Opinion

Harry Mahoel v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HARRY K. MAHOE, JR., DOCKET NUMBER

Appellant, SF-0752-21-0579-I-1

DEPARTMENT OF THE ARMY, DATE: April 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shawn A. Luiz , Esquire, Honolulu, Hawaii, for the appellant.

Alexander D. Bopp , Honolulu, Hawaii, for the agency.

John H. Stephenson, Jr. , Fort Shafter, Hawaii, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed his removal for conduct unbecoming of a Security Guard. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as

expressly MODIFIED to correct a finding that the appellant’s 19 years of service

was an aggravating factor, we AFFIRM the initial decision.

The agency’s charge of conduct unbecoming of a Security Guard concerned

(1) the appellant’s failing to deescalate a situation with a possibly suicidal patient

seeking treatment in an agency medical center’s emergency department, and

(2) the appellant’s unnecessary and unreasonable exercise of physical force

toward that patient that could have potentially caused harm. Initial Appeal File

(IAF), Tab 7 at 46-56. After a hearing, the administrative judge affirmed the

agency action. IAF, Tab 34, Initial Decision (ID). On review, the appellant

maintains that his actions were the appropriate and measured response to the

threat posed by the patient and that the agency’s penalty of removal was

excessive. Petition for Review (PFR) File, Tab 1 at 5-11. We disagree and

discern no reason to disturb the administrative judge’s findings regarding the

merits of the agency charge, the existence of a nexus, and that the appellant failed

to prove his affirmative defense of a due process violation. See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (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 on issues of

credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R.

357, 359 (1987) (same).

Regarding the penalty of removal, we agree with the appellant that his

19 years of service was not properly considered in determining the reasonableness

of the penalty under the relevant factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981). PFR File, Tab 1 at 11. The

Board has held that a deciding official may not consider the length of an

employee’s service as an aggravating factor under the logic that an employee with

a longer tenure should have known better than to engage in the misconduct.

See Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997); see also

Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, ¶¶ 18-19 (2002), modified on

other grounds by Lewis v. Department of Veterans Affairs , 113 M.S.P.R. 657,

¶ 15 (2010), overruled by Singh v. U.S. Postal Service, 2022 MSPB 15, ¶¶ 11-18.

To the extent that the administrative judge affirmed any determination by the

deciding official that the appellant’s length of service was more of an aggravating

factor than a mitigating factor, we expressly vacate this finding. 2 ID at 33-34;

IAF, Tab 7 at 51-52; IAF, Tab 30, February 25, 2022 Hearing Recording

(testimony of the deciding official). We clarify that we consider the appellant’s

19 years of service to be a mitigating factor.

Nevertheless, we still find that removal is within the parameters of

reasonableness. Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶ 8

(2014) (explaining that when the Board sustains all the agency’s charges but finds

errors in the agency’s consideration of the relevant penalty factors, it will

mitigate only to the extent necessary to bring the penalty within the parameters of

reasonableness). In evaluating the penalty, we will consider, first and foremost,

the nature and seriousness of the misconduct and its relationship to the

The deciding official testified that the appellant’s length of service was one

justification for giving him a harsher penalty than that given to a novice security guard

for similar misconduct. IAF, Tab 30 (testimony of the deciding official). However, he

identified other, legitimate reasons for the difference in the employees’ penalties, most

notably the seriousness of the misconduct. Id. Therefore, we find no reason to disturb

the administrative judge’s findings regarding this comparator and note that his analysis

is consistent with our recent decision in Singh v. U.S. Postal Service, 2022 MSPB 15,

¶ 14. ID at 33-35.

employee’s duties, position, and responsibilities, including whether the offense

was intentional or was frequently repeated. Arena v. U.S. Postal Service,

121 M.S.P.R. 125, ¶ 6 (2014), aff’d, 617 F. App’x 996 (Fed. Cir. 2015) (Table).

Here, we find that the appellant’s misconduct was serious, and his poor judgment

and inability to maintain control in a stressful situation related directly to his job

duties. IAF, Tab 7 at 51-54; ID at 28-35. We also find his prior discipline of a

4-day suspension for the negligent discharge of a firearm an aggravating factor.

In sum, after carefully considering the relevant factors, we find that removal is

within the bounds of reasonableness. See Douglas, 5 M.S.P.R. at 305-06 (setting

forth a nonexhaustive list of factors relevant to the penalty determination in

adverse actions). Thus, any error by the agency and the administrative judge in

considering the appellant’s length of service did not prejudice the appellant’s

substantive rights because, even after properly weighing that factor and crediting

the appellant’s 19 years of service, we find that the penalty of removal was

reasonable. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (finding that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

Accordingly, we affirm the administrative judge’s decision sustaining the

appellant’s removal for conduct unbecoming of a Security Guard.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

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.

provide legal advice on which option is most appropriate for your situation and

the rights described below 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 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 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.

(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. 420 (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:

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 commercial 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. 4 The court of appeals must receive your petition for

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,

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

§ 7703(b)(1)(B).

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