The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH D. FERRIS, DOCKET NUMBER
Appellant, DC-0752-14-0818-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James R. Theuer, Esquire, Norfolk, Virginia, for the appellant.
Barbara M. Dale, Esquire, Newport, Rhode Island, 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. 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 of the law to the facts of the case; the judge’s rulings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The agency removed the appellant from his position as a GS-7 Supervisory
Police Officer based on two specifications of Conduct Unbecoming a Supervisor.
Initial Appeal File (IAF), Tab 11 at 16, 22-25, 48-51. The agency alleged that the
results of an investigation revealed that, on two occasions, the appellant made
inappropriate comments to a female Master-at-Arms. Id. at 55-93. In effecting
the appellant’s removal, the agency considered his suspension for 14 days during
the previous year based on three incidents of Conduct Unbecoming a Supervisor.
Id. at 23, 50, 97, 99-100, 102-09.
¶3 On appeal, the appellant denied making the remarks attributed to him, and
argued that there was no nexus between the charged misconduct and the
efficiency of the service and that removal was not a reasonable penalty. IAF,
Tab 1, Tab 7 at 5. After convening the requested hearing, the administrative
judge issued an initial decision affirming the agency’s action. IAF, Tab 19,
Initial Decision (ID) at 1, 11. He found that both specifications were sustained
and that therefore the charge was sustained, ID at 2-8; that the agency’s action
promotes the efficiency of the service, ID at 8; and that removal was a reasonable
penalty for the sustained charge, ID at 8-11.
3
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3,
and he has replied thereto, PFR File, Tab 4.
¶5 Regarding the charged misconduct, the appellant argues that the agency
punished him for “uncharged” conduct, specifically, sexual harassment. PFR
File, Tab 1 at 11-12. In support of this claim, he contends that the agency’s
investigation was characterized as one of sexual harassment, id., pointing to the
investigator’s description of the “allegations/issues” addressed in the
investigation as “Behavior Unbecoming, Sexual Harassment,” IAF, Tab 11 at 56;
and his questions to the appellant about the agency’s sexual harassment policy
and training he had received, id. at 58, 71. Notwithstanding, after reviewing the
report of investigation, the proposing official made a determination to charge the
appellant with Conduct Unbecoming a Supervisor, and not sexual harassment. Id.
at 48. 2 We therefore find that the appellant has not established error as to the
charge. 3
¶6 To prove a charge of conduct unbecoming, an agency is required to
demonstrate that the employee engaged in the underlying conduct alleged in
2
An agency is required to state the reasons for the proposed adverse action in sufficient
detail to allow the affected employee to make an informed reply. Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 202 (1997). An agency need not label its charge narrowly
with “magic words” for the Board to sustain it, and instead, the charge must be viewed
in the light of the accompanying specification and circumstances, and should not be
technically construed. Id. at 202-03. Nevertheless, “what the agency calls the conduct
makes a great deal of difference in proceedings before the Board.” Nazelrod v.
Department of Justice, 54 M.S.P.R. 461, 466 (1992), aff’d sub nom., 43 F.3d 663 (Fed.
Cir. 1994). When a charge is labeled, the label, and not something else, must be
proven. Id. at 464-66. When the Board reviews an agency action, it does so on the
basis of charges that were actually brought, not on the basis of charges that could have
been brought. Id. at 466; Rodriguez v. Department of Homeland Security, 117 M.S.P.R.
191 ¶ 8 (2014).
3
The appellant also argues that the deciding official imposed the penalty of removal, at
least in part by considering that the appellant was guilty of sexual harassment. PFR
File, Tab 1 at 11-12. We address that claim when we consider the appellant’s challenge
to the reasonableness of the penalty.
4
support of the broad label. Scheffler v. Department of the Army, 117 M.S.P.R.
499, ¶ 4 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). In considering the
specifications, the administrative judge found that, because no other employees
were present during the two conversations in question, it was necessary to
examine the credibility of the complaining witness and the appellant and to apply
the factors set forth by the Board in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987) (to resolve credibility issues, an administrative
judge must identify the factual questions in dispute, summarize the evidence on
each disputed question, state which version he believes, and explain in detail why
he found the chosen version more credible, considering such factors as:
(1) the witness’s opportunity and capacity to observe the event or act in question;
(2) the witness’s character; (3) any prior inconsistent statement by the witness;
(4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version
of events by other evidence or its consistency with other evidence;
(6) the inherent improbability of the witness’s version of events; and
(7) the witness’s demeanor). ID at 4. In applying these factors, the
administrative judge credited the testimony of the complaining witness over that
of the appellant.
¶7 In the first specification, the agency charged that the appellant said to the
complaining witness, “you’re so young to tie yourself down, you should be out
there having fun and at this age it’s about the notches on your belt.” IAF, Tab 11
at 48. In sustaining this specification, the administrative judge found, based on
their testimony, that shortly after the complaining witness’s interactions with the
appellant, she made statements to three other employees and the Sexual Assault
Prevention and Response Liaison that were consistent with her version of the
events. ID at 3-4. The administrative judge further found that the complaining
witness had no motive to fabricate the statements, that she had nothing to gain
from making a report against the appellant and did so with some trepidation, and
that her otherwise consistent recollection rendered her credible. ID at 5. On the
5
other hand, the administrative judge found that the appellant admitted saying that
the witness and her boyfriend were too young to marry, but denied saying that
“you should be out there having fun and at this age it’s about the notches on your
belt,” ID at 4, although elsewhere in the initial decision, the administrative judge
found that the appellant was unable to remember making that comment, 4 ID at 5.
The administrative judge further found that the appellant had been previously
disciplined for making inappropriate comments of a similar nature and so could
be motivated to claim a lack of memory. Id.
¶8 In the second specification, the agency charged that the appellant said to the
complaining witness, regarding her request for a day off, “oh well you could
persuade me if you brought in a picture of yourself in Daisy Dukes and boots so
you can get the day you want off.” IAF, Tab 11 at 48. In sustaining this
specification, the administrative judge considered the hearing testimony of the
complaining witness, finding it consistent with that of the others to whom she
related the remark shortly afterward. ID at 6. He also considered the appellant’s
testimony denying that he ever made such a statement, and the statement he
provided to the investigator to the effect that he did not remember making that
statement and that it was the complaining witness who brought up the subject of
the Daisy Dukes and boots, offering to bring in a picture of herself wearing them,
to which he replied “OK,” although she never did so. ID at 7; IAF, Tab 11 at 70.
The administrative judge found the appellant’s statements inconsistent on the
basis that his hearing testimony suggested or implied that there was never any
discussion or expectation that the complaining witness would bring in a picture.
ID at 8.
¶9 The appellant challenges these findings and argues on review that the Board
need not defer to the administrative judge’s credibility determinations because
4
During his interview with the investigator, the appellant stated that he did not recall
having made this statement. IAF, Tab 11 at 70. During the hearing, he denied making
it.
6
they were not based on demeanor. PFR File, Tab 1 at 6. However, the Board
must defer to an administrative judge’s credibility determinations when they are
based, implicitly or explicitly, on the observation of the demeanor of witnesses
testifying at a hearing unless there are “sufficiently sound” reasons to overturn
such determinations. Haebe v. Department of Justice, 288 F.3d 1288, 1301-02
(Fed. Cir. 2002). The appellant has advanced no such reasons. Moreover, the
administrative judge did make a demeanor-based credibility determination as to
the complaining witness, finding that she testified in a straightforward manner
with no hint of hesitation or uncertainty about her recollections. ID at 5-6.
Based on the appellant’s arguments on review, we discern no reason to reweigh
the evidence or substitute our assessment of the record evidence for that of the
administrative judge regarding both specifications of the charge. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate references, and made reasoned conclusions).
¶10 The appellant disputes the administrative judge’s finding that removal is a
reasonable penalty. PFR File, Tab 1 at 7-12. After sustaining the charge, the
administrative judge found it appropriate to defer to the agency’s penalty,
reasoning that removal does not exceed the range of allowable punishment
specified by statute or regulation and is not an abuse of discretion, that the
deciding official weighed the relevant factors, 5 and that his judgment did not
clearly exceed the limits of reasonableness. ID at 9-11.
¶11 On review, the appellant contends that the deciding official’s consideration
of the Douglas factors was flawed. 6 PFR File, Tab 1 at 7. He argues that the
5
These are the factors used to assess an appropriate penalty, set forth by the Board in
Douglas v. Veterans’ Administration, 5 M.S.P.R. 280, 305-06 (1981).
6
The appellant alleges that the agency’s investigation was biased because the assigned
investigator had conducted the investigation into the allegations of the appellant’s
misconduct the year before, PFR File, Tab 1 at 8, and because the investigator’s bias
likely informed his decision not to interview other potential witnesses who might have
7
deciding official delegated the analysis of the Douglas factors to a subordinate.
Id. at 9. The record reflects that a Labor and Employee Relations Specialist sent
the deciding official a sample Douglas factors worksheet, IAF, Tab 7 at 46-51,
and that he forwarded it to the proposing official with instructions for him to
“provide what you are able,” indicating that he would then sign off on it and
forward it to the Labor and Employee Relations Specialist, id. at 46. The
appellant asserts that the deciding official made no substantive changes to the
worksheet he received from the proposing official and thus failed in his
responsibility to consider the Douglas factors. Notwithstanding, the deciding
official provided unrebutted testimony that he reviewed the document and edited
it, and that it reflects his personal analysis. Hearing Compact Disc (HCD)
(testimony of the deciding official). We therefore find that the appellant has
failed to establish error in this regard.
¶12 Next, the appellant argues that, while the Douglas factors worksheet states
that “the penalties are consistent with similar offenses,” IAF, Tab 11 at 28, the
deciding official testified on cross-examination that he had no knowledge of
observed what transpired between the appellant and the complaining witness, id. at 9.
Such a claim is cognizable as one of harmful procedural error in an agency’s
investigation of conduct underlying charges. See Vakili v. Department of Agriculture,
35 M.S.P.R. 534, 538 (1987). We find that the appellant has failed to support his
assertions regarding other potential witnesses inasmuch as he told the investigator that
he did not remember anyone else being present during his conversations with the
complaining witness, IAF, Tab 11 at 71, and she said the same thing, id. at 68.
Moreover, his allegation of bias is undermined by the administrative judge’s findings.
As noted, the administrative judge made independent credibility determinations
regarding the appellant and the complaining witness based on their testimony at hearing
and his review of the record as a whole, finding the complaining witness to be more
credible. Further, the appellant had every opportunity to present adverse witnesses and
to introduce evidence regarding his own credibility. After reviewing the evidence, the
administrative judge nevertheless concluded that the appellant had engaged in the
charged misconduct. Thus, the appellant has failed to establish that the agency’s
investigation of the charge was biased and constituted error. See Valkili, 35 M.S.P.R.
at 539; see also Baracco v. Department of Transportation, 15 M.S.P.R. 112, 123
(1983), aff’d sub nom. Adams v. Department of Transportation, 735 F.2d 488 (Fed. Cir.
1984).
8
similar offenses committed by civilian personnel, HCD (testimony of the deciding
official). Similarly, the appellant argues that, whereas the Douglas factors
worksheet states that “the notoriety of this offense has directly impacted the
reputation of the Department of the Navy (DON) and the command,” IAF, Tab 11
at 28, the deciding official testified on cross-examination only that the appellant’s
misconduct affected the agency by reflecting on “how we treat individuals, junior
and senior,” and that “we need to maintain oversight,” HCD (testimony of the
deciding official). To the extent the appellant has pointed out minor
inconsistencies in the administrative judge’s consideration of these factors, we
find that they do not provide a basis for review. It is well established that not all
of the Douglas factors are pertinent in every case, and that deciding officials are
charged to responsibly balance the relevant factors. Douglas, 5 M.S.P.R. at 306.
¶13 The Board has held that the most important factor in assessing whether the
agency’s chosen penalty is within the tolerable bounds of reasonableness is the
nature and seriousness of the misconduct and its relation to the employee’s duties,
position, and responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173,
¶ 14 (2010). Here, the agency considered the appellant’s offense to be extremely
serious and one that cannot be tolerated in the workplace. IAF, Tab 11 at 27.
The administrative judge noted the deciding official considered that the appellant
was disciplined for similar misconduct during the previous year, 7 see Zwagil v.
7
The appellant alleges that the deciding official also considered a May 28, 2003 Letter
of Reprimand he received for inappropriate conduct because it is mentioned in the
Douglas factors worksheet, but not in the notice of proposed removal. PFR File, Tab 1
at 10; IAF, Tab 11 at 28. Arguably, the appellant may be claiming that the deciding
official relied on this ex parte information in his decision to remove the appellant,
thereby committing a due process violation. See Ward v. U.S. Postal Service, 634 F.3d
1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation,
179 F.3d 1368, 1376-77 (Fed. Cir. 1999). Although the appellant is represented by
counsel, he did not specifically raise this claim below. IAF, Tabs 1, 7-8. In any event,
when questioned on direct examination, the deciding official testified that, because he
did not know what it was about and because it occurred at a different installation, he did
not consider the 2003 incident, HCD (testimony of the deciding official), and nothing in
the decision letter suggests otherwise, IAF, Tab 11 at 22-23. We find therefore that, to
9
General Services Administration, 103 M.S.P.R. 63, ¶ 9 (2006), aff’d, 227 F.
App’x 923 (Fed. Cir. 2007), expressing his concern that such behavior suggested
a trend, and that, as a supervisory law enforcement officer, the appellant has a
direct impact on his subordinates and must provide guidance and set a
professional example, ID at 10; see Luongo v. Department of Justice, 95 M.S.P.R.
643, ¶ 13 (2004), aff’d, 123 F. App’x 405 (Fed. Cir. 2005).
¶14 The appellant argues on review that the deciding official failed to inquire of
his supervisors about his performance before issuing the decision to remove him.
PFR File, Tab 1 at 10. The record reflects that the deciding official did consider
that the appellant had 24 years of Federal service with acceptable performance.
IAF, Tab 11 at 28. In any event, even if the appellant’s supervisors had indicated
that they were satisfied with his job performance, a supervisor’s opinions are
insufficient to overcome the agency’s judgment concerning the seriousness of the
misconduct and the appropriateness of the agency-imposed penalty. Edwards v.
Department of the Army, 87 M.S.P.R. 27, 30, ¶ 9 (2000), aff’d sub nom.
Rodriquez v. Department of the Army, 25 F. App’x 848 (Fed. Cir. 2001).
¶15 Finally, citing the Board’s decision in Dubiel v. U.S. Postal Service,
54 M.S.P.R. 428, 431-32 (1992), the appellant argues that the deciding official
erred in his penalty determination by considering the charged misconduct to be
sexual harassment. PFR File, Tab 1 at 11-12. In support, the appellant points to
the Douglas factors analysis wherein the deciding official referred to the offense
as “Conduct unbecoming a supervisor (Sexual Harassment Related),” IAF, Tab 11
at 27, and his testimony to the effect that he sensed the appellant viewed sexual
the extent the appellant is arguing that the agency committed a due process violation, he
has not established his claim. See Silberman v. Department of Labor, 116 M.S.P.R.
501, ¶ 12 (2011); cf. Howard v. Department of the Air Force, 118 M.S.P.R. 106, ¶ 6
(2012) (where the deciding official admitted that the ex parte information influenced his
penalty determination, the information in question was clearly material). And, because
we have found that the deciding official did not consider the 2003 Letter of Reprimand,
we further find its inclusion on the Douglas factors worksheet did not amount to
procedural error.
10
harassment training as a “nuisance” and that, based on his previous 14-day
suspension for similar misconduct, it seemed that “he [the appellant] didn’t get
it,” HCD (testimony of the deciding official). The appellant’s reliance on Dubiel
is misplaced. There, the agency demoted the appellant on a charge that he
violated its code of ethical conduct by improperly addressing a subordinate
employee as “sweet thing” on more than one occasion. Dubiel, 54 M.S.P.R.
at 430. In finding that the deciding official improperly considered alleged
conduct by the appellant that he was not charged with in the notice of proposed
demotion, the Board noted that the charge arose out of an investigation of a
sexual harassment complaint filed by the subordinate employee, and that the
decision letter revealed that, in determining an appropriate penalty, the deciding
official was clearly influenced by, and considered, the employee’s
characterization of the appellant’s conduct as sexual harassment. Id. at 431. The
Board found that the deciding official should not have considered whether the
subordinate employee felt the appellant’s conduct constituted sexual harassment
since the agency did not charge him with that misconduct. Id. at 432. In the
instant case, the charge did not arise from the complaining witness’s filing of a
sexual harassment complaint against the appellant and there is no indication that
she believed that she was the victim of sexual harassment. Nor is there anything
in the decision letter or in the deciding official’s testimony to suggest that, in
determining the appropriate penalty, he considered the appellant’s conduct as
sexual harassment. IAF, Tab 11 at 22-25; HCD (testimony of the deciding
official). In fact, he testified that he considered that the agency’s table of
penalties provides for a penalty ranging from a 5-day suspension to a removal for
a second offense of “disrespectful conduct,” IAF, Tab 11 at 56, and that he did
not consider the charge as one of sexual harassment, HCD (testimony of the
deciding official). We therefore find that the appellant has failed to establish his
claim of error in this regard. Accordingly, the initial decision is AFFIRMED.
11
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:
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
12
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.