Appendix — Lewis v. Department of Agriculture (No. 08-128)
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FILED oS
08128
No. JUL 25 2008
OFFICE OF THe
C
Witlam K. eer, Clon
In The Supreme Count of The United States
Donald R. Lewis.
Petitioner
Fe
Department of Agriculture,
Respondent
On Petition for a Writ of Certiorari to United
States Court of Appeals for the Federal Circuit
Petition for Writ of Certiorari
Appendix
Donald R. Lewis
Pro Se
P.O. Box 1142
Kirbyville, TX 75956
(409) 423-2799
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal
Circuit
2008-3031
Donald R. Lewis,
Petitioner,
¥.
DEPARTMENT OF AGRICULTURE,
Respondent.
Petition for review of the Merit Systems Protection
Board in DAQ752060686-I-1.
DECIDED: March 7, 2008
Before BRYSON, Circuit Judge, CLEVENGER, Senior
Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
After the Department of Agriculture
removed appellant Donald R. Lewis from his
position, Mr. Lewis appealed the agency's
A-2
BEST AVAILABLE COPY
Note: This disposition in nonprecedential
United States Court of Appeals for the Federal
Circuit
2008-3031
DONALD R. LEWIS.
Petitioner,
V.
DEPARTMENT OF AGRICULTURE
Respondent.
Donald R. Lewis, of Kirbyville, Texas. pro se.
Anuj Vohra, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States
Deparment of Justice, of Washington, DC, for
respondent, With him on the brief were Jeanne E.
Davidson, Director, and Donald E. Kinner, Assistant
Director.
Appealed from: Ment Systems Protection Board
—_— . eee y ee:
Appendix A
A-1 thru
A-19
Appendix B
B-] thru
B-4
Appendix C
C-1] thru
C-127
Appendix D
D-1 thru
D-3
Appendix E
E-] thru
E-4
Appendix F
F-] thru
F-5
Appendix G
G-1| thru
G-8
Appendix H
H-| thru
H-1]
Index To Appendices
Decision of the United States
Court of Appeals For The
Federal Circuit
Merit Systems Protection Board
Final Order
Merit Systems Protection Board
Initial Decision
Order of The United States Court
of Appeals For The Federal
Circuit Denying Petition For
Rehearing
Department of Agriculture
rocedural Guidelines For
Employee Misconduct
Investigations and Reports
Agency Director's Statement
(John Ortego, Former)
Agency Statement (Shirley
LeBlanc)
Psychological Stress Evaluators
(Voice Lie Detector) tests,
Resume. Process, and
x!
Appendix |
l-1 thru
I-11
Appendix J
J-] thru
J-10
Appendix K
K-1 thru
K-27
Appendix L
L-? thru
L-37
Appendix M
M-1 thru
M-3
Appendix N
N-1 thru
N-2
Appendix O
O-1 thru
O-7
Technique
Cecil Mason v. Department of
The Navy, 70 MSPR 584 (1996)
Edmound C. Broussard v.
Department of The Navy, 27
MSPR 382 (1985)
Agency Statement (Patricia W.
Duvernay) and Additional
Information to Affidavit
USDA Guide to Disciplinary
Penalties
Naomi Riley v. Department of
the Army
Agency Statement (Artimese
Epps)
Letter to Chief Judge, U.S. Court
of Appeals for Federal Circuit on
Wrongful Consideration of
Retirement Eligibility
Xil
decision to the Merit Systems Protection Board. The
Board sustained each of the six charges against
him and upheld his removal. We affirm.
l.
Mr. Lewis was employed by the National
Finance Center (“NFC”) of the Department of
Agriculture as the program manager for the
agency's Equal Employment Opportunity and
Workforce Services Staff. His duties encompassed a
number of matters related to the resolution of
discrimination complaints. On March 28, 2006, the
agency sent Mr. Lewis a notice of proposed
removal in which it listed seven charges against
him: (1) receipt of government funds without
securing required management approval: (2)
failure to take appropriate management action;
(3) allowing subordinate employees to conduct
private business for personal gain using
government time and equipment; (4) directing
subordinate employees to perform personal work
or errand for him on government time and
equipment; (5) taking retaliatory action against
subordinate employees following their making
protected disclosures during and official
investigation; (6) inappropriate management and
personal conduct; and (7) making false statements
during an official investigation.
After Mr. Lewis responded to the notice, the
NFC Director removed Mr. Lewis from his position,
sustaining all of the charges except the retaliatory
action charge. Mr. Lewis appealed his removal to
the Merit Systems Protection Board, challenging
A-3
both the findings of misconduct and the penalty.
He also raised an affirmative defense based on
alleged deficiencies in the agency's investigation
of his misconduct. The Board sustained the
charges and the penalty, and it rejected Mr.
Lewis's affirmative defense. In his petition for
review, Mr. Lewis asserts that the Board erred in (1)
affirming the charges against him, (2) finding that
he had not established an affirmative defense
based on harmful error in the application of the
agency's procedures, and {3} finding that his
removal was a penalty in the range of
reasonableness
As an initial matter, Mr. Lewis asks us to
reverse the Board's decision based on what he
sees as a concerned effort among a number of
NFC employees to effect his removal. Mr. Lewis
asserts that the investigation into his alleged
misconduct was initiated and orchestrated by an
employee who hoped to get a promotion and
another employee whose position was eliminated
because of a reduction in force in July 2005. Mr.
Lewis argues that the Board failed to follow its
decision in Seavello v. Department of Navy, 4
M.S.P.B. 239, 241) (1980), a case in which the Board
reversed an agency's demotion of an employee
after finding “the case against the appellant
irrevocably tainted by personal animus and
testimony lacking in credibility.” We will address Mr.
Lewis's concerns related to bias against him as
A-4
those concerns affect the Board’s conclusion with
respect to each charge. As Mr. Lewis challenges
the Board's decision on each of the charges
against him, we address each charge in turn.
A.
In its first charge, the agency alleged that
Mr. Lewis received government funds without
management approval. That allegation was
based on agency records showing that Mr. Lewis
received lump-sum payments for unused
compensatory time without obtaining supervisory
approval. The agency's policy regarding
compensatory time requires all compensatory time
to be liquidated by the end of the leave year.
Employees who do not use their compensatory
time by that deadline forfeit their right to use their
compensatory time and to receive overtime pay,
unless an employee can establish that he or she
was unable to use compensatory fime “due to an
exigency of the service beyond the employee's
control.” For employees to receive overtime pay
for unused time, they must obtain supervisory
approval, which requires timekeepers to submit a
specific form to the human resources staff before
the deadline {i.e., the end of the leave year). Mr.
Lewis received seven payments for compensatory
time, and the agency had no record that the
proper form for supervisory approval was
submitted.
A-5
Mr. Lewis testified that he was unaware that
the timekeeper who processed his payments did
not follow the proper procedure and that he was
unaware that supervisory approval had not been
obtained. Based on M. Lewis's supervisory position,
the Board found that Mr. Lewis should have been
aware of the proper procedures for receiving
payment for unused compensatory time. From that
finding, the Board concluded that he knew or
should have known that he received his overtime
payments in violation of agency procedure. That
conclusion, however, does not necessarily follow.
Mr. Lewis may have been aware of the proper
procedures, yet he may not have known that his
timekeeper had not obtained supervisory
approval. In any event, the Board found that the
agency's charge against him did not require a
finding of intent, and it was Undisputed that the
proper procedure was not followed. We agree
with the Board that the charge does not specify an
element of intent, and we therefore affirm the
Board's determination with respect to that charge.
B
The agency's second charge was based on
Mr. Lewis's failure to take appropriate
management action when two of his subordinate
employees complained of sexual harassment by a
contract employee. The agency's first
specification in support of that charge stated that
Ms. Adimu Kushindana complained to Mr. Lewis
several times about the contract employee's
A-6
behavior, only to have Mr. Lewis laugh in response.
The second specification stated that Ms. Julie
Nguyen first began having problems with the
contract employee on February ?, 2005. The notice
specified that Ms. Nguyen complained to Mr.,
Lewis but that Mr. Lewis responded by either
laughing or ignoring her.
Before the administrative judge, both Ms.
Nguyen and Ms. Kushindana testified that they
approached Mr. Lewis about the contract
employee's conduct on February 9, but that Mr.
Lewis did not take any action until February 17. Mr.
Lewis, however, testified that the first time he
learned of the contract employee’s conduct was
on February 17, and he stated that he contacted
the contract employee's supervisor, Ms. Debra
Byrne, that same day. The administrative judge.
however found Mr. Lewis's testimony to lack
credibility and concluded that Mr. Lewis likely
learned of the contract employee's conduct
earlier than February 17. The administrative judge
did not find that Mr. Lewis had laughed about the
allegations of the of the contract employee's
conduct, but did find that having learned of the
allegations proper to February 17, Mr. Lewis should
have taken some action pnor to that date an
failed to do so.
On appeal, Mr. Lewis challenges the
administrative judge's credibility determination. He
argues that the administrative judge failed to
explain why she chose not to credit Mr. Lewis's
testimony, but instead only stated that his “general
demeanor while testifying, i.e., his carriage,
A-7
behavior, manner, and appearance,
demonstrated a lack of candor.” Mr. Lewis also
asserts that several of the employees who testified
against him on this charge were upset about a July
2005 reduction in force in the agency. Ms. Nguyen
was the employee whose position was eliminated.
and Mr. Lewis asserts that several of her former co-
workers, including Ms. Kushindana, were upset
about Mr. Lewis’s decision to eliminate her position.
The administrative judge acknowledged
that the reduction in force “may very well have
caused some witnesses to now have a bias against
the appellant.” In light of that possibility, the
administrative judge explained that she relied “to
a large extent” on the testimony and affidavit of
Ms. Byrne in sustaining this charge. Ms Byrne’s
affidavit stated that she learned of the contract
employee's conduct from another employee to
whom Ms. Nguyen and Ms. Kushindana had
complained. According to Ms. Byrne, that
employee stated that Ms. Nguyen “had been
trying to handle [the situation] internally with her
supervisor but that the situation was persisting.” Ms.
Byrne's affidavit also stated that, when she
contacted Mr. Lewis, she “was told that Ms.
Nguyen had complained to him about the
situation but he ha not taken her complaint
seriously.” Based on Ms. Byrne's affidavit, we find
the Board's conclusion that Mr. Lewis knew of the
contract employee's conduct before February 17
to be supported by substantial evidence. We
therefore affirm the Board's holding with respect to
the second charge.
A-8
Cc
The agency's third charge was “Allowing
Subordinate Employees to Conduct Private
Business for Personal Gain on Government
Equipment and Time.” The agency based that
charge on the activities of two of Mr. Lewis's
employees. The first employee, Ms. Myloc Nguyen,
used NFC equipment during government time for
a restaurant, convenience store, and other
businesses that she operated. The second
employee, Ms. Kushindana, performed work as a
travel agent during work hours. The administrative
judge found that Mr. Lewis knew of the activities of
Ms. Kushindana. As for Ms. Nguyen, the
administrative judge found that Mr. Lewis had
sufficient knowledge of possible wrongdoing on
her part that he should have taken action and
failed to do so.
With respect to Ms. Kushindana’s activities, il
was undisputed that Ms. Kushindana performed
work as a travel agent on government fime. Ms
Kushindana testified that Mr. Lewis asked her for
information on a trip to Disney World during work
and that she provided him with rates. In his
testimony, Mr. Lewis did not directly refute that
assertion, but rather stated that Ms. Kushindana
never planned a trip for him. The administrative
judge explicitly credited Ms. Kushindana:s
testimony over Mr. Lewis's testimony.
Mr. Lewis again contends that Ms.
Kushindana testified against him out of personal
A-9
animus. Mr. Lewis's claim of bias was before the
administrative judge, however, and the
administrative judge was entitled to weigh the
evidence in light of that, asserted bias.
With respect to Ms. Nguyen’s activities, Mr.
Lewis argues that the Board's finding that he failed
to iake appropriate action to curtail her business-
related actives in the office is erroneous.
Specifically, Mr. Lewis points to an affidavit from
Ms. Nguyen stating that she made effort to
conceal her business-related activities from Mr.
Lewis and others close to him. Mr. Lewis also asserts
that after he learned of Ms. Nguyen’s activities
from his discussion with Ms. Kushindana, which he
states took place in June or July 2005, he began
monitoring Ms. Nguyen more closely. He contends
that the Board erred in finding that Ms. Nguyen’'s
activities continued through August 2005 because
she went on a 30-day vacation and did not return
until November 2005 on account of Hurricane
Katrina. Mr. Lewis states that when she returned, he
moved her office closer to his so that he could
observe her more closely and that he also
establishes a time to track how official time was
used.
Although Mr. Lewis asserts that he took
action after ms. Kushindana brought Ms. Nguyen’s
activities to his attention, the administrative judge
found that he was likely on notice of possible
wrongdoing by Ms. Nguyen from an earlier date.
The administrative judge found it to be improbable
that Mr. Lewis was unaware of Ms. Nguyen’s
activities, as it was common knowledge that Ms.
A-10
Nguyen performed work for her businesses at fhe
NFC office on government time. Mr. Lewis's
reliance on Ms. Nguyen's affidavit does not
persuade us that the administrative judge ered, —
because the record shows that her activities were
well known throughout the office. Several
employees testified that documents relating to Ms.
Nguyen’s personal businesses were found in the
office fax machine, and Mr. Lewis acknowledged
that on at least one occasion he picked up one of
Ms. Nguyen's faxes and delivered it to her.
Because the administrative judge was entitled to
credit the agency's evidence over Mr. Lewis's, we
affirm the Board's ruling with respect to the third
charge.
D
Mr. Lewis next challenges the Board's
determination with respect to the fourth charge,
that he directed his subordinate employees to
perform personal work for him on government time
and equipment. The specification that was
sustained by the deciding official alleged that Mr.
Lewis directed a number of employees to prepare
various personal documents such as personal
letters, letters to banks, and bills of sale for real
estate. Mr. Lewis was also charged with directing a
student employee to write a research paper for
Mr. Lewis's son.
In sustaining the fourth charge, the
administrative judge found unconvincing Mr.
Lewis's assertion that he merely asked his
A-| |
employees to perform his personal work for him but
thai ne never directed them fo do so, and his
contention that none of his employees ever
objected to performing the work. The
administrative judge also found that because of
Mr. Lewis's supervisory position, the student
employees that he directed to perform his
personal work, including the student employee
who wrote a research paper for his son, would
have been highly unlikely to object to his requests.
Mr. Lewis argues that the Board ered in
finding that he directed employees to perform his
personal work. He states that none of the
employees who testified or provided statements
stated that they were actually ordered to perform
personal work for Mr. Lewis. We find, however, that
it was reasonable for the Board to infer that when
Mr. Lewis asked his subordinate employees fo
perform personal work for him, the request was
equivalent to an order based on the relationship
between Mr. Lewis and the employees. The
Board's fining on the fourth charge was therefore
supported by substantial evidence.
E
The Board next addressed the charge in the
notice of proposed removal that alleged that Mr.
Lewis engaged in inappropriate management
and personal conduct. That charge was
supported by four specifications, all of which were
sustained by the Board. The specifications alleged
that Mr. Lewis (1) made inappropriate comments
A-12
to his subordinates regarding religion, sexual
orientation, and employees’ weighf, (2) poundec
his fist loudiy on his desk and on other employees’
desks, (3) harshly criticized employees, causing
them to cry, and (4) on January 15, 2005, grabbed
Julie Nguyen’s arm so hard that it left a bruise.
Relying on the Board's decision in Mason v.
Department of Navy. 70 M.S.P.R. 584, 586-89 (1996),
Mr. Lewis argues that the first three allegations
were too vague to provide proper notice to him
because they did not specify the dates or
locations of the alleged conduct. In Mason, the
Board reversed an agency action based on an
employee's alleged use of racial slurs because the
agency's proposed notice of removal “did not
give any indication of when or where this
misconduct allegedly occurred.” Id. At 587. In this
case, Mr. Lewis submitted an interrogatory
requesting specific details with respect to the
alleged offensive comments and conduct, but the
agency provided none.
Mr. Lewis contends that because of the tack
of specificity in the first three specifications, he was
denied a fair opportunity to respond to those
charges. It was inherent in the nature of the
charges in those specifications, however, that
great specificity was not possible. Three of the four
specifications alleged a pattern of conduct over
time, rather than a particular incident. And the
individual instances of inappropriate conduct,
such as angry remarks or insulting words, were not
the type as to which witnesses would ordinarily be
expected to recall the precise date and
A-13
surrounding circumstances. Nonetheless, while the
agency was not able to provide the particular
date and location for each incident of allegedly
inappropriate conduct, the agency provided, with
regard to each specification, the names of those
employees who had complained about Mr.
Lewis's conduct and the particular nature of his
conduct. Moreover, a number of the witnesses
prepared affidovits containing details regarding
Mr. Lewis's inappropriate conduct, and he had
copies of those affidavits prior to the hearing
before the agency and before the administrative
judge. Under these circumstances, we are satisfied
that the agency's failure to provide additional
details about the alleged misconduct did not
constitute an unfair failure to provide discovery.
With respect to the first specification, the
Board sustained the charge that on multiple
occasions Mr. Lewis had used inappropriate
language and made offensive comments in front
of subordinates. While Mr. Lewis challenges this
finding and at the hearing denied making such
comments, the administrative judge made a
credibility determination with respect to the
conflicting evidence on this point, and such
credibility determinations are virtually
unreviewable. See Chambers v. Dep't of the
Interior, No. 2007-3050, slip op. At 111 (Fed. Cir. Fed.
14, 2008). Accordingly. we conclude that the
Board's decision sustaining the first specification
was supported by substantial evidence.
With respect to the fourth specification, the
Board sustained a charge relating to a specific
A-14
instance of misconduct. The agency alleged that
on January 15, 2005, Mr. Leis grabbed Ms. Julie
Nguyen’'s arm and squeezed if fo the point of
causing bruising. According to the agency, Mr.
Lewis did not let go until Ms Nguyen kicked him.
Mr. Lewis characterized the incident differently,
testifying that he caught Ms. Nguyen’s arm in his
hand because she was motioning with her arms
without realizing that he was walking by. He
explained that Ms. Nguyen then kicked him while
he was walking away. The administrative judge.
however, rejected Mr. Lewis's explanation, finding
it implausible that he would simply walk away and
do nothing after being gratuitously kicked by one
of his employees.
Mr. Lewis argues that the incident with Ms.
Nguyen should be disregarded because Ms.
Nguyen characterized the incident as “petty” in
explaining why she did not report it at an earlier
date. Even if Ms. Nguyen thought the incident to
be “petty” at the time, however, the agency was
entitled to consider it to be a serious matter that
raised concerns about Mr. Lewis's ability to mange
employees. Notwithstanding Mr. Lewis's argument
that Ms. Nguyen was biased against him because
Mr. Lewis eliminated her position, the administrative
judge's reason for doubting Mr. Lewis's testimony
provides a sufficient basis for crediting Ms.
Nguyen’'s testimony, and we therefore affirm the
Board's determination that the agency met its
burden of proof. Because we affirm the Board's
determination with respect to two of the factual
specifications, we affirm the Board's decision to
A-15
sustain the overall charge. See Burroughs, 918 F.2d
at 172. Accordingly, we need not reach the other
two specifications under charge seven, which are
less clearly sustainable.
F
The last charge that the Board sustained
against Mr. Lewis was that Mr. Lewis made false
statements during an official investigation. The
Board sustained that charge after finding that Mr.
Lewis falsely stated in an affidavit that he never
made derogatory remarks about his employees’
weight. The Board made a factual determination
that Mr. Lewis made such statements in
connection with the charge regarding Mr. Lewis's
alleged tnappropriate personal and managerial
conduct. The Board therefore found that Mr.
Lewis's statement in his affidavit was made
knowingly with the intention of misleading the
agency. Because we have upheld the Board's
findings with respect to Mr. Lewis's remarks to
subordinate employees, we sustain the
administrative judge's finding that his denial of
making those remarks was false.
Mr. Lewis arques that the Board erred in
rejecting his affirmative defense based on
“harmful error in the application of the agency's
procedures in arriving at” its decision. See 5 U.S.C.
7701{c)(2)(A). Mr. Lewis asserts that the agency's
A-16
investigation into his alleged misconduct did not
follow the guidelines established in an agency
memorandum that was circulated in March 2003.
That memorandum specified that investigators
should avoid including personal opinions or
conclusions in their reports, and should refrain from
making disciplinary recommendations. The
agency hired an outside contractor to investigate
Mr. Lewis's misconduct, and the report that she
prepared for the agency contained her personal
opinions, conclusions, and recommendation for
disciplinary action.
The Board rejected Mr. Lewis's argument for
tow reasons. First, if found that the March 2003
memorandum was not intended to have the
effect of a law, rule, regulation, or other official
policy. Rather, it was intended to provide
guidance for agency investigators. The Board
further found that the official policy of the
Department of Agriculture with respect to
investigations of employee misconduct, as
described in the pertinent agency manual, did not
prohibit investigators from including their opinions,
conclusions, or recommendations. Moreover, the
manager who wrote the March 2003
memorandum testified that he did not intend the
memorandum to apply to outside investigators.
second, the deciding official testified that
he gave no consideration to the investigator's
summary, which was the only portion of the report
that contained the investigator's opinions. Instead,
he stated that he relied solely on the evidence
and affidavits contained in the report.
A-|7
On appeal, Mr. Lewis argues that the
agency's position that the March 2003
memorandum does not apply to outside
investigators violates principles of equal protection.
We reject that argument because the agency has
maintained that the memorandum does not have
the force of law, either for internal or outside
investigators. Mr. Lewis also challenges the
deciding official's testimony that he did not
consider the investigator's opinion when he
decided to remove Mr. Lewis. Mr. Lewis quotes
statements in the notice of proposed removal and
the removal letter that indicate that the official
who proposed Mr. Lewis's removal and the
deciding official both relied on the investigator's
report. Those statements, however, are not
inconsistent with the deciding official's testimony.
The deciding official did not testify that he did not
rely on the report. He merely stated that he did not
rely on the investigator's recommendation as to
penalty. We therefore find that the Board did not
err in rejecting Mr. Lewis's aftirmative detense.
IV
Mr. Lewis also complains that the agency
and the Board engaged in ex parte
communications because the agency submitted
hearing transcripts to the Board without serving Mr.
Lewis with any transcripts or transmission of the
communication. Because the agency provided
the Board with accurate copies of the hearing
transcripts and engaged in no other
A-18
communication, Mr. Lewis's argument is without
merit.
V
Lastly, Mr. Lewis challenges the Board's
determination that removal was an appropriate
penalty. Because we uphold the Board's finding
with respect to each of the charges against Mr.
Lewis, and because removal was not a grossly
disproportionate sanction for the charged
misconduct, we sustain the Board's decision as to
penalty.
A-19
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONALD R. LEWIS, DOCKET NUMBER
Appellant, DA-0782-060686-1- |
Vv.
DEPARTMENT OF AGRICULTURE, DATE: October
3, 2007
Ronald L. Wilson, New Orleans, Louisiana, for the
appeliant.
Brandi A. Cain, Esquire, Washington, D.C.., for the
agency
BEFORE
Neil A. G. McPhie, Chairman
Mary M. Rose, Vice Chairman
Barbara J. Sapin, Member
FINAL ORDER
The appellant has files a petition for review in
this case asking us t reconsider the initial decision
issued by the administrative judge. We grant
petitions such as this one only when significant new
evidence is presented to us that was not available
for consideration earlier or when the administrative
judge made an error interpreting a law or
regulation. Ihe regulation that establishes this
standard of review is found in Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R.
Appendix B B-]
1201.115).
After fully considering the filings in this
appeal, we conclude that there is no new.
previously unavailable, evidence and that the
administrative judge made no error in law or
regulation that affects the outcome. 5 C-F.R.
1201.115(d). Therefore, we DENY the petition for
review. The initial decision of the administrative
judge is final. This is the Board's final decision in this
matter.5C.F.R. 1201.113.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United
States Court of Appeals for the Federal Circuit to
review this final decision. You must submit your
request to the court at the following address:
United State Court of Appeals
for the Federal Circuit
717 Madison Piace. N.W.
Washington, DC 20439
The court must receive your request for review no
later than 60 calendar days after your receipt of
this order. If you have a represerilative in this case.
and your representative receives this order before
you do, then you must file with the court no later
than 60 calendar days after receipt by your
representative. If you choose fo 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
B-2
Pinat v. Office of Personnel Management, 931 F.2d
1544 (Fed. Cir. 1991)
lf you need further information about your
right to appeal this decision to court, you should
refer to the federal law that gives this right. It is
found in Title 5 of the United States Code, section
7703 (5 U.S.C. 7703). You may read this law, as
well as review the Board's regulations and other
related material, at our website.
http://www.mspb.gov. Additional information is
available at the courts website,
http://fedcir.gov/contents.html. Of particular
relevance is the court's website,
http://fedcir.gov/contents.htmi. 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.
FOR THE BOARD: Is/
Matthew D. Shannon
Acting Clerk of the Board
Washington, D.C.
B-3
CERTIFICATE OF SERVICE
| certity that this Order was sent today to each of
the following:
Certified Mail
U.S. Mail
Electronic Mail
SW, Room 331 2-S
October, 3, 2007
(Date)
Ronald L. Wilson
909 Pydras Street
Suite 2556
New Orleans, LA 70112
Donald R. Lewis
P.O. Box 29422
New Orleans, LA 70189
Ms. Brandi A. Cain
Department of Agriculture
1400 Inc 2pendence Ave.,
Washington, DC 20250
ls/
Dinh Chung
Case Management
Specialist
B-4
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALLAS REGIONAL OFFICE
Donald R. Lewis, DOCKET Number
Appellant, DA-0752-06-0686-I- |
Vv. DATE: May 10, 2007
Department of
Agriculture,
Agency
Ronald L. Wilson, Esquire, New Orleans, Louisiana,
for the appellant.
Brandi A. Cain, Esquire, and Steven Brammer,
Esquire, Washington, D.C., for the agency.
BEFORE
Anna M. Love
Administrative Judge
INITIAL DECISION
On September 25, 2006, Donald R. Lewis filed an
appeal from the action of the United States
Department of Agriculture (USDA), National
Finance Center (NFC or the agency}, which
removed him from his GS-14 Program Manager
position, effective September 16, 2006. The Board
has jurisdiction over this timely filed appeal
pursuant to 5 U.S.C. §§ 7511-7513. At the
Appendix C C-1
appellant's request, a hearing was conducted.
Based on the following analysis and findings, the
agency's action is AFFIRMED.
ANALYSIS AND FINDINGS
Background and undisputed facts
The appellant entered on duty with the National
Labor Relations Board in 1971, as a Labor
Management Relations Examiner. Appeal File (AF),
Tab 13(4E) at 65-66. He later worked for the
Department of Labor and, in February 1989, he
transferred to the USDA, NFC, in New Orleans,
Louisiana as a GS-12 Supervisory Labor Relations
Specialist. His position was subsequently upgraded
to a GS-13. In late 1997 or early 1998, he was
selected to manage the newly created Morale
Improvement Staff, which was later renamed the
Equal Employment Opportunity and Workforce
Services Staff (EEQWSS).!
At all times relevant to this appeal, the appellant
was employed as the Program Manager, GS-340-
14, for the EEOWSS at the NFC, where he
supervised about 13 employees. See AF, Tab 13(4E)
at 63. His duties included handling of discrimination
complaints, prevention of discrimination, and
resolution of all other complaints through
aiternative dispute resolution, mediation.
conciliation, and facilitation. EEOWSS also
processed Office of Workers’ Compensation
Programs (OWCP) payments. AF, Tab 13(4E) at 511,
S21.
On March 28, 2006. NFC Deputy Director John
White issued a notice proposing to remove the
appellant from his Program Manager position
/
C-2
based on seven charges: (I) receipt of government
funds without securing required management
approval: (Il) failure to take appropriate
management action;
(lil) allowing subordinate employees to conduct
private business for personal gain using
government time and equipment; (IV) directing
subordinate employees to perform personal work
or errands for him on government time and
equipment; (V) taking retaliatory action against
subordinate employees following their making
protected disclosures during an official
investigation; (VI) making false statements during
an Official investigation; and (VII) inappropriate
management and personal conduct. AF, Tab
13(4Q); Tab 15 (Stipulations).2 The appellant was
placed in a paid, non-duty status as of March 28,
2006. AF, Tab 13(4P):
Tab 15 (Stipulations).
The appellant responded both orally and in writing
to the proposal notice. AF. Tab 13(4F-4O): HEX B:
see also Tab 15 (Stipulations). He denied that he
committed most of the charged misconduct,
accused several employees of fabricating their
allegations, and questioned the validity of the
investigation, which was conducted by a contract
investigator, Kathryn T. Vengazo.3 AF,
Tab 13(4F-4O); HEX B. On September 14, 2006, NFC
Director Cyrus G. Lohfink, advised the appellant
that he had decided to sustain six of the seven
charges‘ and to remove him from his position. AF,
Tab 13(4D).
The appellant was removed on September 16,
on
2006.2 See AF, Tab 13(4C}; Tab 15 (Stipulations). He
timely filed the instant appeal, challenging the
merits of the agency's case as well as the penalty.
AF, Tab 1. He also asserted that the agency
engaged in harmful error because Vengazo's
investigation was conducted in violation of Keith
Prue's March 24, 2003 memorandum.¢
Burdens of Proof
The agency has the burden to prove the merits of
its case by preponderant evidence. 5 C.F.R. §
1201.56(a)(1) (2007). A preponderance of the
evidence is that degree of relevant evidence that
a reasonable person, considering the record as a
whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue.
5 C.F.R. § 1201.56(c}{2) (2007). In addition, the
agency must show that the penalty it selected was
within the bounds of reasonableness and
promotes the efficiency of the service. See
Douglas v. Veterans Administration, 5 M.S.P.R. 280,
302 (1981). The appellant has the burden of
proving his affirmctive defense by preponderant
evidence.
The agency has proven that the appellant
received government funds without securing
required management approval.
Charge | of the proposal notice asserted the
following in pertinent part:
The National Finance Center has a policy that all
compensatory time earned must be used by the
end of the leave year that is one year subsequent
to the leave year in which the compensatory time
is earned. If the compensatory time is not used
C-4
within that period, the right to compensatory time
and overtime pay is forfeited by the employee.
However, the NFC has a procedure through which
employees who were unable to use their earned
compensatory time during the specified period,
“due to an exigency of the service beyond the
employee's control,” can be paid a lump sum for
the unused compensatory time at the overtime
rate at which it was earned by the employee.
“Upon supervisory approval,” compensatory time
earned in one leave year, that is not used by the
end of the next leave year after it was earned, can
be paid to the employee in a lump-sum payment.
Annual notices are issued that remind employees
and managers of the procedural requirements for
requesting and securing approval of these lump
sum payments for unused compensatory time.Z
The notice issued to all NFC employees on
November 1, 2004, titled, “Compensatory Time and
Annual Leave Reminder,” specifically stated,
“Compensatory time (CT) earned in 2003 must be
liquidated by the end of the current leave year
(January 8, 2005). Every effort should be made to
schedule and use CT before the end of the leave
year after which it is earned. Employees who fail to
use CT within that time, lose their right to both CT
and overtime pay unless the reason they cannot
use CT is due to an exigency of the service beyond
the employee's control. Upon supervisory
approval, CT earned in 2003 that is not used prior
to January 8, 2005, wiil be paid at the overtime
rate at which it was earned. Timekeepers must
complete and submit Form AD-581, Lump-Sum
C-5
Leave or Compensatory Time Payments, to the
Human Resources Management Staff (HRMS) prior
to
January 8, 2005. CT must be used before annual
leave is granted unless the employee has annual
leave in excess of the maximum allowable
carryover (usually 240 hours). Employees have a
personal responsibility to be sure that they do not
lose CT because of their failure to plan. Supervisors
should also monitor this issue."8
NFC records reflect that you received lump-sump
payments from 2000 through 2005 that total net
payments of $29,495.05 and gross payments of
$42,215.20 as detailed in the following chart:
Date Number Net Pay Gross Pay
Received of Hours Received Received
Paid
08/08/00 219.3 $3,803.63 $5548.69
02/08/01 250.75 4,494.90 6,557.11
02/09/02 304.75 5,799.07 8337.96
01/27/03 310 6,110.28 8,785.45
01/23/04 2350.75 4,891.96 6,837.12
02/02/05 137.25 3,027.57 ‘4,237.41
04/12/05 62 1,367.64 1,911.46
Totals 1,514.8 $29,495.05 | $42,215.20
There is no record of the required forms being
submitted to NFC management and HRMS for
C-6
required approvals prior to your receipt of any of
these payments.
Myloc Nguyen provided to the investigator copies
of Forms
AD-581 from your office records that were dated
January 27, 2003, January 23, 2004, February 1,
2005.2 The forms were signed by Diane Barnes
(2003 and 2004) and Myloc Nguyen (2005) in the
blocks titled “33 Approval Authorized Official’s
Signature and Title.” There is no record that
approval of your supervisor was secured to
authorize these payments, and there is no record
that the forms were submitted to HRMS as required.
in your affidavit dated January 19, 2006, you stated
regarding these lump-sum payments for
compensatory time,
“The process requires that a Form 343 be
completed for the employee. The timekeeper
normally completes the form for the employee
and whether the employee is required to sign the
form or whether | have ever signed a form to
request the payment for unused compensatory
time. Myloc Nguyen is the timekeeper for EEOWSS
and she also is currently the “table person” for
EEOWSS. . . | have been following that process for
most of my career at the NFC, including before |
started working in EEQWSS and before Myloc
Nguyen became timekeeper in EEOWSS. These
payments have been processed under these
procedures by many various timekeepers." !2
Neither Ms. Barnes nor Ms. Nguyen has the
authority to approve these lump sum payments for
you. It is your responsibility, both as the supervisor of
C-/
these employees and as the recipient of
Government monies, to ensure that required and
appropriate approvals are sought and secured
from your supervisor and from HRMS before you
accept such funds or allow your subordinate
employees to do so. Allowing your subordinate
employees to misuse their table authority when
you benefit financially from such misuse is an
extremely serious breach of the trust placed in you
as a Manager and supervisor.
There is no record on file that you ever sought or
secured management approval prior fo your
receipt of the $42,215.20 detailed above. You are,
therefore, charged with Receipt of Government
Funds without Securing Required Management
Approval, and you will be required to reimburse
these funds to the NFC.
AF, Tab 13(4Q) (emphasis in original).
It is undisputed that the NFC’s policy states that a
lump sum payment for forfeited compensatory
time can be claimed only when the reason or
reasons for failing to use the compensatory time
within the prescribed two-year time period was
“due to exigency of the service beyond the
employee's control." and after the employee
receives appropriate supervisory approval. AF, Tab
15 (Stipulations); HEX 2. The parties stipulated that
the appellant did not obtain supervisory approval
for any of the six lump sum payments he received
for forfeited compensatory time for fiscal years
2000 through 2005. Id. The appellant denied,
however, that he intentionally received the
aforementioned payments without supervisory
C-8
approval. He claimed that the paperwork for the
payments was completed by his subordinate
employees and that he was unaware that proper
approval had not been obtained. See HEX 1, Vol. 1
of the appellant's deposition, pcges 18-19 and HEX
9 (the appellant’s admissions).
The appellant testified at the hearing that he
thought his subordinates were handling his
compensatory time payments properly since he
had received lump sum payments for unused
compensatory time every year from 1994 until
2005. He related that 10 one ever said anything to
him about how the payments were being
processed until Vengazo questioned him about it
during his August 2005 interview. HT2 at 7B-11B.
The appellant admitted that the agency sent out
annual reminders about forfeited compensatory
time and that there was no reason why he would
not have seen them. He also acknowledged that
either he or his designee was present during senior
staff meetings when forfeited compensatory time
was discussed.!2 He added, however, that no one
ever walked him through the process the way if
was Outlined in the proposed removal. The
appellant conceded that he never tried to use all
of his compensatory time before it was forfeited
because he said he had too much work to do. He
argued that he did not think he should be
disciplined for merely failing to micromanage his
employees regarding the procedure they used
regarding his forfeited compensatory time. HT2 at
7B-1 1B.
The Board must review the agency's decision in an
C-9
adverse action solely on the grounds invoked by
the agency. Gottlieb v. Veterans Administration,
39 M.S.P.R. 606, 609 (1989). If an agency chooses to
label an act of misconduct, it is bound to prove
the elements that make up the legal definition of
that charge. Ofero v. U.S. Postal Service, 73
M.S.P.R. 198, 202 (1997). in resolving the issue of
how a charge should be construed, the structure
and language in the proposal notice and the
decision notice will be examined. James v. _
Department of the Air Force, 73 M.S.P.R. 300, 303-
04 (1997). The nature of a charge should be |
construed in light of the accompanying
specifications and circumstances. Langham Vv: U.S.
Postal Service, 92 M.S.P.R. 268, 4] 12 (2002).
My review of the language of Charge | and the
narrative description in the proposal letter reflects
that the agency did not charge the appellant with
intentionally receiving the government funds at
issue here. Moreover, Lohfink stated the following
in his decision letter:
The need for requesting and obtaining the
required supervisory review, determination, and
approval of these payments is discussed at
multiple Senior Staff meetings each year. These are
meetings that you regularly attend. In addition,
written instructions are published periodically, on
two occasions during the period in question. From
this information alone one can conclude that you
should have known the rules and process
associated with proper authorization of these
payments. Your staff also directed and conducted
training classes for members of the Thriff Savings
C-10
Plan Division where an encompassing coverage of
time and attendance information was covered,
including the proper procedures for obtaining
authorization for these types of payments. From the
three above-mentioned information sources (staff
meetings, written instructions, and training
prepared and conducted by your staff}, one can
conclude that you were aware of the proper
process to follow in obtaining proper authorization
for these payments.
As a supervisor, you are responsible for ensuring
that your employees execute the proper
procedures and follow the proper policies,
especially related to the disbursement of funds.
Allowing subordinate empioyees to misuse the
system access authority they have to benefit you
personally is an extremely serious offense and a
breach of the trust placed in you as a supervisor
and manager.
AF, Tab 13(4D).
After considering the entire record, | agree with
Lohfink that, based on the appellant's
longstanding high-level position with the agency,
much of it in the personnel field, and the agency's
annual reminders to all NFC employees about the
handling of forteited compensatory time, the
appellant knew or should have known he was
required to get supervisory approval prior to
receiving payment for his unused compensatory
time. In addition, while the appellant claimed to
be unfamiliar with the process for handling
forfeited compensatory time, he described with
relative ease the similar procedures that must be
C-11
followed to restore forfeited use-or-lose annual
leave, i.e., the leave must be requested in
advance and a supervisor must deny the leave
request. HT2 at 11A-11B. Moreover, it is undisputed
that the appellant was responsible for managing
the OWCP program, through which his subordinate
employees had the power to authorize payments
and that his employees used their OWCP access to
authonze his compensatory time payments.
Hence, | find it to be inherently improbable that
the appellant was unaware of the procedures
required to receive payment for his unused
compensatory time. See Redschlag v. Department
of the Army,
89 M.S.P.R. 589, 602 (2001), review dismissed, 32
F.App'x 543 (Fed. Cir. 2002); Hillen v. Department of
the Army, 35 M.S.P.R. 453, 458 (1987) (factors to be
considered in making credibility determinations).
Furthermore, | found the appellant's general
demeanor while testifying. i.e.. his camiage.,
behavior, manner and appearance,
demonstrated a lack of candor. In addition, as will
be discussed more fully below in my analysis of
Charge IV, the agency asserted that the appellant
directed his subordinate employees to pertorm
personal tasks for him including researching and
writing a paper. The appellant testified that he
intended to submit the research paper in question,
which he conceded was written by one of his
student employees, as his son's work product,
without his son’s knowledge. in order to obtain a
benefit for his son, that is admission to a PhD
program. Such behavior on the appellant's part
C-12
reflects a significant lack of honesty and integrity.
Moreover, | find that the appellant also failed to
satisfy the additional requirement for payment of
his forfeited compensatory time, that he show that
he was unable to use his compensatory time “due
to an exigency of the service” beyond his control.
The appellant testified that he never tried to use all
ot his compensatory time before it was forfeited
and that the only reason he was going to lose it
was because he was foo busy working to take
time off. Lohfink testified without contradiction that
the mere fact that an employee is too busy to use
his compensatory time does not satisfy the
“exigency of the service” requirement. HT2 at 4A-
7B.
Therefore, after considering the entire record, | find
that the appellant knew or should have known
that he received the gross amount of $42,215.20 in
government funds without following the agency's
required procedures. Furthermore, based on the
structure and language in the proposal notice and
decision letter, | find that, ever though Lohfink
testified at the hearing that he believed the
appellant intentionally failed to follow the correct
procedures, the agency was not required to show
improper intent or motivation on the appellant's
part to prove its charge.! Thus, | find that the
agency has met its burden of proving that the
appellant received government funds without
securing the requisite management approval.
Therefore, Charge | is sustained.
The agency has shown that the appellant failed to
take appropriate management action.
4
C-13
Charge Il of the proposal stated the following in
relevant part:
You failed to take appropriate management
action when two of your subordinate employees
complained to you about the sexually harassing
conduct of a contract employee....
NFC's Management and Directives Manual, Title
Vit; Chapter 17, Equal Opportunity; Directive 1,
Equal Employment Opportunity (EEO) Program,
dated February 12, 1997, states in pertinent part,
“2. Policy
NFC management is firmly committed to a positive
EEO program for ail employees.
A. itis NFC policy to provide equal opportunity to
all persons regardless of their race, color, religion,
sex, sexual orientation, marital status, national
origin, age, or mental or physical handicap. A
positive, continuing program is maintained to
ensure that this policy is reflected in all of our
personnel operations, including the employment,
training, promotion, and treatment of alli
employees...
D. Sexual harassment will not be tolerated within
NFC. Managers and supervisors at all levels will
ensure that their work areas are free from all forms
of sexual harassment. It is expected that managers
will take prompt, effective action when an
indication of sexual harassment arises. . .
E.... Persons who participate in the processing of
complaints will be free in all respects from
interference, coercion, or reprisal... ."\4
Specification A.
Adimwu Kushindana testified under oath that she
C-14
and Julie Nguyen complained to you several times
about a contract employee named “TL” May, who
inappropriately touched Ms. Kushindana and
made inappropnate remarks of a sexual nature to
Ms. Nguyen. Ms. Kushindanca testified that you
laughed ai their complaints even though they
explained to you that they were very serious. Ms.
Kushindana testified that, instead of handling their
complaints with a sense of urgency as required of
your position as EEO manager, you teased Ms.
Nguyen and her about “TL.” Ms. Kushindana
testified that she and Ms. Nguyen eventually weni
to Erroll Williams in NFC Facilities, and he and his
superiors saw the importance of taking action to
correct the situation and did so. Ms. Kushindana
testified that you became upset when she and Ms.
Nguyen went to Mr. Williams and that you denied
knowing about their concerns. Moreover, even
after the matter with TL was resolved, you
continued to tease and joke about the situation.
Specification B.
Julie Nguyen testified under oath that problems
with “TL” began on February 9, 2005, when he said
to her, “I like women. | like having sex and you do
foo. You know you like it too.” Ms. Nguyen testified
that, later that same day, she and Ms. Kushindana
fold you of this incident with “TL” and Ms
Kushindana told you that “TL” had hugged her.
They both told you that TL’s actions made them
uncomfortable. Ms. Nguyen reported that you did
not take her or Ms. Kushindana’s remarks seriously
and that you laughed about if.
Ms. Nguyen testified that on February 10 and
C-15
February 11, 2005, and again on February 14, 2005,
you asked her, “How's TL?” On the latter occasion,
Ms. Nguyen told you that she was going fo tell TL
that he would get her in trouble with you if he
came to the office to talk to her. You told her you
would not support her with that statement.
Again on February 15, 2005, TL came to the office
and tried to talk to Ms. Nguyen. She told him she
was busy working. You later asked her while
laughing, “How's TLe”
On February 16, 2005. TL came to the office again.
On this date, you again asked Ms. Nguyen, “How’s
TL?” Ms. Nguyen told you that she did not want
you to mention TL's name to her again. You just
laughed.
On February 17, 2005, Ms. Nguyen again asked you
to talk to TL for her. You did not answer her.
Ms. Nguyen and Ms. Kushindana then decided to
go to Mr. Williams because you would not help
them. Mr. Williams, Kraig Kittel and Debbie Byrne,
Chief of the Administrative Management Staff,
immediately took action to keep TL out of the NFC
facility and Ms. Kushindana and Ms. Nguyen to
provide written statements about what had
occurred.
Ms. Nguyen further testified that, on February 23,
2005, Patty Duvernay toid her that you were mad
at her for going to Mr. Williams about the TL matter.
Ms. Nguyen told Ms. Duvernay that she had asked
you three times to help her but you had not.
On March 17, 2005, you again teased Ms. Nguyen
and Ms. Kushindana about TL. You said that, when
a visitor from the USDA Office of Civil Rights visited
C-16
NFC, you would get a pass for TL to come fo the
facility just for Ms. Kushindana and Ms. Nguyen.
You also said that maybe TL just wants to be Ms.
Nguyen’s “uncle”. Ms. Nguyen found this to be a
very offensive remark because this ferm has a
sexual and financial connotation. Ms. Nguyen
testified that she asked you many times to stop
teasing her, but you did not stop because you
thought it was funny.
Your conduct described in this charge is extremely
serious. You are the NFC’s manager of equal
employment opportunity and civil rights. As such,
you are responsible for ensuring that all managers
immediately deal with allegations of sexual
harassment and discrimination, regardless of the
source of the prohibited conduct. You are held
accountable for your actions, or failure to act, as
described in the USDA and NFC instructions cited
above.
You were repeatedly asked by your subordinate
employees to intervene and take action to ensure
that prohibited activity ceased. You had the
authority and responsibility fo do this and ensure
that your workplace was not a hostile work
environment. instead, you made light of the
employees’ complaints and ridiculed them in front
of their peers.
Based on the above Specification, you are
charged with Failure to Take Appropriate
Management Action. Your failure to take action in
this instance is a serious failure on your part to fulfill
your critical duties as the EEO manager and as a
manager of employees of the NFC. As the EEO
C-17
manager, you are responsible for implementing
the USDA and NFC policy that prohibits
discrimination in all forms and the creation or
existence of a hostile work environment for your
subordinate employees. Your cited conduct is
seriously negligent and reprehensible in this regard
and renders you unsuitable to continue in a
position of responsibility at this facility.
AF, Tab 13(4Q) (emphasis added).
The record reflects that the NFC is physically
located in a National Aeronautics and Space
Administration (NASA } facility. Government
contractor, Lockheed Martin, is NASA's tenant
contractor. The NFC contracts with Lockheed
Martin for various infrastructure and labor services.
A subcontractor, Coast Industries, provides labor
services to the NFC through Lockheed Martin. AF,
Tab 22, Hearing Tapes from December 11 and 12,
2006 (HT1) at 7B-8A (Debra A. Byrne); Tab 13(4E) at
344 (Byrne’s November 23, 2005 affidavit) and 476
(Kraig Kitftel’s December 2, 2005 affidavit).
It is undisputed that, sometime in February 2005, a
Coast Industry employee, T.L. May [hereinafter
“T.L."], made inappropriate comments of a sexual
nature to EEOWSS employee, Julie Nguyen, and
gave EEOWSS employee, Adimu Kushindana, an
unwanted hug. See AF, Tab 13(4E) at 524-25 (the
appellant's January 19, 2006 affidavit). It is also
unquestioned that Julie Nguyen reported T.L.'s
conduct to Erroll Williams, an IT Support Specialist,
who worked for Debra A. Byrne, Head of the NFC's
Administrative Management Staff. On February 17,
2005, at Byrne's request, Julie Nguyen and
C-18
Kushindana provided sworn statements regarding
T.L.’s actions. See AF, Tab 13(4E) at 478 (Nguyen's
February 17, 2005 affidavit) and 479 (Kushindana’s
February 17, 2005 affidavit). The appellant claimed
that he took appropnate action because he did
not learn about Nguyen’s and Kushindana's
problems with T.L. until the very day that fhey went
to Williams and that he immediately telephoned
Byrne to report the matter. See AF, Tab 13(4E) at
524-25 (the appellant's January 2006 affidavit) and
HEX 1, Vol. 1 of the appellant's deposition, pages
40-44. Hence, the issues to be decided here are
when did the appellant first learn of T.L.’s arguably
sexually harassing behavior!s and whether he took
appropriate and timely action thereafter.
Debra Byrne testified at the hearing that she has
known the appellant for over 20 years. She stated
that, sometime in February 2005, Williams told her
that Julie Nguyen reported to him that T.L. had
made a sexual comment. She recalled that
Williams said Nguyen indicated that she was
having an ongoing problem with T.L., that she had
told her supervisor, the appellant, about T.L., and
that the issue was not resolved. Byrne remembered
that, after she spoke to Williams, she tried to
telephone the appellant but, because he was
unavailable, she spoke instead to his “second in
command,” EEO Specialist Patricia Duvernay. She
said she asked Duvernay what was going on and
that she told Duvernay to have the appellant
contact her immediately to discuss the problem.
Byrne related that she also advised Duvernay ihat
she needed a statement from Nguyen. HT] at 7B-
C-19
8A.
Byrne explained that, the same day that Williams
reported T.L.’s conduct to her, she instructed NFC
contracting officer, Kraig Kittel, to tell Coast
Industries to remove T.L. immediately from the NFC
facility. She added that Coast Industries wanted a
written statement about T.L.'s behavior for their
records. Byrne remembered that, by the end of
that day, the appellant returned her call and that
she advised him that she considered the situation
to be serious, she told him what she had done
regarding T.L., and she instructed him to get a
statement from Julie Nguyen. She added that
Nguyen 's statement was given to Coast Industries
and T.L. was removed from NFC's building that
day. HT] at 7B-8A.
Byrne further related that, because Julie Nguyen
reported that the problem with T.L. was “ongoing,”
when the appellant returned her telephone call,
she told him that she was shocked that nothing
had been done earlier. She pointed out that in her
November 23, 2005 affidavit, found at AF, Tab
13(4E) at 344, she averred that Williams said
Nguyen indicated that she tried “to handle it
internally with her supervisor but that the situation
was persisting.” Byrne testified that she did not
recall getting a message from the appellant about
Julie Nguyen before she telephoned him that day.
She indicated that the appellant “chuckled” when
she told him that she considered the matter to be
serious. Byrne said she only remembered asking for
a statement from Julie Nguyen and not for one
from Kushindana. HT1 at 7B-8A.
C-20
Byrne related the following in relevant part in her
November 23, 2005 sworn statement:
Ms. Nguyen also came to me and fold me that TL’s
remarks were unwelcome and that she had tried
to avoid contacts with him and that she had
complained to Mr. Lewis about them.
| contacted Mr. Lewis about the allegations and
was told that Ms. Nguyen had complained to him
about the situation but he had not taken her
complaint seriously. | informed Mr. Lewis that Ms.
Nguyen was very serious regarding the allegations
and she wanted the situation addressed promplly.
| also informed Mr. Lewis that Lockheed Martin was
already contacted about the situation. .. .
AF, Tab 13{4E) at 344-45 (emphasis added).
Adimu Kushindana testified at the hearing that she
worked for the appellant in EEOWSS from late 2000
until his removal. She added that she had
previously worked for him in the late 1980s as a
Clerk Typist and Staffing Clerk when the appellant
was the Supervisory Labor Relations Specialist in
Human Resources. Kushindana recalled that
contract employee, I.L., frequently came into the
EEOWSS area. She indicated that, on February 9,
2005, T.L. approached her while she was standing
near the copy machine and, after looking her up
and down, he commented that she looked good.
She said that, despite turning her shoulder towards
him, T.L. gave her a lingering hug that made her
feel uncomfortable. She related that, because the
appellant's office was near the copy machine, she
immediately went into his office and asked him if
he had seen or heard what just happened with T.L.
C-21
She indicated that the appellant said he had not
seen anything but that he thought he had heard
T.L. say something to her. She said she told the
appellant what happened and she asked him to
talk to T.L. and to tell him to stop coming to their
office so often. Kushindana stated that, although
T.L. had previously approached her in the
cafeteria during the 2004 Christmas holiday season
and had tried to hug her, it was not until the
February 9" incident that she mentioned her
discomfort to the appellant. She added that, prior
to that day, she just hoped T.L. would stop coming
around. HT2 at 2A-4A.
Kushindana testified that, on February 9, 2005,
when she told the appellant what happened with
T.L., he just laughed as though he thought it was
funny. She said she did nol think the appellant took
her complaint seriously because he did not even
make a note about what she told him. She stated
that T.L. kept coming around and continued to
make comments to her and to Julie Nguyen,
which made them both teel uncomfortable.
Kushindana explained that she and Nguyen were
friends as well as co-workers in EEOWSS. She
indicated that, prior to her encounter with T.L. on
February 9, 2005, she and Nguyen had discussed
that T.L. was making Nguyen uncomfortable. She
remembered that Nguyen told her that T.L. had
made a comment about liking sex. She recalled
that, a few days after February 9, 2005, she and
Nguyen went together to the appellant's office to
tell him that they were serious about T.L. not
coming into the EEOWSS office area and that they
C-22
wanted someone fo talk to T.L. Kushindana said
the appellant laughed at both of them. HT2 at 2A-
4A.
Kushindana indicated that, on February 17, 2005,
she and Julie Nguyen decided to go to Williams
about T.L. because Williams worked with T.L. She
testified that they also told Williams that they had
complained to the appellant about T.L. and that
nothing had been done becouse T.L. was still
coming around. After they informed Williams what
happened, he advised them that he was required
to immediately report their allegations to his
manager, Byrne. She added that, on that same
day, Duvernay asked her for a written statement
about what had happened with T.L. She pointed
out that the appellant had not previously asked
her for a statement about T.L. Kushindana
identified AF,
Tab 13(4E) at 497 as the statement she gave on
February 17, 2005, at Duvernay’s request. She said
she did not mention the appellant's lack of
response in that document because she was
asked for a statement about T.L. and she,
therefore, was focusing on what happened with
T.L. She stated that, on February 17', Williams told
her that they would not have to worry about T.L.
anymore because T.L. had been told to stay out of
their building. She added that she never saw T.L.
again after February 17, 2005. HT2 at 2A-4A.
Kushindana testified that Kraig Kittel later asked if
there were any witnesses to T.L.’s actions.!¢ She
recalled that, thereafter, she prepared the March
21, 2005 statement found at AF, Tab 13(4E) at 498.
C-23
She explained that, when she prepared the March
21s| document, her intent was to identify the
appellant as a possible witness because she
thought he might have heard what happened at
the copy machine on February 9, 2005. HT2 at 2A-
4A.
At the hearing, Kushindana denied the appellant's
allegation!2 that, in August 2005, she told him that
she was going to run him off. She recalled,
however, a conversation she had with the
appellant after he told her that he had not been
selected for a GS-15 position. She said she asked
him if he was going to retire and that he said he
was nof. Kushindana indicated that RIF notices
were issued in July or August 2005, and that the RIF
was to be implemented in September or October
2005. She stated that, in February 2005, she was not
aware that there was going to be a RIF in EEOWSS.
However, she acknowledged that there was a
“data call” in October 2004!8 and that “maybe”
they received a memorandum in January 2005
regarding a RIF and that a RIF might have been
mentioned in a February 2005 meeting for all NFC
employees. Kushindana noted, however, that
there were at least two RIFs at the NFC and that
TSP employees were RiFed in 2004. She conceded
that she and Julie Nguyen were friends and that
she did not want Nguyen to get RIiFed. She also
related that she, and probably Lorri Clark, Julie
Nguyen, and Pat Bachemin thought Myloc
Nguyen should have been the one to get RIFed
because Myloc Nguyen was not a very productive
employee. Kushindana denied that she ever told
C-24
the appeilant that he could expect problems if he
RIFed Julie Nguyen. HT2 at 2A-4A.
Kushindana confirmed that she averred in her
December 8, 2005 affidavit that the appellant was
“very vindictive to the point of checking people's
garbage cans trying to ‘find something on
them.'”!2 She indicated that, when she worked for
the appellant in the late 1980s, if was a running
joke in Human Resources that if there was no
plastic bag in your trash can, the appellant was
probably rummaging through your trash. She
related that she applied to work for the appellant
in EEOWSS in 2000, because she was bored with
the work she was doing, she thought EEQWSS
would be more challenging, she believed the
appellant had a “great vision” for the EEOWSS
program, and the appellant had never been
vindictive towards her. She added that she also
hoped the appellant had changed since she
worked for him the 1980s. Kushindana
acknowledged that she specifically sought out a
detail to EEOWSS even before she applied to work
there. HT2 at 2A-4A.
Kushindana also conceded that she wrote in her
December 2005 sworn statement that the
appellant “makes me very uncomfortable when |
have to go into his office. He always stares at my
body, up and down. When ! have to go into Mr.
Lewis’ office, | sometimes carry a folder to place in
front of me to block Mr. Lewis’ stares a little bit." 20
She stated that her use of the word “always” in her
December 2005 statement was probably too
strong but she said he did it “quife a bit.”
C-25
Kushindana related that this allegation in her
affidavit was the only time she ever told anyone,
except maybe one of the students, that the
appellant made her uncomfortable in this way
and that she had not previously felt she needed to
report it. She explained that when she was
preparing her affidavit in December 2005, she
started to write down everything she remembered
and one of the things she recalled was that the
appellant made her uncomfortable by the way he
looked at her. She confirmed that she did not
mention this in either her February 17, 2005 or
March 21, 2005 statements. Kushindana said the
appellant never tried to hug her or made any
suggestive comments. HT2 at 2A-4A.
Julie Nguyen testified at the hearing that she
worked for the appellant in EEOWSS from July 2001
until August 2005. She related that, on February 9,
2005, T.L. came into her cubicle and made the “I
like having sex" commeni cited in the notice of
proposed removal. She indicated that, after T.L.
left, she went to the appellant's office where she
found Kushindana talking to the appellant about
T.L. She recalled that she said to Kushindana, "You
too?" Nguyen stated that she then told the
appellant what T.L. had said to her and how it
made her feel and that he just “laughed it off.”
She said that T.L. made her scared and nervous
and that the appellant's reaction made her feel
that he was not taking her concerns seriously.
Nguyen noted that she had not previously asked
the appellant to intervene concerning T.L.
because he had not made a sexual comment like
C-26
that to her before. She indicated that she did not
ask the appellant to do anything specific
regarding T.L. on February 9, and that all she did
was fo tell him what T.L. had said and that it made
her uncomfortable. HT] at 2A-5A.
Julie Nguyen testified that, during the next two
weeks, she went back fo the appellant
approximately three times because T.L. kept
coming into the EEOWSS area. She recalled that,
because she did not feel that the appellant was
taking her concerns seriously, she discussed the
matter with Kushindana and that they went to the
Facilities section and told Williams what T.L. said to
her on February ?'". Nguyen indicated that, after
she and Kushindana spoke to Williams, Kraig Kittel
came to their office and asked her and
Kushindana for a statement about T.L. She said the
appellant had not previously asked her for a
statement about T.L. She added that, after
February 17, 2005, T.L. did not come around again.
HT] at 2A-5A.
Julie Nguyen remembered that the appellant
asked Duvernay to help her write her February 17,
2005 statement. She related that she told Duvernay
that she had previously gone to the appellant
three times about T.L. but that Duvernay did not
include this information in the statement Duvernay
typed up for her.2! Sne explained that she later
typed up her own four-page statement22 and she
asserted that the underlined portions of that
statement were omitted by Duvernay from the
single-page February 17' statement, which was
given to the appellant.23 Nguyen identified AF, Tab
C-27
13(4E) at 662-63 as an unsigned copy of the two-
page statement she later provided to Kittel.24 Sne
said she also did not include the underlined
portions of her four-page statement in the two-
page report she provided to Kittel because the
appellant said he was going to read that
statement and she was concerned about him
seeing her comments. HT] at 2A-5A; see also supra
n.1é.
On cross examination, Julie Nguyen said that her
February 17, 2005 statement was not her “true
statement.” She also rela,ed that she had not
included everything in the two-page statement
she gave to Kitlel22 because it did not contain the
Underlined portions of her four-page statement
found at AF,
Tab 13(4E) at 664-67. Nguyen said she believed
that she gave her two-page report to Kitfel on
February 17, 2005 and, therefore, she could not say
why it was dated March 22, 2005. She thought the
two-page statement should have been dated
February 17, 2005. She added that she left the
underlined portions of her four-page statement out
of her other two reports because she was afraid
the appellant would read them. Nguyen noted
that she was asked to provide two statements and,
to her knowledge, they were both shown to the
appellant. Nguyen further explained that when
she testified that the information was untrue in her
February 17, 2005 statement and her subsequent
two-page statement, she really meant that the two
statements were incomplete because they did not
contain the information about the appellant,
C-28
which she included in her four-page statement.
HT? at 2A-5A.
Julie Nguyen denied that she and EEOWSS
employee, Patricia Bachemin, were trying to get
rid of the appellant.26 She said she included an
allegation concerning the appellant's treatment of
Bachemin at the end of her four-page statement
because she had seen the way he treated
employees like Bachemin who complained about
him. She denied that Bachemin asked her to
include that comment in her four-page statement
and she indicated that she never showed the four-
page statement to Bachemin, Kittel, or the
appellant. Nguyen said she only showed her four-
page statement to her NFC co-worker, Monique
Price, and that she later provided a copy to
Vengazo. She related that she could not recall if
she showed it to Lohfink when she and Bachemin
met wifh him on February 19, 2005.22 HT] at 2A-5A.
Julie Nguyen testified that, beginning in 2005, but
especially after the investigation started, the
appellant was mean and threatening and that she
feared retaliation. She stated that, even though
she did not like working for the appellant, she did
not attempt to transfer. Nguyen recalled that,
during the February 19, 2005 meeting, Lohfink
offered fwice to transfer her to another position at
the NFC but she declined. She explained that she
went to the meeting with Lohfink because she
wanted someone to know that the appellant was
not a good manager and that EEOWSS was not a
good place to work. She conceded that she did
not tell Lohfink on February 19, 2005, that the
C-29
appellant had teased her about T.L. Sne added,
however, that the appellant had teased her about
T.L. in front of Kushindana. She further related that,
because Duvernay was the appellant's second in
command, she felt that she had to watch her
back around Duvernay and, therefore, she only
talked to Duvernay about work. At the hearing,
Nguyen said she feared that T.L. would rape her.
She conceded, however, that, prior to the hearing,
she had never before voiced that concern. HT1 at
2A-5A.
Julie Nguyen testified that, in approximately July
2005, after she complained to Williams about T.L.,
she was notified that, pursuant to a reduction in
force (RIF}, she was going to be reassigned as of
September 30, 2005 from her GS-7 EEO Assistant
position in EEOWSS.28 She asserted that, based on
their respective years of service, she believed that
Myloc Nguyen should have been subjected to the
RIF instead of her. Julie Nguyen indicated that her
reassignment did not go into effect until November
2005, when NFC employees returned to New
Orleans after Hurricane Katrina.2? She said that she
filed a retaliation complaint because the RIF came
after she complained about T.L. She asserted that
the appellant was given the option of which
position to “close” and she felt that he selected
hers because she had complained. She
acknowledged that she blamed the appellant for
her being RIFed out of EEQWSS. HT} at 2A-5A.
Julie Nguyen a!so recalled that the day after
Thanksgiving in 2004, she encountered Myloc
Nguyen in the grocery store. She said that Myloc
C-O
Nguyen mentioned that she had heard that Julie
Nguyen was going back to the Thrift Savings Plan
(TSP) section of the NFC.2 She explained that she
did not want to go back to TSP because the TSP
section was going to be closed. She said that,
thereafter, she felt that she had to watch her back
around Myloc Nguyen and the appellant because
she suspected that the appellant had something
to do with Myloc Nguyen making that comment.
HT? at 2A-5A.
Jo Ann Thomas: testified that she worked for the
appellant in EEOWSS since 1997, and that, when
she retired in December 2005 she was a GS-13 EEO
Counselor. She recalled that neither Julie Nguyen
nor Kushindana complained to her about T.L. She
said she also never heard the appellant tease Julie
Nguyen or Kushindana about T.L. HT] at 7A-7B.
Myloc Nguyen testified that she worked in EEOWSS
from December 2000 until July 2006 as a GS-5
Conflict Management Assistant. She said she was
reassigned in July 2006 to another position at the
NFC. Prior to working in EEOWSS, she was
employed at the NFC for the TSP and/or the
Financial Services Division from June 1999 to
December 2000. Myloc Nguyen indicated that her
EEOWSS duties included processing time and
attendance data and OWCP claims. She pointed
out that she was Julie Nguyen's distant cousin and
that she knew Julie Nguyen before she started to
work at the NFC. She added that she had a good
relationship with Julie Nguyen until she received
her RIF notice sometime in June or July of 2005.
Myloc Nguyen stated that Julie Nguyen blamed
C-31
her for getting RIFed and Julie Nguyen stopped
talking to her after that. HT2 at 1A-2A.
Myloc Nguyen further related that, before the RIF,
Kushindana did not complain about the appellant.
She noted that Clark had complained about the
appellant but she never knew why. Nguyen said
she thought Jo Ann Thomas had a good
relationship with the appellant and she did not
know anything about Bachemin’s relationship with
the appellant. She remembered that some of her
co-workers, including Kushindana, Bachemin and
Julie Nguyen, thought the appellant liked her and
gave her special favors, which she denied.
Nguyen also said that the appellant never
promised to promote her and that she was
employed in EEOWSS as a GS-5 from the time she
started there in 2000. Nguyen recalled that Lohfink
suspended her for two weeks for performing work
on her outside businesses on government time. HT2
at 1A-2A.
Kraig Kittel reported in his December 2; 2005
affidavit that statements were obtained from
several female ernployees in EEOWSS which
corroborated Julie Nguyen’s allegations. AF, Tab
13(4E) at 476. He noted that he was attaching
copies of those statements to his affidavit.
Specifically, he said he was attaching, as “Tab A,”
Julie Nguyen’s and Kushindana's February 17, 2005
statements, which were given to Coast Industries, 22
and, as “Tab B,” statements from Julie Nguyen,
dated February 17, 2005 and updated on March
22, 2005, from Bachemin dated March 17, 2005,
and from Kushindana dated February 17, 2005 and
C-32
updated on March 21, 2005.33
The record further reflects that Julie Nguyen and
Bachemin met with Lohfink on February 19, 2005.
See HEX 7 for Lohfink’s notes from this meeting.
Lohfink recorded that Julie Nguyen stated the
following in relevant part:
She described how a custodial employee
(contracted employee) was making inappropriocte
comments and liked to fouch her and other
EEOWSS employees as well as other female
employees at NFC. Upon further questioning for
details, she described how she and Ms. Adimu
Kushindana, also from EEOWSS, had discussed their
concerns with Mr. Lewis and he did nothing to
resolve the situation. | asked how long this was
going on and was told that it had been going on
for ‘‘quite a while.” | asked if they knew what Mr.
Lewis had done in response to their bringing this to
their attention. She responded that he did nothing
but make fun of the situation and further insulted
and teased them about the employee and what
they had told Mr. Lewis what the employee had
done to them.
Id. (emphasis added).
Patricia Duvernay testified at the hearing at the
appellant's request. She indicated that she had
worked for the appellant in either Human
Resources or EEOWSS since approximately 1989.
Duvernay recalled that on August 19, 2005, she
was asked to meet with an investigator. She
explained ‘at she was “appalled” and in disbelief
that the appellant was being investigated. She
noted that, although Vengazo interviewed her on
C-33
August 19, 2005, she did not get a copy of her draft
statement to review until December 2005. She
identified AF, Tab 13(4E) at 413-18 as the
completely revised affidavit she sent back to
Vengazo. HT! at ]1l1A and 1 1B.
Duvernay testified that, on February 17, 2005, Byrne
contacted her at about 11:00 a.m. and said she
was returning a call the appellant had made to
her.34 She recalled thet Byrne asked her what was
going on with T.L. and told her that the appellant
needed to get sworn statements from Julie
Nguyen and Kushindana. She indicated that,
when the appellant returned to the office, she told
him that Byrne wanted statements from Nguyen
and Kushindana right away and that the
appellant, thereafter, told Nguyen and
Kushindana to prepare statements. HT] at 11A and
11B.
Duvernay remembered that Julie Nguyen was
apprehensive and uncomfortable about preparing
her statement and that she asked Duvernay to
help her since she had taken sworn statements
before as a Certified Misconduct Investigator for
the USDA. She added that Julie Nguyen sometimes
had a problem expressing herself in writing and,
therefore, occasionally Nguyen would ask her to
read something she had written to check her
grammar. Duvernay stated that she asked Nguyen
to tell her what happened and, as Nguyen
dictated, she typed the statement on her
computer. She said she toid Nguyen she would
email the statement to her and that, after she
reviewed it and made any necessary changes,
C-34
she should sign and date it and return it to the
appeliant. Duvernay stated that she never saw
Julie Nguyen's statement again after she emailed
her the draft and that she did not know if Nguyen
made any changes fo it. She indicated that the
document found at AF, Tab 13(4E) at 656 looked
like what she had written for Julie Nguyen on
February 17, 2005. HT] at }11A and 1 1B.
Duvernay related that Julie Nguyen never
mentioned anything about the appellant when
she was dictating her statement to her on February
17, 2005. She said she did not even know the
appellant was at issue at that time. She
emphasized that she thought the matter involved
only T.L. because Byrne said she wanted a
statement about T.L. She opined that, if the
statement was supposed to be about the
appellant, Byrne would have told her to send the
statements directly back to her and not through
the Gppellant. Duvernay denied that she left
anything out of the statement that Julie Nguyen
gave to her on February 17, 2005, and she said she
was not aware until Vengazo interviewed her that
Julie Nguyen was accusing her of
mischaractenzing something in her statement. HT]
at)1l1Aand 11B.
Duvernay testified that the appellant always took
seriously allegations like the ones made by Julie
Nguyen and Kushindana. She said she had no
knowledge of the appellant teasing Julie Nguyen
about T.L. and she added that she did not even
know who T.L. was and that the first time she heard
about the complaints was when Byrne called
C-35
asking for statements. She further related that she
was not in the appellant's office when either Julie
Nguyen or Kushindana complained to him about
T.L. HT] at 11A and 11B.
In her January 18, 2006 sworn statement, Duvernay
averred that up until the point that Byrne wanted
statements about T.L., “| had no knowledge of
these incidents. | do not know TL, did not see the
incidents occur, and still do not know who TL is.”
AF, Tab 13(4E) at 415. However, in her April 22, 2006
letter to J. Douglas Sunsen, the appellant's
attorney at that time, she wrote the following:
[I]t would be difficult to believe that Mr. Lewis
failed to take appropriate action. Julie did not
initially complain about T.L. saying anything that
offended her, just that he was becoming a
nuisance by visiting her so often. Julie insisted that
Mr. Lewis not say anything to T.L. because she felt if
she just began to ignore him, he would stop
coming to her desk. The morning Julie told Mr.
Lewis about T.L..’s inappropriate remarks, he
immediately contacted Debbie Byrne to report the
incident. Although | do not know the specific date
of this incident, | know if occurred sometime in
early February and he reported the incident and
obtained the statements on the same day.
HEX | at 1-2 (emphasis added}.
When asked at the hearing to explain some of the
comments she made in her April 22, 2006 letter to
Sunseri, Duvernay conceded that no mention was
made in the sworn statement she helped Julie
Nguyen write on February 17! about T.L. becoming
a nuisance and Nguyen telling the appellant not
C-36
to say anything about T.L. She testified that, when
she helped Julie Nguyen prepare her February 17,
2065 statement, Nguyen must have told her then
that T.L. was “becoming a nuisance” because she
never talked to Nguyen about T.L. after that day.
She said that Nguyen did not want to include that
information in her February 1|7'» affidavit and that
she only wanted to discuss T.L.'’s inappropriate
comment. She said that Nguyen also told her on
February 17'> that she “insisted that Mr. Lewis not
say anything to T.L.” She added that Nguyen did
not want anything done about T.L. before he
made the sexual comment. HT] at 11A and 11B.
At the hearing, the appellant testified that, prior to
February/March of 2005, everyone in EEOWSS
seemed to coexist harmoniously. He recalled that
he had problems with Patricia Bachemin when she
was not promoted in 2004 and that, by late
January/early February 2005, she started “stirring
the pot” because her promotion was coming up
again later in the year. He explained that
Bachemin was hired under a vacancy
announcement which advertised for a GS-7, 9, 11,
and 12 EEO Specialist. He said that position
descriptions were only written at the GS-7, 9 and 11
levels and that there was no GS-12 position
description. Therefore, when Bachemin would
have been eligible for promotion to the GS-12
level, she blamed him for not having written a GS-
12 position description.35 The appellant claimed
that Kushindana has multiple personalities, slept
with a co-worker in the backseat of a car, and
made multiple copies of a church flyer using the
C-37
government copy machine. HT2 at 7B-11B.
The appellant further related that the RIF also
resulted in hard feelings among his subordinates.
The appellant indicated that the NFC underwent
three iterations of a RIF, commencing with the
closure of the TSP section. He added that he was
told that he would have to eliminate two positions
in EEOWSS and that he should use his own
judgment in determining which positions to cut.s¢
The appellant stated that the RIF would have “hit
the press” sometime in October 2004, and that, in
late 2004/early 2005, rumors of a RIF began floating
around the NFC. He remembered that they had a
“data call” in November 2004, where all NFC
employees were asked to provide basic
information regarding their prior service in
anticipation of a RIF. He noted that in about March
2005, he informed his employees that EEOWSS was
losing two positions and RIF notices were sent out
in July 2005.22 The appellant pointed out that when
Julie Nguyen encountered Myloc Nguyen in the
grocery store in November 2004, he had not yet
communicated anything to Julie Nguyen about
her being RiFed. HT2 at 7B-11B.
The appellant testified that the first time he ever
heard the name “T.L."” was when Julie Nguyen
commented that the appellant should get his hair
cut like T.L. He said, at that time, he did not know
who she was talking about. He indicated that, on
February 17, 2005, Julie Nguyen complained to him
for the first time about T.L. making the comment
about liking sex. He added that, within a short
period of fime, Kushindana also complained to
C-38
him about T.L. that same day, at about noon. He
noted that Julie Nguyen and Kushindana came to
him separately about T.L. The appellant related
that, because he found T.L.'s comment to Julie
Nguyen to be offensive and inappropriate, and
Kushindana’s concerns to be serious, he promptly
telephoned Byrne to get the problem resolved. He
noted that he telephoned Byrne some time “mid-
morning” to report Nguyen’s and Kushindana’s
- allegations but Byrne was not there. He said he left
Byrne a voicemail message that both Nguyen and
Kushindana were having sexual harassment
problems with T.L. HT2 at 7B-11B.
The appellant remembered that, when Byrne
returned his call, he was not available and she
spoke instead lo Duvernay. He recalled that Byrne
told Duvernay to tell him to get statements from
Julie Nguyen and Kushindana about T.L. The
appellant added that, because he had noticed
T.L. frequenting Nguyen's cubicle, he previously
asked her if there was a problem but she had not
expressed any concerns about T.L. until that day
and, therefore, he did not realize there was
anything he needed to do about I.L. HT2 at 7B-11B.
The appellant testified that, after he spoke to Byrne
about the matter, he called Kushindana and Julie
Nguyen into his office and told them to provide
him written statements about T.L. for Byrne. He
added that he would have asked Nguyen and
Kushindana for statements himself but that he
wanted to check with Byrne before he did so
because T.L. was her employee and he wanted to
ensure that he obtained the information she
C-39
needed. The appellant related that he
subsequently checked with Nguyen and
Kushindana to make sure T.L. was not coming
around any longer. The appellant denied that he
made light of Nguyen's and Kushindana's
complaints about T.L. and he said he never
laughed or made any jokes about T.L. He stated
that he smiled when Kushindana told him about
what had happened with T.L. because of the
animated way she described how T.L. hugged her
and because she was smiling as she told the story.
He offered that, because Kushindana knew him,
she would have known that he was taking her
allegations seriously even if he was smiling. He
further related that he did not have the authority to
take any action regarding T.L. other than to do
what he did, which was report the matter to Byrne
who was in T.L.’s chain of command. HT2 at 7B-1 1B.
During the November 30, 2006 telephonic
prehearing conference, in which the appellant
participated, the parties confirmed that they had
agreed to the
14 factual stipulations contained in the agency's
prehearing submissions. See AF, Tab 17; see also
AF, Tab 15 (Stipulations). Stipulation 12 states that:
“Two of Appellant's subordinate employees, Julie
Nguyen and Adimu Kushindana. complained to
Appellant on February 9, 2005 that contract
employee named “TL” was sexually harassing
them in the workplace.” AF, Tab 15 (Stipulations).
The appellant testified at the hearing that the
February 9, 2005 date in this stipulation was
incorrect because he did not find out about the
C-40
problems with T.L. until February 17, 2005. He said
he relied on his attorney in this regard and that he
was not paying attention to the stipulations his
attorney had agreed to. HT2 at 7B-11B.
In his January 19, 2006 affidavit, the appellant
averred the following in relevant part about the T.L.
incident:
| do not condone sexual harassment. | have never
refused to report sexual harassment and would not
refuse to do so....
Some time later, days or weeks [after he inquired
and Julie Nguyen told him that she was not having
problems with T.L.], Julie came to me and said “TL”
had come to her cubicle. She said “TL” said
something to her about his liking sex and asked her
if she did too. Julie said she did not want to report
“TL” that she wanted me to talk to him.
Soon ofter this, on that same day, Adimu
Kushindana came to me and said that “TL” was
hugging her when greeting her and she did not
like that. | asked her where was this taking place.
She told me that this was taking place outside of
the office. She said words to the effect of “why
don't you talk to him?"
| remember calling Debbie Byrne sometime later
that morning or around noon but she was out of
the office. | left a message for her to call me and
she did. | reported what Julie and Adimu had said.
Shortly after that, Debbie phoned and left a
message with Patty Duvernay asking me to get
signed statements from both Julie and Adimu. |
immediately requested the statements. | am fairly
certain that they provided them to me that same
C-4]
day and that | submitted them to Debbie right
away. It is my understanding that Debbie then
initiated appropriate action with regard to “TL"
who was a contract employee.
AF, Tab 13(4E) at 524-25.
The appellant also related the following in
pertinent part in his
January 2006 sworn statement:
| told the investigator that after the office learned
on or about June/July 2005 that the EEO Assistant
position occupied by Julie Nguyen at the time was
being abolished as part of the upcoming [RIF] at
the NFC, Adimu Kushindana approached me in
my office and asked why | had decided to place
Julie's position in the RIF rather than Myloc's
position. Adimu was speaking in a manner and
tone of voice that reflected that she felt | had to
answer to her before making such [sic] decision.
Speaking in the same authoritative voice, Adimu
went on to tell me that “they” thought the staff
should tell me who should be placed in the RIF
from EEOWSS. | told Adimu that it was my decision
as a manager and that! was not going to discuss
my decision with her. At this point, Adimu
threatened me by saying that there would be
trouble for me placing Julie's position in the RIF
rather than Myloc’s....
Adimvu Kushindana threatened me because |
made a management decision then that
ultimately resulted in the reassignment of Julie
Nguyen as part of the RIF effected October 28,
2005. Julie Nguyen has harassed me and reprised
against me because of her being affected by the
C-42
RIF. Patricia Bachemin is harassing me because |
will not sign and approve a fraudulent document
to promote her. USDA, NFC. and agents have
condoned and joined in the action against me.
AF, Tab 13(4E) at 515, 530.
in his November 2006 deposition, the appellant
asserted that he did take prompt and appropriate
action upon learning about T.L.’s unwelcome
actions fowards Julie Nguyen and Kushindana.
HEX 1, Vol. 1. of the appeliant's deposition, pages
40-44. The appellant recalled that Nguyen had
mentioned T.L. several times regarding his hair cut
and that, even though she had not indicated any
problems with T.L., because he had noticed him
coming around to her cubicle, he asked her if she
wanted him to talk to T.L. but she did not and she
indicated that she just intended fo ignore him.
Within a day or two, however, Nguyen came to
him about T.L.’s sexual comment. He added that.
right after Nguyen told him about T.L.’s comment,
Kushindana told him that T.L. had hugged her and
that she did not like it. He claimed that he
immediately telephoned Byrne to report what Julie
Nguyen and Kushindana told him. He recalled that
Byrne was unavailable, so he left a message about
why he was calling and asked her to call him. He
said that, when Byrne returned his call, he was not
there and that she fold Duvernay to get
statements from Kushindana and Julie Nguyen. He
added that the matter was cleared up that day or
the next. He insisted that he contacted Byrne the
same day that Nguyen and Kushindana
complained about T.L.’s unwelcome conduct. He
C-43
said, prior to the day he called Byrne, Julie Nguyen
never told him that T.L. was making her
uncomfortable or was doing anything
inappropriate.
After considering the record in its entirety, it is
apparent that much time has passed since the
problems with T.L. were reported to the appellant
in February 2005, and memories may have faded.
Also a RIF occurred in EEOWSS in July 2005, which
may very well have caused some witnesses to now
have a bias against the appellant. Nevertheless. |
find that the agency has met its burden of proving
that it is more likely true than untrue that the
appellant was aware of the problems Julie
Nguyen and Kushindana were having with T.L. prior
to February 17, 2005. Even if | credit the appellant's
assertion that he contacted Byrne on February 17,
2005 about the T.L. situation, | do not find credible
his claim that this was the same day he iearned of
the matter.
| base this conciusion to a large extent on the
testimony and prior sworn statement of Debra
Byrne. In her November 2005 affidavit, Byrne, who
had no apparent bias against the appellant or
motive to lie, recorded that when she spoke to the
appellant about Julie Nguyen’s allegations, the
appellant acknowledged that Nguyen had
“complained to him about the situation but he
had not taken her complaint seriously.” AF, Tab
13(4E) at 344-45. At the hearing, Byrne testified in
an unequivocal and straightforward manner that
she was shocked that Julie Nguyen had said the
problem with T.L. was “ongoing” and that the
C-44
appellant “chuckled” when she told him that she
considered the matter to be serious. Had the
appellant only just learned of the assertions that
morning, he surely would have argued that point
to Byrne. Byrne, however, did not mention in either
her November 2005 statement or at the hearing
that the appellant made any such argument.
Moreover, as was discussed above, | have found
the appellant's credibility to be questionable.
Accordingly, | find that Byrne corroborated Julie
Nguyen’'s and Kushindana’s claims that they
advised the appellant of their respective problems
with T.L. days before they reported the matter to
Williams.
NFC's policy on Prevention of Sexual Harassment is
summarized in a “Pocket Guide.” HEX 4. The
appellant averred in his deposition that he
developed the Pocket Guide. HEX 1, Vol. 1 of the
appellant's deposition,
page 48. The Pocket Guide advises NFC
employees who have expenenced sexual
harassment to report the matter to their
manager/supervisor, EEOWSS, an EEO
Counselor/Dispute Resolution Specialist, or the
Human Resources Management Staff. HEX 4.
According to the Pocket Guide, supervisors are to
“{tlake immediate action on observed or reporied
incidents.” HEX 4. In his January 2006 affidavit, the
appellant described an occasion when he said he
took appropriate management action in response
to a complaint by Myloc Nguyen about sexual
harassment. AF, Tab 13({4E) at 524. He related that
he told Myloc Nguyen that he had to report the
C-45
matter even though she said she did not want him
to.
Hence, to satisfy his obligation as a manager, and
more importantly as the Program: Manager of the
EEOWSS. one of the places the Pocket Guide
instructs employees to report allegations of sexual
harassment, the appellant should have
immediately reported Julie Nguyen’s and
Kushindana’s concerns about T.L. to Byrne or taken
whatever other measures were necessary to
ensure that T.L. stopped bothering his employees.
Furthermore, in light of his position with the agency,
| find disingenuous his claim that he did not have
the authority to take any action regarding T.L.
except to report the matter to Byrne. | find,
therefore, that the agency has established by
preponderant evidence that the appellant was
aware of the allegations about T.L. for a period of
days and that he did not timely report the matter.
Thus, | find that the appellant failed to take timely
appropriate management action with respect to
both Julie Nguyen and Adimu Kushindan.
Accordingly, both Specifications A and B are
sustained and Charge Il is proven.
The agency has established that the appellant
allowed subordinate employees to conduct
private business for personal gain using
goveinment time and equipment.
The agency related the following in relevant part
under Charge lil:
Under your management as the Chief of the
EEOWSS, two of your subordinate employees,
Adimy Kushindana and Mvioc Nguyen, have, by
C-46
their own admission, used Government time and
equipment to work on activities related to their
outside businesses for personal gain.
Specification A.
Myloc Nguyen admitted in an affidavit dated
January 11, 2006, that she had used Government
time and equipment (computers, software,
copiers, printers, fax machines, telephone) to work
on aciivities related to outside businesses that she
owned and operated. These businesses included a
restaurant and convenience store, among others
that she admitted operating since 1984. Extensive
documents were found on her NFC computer hard
drive that she prepared and modified on
Government time, printed and copied on
Government printers and copy machines, and
transmitted to clients and suppliers on the
Government's fax machine. Included among
these documents were also extensive documents
that Ms. Nguyen prepared for her volunteer church
activities. While occasional use of Government
equipment for volunteer activities is permitted, it
also must be restricted to an employee's personal
(not Government) time. Ms. Nguyen engaged in
extensive use of Government time and equipment
despite the extensive prohibitions against use of
Government equipment and time for personal
gain.
The USDA Limited Use Policy... specifies that any
personal use of Government telecommunications
equipment must follow supervisory approval. Ms.
Nguyen failed to secure this by her own admission.
You indicated in your testimony that you were
C-47
aware of employees using Government equipment
for personal use, yet neither your testimony, nor the
testimony of your subordinate employees, stated
that you ever reminded employees of the
requirement that your approval is required before
they are permitted to use Government equipment
for non-Government purposes... .
Adimu Kushindana testified that she spoke fo you
about Myloc Nguyen's extensive use of
Government equipment and time and that you
responded by saying something to the effect that
Ms. Nguyen is a person with initiative whose
business sense you admire. When you were asked
specifically about this during the investigative
interview, you did not address the substance of
what Ms. Kushindana raised with you, but instead
questioned Ms. Kushindana’s motives in bringing
this misconduct to your attention because you
asserted that Ms. Kushindana only raised the issue
to question why you had decided in 2005 to
abolish the position of Julie Nguyen rather than
abolishing Myloc Nguyen’s position.
When asked if you had personally witnessed Ms.
Myloc Nguyen’'s use of the fax machine or printer,
_ based on testimony from your staff, that you were
witnessed handing a personal business document
to Myloc Nguyen from the fax machine or printer,
you stated that you made an effort never to look at
documents that you handed to your staff members
from the fax machines or printers. You attempted
to rebut the significance of Myloc Nguyen’s using
the Government equipment and time for outside
business activities by providing copies of two one-
page religious documents that Adimu Kushindana
C-48
had allegedly copied and handed out to some
members of the EEOWSS staff. You alleged that Ms.
Kushindana made
400 copies of this document, but your assertion
was not substantiated by any other source.
Specification B.
Adimvu Kushindana admitted that she had used
Government time and equipment to perform work
for an outside business activity for personal gain.
You testified that you were aware that Ms.
Kushindana had used Government equipment and
time to work on an outside activity for personal
gain.
You also testified that you never confronted Ms.
Kushindana with this information and never told her
to cease the prohibited activity. Ms. Kushindana
testified that she knew that you were aware of her
work as a travel agent as an outside activity
because you once asked her to give you
information on a trip to Disney World for you and
your girlfriend, and you asked several times for her
to do Internet searches for rates for hotel rooms
when your friends were visiting New Orleans.
Ten of your current and former subordinate
employees (Patricia Bachemin, Kathy Barre. Lorri
Ciark, Kathleen Goss, Lisa Hawkins, Adimu
Kushindana, Shirley LeBlanc, Julie Nguyen, Alger
Taylor and JoAnn Thomas) testified that Ms.
Nguyen’'s work on her outside activities was
frequent, brazen, and that she worked nearly full
time on her outside business activities. The
overwhelming evidence provided by this testimony
supports a finding that you either knew, or should
have known of Ms. Myloc Nguyen's activities, and
C-49
should have taken appropriate management
action. Your failure to take action renders you
complicit in Ms. Nguyen’'s prohibited conduct.
You acknowledged knowing of Ms. Kushindana’s
activities, but you also acknowledge doing
nothing to ensure that she discontinued the
activity. More seriously, you were complicit in Ms.
Kushindana's violative behavior when you asked
Ms. Kushindana, while you were both on
Government time, to provide you information on a
personal trip and lodging rates for your friends,
knowing that Ms. Kushindana should not engage in
such activity on Government time ci equipment at
any time.
Your excuse that you took no action with regard to
Ms. Nguyen because the investigator instructed
you to not discuss the investigation with anyone is
unacceptable. You should have been concerned
about this misconduct and discussed your
concerns with either the investigator or me so that
you could take appropriate management action.
Your failure to take action renders you complicit in
Ms. Nguyen’s prohibited conduct.
You are therefore charged with Allowing
Subordinate Employees to Conduct Private
Business for Personal Gain Using Government Time
and Equipment. Your deficient management in this
regard is extremely serious and renders you
unsuitable to continue to serve in a management
position and/or a position of trust in this
organization.
AF, Tab 13(4Q).
Myloc Nguyen testified that, when she began
C-50
working at the NFC in June 1999, she owned
several businesses. Sne conceded that she
performed work for her outside businesses while on
government time and using government
equipment including NFC's computer, facsimile
machine, copier and telephone. She pointed out
that the non-work-related documents found at AF,
Tab 13(4E) at 738-1575 were found on her work
computer or on her desk. She noted that the date
and time stamps on the documents reflect that
some of them were created on government time
and others were prepared while she was on lunch
break. Nguyen stated that the appellant was
aware that she owned and operated outside
businesses but she said he did not know that she
performed work for those outside businesses on
government time because she did not let him see
her doing so. She added that she let her co-
workers who worked near her (Kushindana, Jo Ann
Thomas, Kathy Goss, Julie Nguyen, and Shirley
LeBlanc) see what she was doing but not the
appellant. Nguyen said she did not know if any of
her co-workers told the appellant about her
activities. She further related that before
November 14, 2005, her desk was located on the
other side of the EEOWSS area from the appellant's
office. On November 14, 2005. when she returned
to New Orleans after Hurmicane Katrina, the
appellant moved her to a cubicle right in front of
Goss and Duvernay's offices and two doors down
from the appellant's office. HT2 at 1A-2A.
Myloc Nguyen testified that White proposed to
remove her from her position with the agency. She
C-5|
identified HEXs S and T as responses she made to
Lohfink regarding the allegations that she did so
much personal business on government time that
she did not get her government work done.
Nguyen denied that anyone ever told her that tt
was inappropriate for her to perform work on her
personal businesses on government time. She
further related that, to her knowledge, she was the
only one in EEOWSS to engage in such activities.
She said she was not aware that Kushindana had
an outside business. HT2 at 1A-2A.
Kushindana testified that the NFC issued an annual
reminder to all its employees regarding doing
personal work on government time. However, she
said could not recall the appellant discussing that
issue with his EEOWSS staff. She indicated that
everyone in EEOWSS was aware that Myloc
Nguyen was running her outside businesses on
government time because she used the office
facsimile machine and copier and sometimes
counted money from her businesses at her desk.
She recalled that, sometime after February 2005,
she mentioned to the appellant that she fell that
Myloc Nguyen was conducting her outside
businesses on government time and that she gave
the appellant examples of fhe evidence she had
against Nguyen. She said she told the appellant
that she was not the only one who was aware of
Myloc Nguyen’s activities. HT2 at 2A-4A.
Kushindana said she told the appellant about
Myloc Nguyen because she was concerned about
the proper functionince of the office. She explained
that she would ask Nguyen for something and,
C-52
because Nguyen would be working on her outside
businesses, she would question whether
Kushindana needed it to be done right then.
Kushindana remembered that, when she told the
appellant about Myloc Nguyen, he seemed to get
agitated and he mentioned that Nguyen is a good
business woman. She stated that the appellant did
not do anything about Nguyen because she
continued to do her outside work on government
time. HT2 at 2A-4A.
Kushindana testified that she also performed work
on an outside business on government time. She
explained that she worked for a fnend/co-worker
who operated a home-based travel agency. She
related that she sometimes performed work for the
travel agency using the government computer,
telephone, and facsimile machine. Kushindana
stated that the appellant was aware of her actions
and that he did not seem to mind. She recalled
that, on one occasion, the appellant asked her
while they were at work to check the rates for
Disney World for him right then.38 She added that
she did the research and gave him the quotes at
work. Kushindana said she did not think her co-
workers were aware of her actions because she
tried to be discreet and she kept quiet about what
she was doing. She stated that she and the
appellant never had a discussion regarding her
use of government equipment. HT2 at 2A-4A.
Shirley LeBlanc testified at the hearing that she
worked for the appellant in EEOWSS as an EEO
Counselor — Dispute Resolution for approximately
seven years, until she retired on December 2, 2005.
C-53
She indicated that she was aware that Myloc
Nguyen owned several businesses and that she
received faxes related to those businesses on
government time because she picked up faxes
from the office facsimile for Nguyen on four or five
occasions. She recalled that she also observed
Nguyen using the office copier to make copies
that were not related to her official duties. LeBlanc
said that everyone in EEOWSS, including the
appellant, knew that Myloc Nguyen was
performing personal work on government time.
She explained that the appellant was aware of
“everything that was going on in the office.” She
conceded, however, thal, in her November 15,
2005 affidavit,32 she said she had no personal
knowledge that the appellant was aware of Myloc
Nguyen's activities and that she never mentioned
Nguyen's conduct to him. She added, however,
that she had heard from Kushindana that
someone told the appellant about Myloc Nguyen.
LeBlanc clarified that, in 2005, she and Myloc
Nguyen sat “around the corner” from the
appellant's office. She further related that,
although her office was only 10 to 15 feet away
from where Kushindana sat, she was unaware that
Kushindana was performing work on an outside
business while on government time. HT! at 5A-5B.
Kathleen Goss testified that she has worked in
EEOWSS since July 2002. She indicated that she
observed Myloc Nguyen perform work on her
outside businesses while on government time and
using government equipment. She said other
employees picked up faxes off the office facsimile
C-54
machine for Nguyen that were for her businesses.
Goss said she did not know whether the appellant
ever picked up a fax for Myloc Nguyen but that
Nguyen's receipt of non-work-related faxes was a
common, day to day occurrence. She recalled
that she and LeBlanc, Kushindana, and Jo Ann
Thomas discussed Myloc Nguyen's activities
amongst themselves but she did not report
Nguyen's actions to anyone, including the
appellant. Goss stated that she “assumed” the
appellant knew what Nguyen was doing because
she often talked about it while at work. HT] at 5B-
6A.
Goss testified that she was aware that the
appellant selected her position to be separated by
the RIF but she denied that she got angry with the
appellant because of it.42 She added that she had
heard that the appellant was upset that she
remained in EEOWSS and did not get RiFed.4! Goss
acknowledged that she wrote in her November 22,
2005 sworn statement that, when the appellant
abolished her job, it made her vulnerable to the
RIF.42 Sne explained that, at the time, she was
battling a potentially terminal illness and she was
worried about her health insurance benefits but
she insisted that she did not get angry with the
appellant. Goss remembered telling LeBlanc that
the appellant was trying to get her fired but she
denied that it made her cry. She added that she
spoke about her situation to many of her co-
workers, including Thomas, LeBlanc, Bachemin and
Julie Nguyen. HT] at 5B-6A.
Jo Ann Thomas testified that, two or three times a
C-55
week, she retrieved faxes from the office facsimile
machine for Myloc Nguyen that dealt with
Nguyen's outside businesses. She remembered
that the appellant told her that he admired Myloc
Nguyen because she was hard working, a go-
getter, and an entrepreneur. She acknowledged
that she wrote in her August 26, 2005 sworn
statement that the appellant “knows that Myloc
Nguyen is using Government equipment and time
to work on her business and has said, ‘It is OK. She's
an entrepreneur and a go-getter.’”’43 She
explained, however, that this was an oversight on
her part and that she should have corrected this
part of her statement. She testified that she and
the appellant never discussed Myloc Nguyen
conducting her outside business on government
time and that she did not mean to imply in her
statement that the appellant knew about
Nguyen’s actions in the office. She said the
appellant had merely mentioned that he admired
Myloc Nguyen because she was a go-getter and
an entrepreneur. Thomas added that Kushindana
told her and LeBlanc that she complained to the
appellant about Myloc Nguyen’s actions. HT] at
7A-7B.
Thuy Thu Nguyen testified that she was aware that
Myloc Nguyen performed work on her outside
businesses on government time because Myloc
Nguyen mentioned it to her co-workers and she
also overheard her on the government telephone.
She added, however, that she did not know if the
appellant was present when Myloc Nguyen talked
about her outside businesses. HT] at 8A.
C-56
Kathy Polk Barre testified that she worked for the
appellant in EEOWSS from October 1997 until
December 2003, when she took the position at the
NFC of Executive Director for the New Orleans
Federal Executive Board. She had occupied
several positions with EEOWSS and/or the Morale
Improvement Staff: Management Analyst, Conflict
Management Specialist, and Conflict Prevention
Specialist. Barre recalled that Myloc Nguyen used
government time and equipment to conduct her
outside businesses. She explained that Nguyen’'s
desk was in an open/common area and,
therefore, what she did was visible to passersby.
She said she personally observed Nguyen
performing work on her outside busiiiesses
numerous times. HT] at 8A-8B.
Barre indicated that she thought the appellant
was aware that Myloc Nguyen was working on her
businesses on government time because Nguyen
openly talked about her outside businesses and
the appellant commented to Barre about
Nguyen’s business savvy and ingenuity. She also
pointed out that Myloc Nguyen often left
documents related to her outside businesses on
her desk, the facsimile machine, and/or the copier
and Nguyen openly talked on the telephone and
used her government computer for her outside
businesses. Moreover, she said that Myloc
Nguyen’s conduct was a “well known fact” and
she overheard other employees complaining
about it in the office. Barre conceded, however,
that she had no first hand knowledge that the
appellant was aware of what Myloc Nguyen was
C-57
doing on government time and equipment and he
never told her that he knew. Barre further related
that, although she thought Myloc Nguyen’s actions
were inappropriate, she never said anything to the
appellant about Nguyen. HT! at 8A-8B.
Barre acknowledged that she was hurt when she
left EEOWSS to take a new position. She explained
that she had always been interested in that
position but it was the manner in which her
reassignment occurred that hurt her. She indicated
that the appellant left a nofe on her door saying
that he would meet with her and, although she
waited for him to meet with her, he never did. She
said she avoided speaking to the appellant face
to face for about two years after her reassignment.
HT] at 8A-8B.
julie Nguyen testified that the appellant allowed
Myloc Nguyen to run her outside businesses while
at work, on government time. She recalled that,
two or three times a day, she heard Myloc Nguyen
talking on the teiephone regarding her personal
businesses. She also remembered that, two or
three times a week, faxes came in on the EEOWSS
facsimile machine that were for Myloc Nguyen's
businesses and that she would put those faxes on
Nguyen's desk. Julie Nguyen said the appellant
had discussions with Myloc Nguyen at work about
her businesses. HT] at 2A-5A.
Duvernay, who testified at the appellant's request,
indicated that, after 2001, Myloc Nguyen worked
right outside her office and that she never saw
Nguyen doing personal work on government time.
She said she wrote a letter on Nguyen’s behalf
C-58
when the NFC was proposing to discipline her. She
opined that she did not know when Nguyen would
have had time to do work on her outside
businesses because she had so much official work
to perform and she kept up with her EEOWSS
duties. HT] at 11A-11B.
The cppellant testified that he was aware that
Myloc Nguyen owned outside businesses but that
he did not know that she was performing work on
those businesses on government time, using
government equipment. He pointed out that.
aithough many of his employees apparently were
aware of Nguyen’s actions, none of them told him
anything about Nguyen until sometime between
May and July 2005, when Kushindana informed
him about Myloc Nguyen’s activities. Although the
appellant suggested that this happened after
Vengazo began her investigation he later testified
that it was before he was aware that he was being
investigated He said * iat Kushindana toid him that
Nguyen was doing work for her businesses on
government time at the same time that she told
him that he could expect trouble if Julie Nguyen
was impacted by the RIF and not Myloc Nguyen.
The appellant added that he “would not engage”
Kushindana because she was “out of line” Coming
to him about the decisions he had made
regarding the RIF. HT2 at 7B-11B.
The appellant asserted that, after Kushindana
informed him of Myloc Nguyen's alleged
misconduct, he began to watch Nguyen more
closely by walking by her desk more often. He said
he decided not to ask Nguyen about Kushindana’s
accusations because he wanted fo see for himself
wr ut Nguyen was doing. The appellant explained
that he believed Kushindana had “an agenda”
when she came to him about Myioc Nguyen.
Therefore, he said he thought it would be best if he
obtained independent evidence regarding
Nguyen. He added that Myloc Nguyen was at her
desk each time he ~valked by and he faiied to see
her doing anything of a personal nature. He
recoljled that shortly thereafter Myloc Nguyen went
on vacation to Vietnam for 30 days and then
Hurricane Katrina hit and his employees were
relocated to other sites. The appellant related that,
when the EEOWSS staff returned to New Orleans on
November 14, 2005, he moved Myloc Nguyen's
desk closer to his office so he could observe her
actions. The appellant denied that he ever
knowingly handed Nguyen a fax that was not job
related. He claimed that he avoids reading other
peoples’ faxes. HT2 at 7B-11B.
As to Kushindana, the appellant admitted that he
knew that she worked for a travel agency that was
owned by a co-worker, Juanita Daniels. He
remembered that he frequenfly saw Daniels in
Kushindana's office but he said he did not think
anything of it because he knew they were frends.
He recalled that, approximately two years before
Kushindana transferred into EEOWSS, Kushindana’s
supervisor, Jules Lamont, asked him for advice
because Lamont suspected that she was doing
travel agency work on government time. The
appellant stated that he advised Lamont about
what fo do and that, because Lamont never
C-60
mentioned it again, he thought the matter was
resolved. The appellant related that, during
Vengazo’s second interview. he learned that
Kushindanc: had been performing duties for her
private business at work. He said he then
remembered that Kushindana was in the travel
business. The appellant denied that Kushindana
ever booked a flight or trip for him and he insisted
thai he had no knowledge of her doing travel
agency work on government time while she
worked in EEOWSS.44 The appellant asserted that
both Myloc Nguyen and Kushindana had
managed to keep what they were doing hidden
from him. HT2 at 7B-11B.
The appellant indicated that Vengazo told him to
stay away from the employees who were making
allegations against him to avoid retaliation
accusations. He added that he believed Verigazo
had some authority because of the authoritative
manner in which she told him what he could and
could not do. The appellant opined that he felt he
could not do anything about Kushindana while the
investigation was going on and, therefore, he did
not report Kushindana to his supervisors while he
was waiting for Vengazo to get back with him.
Soon, thereafter, Hurricane Katrina sliuck New
Orleans and his employees were disbursed fo
other locations until November 2005. Then on
March 28, 2006, the agency proposed his removal
and placed him in a paid, non-duty status. HT2 at
7B-11B.
In his January 19, 2006 sworn statement, the
appellant wrote the following in relevant part:
C-6]
Between the time of my first interview for this
investigation
(August 19, 2005) and the time of my second
interview (December 5, 2005), | have not spoken to
Myloc to ensure that she has ceased working on
her outside business on NFC equipment and time. |
did not discuss the matter with Myloc because |
was instructed by the investigator not to discuss the
investigation with any other employee. In addition,
| have only been with my subordinate staff on a
limited number of occasions since August 19 2005,
due to my attendance at an EEO conference and
Hurricane Katrina. Since the hurricane, | have been
working in Alexandria, Louisiana. My staff was
activated to return to work at NFC [in New
Orleans] on November 14, 2005, but | have
continuec to work at the alternate site in
Alexandria... .
On November 14, 2005, | moved Myloc to work
closer to my office in order to increase my ability to
observe her activities more closely in the future. . . .
The investigator told me during the interrogation
that a considerable volume of documents related
to Myloc Nguyen’'s outside business interest was
found on the hard drive of the NFC computer
assigned to her. The investigator said the hard
drive was copied for the investigation. . . . The
investigator told me that Myloc admitted to
extensive use of Government time and equipment
for her outside business that the investigator
described as for profit. When the documents are
provided, | will review the documents and assess
how serious her alleged inappropriate activities
C-62
have been and determine what corrective action
may be warranted considering all relevant
circumstances.
AF, Tab 13(4E) at 515-16.
It is undisputed that Myloc Nguyen owned and
operated several outside businesses, including a
convenience store/gas station, while she was
employed in EEOWSS. It is also unquestioned that
Myloc Nguyen used government time and
equipment (computers, software, copiers, printers,
facsimile machines, and telephones) to work on
activities related to her outside businesses. Based
on her actions, Jonn White issued a notice
proposing to remove her from her position. Lohfink
subsequently mitigated the penalty to a 14-day
suspension. HT2 at 1A-2A. It is also not in dispute
that Kushindana used government time and
equipment to perform work for a travel agency
business. HT2 at 2A-4A. Consequently, the issue
here is when and if the appellant knew about
Myloc Nguyen and/or Kushindana’s misconduct
and did he allow it to happen.
The appellant’s ernmployees LeBlanc, Bare,
Kushindana, Thomas, Goss, and Thuy Thu Nguyen
all testified that it was common knowledge in the
office that Myloc Nguyen performed work for her
outside businesses on government time. In light of
this, os well as the amount of work performed by
Myloc Nguyen on government time as evidence
by the almost 800 pages of non-work-related
documents found on her hard drive and in her
work area, | find it to be inherently improbable that
the appellant was as clueless about Myioc
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Nguyen's activities as he would have the Board
believe. | also find it unbelievable that the
appellant would retrieve faxes from his office's
Official facsimile machine and not ascertain at
least generally the nature of their content.
Furthermore, the appellant conceded that
sometime between May and July 2005, and
before he learned that he was being investigated,
Kushindana informed him about Myloc Nguyen’s
actions. He claimed, however, that he was
skeptical of Kushindana’s information because of
the manner and timing with which she provided it
to him. Nevertheless, | find that the appellant was
put on notice that one of his employees may have
been engaging in misconduct and that he failed
to do anything about it. Moreover, his assertion
that he did not speak to Myloc Nguyen after
Vengazo's August 19, 2005 interview, because
Vengazo admonished him not to discuss the
matter, does not explain why he did nothing prior
to August 19, 2005 except try to catch Myloc
Nguyen in the act. He couid easily have
questioned Myloc Nguyen about Kushindana's
allegation and/or had her hard drive analyzed
which would have revealed hundreds of pages of
non-work-related documents. The record further
reflects that Myloc Nguyen’s non-work-related
activities continued into August 2005. See, e.g., AF,
Tab 13{4E) at 893, 1016-17, 1019-20.
Hence, after considering the entire record and the
appellant's lack of credibility, | find that the
agency has established that by failing to take any
action whatsoever to curtail Myloc Nguyen’s
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conduct, the appellant allowed Myloc Nguyen's
misconduct to continue. Accordingly,
Specification A is sustained.
As to Specification B, Kushindana testified that she
provided the appellant rates for Disney World on
government time. She also stated essentially the
same information in her January 30, 2006 affidavit.
The appellant, who was present when Kushindana
testified and was provided copies of Kushindana’s
statements, denied at the hearing that Kushindana
ever booked a flight and/or trip for him to Disney
World but he never mentioned or denied that she
provided him rates. On the other hand,
Kushindana never said she booked a flight or trip
for him to Disney World. Moreover, | find that
Kushindana testified in a clear, concise and
unequivocal manner and that her overall
demeanor demonstrated trustwormhiness. On the
other hand. as was discussed above, | have found
that the appellant lacked credibility. |, therefore,
credit Kushindana's testimony on this issue over
that of the appellant. Accordingly, | find that the
agency has demonstrated that it is more likely true
than untrue that the appellant allowed
Kushindana to perform work for an outside business
on government time. Consequently, Specification
B is sustained. Thus, Charge Ill is proven.
The agency has proven that the appellant
directed subordinate employees to perform
personal work for him on government time and
equipment.
The March 28, 2006 notice of proposed removal
cited two factual specifications to suppor Charge
C-65
IV. See AF, Tab 13(4Q). The deciding official,
however, sustained only Specification B.42 See AF,
Tab 13(4D). The proposal notice stated the —
following in relevant part:
The investigation found several situations where
you required your subordinate employees to
perform personal work for you on Government
time and equipment. . ..
Specification B.
5 CFR, Part 2635, Subpart G, Section B, Misuse of
Government Time, Equipment, and Information
(excerpt attached as Exhibit 6), states in part,
“1. GOVERNMENT TIME, YOU MAY NOT:
Use official time other than in an honest effort to
perform official duties.
Encourage, direct, coerce, or request a
subordinate to use official time to perform activities
other than those required in the performance of
official duties. . .
5. GOVERNMENT EQUIPMENT AND PROPERTY, YOU
MAY NOT:
... Use government equipment for personal use,
except for reasonable limited non-commercial use
which does not interfere with official duties and
involves minimal! office expense ....”
You have acknowledged in your sworn testimony
(Affidavit dated January 19, 2006) that, “Over the
period of many years, on a very infrequent basis, |
have asked students, and possibly on rare
occasions others, to type a personal document for
me. Almost all of the personal documents were
short, some only one sentence. All of the
documents would have already been handwritten
C-66
and prepared by me during my own time." 46
Documents found on EEOWSS computers and
provided by witnesses interviewed revealed an
extensive and wide variety of personal
corespondence prepared for you by your
subordinate staff, i.e., Lorri Clark, Adimu
Kushindana, Thanh Thuy Nguyen and Thuy Thu
Nguyen, on Government time and equipment.42
These documents span the period from 1999 to
August of 2005 and include personal letters to
family members, letters to banks, fax transmission
documents (using NFC form, address, telephone
and fax numbers) to your bank, bills of sale for real
estate for you and other parties, agreements for
sale of real estate property, requests for
occupational license application, character
references for people facing criminal sentencing,
letters to attorneys, applications for graduate
school for your son, and school papers for your
son. One employee, Thuy Thu Nguyen, testified
that you asked her to research and write a paper
for your son. Ms. Nguyen said that you allowed her
to work on this project on Government time.%
Your testimony regarding the above allegations
reflects poorly on you as a manager and an
employee. With the length of your experience as a
labor relations specialist, human resources and an
EEO manager, in particular, you knew or should
have known that it is highly inappropriate for a
supervisor fo ask a subordinate employee to do a
personal favor for him and presume that the
employee will consider this a request from a
“coworker” rather than an order from a supervisor.
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Your responses about the use of your
subordinate staff and Government
equipment and time for your personal
correspondence reflect poorly on you as a
manager....
The USDA Limited Use Policy”. . . specifies that
use of Government equipment is prohibited
for “purposes of private businesses.” 5 CFR
2635 cited above clearly prohibits the use of
subordinate staff to work on personal
business on Government time and
equipment. By allowing subordinate staff to
work on outside business activities for
personal gain on Government time and
equipment and by directing subordinate
staff to work On your personal
correspondence on Government time and
equipment, you were seriously derelict in
fulfilling your management responsibilities
and in your personal compliance with
statutory and regulatory requirements.
You are therefore charged with Directing
Subordinate Employees to Perform Personal Work .
.. for You on Government Time and Equipment.
AF, Tab 13(4Q) (emphasis in original).
At the heanng, Thuy Thu Nguyen testified that she
was employed by the NFC in EEOWSS, from 1999
through 2003, as a Clerk-Typist pursuant to the
Student Temporary Employment Program. She
indicated that, as a student, she worked mostly on
a part-time basis but that she worked full time
during school breaks. She remembered that the
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appellani was her supervisor and that her official
duties included filing, answering the telephone,
and typing correspondence. Thuy Thu Nguyen
recalled that, on one occasion, she did research
for, wrote, and typed a research paper for the
appellant's son regarding how the news media
affects African-American culture. She related that
she spent between three and five hours doing
research for the paper on the internet using her
government computer. She added that some of
the research was done when she was on a break
at work but that she also did research for the
paper when she was not on a break. She
indicated that, except for a sentence here and
there, the document found at AF, Tab 13(4E) at
1640-41, was the paper she wrote for the
appellant's son. HT! at 8A.
Thuy Thu Nguyen recalled that she also performed
other non-work-related tasks for the appeliant
while she was “at work” such as making personal
copies using the government copy machine and
researching graduate school programs for the
appellant's son. She conceded that the appellant
never threatened fo fire her if she did not do these
personal things for him nor did he coerce her in
any way into performing these non-work-related
duties. HT] at 8A; see also AF,
Tab 13(4E) at 700-01 for Thuy Thu Nguyen's
November 8, 2005 affidavit.
Adimwu Kushindana testified that, on three or four
occasions, the appellant asked her to type up
paperwork for him regarding real estate he was
interested in purchasing. She identified the
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documents found at AF, Tab 13(4E) at 493-96 as
things she typed for the appellant. She explained
that the appellant would call her to his office and
he would give her a handwritten draft and ask her
to type it for him. She recalled that the appellant's
requests were made during working hours and
that, even if she told him she was busy, he would
tell her to type up his personal document right
then. Kushindana indicated that the appellant
never told her that she did not need to do these
tasks for him. She added that, after she typed the
document using her government computer, she
would return both the typed copy and the
handwritten draft to the appellant. HT2 ai 2A; see
also AF, Tab 13(4E) at 488 for Kushindana's
December 8, 2005 affidavit.
Julie Nguyen related that, at the appellant's
request and while on government time using a
government computer, she typed the January 2,
2004 letter to a bank found at AF, Tab 13(4E) at
1613,. She explained that the appellant gave her a
handwritten note and he asked her to type it for
him. Nguyen recalled that the appellant never
said she could tell him “no.” Rather, she felt she
could not say “no” to the appellant. She indicated
that if you did not abide by the appellant's rules,
he would give you a hard time. HT2 at 2B.
Lorri Clark, the appellant's secretary, averred in a
December 7, 2005 affidavit that the appellant
asked her to “type personal correspondence for
him, for example, ietters to banks and a building
company.” AF, Tab 13(4E) at 348. She provided
copies of five documents she said she typed for
C-70
the appellant. See id. at 351-55. These documents
were dated between November |, 2001 and
April 11, 2005. Id.
At the hearing, the appellant acknowledged that
his subordinate employees, including student
employees, occasionally did personal work for him
but he stated that he never “directed” an
employee to perform personal work for him on
government time and equipment. He conceded
that student employee Thuy Thu Nguyen wrote a
research paper for his son. He indicated that Thuy
Thu Nguyen wrote some of the research paper
and that he edited her work and wrote some of
the paper himself. He testified that he never
directed or coerced Thuy Thu Nguyen into writing
the paper for him but that he merely asked her if
she would mind doing it for him. He added that he
never told her to work on the paper during work
hours. The appellant recalled that he had a very
cordial relationship with the student employees,
such as Thuy Thu Nguyen, and that he believed
they knew they could teil him “no.” The appellant
related that his son did not know anything about
the paper and did not perform any work on the
paper. He staied that he personally submitted Thuy
Thu Nguyen’s research paper to various universities
as his son's writing sample for admission to a PhD
program. As to the documents prepared by
Kushindana, the appellant related that he was
trying to clear up a real estate issue of a “family-
related nature.” He claimed that the task
commemorated by the document found at AF,
Tab 13(4E) at 1647 was work related and was not
C-7]
personal in nature. HT2 at 7B-11B.
In his November 14, 2005 deposition, the appellant
stuted the following in pertinent part:
| never directed anybody to do anything for me. |
did ask the students to do some short typing for me
something that | had already - - - had written. And
it was principally two students, Thanh-Thuy Nguyen
and Hanh Nguyen.=2 So | asked them... . [In their
statements] they say | never directed them to do
anything, that indeed they came to me on
occasions and asked me if | had something they
could do.5!
And also they said - - one of them for sure ...
spoke of the short duration of it and perhaps it was
during their break time when they would have
done it forme....
So | did not direct them and | did not require them,
either one of the ones that we want to use, to do it
for me. They gladly did it for me. And if they made
any indication whatsoever they didn’t want to do
it, they wouidn't.
Next, it was such a small amount. .. . If you look aft
total typewritten pages maybe three, three and a
half pages a year for the time period this would
average out that was there. .. . So if you use the
word typed-on pages if would come out to about
six for the time period a year, meaning if may have
one word on it but yet you would count it as a
page. But if you looked at actual pages it come
out to around three pages, three and a half pages
Qa yéor....
None of them was for any profit. ! got nothing out
of any of them.
C-72
They was various things ...| have a son and | was
interested ...
| was trying to he'p him out, make sure that he got
into a Ph.D graduate school program.
So | would do some things myself, looking into to try
to help him and some of them was for that.
Some of them were very short things just for myself.
Another thing, at some point during that time
period my mother deceased and | -- you see two
letters. | wrote my cousins about thanking them for
their - - they had put on a family reunion. . . .
{ began fo try to some control factors in reference
to the things left behind - - my mother was the last
to decease ... so not having any parents . . .| was
trying to make sure we keep the property under
some kind of control. So | started with one of my
brothers who had no interest . . . in the property.
My son never did go to one of the schools that |
wrote. He made a decision to go somewhere else.
And other things was just very little minor. Some of
tnem one line, one sentence or something.
{In response to why he did not type these
documents himself the appellant said] | guess |
have to admit, very poor computer skills.
[Concerning permanent employees, the appellant
said] ii was very de minimus and one of a kind or
something like that. . . .
But | don't know of anyone -- if | did | don't know of
anybody, period, ever letting me know that they
would not have wanted to type something for me.
Any indications whatsoever. Because if they would
have marie any kind -- through facial expression or
C-73
any other kind of expression or words | would not
have asked them. So i don’t know of anything |
would have wanted anybody to type that was life
or death that | would have needed anyway. So if
somebody would have given me any indication
whatsoever that they didn’t want to type
something for me, | wouldn't want them to type it
for me.
HEX 1, Vol.1 of the appellant's deposition, pages
79-80, 82-86, 93-94 {grammar as in original). The
appellant said he never told any of his employees
that iney should type his documents on their
personal time but he added that some of them
informed him they had done his typing on their
own personal time. Id. at 94-96.
After considering the record in its entirety,
including the appellant’s responses to the notice
of proposed removal, his deposition, and his
hearing testimony, | find unpersuasive the
appellant's assertion that he did not “direct”
employees to do his personal typing but that he
merely asked them to do it. Moreover, | find
disingenuous his argument that none of the
employees ever told him they did not want to do
his personal typing. | find especially egregious his
use of the student employees, Thuy Thu Nguyen,
Thanh-Thuy Nguyen, and Hanh Nguyen, fo do his
personal work since if would be highly unlikely that
these young students would ever have said “no”
when their supervisor asked them to perform a
task.
The nature of a charge should be construed in
light of the accompanying specifications and
C-74
circumstances. Langham v. U.S. Postal Service, 92
M.S.P.R. 268, 4] 12 (2002). Furthermore, the agency's
burden is to present sufficient evidence to
convince the trier of fact that the substance of its
charge is more likely true than untrue. Raines v. U.S.
Postal Service, 32 M.S.P.R. 56, 58 (1986). In light of
the language cited by the agency, as well as the
circumstances of this case, including the
relationship between the appellant and the
employees at issue, | find that the agency has met
its burden of establishing that the appellant
engaged in the misconduct cited in Specification
B of Charge IV. Therefore, Charge IV is sustained.
The agency has proven that the appellant
engaged in inapproprate management and
personal conduct.
Charge Vil of the March 28, 2006 proposal notice
stated:
Your subordinate employees testified under oath
that you have acted inappropriately, you yell and
embarrass them, and you make inappropnate
remarks and tell inappropriate jokes in their
presence. The employees testified that you often
humiliate them with your loud and condescending
behavior toward them.
Specification A.
Julie Nguyen testified that, on January 15, 2005,
you grabbed her upper arm with your hand and
squeezed it very hard. Ms. Nguyen told you to stop,
and said that you were hurting her, you [sic] but
you held onto her and seemed to assume she was
joking with you. Ms. Nguyen eventually stomped
on your foot to secure the release of her arm.
C-75
Patricia Bachemin, Lomi Clark, Adimu Kushindana,
Shirley LeBlanc and JoAnn Thomas witnessed this
incident. Ms. Kushindana testified that she said to
you, “I think Julie is hurt and you need fo let go of
her arm." After you released Ms. Nguyen’s arm it
was bruised.
Ms. Nguyen said that this is not the first time that
you had grabbed her arm this way. She testified
that you had done it approximately three other
times.
This is unacceptable conduct for a Federal
manager, and, as the NFC's equal employment
opportunity manager, you should have known this.
Specification B.
Current and former employees of the EEOWSS
testified that you make inappropnate remarks and
tell and participate in jokes that are inappropriate.
Patricia Bachemin, Kathy Barre, Kathleen Goss, Lisa
Hawkins, Adimu Kushindana, Shirley LeBlanc, and
Julie Nguyen testified that your remarks and jokes
make fun of homosexuals, overweight people, and
religions as well as the religious beliefs of staff
members and others. Employees also testified that
you engage in name calling, using such terms as
“mother fucker,” “fat ass,” and “bastard.” Kathy
Barre, JoAnn Thomas, and Thuy Thu Nguyen
testified that your jokes are often inappropriate.
offensive, insulting, mean and humiliating. . . .
Specification C.
Several of your current and former subordinate
employees, namely Lom Clark and Julie Nguyen,
testified that you occasionally pound your fist
loudly on your desk, or on other employees’ desks,
C-76
when you are upsei about something. The
employees testified that this gesture fightens and
intimidates them and makes them fearful of you
and your temper. They testified that these gestures
also embarrass them when you do this while visitors
are in the office who can witness or overhear your
actions. ...
Specification D.
Several of your current and former employees
testified that you have been so harsh in your
private and public criticism of employees that you
have humiliated and caused them to cry. Patricia
Bachemin, Kathleen Goss, Shirley LeBlanc, Julie
Nguyen and Thuy Thu Nguyen all testified that your
actions caused them to cry or that they witnessed
your actions causing other employees to cry. . .
In your Affidavit dated January 19, 2006, you
testified, “Within the office environment, | remain in
my office most of the time. On occasion, | will walk
around the office, speak, and make light
conversation with employees. To the extent
possible, one of my goals is to make all of the
employees feel that they are part of the office. . . |
have never intentionally embarrassed any
employee on my staff. | engage in light
conversation with employees.”
The examples of unacceptable conduct cited
above are illustrative of your deficient conduct as
reported in extensive testimony by your current
and former subordinate employees. The actions
described created a hostile work environment for
EEOWSS employees that is prohibited by the
policies, regulations and statutes cited and
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referenced above, and are unacceptable for a
Federal employee of any grade and seniority, but
they are especially egregious for a
GS-14 level program manager, and most serious
for the director of the NFC’'s equal employment
opportunity program.
AF, Tab 13(4Q).
Former EEO Counselor Shirley LeBlanc testified at
the hearing that she heard the appellant make
inappropriate comments and gestures regarding
people being overweight. She recalled that the
appellant made comments about a woman
named Kitty Abrams, after Abrams got stuck in a
chair because she was too large for the char.
LeBlanc further related that a group photograph
was taken of all the EEO Specialists and that she
thought the picture was unflattering to her. She
recalled that she asked the appellant to have
another picture taken and that he said “no” and
commented something to the effect of
“everybody can see who's out in front at EEO,”
Shirley LeBlanc, “standing strong,” while he made
a rounding gesture with his hands. LeBlanc stated
that she felt the appellant’s comment and gesture
were directed at her weight but, although her
feelings were hurt, she did not tell the appellant.
She said she asked him twice to take another
photo and he would not do it. LeBlanc added that
she would sometimes have to fell the appellant
“I’m not talking about fat people today.” She
acknowledged that she did not mention in her
November 15, 2005 affidavits2 the incident with
Abrams or that the appellant made a gesture
C-78
when he commented about the group
photograph. HT! at 5A-5B.
LeBlanc indicated that the appellant never used
any profane language in her presence because
she had asked him not to do so. However, she said
she had heard from other EEOWSS employees that
he had used vulgar language with them. For
example, Julie Nguyen told her and Jo Ann
Thomas that the appellant told her to tell Jo Ann
Thomas to get her “fat ass” into his office. She also
recalled that Jo Ann Thomas said she heard the
appellant say “Mother Fucker” in the office. She
conceded that she did not mention the “mother
fucker" or “fat ass” allegations in her November 15,
2005 sworn statement.23 HT! at 5A-5B.
LeBlanc testified that the environment in the
EEOWSS office was often strained because the
appellant made employees cry and get upset
because of things he did or said. She added that,
if the employees perceived that the appeliant was
angry, they would not come out of their offices.
She recalled that she observed Clark crying after
the appellant “chewed her out.” LeBlanc
indicated that she saw Julie Nguyen crying in her
cubicle after the appellant “got on her case.” On
another occasion, Goss came into LeBianc's office
and was upset and crying because she said “our
boss is trying to get me fired.” LeBlanc added that
there were times when the appellant showed
sensitivity, such as when one of their office
assistants had cancer. She said she did not recall
the appellant grabbing Julie Nguyen's arm. HT! at
SA-5B.
C-/9
In her November 15, 2005 sworn statement,
LeBlanc averred the following in relevant part:
| have heard Mr. Lewis make inappropriate jokes
and teasing remarks in the office that are hurtful to
employees ... For example, he has cnticized me in
front of my coworkers about my weight. |
mentioned something to Mr. Lewis about my not
liking office luncheons because of comments he
made about weight, for example, making
references to “big people.” He also teased me
about how my size appeared in a picture of the
EEO Counseling Specialists. These comments
about my weight are embarrassing to me and to
the others in the office whom he teases about their
weight. ...
| recall one occasion, on February 23, 2005, when |
could hear Mr. Lewis’ loud voice and later learned
that it was Julie Nguyen that he was talking to.
While | could not hear what he said, | was
concerned. When Julie left Mr. Lewis’ office, |
recall asking her if she was OK because | could see
that she had been crying. ...
On August 18, 2005, Kathy Goss came to my office,
near tears, and said, “My boss is trying to sef me
up.” | asked what she meant. She said, “He gave
me three cases and he knows I'll be out for my
Chemo beginning next Tuesday.”
AF, Tab 13(4E) at 507-08.
Kathleen Goss testified at the hearing that she
overheard the appellant poking fun at religious
activities and pastors. She recalled that the
appellant made on-going comments about a
church he was going to start and that he would
C-80
then be “raking in the money.” She added that he
said he was going to appoint one of the student
workers to handle the money. Goss remembered
that the appeliant also mocked some of the EEO
complainants that they dealt with. For example,
she related that the appellant said he wanted to
get this “mother fucker and his bull shit” out of this
place about one of the complainants she was
working with. Goss could not recall the date this
occurred and she said there were no other
witnesses to this event because she and the
appellant were alone in his office at the time. Goss
pointed out that in her November 22, 2005 sworn
statement she stated that the appellant “also
inappropnately uses profanity in the office, using
such terms as ‘mother fucker’ and ‘fat ass.'"54 She
added that the appellant made these comments
sometime in late Spring of 2005, because at the
time she was preparing to be out of the office for a
week to undergo treatment. HT! at 5B-6A.
Goss further related that the appellant did not like
fat people and that she heard him warn
employees not to get fat. Goss testified fhat the
office environment was clouded with fear and
dread. She said the employees were anxious
regarding the mood the appellant might be in and
who he might target on any particular day. She
added that she witnessed employees crying and
upset after the appellant talked to them. Goss
remembered telling LeBlanc that the appellant
was trying to get her fired but she denied that she
cried. HT} at SB-6A.
In her November 22, 2005 affidavit, Goss related
C-81
the following in relevant part:
[The appellant's] weaknesses are his very poor
social and communication skills . . . He is
sometimes fair, and sometimes extremely biased.
He also often uses teasing inappropriately. .. .
Mr. Lewis often puts employees into an emotional
state with harsh criticism, €.g., crying to the extent
that the employee may have to go home. An
employee's tears have no affect on him. ...
Mr. Lewis is not fair to employees; he humiliates
employees and many have actually cried. ...He
behaves inappropriately with young female
students. He teases as a way of interacting with
people; for example, he jokes about religion. . . .
He makes jokes about preachers and churches
collecting money and tells people he has
established a new church. He gives the fictitious
name of it and tells different ones they can be his
accountants or helpers as he collects the wealth.
AF, Tab 13(4E) at 427-28.
EEO Counselor Jo Ann Thomas related that the
appellant sometimes told jokes that were sexual in
nature or that had a sexual connotation but she
said his jokes were not sexually explicit. She could
not, however, remember any specifics about the
appeliant's jokes and she clarified that the
appellant never made any egregious or vulgar
jokes in her presence. She further recalled that the
appellant would often shout when he got angry.
She explained that, when the appellant was in a
bad mood. he would not speak and would have a
scowl on his face. Thomas added that she did not
want to deal with the appellant when he was in
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one of his moods and, therefore, she would avoid
his side of the office. Thomas recalled that, on one
occasion, she was counseling an NFC employee in
her office with the door closed and she and the
employee could hear the appellant yelling in a
very loud voice. She said the employee asked her
what was happening and she toid him to leave. ..
Thereafter, she went to the appellant and told him
that he needed to calm down. HT] at 7A-7B.
Thomas testified that the appellant assigned her to
train Julie Nguyen when Nguyen started in
EEOWSS. She related that Julie Nguyen was afraid
of the appellant and, several times, Nguyen came
to her office very upset. She said Nguyen wanted
her to act as a buffer between her and the
appellant and begged her to gc to the appellant
to ask for instructions on a project that the
appellant had assigned to Nguyen. She recalled
that sometimes Nguyen did not understand what
the appellant wanted her to do and if she asked
the appellant to repeat his instructions, he would
make her feel stupid. Hence, Thomas said, at
Nguyen's request, she would either go alone or ~~
with Nguyen to get further clarification from the
appellant regarding what he wanted Nguyen to
do. She indicated that sometimes she would have
to repeat the appellant's instructions to Nguyen
until she finally understood. Thomas related that
she never observed Nguyen refuse to comply with
any of the appellant's instructions. She confirmed
that she wrote in her August 26, 2005 sworn
statement that the appellant “frequently screams
at” and “belittles and humiliates” Julie Nguyen.
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She explained that the appellant shouted and
yelled during most of his interactions with Nguyen
and that he did so in front of other employees. HT]
at 7A-7B.
Thomas further described the work conditions in
EEOWSS in 2005, as a “hostile work environment.”
She related that at times she as well as most of the
EEOWSS staff were afraid of the appellant. She said
she tried to avoid making the appellant angry for
fear that he would begin to treat her the way he
treated Julie Nguyen. She emphasized, however,
that although the appellant sometimes yelled at
her, she did not allow anyone to disrespect her
and, therefore, the appellant did not interact with
her to the same extent as he did with Julie Nguyen.
Thomas added that, because she had been
assigned to train Julie Nguyen, she observed first
hand the appellant's treatment of Nguyen and, on
several occasions, she spoke to the appellant
about how he behaved towards her. She
indicated that, to her knowledge, the appellant
did not give Julie Nguyen unfair performance
appraisals. HT] at 7A-7B.
Thomas also clarified that, although she wrofe in
her August 26, 2005 affidavit that the appellant
was “very vindictive,”5¢ she did not know of any
specific examples where he was vindictive and
that he never retaliated against her. She
conceded that the appellant has a naturally loud
voice but she added that his voice escalates even
more when he gets angry. Thomas recalled that,
on one occasion when she went with Julie Nguyen
to see the appellant. he was extremely abrasive
C-84
and loud with Nguyen. She said she stayed behind
after Nguyen left and she told the appellant that
he was too hard on Nguyen. She noted that this
occurred before the T.L. incident. After Thomas
spoke to the appellant about how he treated Julie
Nguyen, she said he seemed to behave belier
towards her. She added that Nguyen even
thanked her for speaking to the appellant since
she felt he was treating her a little better. Thomas
further related, however, that the appellant's
belittling of Julie Nguyen began happening again
after that. Thomas said she never saw the
appellant pound his fist on a desk or grab Julie
Nguyen’'s arm. HT1 at 7A-7B.
Kathy Polk Barre testified that she heard the
appellant joking about women’s weight and
anatomy. She explained that the appellant joked
in panicular about women he supervised or who
worked aft the NFC, including EEO complainants,
having big hips and butts and being out of shape.
Barre recalled that LeBlanc told her that she was
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