The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHILLIP C. YOUNG, DOCKET NUMBER
Appellant, DA-0752-13-0564-I-1
v.
DEPARTMENT OF THE ARMY, DATE: March 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Gilbert T. Dunn, San Antonio, Texas, for the appellant.
Faith Fillman, Fort Sam Houston, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal based on a charge of conduct unbecoming a federal
employee. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant worked as a vocational nurse for the agency’s Brooke Army
Medical Center at Fort Sam Houston, Texas. Initial Appeal File (IAF), Tab 6 at
31. In December 2012, two medical center employees made complaints to
supervisors regarding the appellant’s behavior. IAF, Tab 7 at 34-35. The agency
placed the appellant on administrative leave while it conducted an investigation
into the employees’ allegations. Id. at 26-27, 38. The agency’s investigator
concluded upon completion of multiple interviews of medical center employees
that the appellant engaged in inappropriate behavior and sexual harassment based
on agency regulations. Id. at 131-32.
¶3 Based upon the results of the investigation, the agency proposed to remove
the appellant for the charge of conduct unbecoming a federal employee. Id. at 17.
The charge included four specifications, one for each incident included in the
complaints by the two employees that were the subject of the agency’s
investigation. Id. The appellant provided a written reply to the proposal but did
not present an oral reply to the deciding official. IAF, Tab 6 at 44-46. The
deciding official sustained the charge, reviewed the Douglas factors as they
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related to the penalty determination, and directed the appellant’s removal. Id. at
34, 39-42.
¶4 The appellant initiated a Board appeal challenging his removal and
requested a hearing. IAF, Tab 1 at 2-3. In addition, the appellant alleged that his
due process rights were violated during the removal process. Id. at 3. The
administrative judge conducted a prehearing conference during which he
identified the issues to be adjudicated and approved witnesses to testify at the
hearing. IAF, Tab 11 at 1-3. The appellant objected to the administrative judge’s
denial of his request to call the agency representative as a witness. Id. at 3. The
appellant subsequently withdrew his request for a hearing. IAF, Tab 19 at 1. The
parties submitted additional evidence and argument for the administrative judge
to make a decision based on the record. IAF, Tabs 21, 23. The administrative
judge issued an initial decision that found the agency proved all four
specifications of the charge and sustained the removal. IAF, Tab 29, Initial
Decision (ID) at 6, 10, 16. He found that the agency did not unreasonably delay
taking the adverse action and the appellant did not demonstrate how any alleged
delay prejudiced his ability to defend the appeal. ID at 11-12. The administrative
judge also found that the agency did not violate the appellant’s due process rights
because he failed to identify any procedures or rights that the agency denied to
him. ID at 13-14.
¶5 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response to which the appellant has
filed a reply. PFR File, Tabs 4, 6.
The agency did not violate the appellant’s due process rights.
¶6 The appellant has not challenged on review the administrative judge’s
finding that the agency proved its charge. The Board normally will consider only
issues raised in a timely filed petition for review. 5 C.F.R. § 1201.115. We see
no reason to disturb this finding on review.
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¶7 The appellant continues to argue on review, as he did below, that the agency
denied him due process throughout the adverse action and appeal process. PFR
File, Tab 1 at 2, 5-6, Tab 6 at 1. He argues that the agency’s legal representative
was the de facto deciding official based on assistance she provided to the
individual named as the deciding official. PFR File, Tab 6 at 1-2. After the
agency proposed his removal and before submitting his written reply to the
charge, the appellant requested that the agency make available for interview all
witnesses it interviewed during its investigation. IAF, Tab 7 at 8. He also
requested an extension of at least 180 days to make his reply, along with
clarification of the actual charge against him. Id. at 14-15. Finally, the appellant
requested the personnel folder of one of the two employees who accused him of
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inappropriate behavior. IAF, Tab 6 at 45. We disagree that the agency’s denials
of these requests amounted to due process violations. See id.
¶8 The U.S. Supreme Court has previously concluded that the essential
requirements of constitutional due process for a tenured public employee are:
(1) notice of the charges against him, with an explanation of the evidence; and
(2) an opportunity for the employee to present his account of events. Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). The Court
concluded that to require more prior to termination, “would intrude to an
unwarranted extent on the government’s interest in quickly removing an
unsatisfactory employee.” Id.
¶9 It is undisputed that the agency provided written notice of the charges to the
appellant along with the underlying materials. IAF, Tab 7 at 8-9. The agency
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The appellant included in his written rep ly an offer to appear before the deciding
official to answer questions under oath and to take a po lygraph examination. IAF,
Tab 6 at 45. However, 5 U.S.C. § 7513(b)(2) does not provide an employee with any
response rights beyond the opportunity to make a written and oral rep ly and furnish
affidavits and other documentary evidence in support of the employee’s answer, unless
agency regulations provide additional benefits. 5 U.S.C. § 7513(b)-(c). The appellant
submitted no evidence of any agency regulations that provided for the meeting as he
requested. Therefore, the agency had no obligation to grant the appellant’s request.
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provided its table of penalties to the appellant and a new electronic copy of all
materials when the appellant informed the agency that the original disc was not
functional. Id. at 6, 205-19. The agency denied the appellant’s request for a
180-day extension but granted an additional 20 days for him to make his reply.
Id. at 5. The agency representative confirmed that the appellant wished to make
an oral reply and provided the deciding official’s availability with instructions
that the appellant should advise what time option worked for him. Id. at 6. Yet,
the appellant did not exercise his right to present an oral reply of his account of
events. The agency denied his requests to interview witnesses, have unrestricted
access to the facility while on administrative leave, have access to the personnel
files of the two employees that complained about his conduct, and answer
questions under oath at an additional meeting before his oral reply. Id. at 4-6.
The agency indicated it was denying these requests because the appellant had no
statutory or constitutional right to these procedures at that point in the process. 3
Based on our review, we agree with the administrative judge’s finding that the
appellant did not prove that he was denied due process.
¶10 Although the agency’s conduct was not a constitutional violation, we must
still decide whether the agency committed harmful error. See Ward v. U.S. Postal
Service, 634 F.3d 1274, 1281-83 (2011). The Board will not sustain an agency
decision if the appellant shows harmful error in the application of the agency’s
procedures or the protections found in 5 U.S.C. § 7513(b), which include advance
written notice of a proposed adverse action and at least 7 days to
respond. 5 U.S.C. §§ 7513(b), 7701(c)(2)(A); Campbell v. U.S. Postal
Service, 95 M.S.P.R. 185, ¶¶ 8, 10 (2003). To show harmful error, an appellant
must prove that any procedural error substantially prejudiced his rights by
3
The appellant was informed of his right to engage in discovery as part of the appeal
process. IAF, Tab 2 at 2. During the discovery process, the appellant could have
deposed the various witnesses that he sought to question prior to his removal. See
5 C.F.R. § 1201.72(c). However, there is no evidence that he exercised these rights.
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possibly affecting the agency’s decision. Salter v. Department of the
Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). The appellant has not submitted below or
on review any law, rule, or regulation that required the agency to comply with
any of his requests. In addition, the appellant has not shown that, even if the
agency had complied, it would have reached a different outcome. Therefore, we
discern no harmful procedural error.
The penalty of removal is within the range of reasonableness based on the
deciding official’s review of the Douglas factors.
¶11 The appellant alleges on review that, when assessing which penalty to
impose, the deciding official did not consider the mitigating factors. PFR File,
Tab 1 at 1. The administrative judge found the deciding official properly
considered all relevant Douglas factors. ID at 15-16. We agree.
¶12 Where, as here, the agency’s charge has been sustained, the Board will
review an agency-imposed penalty only to determine if the agency considered all
of the relevant factors and exercised management discretion within tolerable
limits of reasonableness. See Douglas v. Veterans Administration, 5 M.S.P.R.
280, 306 (1981). The Board’s function in this regard is not to displace
management’s responsibility but to assure that managerial judgment has been
properly exercised. Id. at 302. In evaluating a penalty, the Board will consider,
first and foremost, the nature and seriousness of the misconduct and its
relationship to the employee’s duties, position, and responsibilities. Gaines v.
Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). Even a single instance
of indecent and disgraceful conduct toward a coworker can support a penalty of
removal. Stephens v. Department of the Air Force, 58 M.S.P.R. 502, 506 (1993).
¶13 The appellant’s allegation that the deciding official did not consider the
Douglas factors is contradicted by the evidence in the record detailing the
deciding official’s review and signed by him. IAF, Tab 7 at 39-42. The deciding
official considered the appellant’s prior work record and lack of any prior
discipline of a similar nature but found the appellant was a poor candidate for
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rehabilitation because of multiple accusations. IAF, Tab 6 at 40-41. The
deciding official also noted that removal was within the range of the agency’s
table of penalties. Id. Therefore, we find that the appellant has not shown that
the deciding official failed to consider the Douglas factors in assessing the
penalty. The administrative judge found the deciding official properly considered
the Douglas factors and that the penalty promoted the efficiency of the service.
ID at 16. We agree that the penalty was reasonable given the seriousness of the
conduct and that the appellant engaged in this conduct towards multiple female
employees. See Cisneros v. Department of Defense, 83 M.S.P.R. 390, ¶ 20 (1999)
(removal for inappropriate comments and physical contact was reasonable in view
of the seriousness of the appellant’s sexual misconduct, particularly its continual,
unrelenting nature, its pervasiveness, its perpetuation on several female
employees, and his position as a supervisor), aff’d, 243 F.3d 562 (Fed. Cir. 2000)
(Table).
None of the appellant’s procedural claims warrant reversal of the initial decision.
¶14 The appellant continues to allege that the administrative judge erred when
he denied the appellant’s request to call the agency representative as a witness.
PFR File, Tab 1 at 5. He argues that the agency’s representative was the true
deciding official because she was copied on the response to his Freedom of
Information Act (FOIA) request, the deciding official directed the appellant to
provide his written reply to the legal office because he was not available, and a
statement by the representative provided that questions about the process could be
referred to her and that she would respond. Id. at 1, 5; Tab 6 at 1-2.
¶15 As a general rule, the federal courts have not permitted a party to call
opposing counsel as a witness unless there is a compelling need for the lawyer’s
testimony. See Restatement (Third) of the Law Governing Lawyers § 108(4)
(2000) (“A tribunal should not permit a lawyer to call opposing trial counsel as a
witness unless there is a compelling need for the lawyer’s test imony.”); see also
United States v. Dupuy, 760 F.2d 1492, 1498 (9th Cir. 1985); U.S. v.
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Alu, 246 F.2d 29, 33-34 (2d Cir. 1957); Gulf Group General Enterprises Co.
W.L.L. v. United States, 98 Fed. Cl. 647, 651 (Fed. Cl. 2011) (citing Shelton v.
American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), for one test used to
determine when such testimony will be permitted). We find the general rule also
to be applicable to Board proceedings. However, applying this general rule, the
appellant did not have a compelling need to call the agency’s representative
because he could have obtained the testimony that he sought through other
witnesses. The appellant could have called the deciding official to testify at the
hearing regarding his role in the adverse action process. The administrative judge
approved the deciding official as a witness prior to the appellant’s decision to
withdraw his hearing request. IAF, Tab 11 at 2-3. In addition, the agency
proposed to call a Management Employee Relations Specialist to testify regarding
his involvement in advising management on the removal. IAF, Tab 9 at 8. The
administrative judge also approved this individual as a witness. IAF, Tab 11 at 2.
The appellant could have questioned the witness during the hearing regarding his
testimony and his sworn statement submitted by the agency regarding his
involvement in this appeal. IAF, Tab 21 at 27-29. Because the appellant could
have obtained the information he was seeking through other witnesses, we find no
compelling need for the agency’s representative’s testimony and affirm the
administrative judge’s denial of the witness request.
¶16 Next, the appellant alleges that the administrative judge denied him a
subpoena for one of his witnesses. PFR File, Tab 1 at 5. A party may request a
subpoena to obtain the testimony of a witness and the Board has the authority to
issue a subpoena requiring the witness’s attendance. 5 C.F.R. § 1201.81(a). The
administrative judge advised the appellant of his right to request a subpoena for
the witness. IAF, Tab 14 at 1-2. The administrative judge advised the appellant
10 days later in an order that he needed to provide the witness’s contact
information for the subpoena to be prepared. IAF, Tab 16 at 1-2. There is no
evidence in the record that the appellant provided this information to anyone in
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the regional office. Under these circumstances, we find that the administrative
judge did not deny the appellant the subpoena.
We decline to consider evidence presented for the first time on review because
the appellant did not exercise due diligence.
¶17 On review, the appellant presents new evidence the agency gave him in
response to his FOIA request. PFR File, Tab 1 at 1, 5. Under 5 C.F.R.
§ 1201.115, the Board normally will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The information provided by the appellant
concerns other employees at the Brooke Army Medical Center who were charged
with the offense of conduct unbecoming a federal employee. PFR File, Tab 1 at
7. The appellant presents no evidence that he requested this information durin g
the discovery process. See Figueroa v. Department of Homeland
Security, 119 M.S.P.R. 422, ¶¶ 9-12 (2013) (discovery allowed for disciplinary
action of potential comparator employees for similar misconduct because it may
lead to information that similarly-situated employees were treated differently).
Further, he did not file a motion to compel below and, in this regard, failed to
exercise due diligence. See Nelson v. Veterans Administration, 22 M.S.P.R. 65,
68-69 (1984). Because there is no evidence that the appellant sought to obtain
this information during discovery, the Board will not consider this information on
review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court”s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.