The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES HANES, DOCKET NUMBER
Appellant, CH-0752-15-0111-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Raymond Schultz, Esquire, Belleville, Illinois, for the appellant.
Loren H. Duffy, Esquire, Scott Air Force Base, Illinois, 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 administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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 appellant held the position of Information Technology Specialist for the
agency’s 375th Airlift Wing at Scott Air Force Base. Initial Appeal File (IAF),
Tab 1 at 1, Tab 8 at 8. In March 2014, the agency reprimanded him for sexual
discrimination and harassment of a coworker. 2 IAF, Tab 8 at 29-31. Underlying
the reprimand was an allegation that the appellant granted computer systems
access to a homosexual coworker by giving him a post-it note with the password
“SmithisGay1.” IAF, Tab 9 at 23. Approximately 5 months later, in
August 2014, another coworker, K.S., filed a sexual harassment complaint against
the appellant. IAF, Tab 8 at 25. The complaint alleged that the appellant
approached K.S. and said, “Do you know what would make your day even
better . . . a blowjob, now get on your knees.” Id. It further alleged that the
appellant put his hand on the shoulder of K.S. and “push[ed] down as if to signal
[K.S.] to get on [his] knees.” Id. Based upon that incident, the agency charged
the appellant with conduct unbecoming and proposed his removal. Id. at 21-22.
After the appellant responded, the deciding official sustained the proposed
removal. Id. at 10-20.
2
The agency initially processed the action as a 3-day suspension, but an alternative
dispute resolution panel reduced the penalty to a letter of reprimand. IAF, Tab 8 at 26,
29, Tab 9 at 23.
3
¶3 The appellant timely filed the instant appeal. IAF, Tab 1. He admitted the
conduct underlying the charge, but disputed the penalty and presented a harmful
error affirmative defense. E.g., IAF, Tab 10 at 4-5. After holding the requested
hearing, the administrative judge affirmed his removal. IAF, Tab 14, Initial
Decision (ID). The appellant has filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶4 On review, the appellant alleges that his comments and actions were a poor
attempt at humor in the workplace, but the deciding official interpreted them
literally. PFR File, Tab 1 at 2-4. According to the appellant, he was unaware of
that literal interpretation until the deciding official testified below, and this
amounts to a Ward/Stone due process violation. Id. (citing Ward v. U.S. Postal
Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368 (Fed. Cir. 1999)). 3 We disagree.
¶5 When an agency intends to rely on aggravating factors as the basis for the
imposition of a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the agency’s deciding official. Lopes v. Department of the
Navy, 116 M.S.P.R. 470, ¶ 5 (2011). Our reviewing court has explained that, if
an employee has not been given “notice of any aggravating factors supporting an
enhanced penalty,” an ex parte communication with the deciding official
3
The appellant’s petition also poses the following questions: “Is the penalty of removal
harsh, unreasonable, and/or punitive?” and “Should the penalty of removal be mitigated
to a lesser discipline due to the appellant’s long tenure of over twenty years, and prior
record of reprimand?” PFR File, Tab 1 at 2. However, the appellant failed to present
any corresponding arguments, and we discern no basis for disturbing the administrative
judge’s well-reasoned penalty analysis. See ID at 10-17; see generally Alaniz v. U.S.
Postal Service, 100 M.S.P.R. 105, ¶ 16 (2005) (recognizing that removal may be an
appropriate penalty, even for relatively minor misconduct, for an employee with a
record of prior discipline); cf. Sublette v. Department of the Army, 68 M.S.P.R.
82, 89-90 (1995) (mitigating a removal to a demotion for inappropriate remarks where
factors such as the employee’s mental condition and the absence of prior progressive
discipline weighed in favor of the lesser penalty).
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regarding such factors may constitute a constitutional due process violation
because it potentially deprives the employee of notice of all the evidence being
used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280
(citing Stone, 179 F.3d at 1376).
¶6 The appellant suggests that he was surprised to learn, at his hearing, that his
comments and actions were interpreted as something other than a joke. PFR File,
Tab 1 at 2-4. We are not persuaded. The facts of this case differ from those in
which an employee is on notice of one charge, but a deciding official treats that
charge as something altogether different in determining the appropriate penalty.
Cf. Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12
(2012) (finding a Ward/Stone violation where the deciding official relied on
portions of a table of penalties concerning a charge other than the one brought
against the employee and referenced in the notice of proposed removal); Culley v.
Defense Logistics Agency, 60 M.S.P.R. 204, 214-15 (1993) (finding that the
deciding official erred by treating an “unauthorized possession of government
property” charge as theft in determining an appropriate penalty); Dubiel v. U.S.
Postal Service, 54 M.S.P.R. 428, 431-32 (1992) (finding that the deciding official
erred by treating a specific charge of “improperly addressing” a subordinate by
calling her “sweet thing” as if it were a charge of sexual harassment while
assessing the appropriate penalty).
¶7 The agency did not charge the appellant with telling a joke. It proposed his
removal for “conduct unbecoming” based upon his directing K.S. to perform a sex
act on demand. IAF, Tab 8 at 21. In addition to describing the underlying
comments and actions, the proposal notice characterized the appellant’s conduct
as “inappropriate,” “demeaning,” and “unprofessional.” Id. The supporting
material included the sexual harassment complaint from K.S., which included the
declaration, “I was annoyed and irritated by the conversation, but when [the
appellant] decided to add the unwanted physical touch, I was disgusted and
offended.” Id. at 23-25. The appellant had the opportunity to respond, and
5
largely did so by asserting that his comments and actions were bad humor. Id.
at 20. The fact that the deciding official discounted that explanation does not
amount to the revelation of a previously undisclosed aggravating factor or due
process violation. Id. at 12-18; Hearing Transcript (HT) at 75-76, 84, 86; see
also HT at 95. The appellant may have assumed that all relevant parties believed
he was joking, PFR File, Tab 1 at 2, but that is by no fault of the agency. In
addition, as found by the deciding official and the administrative judge, the fact
that the appellant persisted in his belief that “he was subjectively operating in a
workplace atmosphere that allowed the type of behavior he engaged in . . . was
part of the problem,” ID at 14, was one of the reasons why the agency and the
administrative judge properly sustained the charges and imposed the removal
penalty under the circumstances. Accordingly, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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title 5 of the U.S. 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 U.S. 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 U.S. 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
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.