Stanley Quinn v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STANLEY QUINN, DOCKET NUMBER

Appellant, SF-0752-21-0097-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: March 29, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John T. Harrington, Esquire, Washington, D.C., for the appellant.

Matt Hughes, Esquire, and Simon Caine, Esquire, Joint Base Andrews,

Maryland, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained the agency’s chapter 75 removal of the appellant from his position as a

GS-12 Sexual Assault Prevention and Response Program Manager based on the

following charges: (1) failure to meet a condition of employment; (2) conduct

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

unbecoming a Federal employee supervisor; (3) failure to follow procedures; and

(4) negligent performance of duties. Generally, we grant petitions such as this

one only in the following circumstances: 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 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. 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 AF FIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

We discern no basis to disturb the administrative judge’s conclusion that the

agency proved charge 2, i.e., conduct unbecoming a Federal employee supervisor.

¶2 The appellant argues that the agency failed to prove its second charge, i.e.,

conduct unbecoming a Federal employee supervisor. 2 Petition for Review (PFR)

File, Tab 1 at 15-23. To this end, he contends that the administrative judge failed

to sufficiently explain either the legal standard applicable to the charge or why

2

Charge 1, i.e., failure to meet a condition of employment, stemmed from the

revocation of the appellant’s Defense Sexual Assault Advocate Certification Program

certification. Initial Appeal File (IAF), Tab 5 at 35, Tab 6 at 22-24. The revocation of

the appellant’s certification was premised in part on the conduct underlying

charges 2‑4, i.e., conduct unbecoming a Federal employee supervisor, failure to follow

procedures, and negligent performance of duties; accordingly, the appellant’s

challenges to the administrative judge’s conclusions regarding charge 2 necessarily

implicate charge 1. IAF, Tab 5 at 35-36, Tab 6 at 22-24.

3

the appellant’s conduct satisfied the subject standard. 3 Id. at 16-17. He also

avers that the administrative judge made erroneous and/or insufficient credibility

determinations insofar as one of the witnesses provided conflicting versions of

the events underlying the charge whereas his version of events remained

consistent. Id. at 17-23. We find these assertions unavailing.

¶3 A charge of “conduct unbecoming” has no specific elements of proof; it is

established by proving that the employee committed the acts alleged in support of

the broad label. Canada v. Department of Homeland Security, 113 M.S.P.R. 509,

¶ 9 (2010); see Miles v. Department of the Army, 55 M.S.P.R. 633, 637 (1992)

(explaining that, to sustain a charge of conduct unbecoming a Federal employee,

the agency must demonstrate that the conduct in question was unattractive,

unsuitable, or detracted from the employee’s character). Contrary to the

appellant’s assertions, the administrative judge set forth this legal standard in his

initial decision, Initial Appeal File (IAF), Tab 38, Initial Decision (ID) at 11, and

provided a thorough analysis to support his conclusion that the agency had proved

all four of the specifications underlying the charge, ID at 11‑22; see Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the

Board must give deference to an administrative judge’s credibility determinations

when they are based, explicitly or implicitly, on the observation of the demeanor

of witnesses testifying at a hearing); see also 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

inferences, and made reasoned conclusions); Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987) (same). Moreover, the bulk of

the appellant’s arguments regarding this charge pertain to the first of the four

3

The appellant also argues that, in analyzing this charge, “[m]itigati ng factors such as

[the appellant’s] long reputation for good character and performance should have been

discussed.” PFR File, Tab 1 at 17. The administrative judge, however, specifically

considered “the appellant’s character references and strong performance background” in

assessing witness credibility. ID at 18.

4

specifications underlying the charge, i.e., that, while in his work area and in the

presence of two subordinates, the appellant described a hypothetical scenario in

which he was engaging in oral sex with one of his subordinates. PFR File, Tab 1

at 15-21; IAF, Tab 5 at 35. As set forth in the initial decision, the appellant

admitted to the conduct underlying the specification as set forth in the agency’s

notice of proposed removal; thus, credibility determinations were not relevant to

this specification. ID at 12-13; IAF, Tab 5 at 35. The administrative judge

considered the appellant’s contention that he had intended the hypothetical to

present a learning opportunity, but nonetheless found that the appellant’s conduct

was improper, unsuitable, and/or detracted from the appellan t’s character or

reputation. ID at 13. We agree that a supervisor describing engaging in oral sex

with a subordinate in front of both the named subordinate and another

subordinate, particularly a supervisor holding the position of Sexual Assault

Prevention and Response Program Manager, reflects poor judgment and is

improper regardless of the appellant’s purported justification for doing so. See

Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010) (stating that

agencies are entitled to hold supervisors to a higher standard than nonsupervisors

because they occupy positions of trust and responsibility). This specification

alone is sufficient to sustain the charge. See Burroughs v. Department of the

Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (explaining that, when more than one

specification supports a single charge, proof of one or more of the supporting

specifications is sufficient to sustain the charge). Thus, the appellant’s assertions

do not warrant a different outcome.

We discern no basis to disturb the administrative judge’s conclusion that the

appellant failed to prove his affirmative defense of discrimination on the basis of

his sex.

¶4 The appellant contends that the administrative judge erred in finding that he

failed to prove his affirmative defense of discrimination on the basis of his sex.

PFR File, Tab 1 at 23-26. To this end, he avers that the allegations against him

5

“did not add up” and, therefore, the allegations were “merely pretext for

discrimination against him based on his gender.” Id. at 23-25. The appellant also

asserts that he is aware of “multiple male managers who [have been] similarly

removed because of similar allegations of harassment,” some of whom were

allegedly removed as the result of claims made by one of the witnesses who

testified against the appellant. Id. at 25. We find these assertions unavailing.

¶5 Here, the administrative judge properly explained that it was the appellant’s

burden to prove by preponderant evidence that the prohibited consideration, i.e.,

his sex, was a motivating factor in his removal and, if he did, the agency would

be required to prove by preponderant evidence that it would have taken the same

action in the absence of the prohibited consideration. ID at 26-28 (citing, e.g.,

Savage v. Department of the Army, 122 M.S.P.R. 612 (2015)). The administrative

judge thoroughly considered the appellant’s claims but concluded that he had

presented no evidence to substantiate his assertion that the agency’s action was

motivated by his sex. 4 ID at 30. To this end, he explained that the appellant had

introduced “little specific information” about any other supervisory employees

who had allegedly been disciplined for similar conduct and that, even assuming

other male supervisors had been disciplined for such conduct, it was unclear how

such evidence would show that the agency unlawfully removed the appellant due

to his sex. ID at 29. We discern no basis to disturb this conclusion.

We discern no basis to disturb the administrative judge’s conclusion that the

penalty of removal was reasonable under the circumstances.

¶6 Last, the appellant argues that the penalty of removal was unreasonable

under the circumstances. PFR File, Tab 1 at 26-27. To this end, he reasserts that

the agency failed to prove the first two charges and, therefore, that he is “only

4

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusion regarding the appellant’s discrimination claim, we do not reach the

question of whether his sex was a “but for” cause of the removal action. See Babb v.

Wilkie, 589 U.S. ___, 140 S. Ct. 1168, 1177-78 (2020).

6

responsible for [c]harges 3 and 4,” i.e., failure to follow procedures and negligent

performance of duties. 5 Id. He also avers that he has no prior disciplinary record,

exemplary performance reviews, good character references, potential for

rehabilitation, and that he has acknowledged his mistakes regarding the latter two

charges. Id. at 27.

¶7 When, as here, the agency’s charges are sustained, the Board will review an

agency imposed penalty only to determine if the agency considered all of the

relevant factors and exercised discretion within tolerable limits of reasonableness.

Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010); Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). In making this

determination, the Board must give due weight to the agency’s primar y discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11;

Douglas, 5 M.S.P.R. at 306. The Board will modify an agency-imposed penalty

only when it finds that the agency failed to weigh the relevant factors or the

penalty clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407,

¶ 11.

¶8 Here, the administrative judge applied the proper legal standard and

concluded that the agency’s selected penalty of removal was not unwarranted

under the circumstances and was within the tolerable bounds of reasonableness.

ID at 31-33; see Ellis, 114 M.S.P.R. 407, ¶ 11. To this end, he reasoned that the

deciding official had credibly testified regarding his careful consideration of the

Douglas factors. ID at 31-32; see Haebe, 288 F.3d at 1301; see also Douglas,

5 M.S.P.R. at 305‑06. Indeed, as set forth in the initial decision, the deciding

5

The appellant’s argument in this regard is misguided. Indeed, as stated, charge 1, i.e.,

failure to meet a condition of employment, stemmed from the revocation of the

appellant’s Defense Sexual Assault Advocate Certification Program certification. IAF,

Tab 5 at 35. The revocation of the appellant’s certification was premised in part on the

conduct underlying charges 3 and 4. ID at 5; IAF, Tab 6 at 22 -24.

7

official took into consideration both aggravating factors, including the nature and

seriousness of the offenses and the appellant’s supervisory status, and mitigating

factors, including the appellant’s lack of prior discipline. ID at 31 -32; IAF, Tab 5

at 60. We discern no shortcomings with the agency’s weighing of the Douglas

factors, and we agree with the administrative judge’s conclusion that the

appellant’s removal did not clearly exceed the bounds of reasonableness. ID

at 33; see Luongo v. Department of Justice, 95 M.S.P.R. 643, ¶¶ 2-3, 16 (2004)

(concluding that removal was an appropriate penalty for misconduct involving

improper sexual remarks and innuendo), aff’d, 123 F. App’x 405 (Fed. Cir. 2005);

see also Benally v. Department of the Interior, 71 M.S.P.R. 537, 539‑40 (1996)

(finding appropriate the appellant’s removal for failure to maintain a driver’s

license when the appellant’s lack of the same directly impacted his ability to do

his job).

¶9 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described b elow do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

6

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

8

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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 ou r website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

9

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court‑appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

10

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via co mmercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board's

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

7

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

11

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.