, covering Merit Systems Protection Board primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luis Martinez v. Department of Homeland Security, (Miss. 2025).

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

LUIS MARTINEZ, DOCKET NUMBER Appellant, AT-114M-23-0129-Y-1

v.

DEPARTMENT OF HOMELAND DATE: November 21, 2025 SECURITY, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Luis Martinez , Dunnellon, Florida, pro se.

Eileen Dizon Calaguas , Esquire, San Francisco, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which sustained his removal. For the reasons discussed below, we GRANT the appellant’s petition for review and REVERSE the initial decision. The appellant’s removal is NOT SUSTAINED.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2

BACKGROUND The appellant was employed as a Transportation Security Officer (TSO) at the Jacksonville International Airport. 2 Initial Appeal File (IAF), Tab 16 at 13. On March 23, 2022, a passenger returned to the security checkpoint lane and informed two Supervisory TSOs (STSOs) that he had lost a single AirPod, 3 and that his cell phone was “pinging” at the checkpoint, indicating that the AirPod was in the area. IAF, Tab 5 at 34. The two STSOs searched the area, looking for the AirPod, until the passenger informed them that his phone was no longer indicating that his AirPod was in the security area. Id. Subsequently, the two STSOs and the agency’s Transportation Security Manager (TSM) reviewed Closed Circuit Television (CCTV) footage, identified the appellant as the individual who had collected the bin with the passenger’s AirPod, and reported to Transportation Security Administration Investigations (TSA-Investigations) that they suspected the appellant stole the AirPod from the bin. Id. at 34-35. TSA-Investigations conducted an internal investigation into the allegation, which included a review of the CCTV footage, as well as interviews with the STSOs, the TSM, and the appellant. Id. at 32-72. In a written statement, the TSM stated that she believed the appellant may have taken the passenger’s AirPod based on her conversations with the STSOs, as well as the appellant’s “suspicious actions” in the CCTV footage, specifically, that he tipped the bin in question into his left hand, removed his latex gloves and placed them in his left pocket, and then transferred those gloves to his right pocket, and the fact that the passenger indicated that his phone stopped pinging at the same time the appellant left the checkpoint to go on break. Id. at 45, 49. Later, during her interview with TSA-Investigations, the TSM stated that the appellant did not deny taking the

2 The Board has jurisdiction over this removal pursuant to its memorandum of agreement with the Transportation Security Administration, which became effective on September 26, 2019. Initial Appeal File, Tab 6 at 13-17. 3 AirPods are wireless headphones. 3

AirPod when she questioned him, claiming instead that he did not remember seeing or removing an AirPod from a bin, which she found to be suspicious. Id. at 45-46. The TSM, however, admitted that she did not recall asking the appellant if the AirPod was inside his glove because “she did not think it was there at the time.” Id. at 46. The STSOs submitted similar written statements, stating that they suspected the appellant may have taken the AirPod based on their review of the CCTV footage and the appellant’s “suspicious actions,” likewise specifying that the appellant tipped the bin towards his left hand, removed his gloves, and put them in his left pocket before then transferring them to his right pocket, and that the passenger indicated his phone stopped pinging once the appellant was no longer in the checkpoint area. Id. at 55-56, 59, 62. During their interviews with TSA-Investigations, both STSOs conceded that although they believed that the appellant’s actions were suspicious, “the CCTV footage lacked ‘the smoking gun’ evidence” that the appellant took the AirPod. Id. at 56. When interviewed by TSA-Investigations, the appellant denied taking the AirPod and offered explanations for his behavior. Id. at 69. For instance, the appellant explained that he tipped the bin in question because he had to walk through several coworkers to reach the prescreening portion of the lane, and tilting the bin made it easier to pass through the area. Id. He also explained that he would routinely place used gloves in his pocket when he was busy and dispose of them later. Id. TSA-Investigations concluded its investigation and issued a report stating that although some of the appellant’s actions “may appear to be suspicious in nature, the video evidence regarding the allegation that he stole the passenger’s [AirPod] is not conclusive because the item is very small and is not clearly shown on the recordings.” Id. at 42-43. The report also concedes that the appellant “is not seen with the [AirPod] in his possession at any time.” Id. at 35. Nevertheless, the agency proposed the appellant’s removal based on a charge of unauthorized possession, supported by one specification alleging that 4

the appellant possessed the passenger’s single AirPod. IAF, Tab 16 at 14-21. In addition to the actions identified by the TSM and STSOs, the proposing official claimed that the appellant engaged in other suspicious behavior, including grabbing an empty bowl with only the thumb and index finger of his left hand, and picking up two additional bowls with his left hand “still clenched.” Id. at 15. The proposing official additionally asserted that the appellant carried an empty bin to the prescreening area, instead of placing the bin in the empty bin cart next to him, for “no other purpose than to provide the perception for CCTV that [the appellant] could not be concealing the AirPod since [he] was using [his] left hand.” Id. The appellant responded to the proposed removal, denying that he took the passenger’s AirPod and explaining that he was merely performing his job duties. Id. at 22-28. However, the deciding official sustained the charge of unauthorized possession and removed the appellant effective December 1, 2022. IAF, Tab 4 at 16-30. The appellant filed an appeal with the Board challenging his removal, and after holding a hearing, the administrative judge issued an initial decision affirming the agency’s removal action. IAF, Tab 22, Initial Decision (ID). Analyzing the CCTV footage, the administrative judge concluded that the passenger’s AirPod was most likely in the bin when the appellant picked it up and that the appellant tipped the bin in order to grab the AirPod in his left hand. ID at 8. He also found that the manner in which the appellant held other bins, i.e., with his left hand clenched, and the “unnatural” manner in which the appellant removed his gloves, specifically, pulling his gloves over a clenched fist, established that the appellant most likely concealed the AirPod in his left fist. ID at 9. The administrative judge additionally found that, most likely, the appellant placed his gloves in his pocket because they contained the AirPod, and that once the appellant realized the passenger was tracking the single AirPod to the security checkpoint, he went on break and disposed of the evidence. ID at 9-10. Also, according to the administrative judge, the appellant’s behavior, such as glancing 5

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Luis Martinez v. Department of Homeland Security, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luis-martinez-v-department-of-homeland-security-mspb-2025.