Opinion

Robert Keating v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: May 8, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT KEATING, DOCKET NUMBER

Appellant, DC-0752-18-0767-I-1

DEPARTMENT OF AGRICULTURE, DATE: May 8, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robert Keating , Cary, North Carolina, pro se.

Gretchen McMullen , Esquire, Mount Rainier, Maryland, 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. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

supplement the administrative judge’s mitigating factor analysis, we AFFIRM the

initial decision.

BACKGROUND

The appellant was employed as a GS-13 Investigator with the agency’s

Internal Controls Staff (ICS), Office of the Administrator, Food Safety and

Inspection Service (FSIS) in Raleigh, North Carolina. Initial Appeal File (IAF),

Tab 6 at 15. In April 2018, contractors in the Office of the Chief Information

Officer (OCIO), the agency’s information technology unit, flagged the appellant’s

computer activity for further investigation and agency management referred the

matter to ICS. IAF, Tab 6 at 83-92, Tab 7 at 4-7. In May 2018, an ICS

investigator performed a forensic analysis of the appellant’s FSIS computer,

which revealed that he had viewed, accessed, and downloaded pornographic or

sexually explicit content since April 2016, a period of 2 years. IAF, Tab 7

at 9-21.

Shortly thereafter, the agency proposed the appellant’s removal based on

the charge of misuse of Government-owned equipment, supported by three

specifications that described the stated conduct. IAF, Tab 6 at 73-79. After

considering the appellant’s oral and written responses, in which he admitted

viewing images of adult women, id. at 22-72, the agency removed the appellant

from his position, effective July 20, 2018, id. at 15-21.

The appellant filed an appeal challenging his removal and raised a claim of

reprisal for whistleblowing disclosures. IAF, Tab 1. In the order and summary of

the parties’ telephonic prehearing conference, the administrative judge stated that

the parties stipulated to numerous facts, the appellant admitted to engaging in the

charged misconduct, he withdrew his claim of reprisal for whistleblowing, and

he did not raise any other affirmative defenses. IAF, Tab 26 at 5-8, Tab 33 at 2.

The administrative judge further stated that the scope of the appeal was limited to

nexus and the reasonableness of the penalty. IAF, Tab 33 at 2.

After holding the appellant’s requested hearing, the administrative judge

issued an initial decision sustaining the removal. IAF, Tab 37, Hearing Compact

Disc (HCD), Tab 38, Initial Decision (ID) at 1-2, 10. She found that the agency

proved the charge by preponderant evidence, that the removal was taken for such

cause as promotes the efficiency of the service, and that the penalty was within

the tolerable bounds of reasonableness. ID at 2-10.

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.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant does not challenge the administrative judge’s

finding that the agency proved the charged misconduct, ID at 3, and we affirm her

finding herein. Instead, the appellant argues that the agency did not prove nexus

or the reasonableness of the penalty. PFR File, Tab 1 at 4-5, 8-22. He also

argues that the administrative judge abused her discretion when she denied his

motion to compel, excluded the testimony of a witness to refute the deciding

official’s credibility, and disallowed the admission of additional evidence relating

to the deciding official’s assessment of the penalty. Id. at 4-8. For the reasons

set forth below, we find that the appellant’s arguments on review do not warrant a

different outcome.

We affirm the administrative judge’s finding that the removal was taken for such

cause as promotes the efficiency of the service.

The appellant challenges the administrative judge’s nexus determination

because there was no “evidence of damage to any equipment, or malfeasance or

intent to do harm.” PFR File, Tab 1 at 10; ID at 3-4. The appellant misstates the

nexus requirement. The nexus requirement, for purposes of whether an agency

has shown that its action promotes the efficiency of the service, means there must

be a clear and direct relationship between the articulated grounds for an adverse

action and either the employee’s ability to accomplish his or her duties

satisfactorily or some other legitimate government interest. Scheffler v.

Department of Army, 117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed.

Cir. 2013).

Here, the appellant’s misconduct occurred at work while he was on duty

and involved misuse of Government equipment. There is sufficient nexus

between an employee’s conduct and the efficiency of the service when the

conduct occurs at work. Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed.

Cir. 1987); Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006).

Moreover, the Board has held that a nexus between the efficiency of the service

and the charge of misuse of Government equipment exists. Els v. Department of

the Army, 82 M.S.P.R. 27, ¶ 11 (1999); Sternberg v. Department of Defense,

52 M.S.P.R. 547, 559 (1992). Given the sustained misconduct, we agree with the

administrative judge that the agency proved nexus in this case. ID at 3-4.

We supplement the administrative judge’s penalty analysis, still finding that the

penalty of removal was within the tolerable bounds of reasonableness.

When, as here, the Board sustains an agency’s charge, it will defer to the

agency’s penalty determination unless the penalty exceeds the range of allowable

punishment specified by statute or regulation, or unless the penalty is “so harsh

and unconscionably disproportionate to the offense that it amounts to an abuse of

discretion.” Batara v. Department of the Navy, 123 M.S.P.R. 278, ¶ 5 (2016)

(quoting Parker, 819 F.2d at 1116). Mitigation of an agency-imposed penalty is

appropriate only when the agency failed to weigh the relevant factors or when the

agency’s judgment clearly exceeded the limits of reasonableness. Id. The

deciding official need not show that she considered all the mitigating factors, and

the Board will independently weigh the relevant factors only if the deciding

official failed to demonstrate that she considered any specific, relevant mitigating

factors before deciding on a penalty. Id. For the reasons set forth below, we find

that the appellant’s arguments on review do not provide a basis for disturbing the

agency’s penalty determination.

The appellant challenges the administrative judge’s analysis of nearly all

the penalty factors and requests that the penalty of removal be mitigated to a

suspension. PFR File, Tab 1; see Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that

are relevant for consideration in assessing the reasonableness of an

agency-imposed penalty). Among the relevant Douglas factors are: (1) the

nature and seriousness of the offense; (2) the employee’s job level and type of

employment; (3) the employee’s past disciplinary record; (4) the employee’s past

work record; (5) the effect of the offense upon the employee’s ability to perform

at a satisfactory level and its effect upon his supervisors’ confidence in the

employee’s ability to perform assigned duties; (6) the consistency of the penalty

imposed with those imposed upon other employees for the same or similar

misconduct; (7) the consistency of the penalty with any applicable agency table of

penalties; (8) the notoriety of the offense or its impact on the agency’s reputation;

(9) the clarity with which the employee was on notice of any rules that were

violated in committing the offense; 2 (10) the potential for the employee’s

The deciding official noted in the notice of removal that there was no notoriety

surrounding the offense and the appellant had notice of agency policies concerning

appropriate conduct. IAF, Tab 6 at 18. The appellant on review appears to challenge

the deciding official’s extraneous statements regarding her consideration of the

notoriety of the offense. PFR File, Tab 1 at 15. However, because the deciding official

properly acknowledged that there was no notoriety and the appellant does not challenge

rehabilitation; (11) mitigating circumstances surrounding the offense; and

(12) the adequacy and effectiveness of alternative sanctions to deter such conduct

in the future by the appellant and others. Douglas, 5 M.S.P.R. at 305-06. The

record reflects that the deciding official considered these factors in making her

decision to remove the appellant from his position. HCD (testimony of the

deciding official); IAF, Tab 6 at 16-19.

The appellant asserts that the deciding official attributed adverse weight to

his admission in her consideration of the first Douglas factor. PFR File, Tab 1

at 10. Regarding the second and fifth Douglas factors, he disagrees with the

deciding official’s statements that he investigated the specific conduct with which

he was charged as he was never assigned any pornography cases, and that his

supervisors lost confidence in his ability to perform his duties. Id. at 11-13.

In assessing the appropriateness of the agency’s penalty selection, the most

important factor is the first factor, the nature and seriousness of the offense and

its relation to the employee’s duties, position, and responsibilities, including

whether the offense was intentional or was frequently repeated. Batara,

123 M.S.P.R. 278, ¶ 8; Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 7

(2013). Here, the deciding official observed that the appellant engaged in

“willful” and “egregious” misconduct that caused the agency to lose trust in his

ability to effectively perform the duties of his position, especially considering the

length of time over which it repeatedly occurred and the fact that his offense was

antithetical to the purpose of his position, which involved investigating

allegations of employee misconduct. ID at 5-6; IAF, Tab 6 at 16-18. We agree

with the administrative judge that the deciding official properly accorded

substantial weight to the first, second, and fifth Douglas factors. IAF, Tab 6

at 16-18; HCD (testimony of the deciding official); see Edwards v. Department of

the Army, 87 M.S.P.R. 27, 30, ¶ 9 (2000) (stating that a supervisor’s opinions are

the deciding official’s determination that he was on notice of any rules that were

violated in committing the offense, we need not analyze the eighth and ninth factors

further.

insufficient to overcome the agency’s judgment concerning the seriousness of the

misconduct and the appropriateness of the agency-imposed penalty), aff’d sub

nom. Rodriquez v. Department of the Army, 25 Fed. Appx. 848 (Fed. Cir. 2001).

Regarding the sixth and seventh Douglas factors, the appellant asserts that

the penalty was neither consistent with those imposed upon other employees for

the same or similar misconduct, nor consistent with the agency’s table of

penalties. PFR File, Tab 1 at 7-9, 13-15. In particular, he claims that the

deciding official relied on “false and misleading information” in the notice of

proposed removal because she did not consider the broad range of penalties for a

first offense of misuse of Government equipment in the agency’s table of

penalties or a broad range of comparators throughout the agency (USDA), not just

the largest sub-agency (FSIS). Id. at 8-9.

The record reflects that the deciding official considered the sixth and

seventh Douglas factors. IAF, Tab 6 at 18. Removal was within the range of

penalties for a first offense of misuse of Government equipment. IAF, Tab 10

at 26; see Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18 (finding that an

agency’s decision to impose a penalty at the more lenient end of a range of

penalties should not mean that it cannot impose a penalty at the more severe end

of that range in another case).

Regarding the appellant’s claim that the agency treated him more harshly

than other similarly-situated employees, the Board has recently clarified that the

relevant inquiry is whether the agency knowingly and unjustifiably treated

employees differently. 3 Singh, 2022 MSPB 15, ¶ 14. The fact that two

The appellant asserts that the administrative judge improperly denied his motion to

compel discovery of comparator evidence. PFR File, Tab 1 at 5, 7-8. He clarifies that

he sought discovery regarding potential comparator employees throughout the agency

(USDA), not just the largest subagency (FSIS). Id. at 7-8. The agency noted that it had

already provided the three comparator cases that the deciding official had considered in

making her decision, and that the appellant had misused his position as an Investigator

to obtain three different comparator cases upon which the deciding official did not rely.

Id. at 5-7 (citing IAF, Tab 10 at 27). The administrative judge denied the appellant’s

motion to compel for the reasons provided by the agency. IAF, Tab 19. An

employees come from different work units and/or supervisory chains remains an

important factor in determining whether it is appropriate to compare the penalties

they are given. Id., ¶ 13. In most cases, employees from another work unit or

supervisory chain will not be proper comparators. Id. The universe of potential

comparators will vary from case to case, but it should be limited to those

employees whose misconduct and/or other circumstances closely resemble those

of the appellant. Id.

We find that the appellant has failed to establish that the agency knowingly

and unjustifiably treated any employees differently, as required under Singh.

The standard set forth in Douglas calls for comparison with penalties “imposed

upon other employees for the same or similar offenses.” Id., ¶ 17 (citing

Douglas, 5 M.S.P.R. at 305). The administrative judge noted that the deciding

official considered three comparator cases, and she determined that the deciding

official credibly testified that the facts and circumstances surrounding the three

comparator employees was dissimilar enough to justify treating the appellant

differently. ID at 6-9. The Board must defer to an administrative judge’s

credibility determinations when they are based, explicitly or implicitly, on

observing the demeanor of witnesses testifying at a hearing, and may overturn

such determinations only when it has “sufficiently sound” reasons for doing so.

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find

that the appellant has not presented sufficiently sound reasons for overturning the

administrative judge’s well-reasoned credibility determinations.

Although the appellant maintains that he is not raising K.B. as a potential

comparator employee, he indicates that K.B. was an “identically situated”

administrative judge has broad discretion in ruling on discovery matters, and absent an

abuse of discretion, the Board will not find reversible error in such rulings. Kingsley v.

U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). We find that the appellant has not

established that the administrative judge abused her discretion when she denied the

appellant’s motion to compel.

coworker who received lesser discipline. 4 PFR File, Tab 1 at 6. The record

reflects that K.B. held the same job title and was in the same work unit as the

appellant; however, by the appellant’s own admission, she did not commit the

same or similar offense. PFR File, Tab 1 at 13-14. Rather, she was suspended

for 14 days for failure to follow instructions and time and attendance related

offenses. Id. Given the circumstances, K.B. was not a similarly situated

employee.

The appellant asserts that the third, fourth, and tenth Douglas factors weigh

in his favor. He points to his expression of remorse, length of service (3 years

civilian and 34 years military), lack of prior discipline, positive performance

appraisals, letters of support from colleagues, and his participation in a

rehabilitative program. PFR File, Tab 1 at 8, 10 -12, 15-16. Regarding the

eleventh Douglas factor, the mitigating circumstances surrounding the offense,

the appellant argues that the deciding official did not fully consider his evidence

as to his mental impairments and its effects on his actions. Id. at 16-17.

The appellant’s disagreement with the weight given to those factors does

not provide a basis to change the outcome. See Kirkland v. Department of

Homeland Security, 119 M.S.P.R. 74, ¶ 25 (2013). As the administrative judge

stated, the deciding official considered the third and fourth Douglas factors, his

The appellant asserts that the administrative judge improperly denied his request to

call K.B. as a witness “to refute the credibility of the deciding official[].” PFR File,

Tab 1 at 4, 6. He notes that he sought the inclusion of the testimony of K.B., not as a

potential comparator employee, but as a challenge to the testimony of the deciding

official that “whenever a misconduct investigator engaged in serious misconduct, the

only option for the [a]gency was removal and the employee had no prospect for

rehabilitation.” Id. at 6. An administrative judge has wide discretion to control the

proceedings, including the authority to exclude evidence she believes would be

irrelevant, immaterial, or unduly repetitious. Sanders v. Social Security Administration,

114 M.S.P.R. 487, ¶ 10 (2010). The Board has held that, to obtain reversal of an initial

decision on the ground that the administrative judge abused her discretion in excluding

evidence, the petitioning party must show on review that relevant evidence, which could

have affected the outcome, was disallowed. Id. Here, the appellant has neither shown

that the testimony of K.B. could have affected the outcome of his appeal nor provided

sufficiently sound reasons to overturn the administrative judge’s determination that the

deciding official’s testimony was credible. See Haebe, 288 F.3d at 1301.

past disciplinary and work record, as mitigating factors but concluded that they

were not significant enough to outweigh the nature and seriousness of the

sustained misconduct. ID at 6, 9-10; IAF, Tab 6 at 17-19; HCD (testimony of the

deciding official). The administrative judge observed that the appellant appeared

sincerely remorseful for his conduct and that he provided medical evidence that

he suffered from depression, but noted that the deciding official did not grant this

evidence much weight because it did not excuse his misconduct. ID at 6, 9.

Because neither the administrative judge nor the deciding official fully addressed

the appellant’s claim of mental impairments as a mitigating factor, we modify the

initial decision to supplement the administrative judge’s analysis.

The record reflects that the appellant began counseling through the

Employee Assistance Program (EAP) shortly after he learned that the agency

would propose his removal. IAF, Tab 3 at 180. He continued counseling with a

psychiatrist who diagnosed him with Adjustment Disorder with Mixed Emotional

Features; Major Depression; Complicated Grief Disorder, and Mixed Personality

Disorder; with Self Destructive Tendencies with Obsessive Compulsive and

Addictive Behavior. Id. at 186. The appellant asserted that he submitted this

evidence to the deciding official, but she did not consider it as a mitigating factor,

seek additional information, refute his medical evidence, or order him to take a

fitness for duty exam. 5 PFR File, Tab 1 at 16-17.

Evidence that an employee’s medical condition or mental impairment

played a part in the charged conduct is ordinarily entitled to considerable weight

as a mitigating factor. Malloy v. U.S. Postal Service, 578 F.3d 1351, 1357

(Fed. Cir. 2009); Bowman v. Small Business Administration, 122 M.S.P.R. 217,

¶ 13 (2015); Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345

(1997). In circumstances where a medical condition or mental impairment is

reasonably substantiated and shown to be related to the grounds for removal,

Under these circumstances, the agency is not required to refute his medical evidence

or order him to take a fitness for duty exam.

it must be considered in the penalty analysis. Malloy, 578 F.3d at 1356. The

Board will not consider a medical or mental impairment to be a significant

mitigating factor in the absence of evidence that the impairment can be

remedied or controlled, i.e., when the potential for rehabilitation is poor.

Mingledough v. Department of Veterans Affairs, 88 M.S.P.R. 452, ¶ 12 (2001),

review dismissed, 35 F. App’x 873 (Fed. Cir. 2002).

In his response to the proposed removal, the appellant submitted a

June 5, 2018 report from his EAP counselor and a June 14, 2018 report from his

psychiatrist suggesting that he suffered from depression, among other conditions,

during the period of the misconduct. 6 IAF, Tab 3 at 180-87. The June 5, 2018

report shows that the appellant sought counseling through EAP in order to

address and/or treat his depression following the proposed removal; however, it

was short-term and does not provide much in the way of significant analysis.

Id. at 180. In contrast, the June 14, 2018 report provides a substantive discussion

of the appellant’s mental impairment, and thus, it is the main subject of our

review. Id. at 181-87.

The psychiatrist stated that he conducted a clinical and diagnostic

evaluation of the appellant. Id. at 182. He concluded that the appellant “was

suffering from mental health issues when [the misconduct] occurred that were

somewhat known, but only partially and ineffectively treated.” Id. at 181.

He explained that the appellant’s depression “manifested . . . in aberrant behavior

that involved using pornography to ‘act out’ guilt and shame associated with a

rigid religious view,” and it was exacerbated by recurrent deployments in his

military career, a chaotic and isolated childhood, and a marriage that lacked

physical and emotional intimacy. Id. at 182. The psychiatrist indicated that the

appellant’s “own morality led him to reject acting out in the marriage or viewing

The appellant also provided documentation showing that, in December 2014, the

Veterans Benefit Administration determined that he had a service-connected disability,

50% of which was attributed to “generalized anxiety disorder, with major depressive

disorder.” IAF, Tab 3 at 188-95.

[pornography] on his home or private computer” and that viewing pornography on

his office computer allowed him to “remain committed to his marriage and home,

while seeking the sort of punishment for his conduct which would be exposed.”

Id. at 184. He described the appellant’s behavior as akin to that of an addict and

suggested that the appellant was caught in a “shame cycle” and that he did not

have the ability to “self-regulate” his behavior. Id. at 185. He expressed a

concern that the agency “appeared to have been aware of the misconduct for some

time[] but took no action” and, in doing so, entrapped the appellant. Id. He

opined that the appellant is a “prime candidate for retention and rehabilitation”

and that “[g]iven adequate medical treatment, use of support groups, and

employee assistance, [he] is not likely to reengage in the destructive behavior.”

Id. at 186.

We have thoroughly reviewed the psychiatrist’s report and we are not

persuaded that his conclusions in the report warrant a different outcome. We note

that the treating psychiatrist appeared to place the lion’s share of the

responsibility for the appellant’s actions on the employer, both in terms of

deterrence and rehabilitation. He indicated that the appellant has the potential for

rehabilitation, but his description of the appellant as an individual whose

addiction was quite severe in nature suggests that the appellant may relapse and

repeat such behavior when he needs an outlet for his suppressed emotions. In

fact, although the appellant denied that he had an addiction, he also indicated that

he had difficulty curing his compulsion to view pornography and sexually explicit

material. HCD (testimony of the appellant). That the appellant was depressed as

a result of a number of personal stressors and engaged in “self -destructive”

behavior arising from his feelings of guilt and shame does not adequately connect

his mental impairments to his misconduct such that his impairments are entitled

to considerable weight as a mitigating factor.

We have considered the appellant’s assertion that the psychiatrist’s report

shows that his misconduct was due to “a loss of behavioral self-control caused by

inadequate medication to treat [his] medical disability.” PFR File, Tab 1 at 9;

HCD (testimony of the appellant). According to the psychiatrist, the appellant

recognized that his behavior was inappropriate, and he made an apparently

deliberate decision to view pornographic and sexually explicit content on his

Government computer but not his personal computer. The fact that he could

control this impulse at home but not at the workplace suggests that he had some

self-control. The psychiatrist questioned the efficacy of the appellant’s

medication regimen, particularly given side effects impacting libido and

impulsivity, but he did not clearly explain the impact of these medications on the

appellant as it relates to his apparent pornography addiction. IAF, Tab 3 at 182.

The administrative judge noted in the initial decision that the appellant

provided evidence demonstrating that he was taking medications and that he

sought behavioral health counseling. ID at 7; IAF, Tab 36 at 1-7. The

administrative judge further noted that she empathized with the appellant’s

medical conditions and efforts to seek treatment, but she held that the agency

properly considered the relevant Douglas factors. ID at 9-10. Based on our

review of the record, we find that the appellant’s conditions existed at the time of

the misconduct and are entitled to some weight as a mitigating factor. However,

the appellant has offered no persuasive evidence that his conditions have been

remedied or controlled, i.e., that his potential for rehabilitation is strong.

On review, the appellant argues that the deciding official misunderstood

and misapplied the tenth Douglas factor, the potential for rehabilitation. PFR

File, Tab 1 at 15-16. The record reflects that the deciding official considered but

did not accord much weight to this factor. IAF, Tab 6 at 18; HCD (testimony of

the deciding official). As the administrative judge stated, the appellant’s “mere

participation in a rehabilitative program cannot preclude an agency from

instituting disciplinary action in every case in which an employee has sought and

received assistance” because it would impermissibly undermine “the agency’s

primary discretion in exercising its managerial obligation to maintain employee

discipline and efficiency.” ID at 9. Even a good prognosis or a favorable

“forward-looking analysis” for an appellant’s future behavior, as stated in the

psychiatrist’s report, does not outweigh the agency’s legitimate apprehension as

to his ability to perform his duties, and the effect of his proven misconduct on the

efficiency of the service. 7 Quander v. Department of Justice, 22 M.S.P.R. 419,

422 (1984), aff’d, 770 F.2d 180 (Fed. Cir. 1985) (Table).

Regarding the twelfth Douglas factor, the adequacy and effectiveness of

alternative sanctions, the appellant argues that the deciding official did not

consider this factor. PFR File, Tab 1 at 4-5, 17-18. He asserts that his case is

analogous to Toth v. U.S. Postal Service, 76 M.S.P.R. 36 (1997), in which the

Board held that the agency’s failure to consider a lesser penalty and other

relevant Douglas factors supported mitigation of the removal to a 30-day

suspension. Id. at 17. The record reflects that the deciding official considered

the twelfth Douglas factor in making her decision. IAF, Tab 6 at 19; HCD

(testimony of the deciding official). She testified that no penalty other than

removal would have been appropriate because the appellant was expected to have

a reputation of integrity and she did not trust the appellant to satisfactorily

perform his duty of independently investigating allegations of employee

misconduct after he committed the offense at issue. HCD (testimony of the

deciding official). She later clarified that imposing an alternate sanction such as

a suspension would not have been effective, and she believed that the

appellant’s removal was in the best interest of the agency. Id. In contrast to

The appellant also argues that the agency’s purported awareness of his misconduct for

more than 1 year undermines the deciding official’s testimony that his misconduct was

“egregious.” PFR File, Tab 1 at 7, 18. In making such an assertion, the appellant

appears to be avoiding responsibility for his actions. We find that the appellant’s

attempt to minimize his own misconduct weighs against a finding of rehabilitative

potential. Even assuming his assertion regarding the agency’s purported awareness of

his misconduct is true, it defies credulity that any employee would think it appropriate

to view pornographic or sexually explicit materials on work equipment and on work

time. Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶ 16 n.5 (2014).

Thus, the appellant’s arguments do not change our analysis of the factors relating to the

nature and seriousness of the offense or his potential for rehabilitation.

Toth, 76 M.S.P.R. at 39, in which the agency did not show that it substantively

considered a lesser penalty, the deciding official testified unequivocally that she

considered all Douglas factors, and she concluded that no alternative sanction

was appropriate. HCD (testimony of the deciding official).

Based on the record evidence, we conclude that a different outcome is not

warranted. We supplement the initial decision to find that the nature, seriousness,

extended duration, and repeated occurrence of the offense, particularly given the

appellant’s position and job duties, outweigh the mitigating factors, including, but

not limited to, his mental impairments, length of Federal and military service, and

lack of prior discipline. Accordingly, we affirm the removal penalty for the

sustained misconduct. See Baldwin v. Department of Veterans Affairs,

109 M.S.P.R. 392, ¶ 14 (2008) (noting that the Board has held that the penalty of

removal was reasonable for misuse of government equipment arising from an

appellant’s personal use of a government computer, particularly when he used the

computer to view material of a sexually explicit nature).

The appellant’s remaining claims provide no basis to disturb the initial decision.

The appellant asserts that the administrative judge improperly disallowed

the admission of additional evidence relating to the deciding official’s penalty

determination. PFR File, Tab 1 at 4, 6-7. The evidence that the appellant

identifies as erroneously excluded is the OCIO policy, which states that

individuals who violate the office’s restrictions on computer use are banned from

telework. Id. at 6-7. He interprets this policy as supportive of his position that

removal is not mandatory for individuals who view restricted websites on

Government computers. Id. at 7. The appellant has not shown that the inclusion

of the OCIO policy into the record would have led the administrative judge to

reach a different conclusion regarding the reasonableness of the penalty. Thus,

the appellant has not established that the administrative judge abused her

discretion when she disallowed the admission of this additional evidence. See

Sanders, 114 M.S.P.R. 487, ¶ 10.

Finally, we have considered the appellant’s assertions that the deciding

official improperly sent a proxy when he presented his oral response to the

proposed removal, she did not seek any additional review of the evidence that she

was provided by the proposing official, and she did not consult with any other

person in making her decision. PFR File, Tab 1 at 18-19. The appellant does not

state that the deciding official was required to attend the oral response in person

or to seek assistance from other individuals. Moreover, there is no indication in

the record that the deciding official failed to consider any relevant evidence in

determining that removal was a reasonable penalty. HCD (testimony of the

deciding official). Thus, these arguments are not persuasive.

Accordingly, we affirm the agency’s removal action.

NOTICE OF APPEAL RIGHTS 8

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

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.

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.

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. 9 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).

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.

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