The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY GROOM, DOCKET NUMBER
Appellant, AT-114M-24-0318-Y-1
v.
DEPARTMENT OF HOMELAND DATE: May 1, 2026
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jason Mao , Esquire, and Carson Bridges , Esquire, Dallas, Texas,
for the appellant.
Agatha Swick , Esquire, Springfield, Virginia, for the agency.
Daniel Collado , Esquire, White Plains, New York, for the agency.
Steven J. Lewengrub , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons discussed below, we GRANT the appellant’s
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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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
petition for review and REMAND the case to the regional office for further
adjudication of whether the appellant proved an affirmative defense of retaliation
for protected activity under 5 U.S.C. § 2302(b)(9)(C).
BACKGROUND
Prior to his removal, the appellant was employed as a Transportation
Security Officer (Screener) (TSO) at Myrtle Beach International Airport. Initial
Appeal File (IAF), Tab 9 at 93. On December 1, 2024, the agency proposed his
removal based on charges of inappropriate conduct and providing inaccurate
information. Id. at 83. The agency alleged that on October 28, 2023, he touched a
fellow TSO, referred to as TSO 1, on her “right hip/backend with [his] right hand.”
Id. The agency further alleged that he provided inaccurate information in his
written statement about the incident in which he denied touching a coworker. Id.
The appellant provided a response and a supplemental response to the proposal. Id.
at 36-59. On January 26, 2024, the agency issued him a notice of removal and
removed him, effective that day. Id. at 16-33.
The appellant filed an initial appeal with the Board on February 14, 2024.
IAF, Tab 1 at 1. The administrative judge held a virtual hearing on October 10,
2024. IAF, Tab 31, Initial Decision (ID) at 1. On November 19, 2024, the
administrative judge issued an initial decision in which he affirmed the removal,
finding that the agency proved both charges, nexus, and the reasonableness of the
penalty, and that the appellant did not prove his affirmative defenses of retaliation
for whistleblowing and discrimination based on race, color, sex, religion, and
national origin. ID at 1, 3-19. The appellant filed a petition for review in which he
claimed that the agency did not prove its charges, that he proved his affirmative
defenses, and that the penalty was unreasonable. Petition for Review (PFR) File,
Tab 3 at 7-22. The agency submitted a response. PFR File, Tab 5.
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DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not shown that the administrative judge erred in finding that the
agency proved its charges by preponderant evidence.
The agency charged the appellant with a single specification of inappropriate
conduct. IAF, Tab 9 at 17. The agency alleged, “On October 28, 2023, at
approximately 1900 hours, while working the Checkpoint on Lane 1, [the
appellant] touched [TSO 1’s] right hip/backend with [his] right hand.” Id.
The record contains a 24-second video recording of the incident. 2 IAF,
Tab 11-1. The video recording, which has no sound, takes place at an active
security lane at Myrtle Beach International Airport. Id. It shows the appellant
walking past TSO 1, who was on his left side, at 0:05 with a white TSA bowl in his
left hand. Id. TSO 1 is standing adjacent to the side of the screening device with
her right arm resting on top of it throughout the video. Id. Although the bowl
appears to come close to TSO 1, the video recording is unclear as to whether it
contacts her as the appellant walks by her. Id. TSO 1 has no visible reaction to the
appellant walking past her the first time. Id. He then deposits the bowl on top of
the end of the screening device at 0:07, turns around, and walks past TSO 1, who is
now on his right side, a second time at 0:11. Id. As he walks past TSO 1 the second
time, the appellant’s right hand is below his waist and extended away from his body
at an approximately 45-degree angle and appears to grab TSO 1’s body at 0:11. Id.
TSO 1 turns her head to the left towards the appellant and away from the video
camera, two seconds later, at 0:13. Id.
At the hearing, the appellant testified that he was performing a “hand over”
maneuver around TSO 1’s hip area, referring to an instance in which one individual
touches or places a hand near another while passing by them in close quarters to
help guide the interaction. ID at 6-7 (citing hearing testimony of the appellant).
2
The administrative judge provided a detailed second-by-second analysis of the video.
ID at 4-6.
4
He explained that he would employ this maneuver to ensure no physical contact
when he was in close quarters with coworkers. ID at 7.
The administrative judge concluded that the agency proved that it is more
likely than not that the appellant touched TSO 1’s buttock. Id. First, he credited
TSO 1’s testimony about the appellant touching her buttock and that the appellant
had previously told her that her body was like a “milkshake.” Id. The
administrative judge concluded that the appellant was sexually attracted to TSO 1.
Id. Second, the administrative judge determined that the video recording
corroborated TSO 1’s testimony that he touched her right buttock. ID at 7-8. The
administrative judge noted that the appellant lowered his right shoulder and
extended his right arm at a 45-degree angle before touching TSO 1. ID at 8. Third,
the administrative judge considered the appellant’s written statement and hearing
testimony to be internally inconsistent. Id. Although his written statement
indicated he does not touch coworkers, his hearing testimony insinuated that
touching workers is somewhat common. Id. (citing hearing testimony of the
appellant); IAF, Tab 9 at 67. Furthermore, the administrative judge found the
appellant’s “hand over” explanation to be tailored to what he saw in the video. ID
at 8. He found this explanation not credible, reasoning that if one were to perform
a hand over to avoid touching someone, one would do so at shoulder height, not at
hip level. Id. Finally, the administrative judge determined that TSO 1 directed
comments to the appellant in a subdued conversational tone after the touching,
which is why no one claimed to have overheard them. ID at 9. Based on these
factors, the administrative judge concluded that the appellant intentionally touched
TSO 1’s buttock. Id.
On petition for review, the appellant alleges that the administrative judge
omitted significant parts of TSO 1’s testimony and that the administrative judge’s
discussion of the video recording omitted material facts. PFR File, Tab 3 at 7-16.
The Board may grant a petition for review if the initial decision contains an
erroneous finding of material fact. E.g., West v. Department of Health and Human
5
Services, 122 M.S.P.R. 434, ¶ 1 (2015). Material means that the factual error must
be of sufficient weight to warrant an outcome different from that of the initial
decision. Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 36 (2016)
(citing 5 C.F.R. § 1201.115(a)(1)).
First, the appellant asserts that the administrative judge omitted material
parts of TSO 1’s testimony in the initial decision. Specifically, he alleges that the
administrative judge should have mentioned Transportation Security Manager
(TSM) Felicies’s November 7, 2023 report that TSO 1 told her that the appellant
smacked her on the buttock in passing. PFR File, Tab 3 at 7 (citing IAF, Tab 9
at 65). Next, he alleges that the administrative judge should have mentioned
TSO 1’s November 7, 2023 report that something brushed up against her during the
appellant’s initial pass, and he smacked her on the backend with one of the TSA
bowls on the way back. Id. (citing IAF, Tab 9 at 63). In addition, he claims that the
administrative judge should have mentioned TSO 1’s November 11, 2023 police
report in which she claimed that the appellant used the TSA bowl to smack her in
the buttock and that he told her that it was an accident. Id. at 7-8 (citing IAF,
Tab 23 at 54).
The appellant alleged that the absence of these facts were erroneous findings
of material fact. Id. at 7. However, he has not established that the absence of these
facts was material. The video evidence confirms that the appellant did not smack
TSO 1 on the buttock as indicated in TSM Felicies’s and TSO 1’s November 7,
2023 reports. IAF, Tab 11-1 at 0:11. However, these reports were taken before
either of them had viewed the video recording. Indeed, when the appellant
questioned TSO 1 at the hearing on the accuracy of her November 7, 2023 report,
she testified that it was accurate at the moment that she wrote it. IAF, Tab 27 -1
at 47:13-47:21. We find it more likely than not that this testimony reflected the
fact that she had not yet seen the video and her statements were based only on her
sense of touch because she was facing away from the appellant when the incident
occurred. We conclude that the administrative judge’s inclusion of these additional
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facts would not have warranted a different outcome. Therefore, we find that they
were not material. See Elder, 124 M.S.P.R. 12, ¶ 36.
Next, the appellant alleges that the administrative judge’s description of the
video recording omitted several material facts or was otherwise inaccurate. PFR
File, Tab 3 at 10-16. First, he alleges that the administrative judge erred by not
noting that he did not touch TSO 1, and TSO 1 did not react as if she had been
touched, when he first passed by her. Id. at 11. Second, he alleges that the
administrative judge erred by saying there were almost two full rows of floor tiles
between the appellant’s left foot and the nearest wall to his left when he walked
past TSO 1 the second time. Id. (citing ID at 5). According to the appellant, this
statement was an error because the administrative judge neglected to mention that
the first three rows of tiles closest to the wall were about half as wide as those
adjacent to them, which gave the impression that the area was not narrow. Id.
Third, the appellant alleges that the administrative judge erred by describing his
hand at the 0:11 mark of the video recording as appearing to be “cupped and open
towards TSO 1’s right buttock area.” Id. (quoting ID at 6). The appellant claims
that the video recording did not have sufficient resolution to determine the
curvature of his hand and the camera’s fisheye lens makes judging distance
difficult. Id. at 11-12. Fourth, the appellant states that his hand touched TSO 1’s
waist, not her buttock. Id. at 12.
We find that none of these arguments raises an erroneous finding of material
fact. It is undisputed that the alleged touching in the inappropriate conduct charge
refers to the appellant’s second time passing TSO 1. The relative width of the tiles
closest to the wall as compared to those adjacent to them had no bearing on whether
his right hand reached out to touch TSO 1 on his second pass. Likewise, the shape
of the appellant’s right hand when he touched TSO 1 is immaterial to whether he
touched her. The agency only needed to prove that he touched TSO 1’s right hip or
backend. See Cross v. Department of the Army, 89 M.S.P.R. 62, ¶ 8 (2001)
(holding that an agency may use a broad label, such as “improper conduct,” that has
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no legal definition to charge an employee with misconduct as long as the reasons
for the proposed action are described in sufficient detail to allow the employee to
make an informed reply). As to his claim that he touched TSO 1’s waist, not her
buttock, our review of the video evidence supports the administrative judge’s
finding on this issue. Thus, we find that the appellant has not identified an
erroneous finding of material fact as to the inappropriate conduct charge, and we
discern no reason to disturb the administrative judge’s findings on it.
The administrative judge must consider whether the appellant has established that
his removal constituted unlawful reprisal for engaging in activity protected under
5 U.S.C. § 2302(b)(9)(C).
As previously mentioned, the appellant’s petition for review also challenges
the administrative judge’s findings concerning his claim of discrimination, his
claim of reprisal, and the reasonableness of the agency’s penalty. While we have
considered all these arguments, we find no reason to disturb the administrative
judge’s well-reasoned findings, with one exception.
Among his reprisal claims, the appellant alleged that the agency retaliated
against him due to his having filed or participated with an anti-harassment program
incident report on November 2, 2023, which was only days before TSO 1 came
forward with her allegations. PFR File, Tab 3 at 16-17 (citing IAF, Tab 23 at 81).
This anti-harassment incident report included an assertion that TSM Felicies
“treated him like a criminal” and TSO 2 made false allegations against him. IAF,
Tab 23 at 81. 3 The report was filed by TSM Strickland, who would propose the
appellant’s removal less than a month later. Id. at 82; IAF, Tab 9 at 83. The
appellant also seems to suggest that TSM Felicies was aware of the same. IAF,
Tab 30 at 9.
In the initial decision, the administrative judge considered this report and the
appellant’s other complaints of harassment under 5 U.S.C. § 2302(b)(8), finding
3
TSO 2 was also a coworker to the appellant. By all indications, the appellant and
TSO 2 filed numerous competing complaints about each other during the months
preceding the complaint by TSO 1. E.g., IAF, Tab 23 at 36, 38, 57-61, 67, 74.
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that none of the appellant’s complaints constituted protected whistleblowing
disclosures. ID at 12-14. On that point, we agree. However, we find that the
administrative judge should have further considered whether the appellant’s
activity in connection with the anti-harassment program was protected under
section 2302(b)(9)(C).
Section 2302(b)(9)(C) makes it a prohibited personnel practice to take a
personnel action against an employee in reprisal for “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” Reese v. Department of
the Navy, 2025 MSPB 1, ¶ 36. The Board has held that the “other component
responsible for internal investigation or review” refers to an entity that has a degree
of independence and objectivity as well as the authority to investigate or review by
taking testimony, collecting evidence, and making findings and recommendations.
Id., ¶ 50.
Under the circumstances before us, we find that remand is required for the
administrative judge to address the facts at hand as they relate to
section 2302(b)(9)(C). See Spithaler v. Office of Personnel Management ,
1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all
material issues of fact and law, summarize the evidence, resolve issues of
credibility, and include the administrative judge’s conclusions of law and his legal
reasoning, as well as the authorities on which that reasoning rests). The
administrative judge should afford the parties an opportunity to present additional
argument and evidence about whether the appellant engaged in activity protected
by section 2302(b)(9)(C) and, if so, whether this was a contributing factor in his
removal. If the appellant proves these elements by preponderant evidence, the
administrative judge must decide whether the agency has met its heightened burden
of proving by clear and convincing evidence that it would have taken the same
removal action in the absence of the protected activity. To the extent that it is
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appropriate, the administrative judge may adopt his original findings on the merits
of the charges, nexus, penalty, and the appellant’s remaining affirmative defenses.
However, if any of the evidence and argument developed on remand causes the
administrative judge to reassess his previous findings, he should explain that in his
remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.