|
PEN HOME
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE
Kirby A. Faciane,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
SF-0752-04-0005-I-3
DATE: March 4, 2005
Norman F. Nivens, Esquire, Fair Oaks, California, for the appellant.
Anthony W. Du Comb, Esquire, San Francisco, California, for the agency.
Robert T. Grueneberg, Esquire, Chicago, Illinois, for the agency.
BEFORE
Craig A. Berg
Administrative Judge
INITIAL DECISION
introduction
On October 1, 2003, the appellant filed a petition appealing the agency’s
action removing him from the position of District Manager, PCES 1,
Oakland, California District, effective November 9, 2002.1 Initial Appeal
File (IAF) I, Tab 1.2 The Board has jurisdiction over this appeal under 39
U.S.C. § 1005(a)(4)(A)(ii); 5 U.S.C. § 7513(d), 7701(a). A hearing was
held on February 9 & 10, 2005. For the reasons discussed below, the
agency’s action is AFFIRMED.
analysis and findings
Background
The appellant has been employed by the U.S. Postal Service since 1963. He
started as a Distribution Clerk, moved on to a number of supervisory
positions beginning in 1972, and was appointed Postmaster in Los Angeles,
California in 1998. In August, 1999, he was appointed to the position of
District Manager in Oakland, California. In that position, the appellant
was the head of the entire Oakland District, which has approximately
11,000 employees, and is one of 10 Districts in the agency’s Pacific Area.
His first-level supervisor was xxxxxxx, Vice President, Operations, for
the Pacific Area.
In approximately November, 2001, the appellant, who was married at the
time, began an intimate relationship with xxxxxxx, a Postal Supervisor who
had begun a detail as the acting Officer-in Charge (OIC) at the xxxxx,
California Post Office shortly before that time. In February, 2002,
xxxxxxx was selected for a detail as acting OIC at the xxxxxxxx,
California Post Office, a level 22 position. In the first week of April,
2002, xxxxxxx received an anonymous letter, dated March 31, 2002, alleging
that the appellant was having affairs with two employees, xxxxxxx and
xxxxxx, who had been level 16’s before being placed in level 22 details.
IAF, Tab 3, Subtab 1. The letter stated that the appellant’s actions were
“disgusting” because he was preventing others from having opportunities
and because he was a married man. On the bottom of the letter, the author
indicated that copies had been sent to the appellant, the Postmaster
General (John Potter), xxxxxx, xxxxxxx, and the appellant’s wife. Id. On
April 8, 2002, the appellant sent a copy of the letter to xxxx, of the
Postal Inspection Service, stating that the letter contained untrue
allegations about his conduct, and was threatening and harassing. Id.,
Subtab 2. The appellant stated that he believed the letter had been sent
by xxxxxxxx, Manager of Customer Service, xxxxxxx Post Office, and he
requested assistance in identifying the letter’s sender. Id.
Subsequent anonymous letters were sent to xxxxxxx and others regarding the
appellant in April and July, 2002. IAF, Tab 4, Exhibits (Exs.) D, E, F.
The letters accused the appellant of forcing specified female employees,
including xxxxxxx, into sexual relationships with him, asserted that there
were photos of the appellant and xxxxxxx “caught in the act,” claimed that
the appellant favored his “mistresses” with job assignments and also
favored African-American managers and supervisors, accused the appellant
of forcing xxxxxxx to have sex with him against her will on March 9, and
threatened to release “hard evidence” on the internet. Id. In April, 2002,
the Pacific Area Human Resources and General Counsel’s Offices
investigated the allegations in the first two letters (March 31, 2002 and
April 16, 2002) and determined that their contents lacked merit. Id., Ex.
K. Following receipt of the July, 2002 letters, the matter was referred to
the Postal Inspection Service (PIS or Inspection Service), and the PIS
undertook an investigation into whether the appellant had engaged in acts
of sexual harassment. Agency File, Subtab 4E.
On September 20, 2002, xxxxxxx proposed the appellant’s removal on charges
of Unacceptable Conduct (two specifications) and Interference with
Investigation (three specifications). Agency File, Subtab 4D. Following
the appellant’s response, the agency issued a decision sustaining all
specifications of both charges and finding that removal was the
appropriate penalty. Id., Subtabs 4B, 4C.
The Merits
The agency has the burden to prove the charges by preponderant evidence3 5
C.F.R. § 1201.56(a)(ii). Proof of one or more specification supporting a
charge is sufficient to sustain the charge. See Greenough v. Department of
the Army, 73 M.S.P.R. 648, 657 (1997), review dismissed, 119 F.3d 14.
Unacceptable Conduct
The Board has held that an agency need not affix any specific label to its
charges, but can instead describe actions that constitute misbehavior in
narrative form and have its discipline sustained if the efficiency of the
service suffers because of the misconduct. See Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 202-203 (1997). There is nothing inappropriate
about an agency using a broad label such as “improper conduct” as long as
the reasons for the proposed action are described in sufficient detail to
allow the employee to make an informed reply. Id. The Board has also made
clear that it must construe a charge in light of the accompanying
specifications. See James v. Department of the Air Force, 73 M.S.P.R. 300,
303 (1997). In resolving the issue of how charges should be construed, the
structure and language in the proposal notice must be examined. Id. After
reviewing the agency’s proposal notice, as discussed below, I determined,
and the parties agreed, that the agency charged the appellant with two
specifications of unacceptable conduct.
Specification One
In this specification, the agency charged the appellant with creating an
actual or apparent conflict of interest by failing to disclose his
relationship with xxxxxxx and recusing himself from the decision to place
her in the detail to the OIC-xxxxxxxx position and instead approving her
selection for that position by xxxxx, the acting Manager Post Office
Operations (MPOO) for the Oakland District. Agency File, Tab 4D.
First, it is undisputed that the appellant had been involved in an
intimate relationship with xxxxxxx for several months at the time xxxxx
proposed xxxxxxx for the OIC position, in February, 2002. Hearing Tapes
(HT) (Faciane, xxxxxxx); IAF, Tab 4, Subtab QQ (notice from xxxxx that
xxxxxxx was detailed as Acting OIC-xxxxxxxx, effective March 2, 2002). The
disputed issues with regard to this specification are whether the
appellant was required to approve xxxxx’s selection of xxxxxxx, whether he
did, in fact, approve the choice, and if so, whether his actions were
improper.
xxxxx stated during the PIS investigation that she was detailed as the
acting MPOO on February 26, 2002, and she testified that the appellant was
her immediate supervisor while she held that position. Agency File, Tab 4E
at 32-34. HT (xxxxx). She testified that she met xxxxxxx when she (xxxxx)
was a xxxxxxxx xxxxxxx xxxxxxx in 1998/99 and xxxxxxx was a Delivery
Supervisor in xxxxxx xxxxx. She explained that she mentored xxxxxxx and
recommended xxxxxxx for the position of OIC-xxxxx in 2001 when xxxxx was
OIC-xxxxxxxxxx. xxxxx stated that, when she became the acting MPOO, she
first considered xxxxx, the OIC-xxxxxxx, to replace her at xxxxxxxx, but
when he stated he was not interested, she recommended xxxxxxx for the
position. HT. xxxxx testified that the appellant never told her who he
wanted to replace her with in xxxxxxxx; she stated that they were in the
appellant’s office shortly after she became acting MPOO, she told the
appellant that she wanted xxxxxxx to replace her, and he said “fine.” Id.
xxxxx stated that, as acting MPOO, she was required to tell the appellant
who she was putting in positions, and that he had the authority to stop
her from selecting the particular employee. While she was acting under the
appellant, for 4 months, she always spoke with the appellant when filling
other details, and he gave feedback, but never overruled her choice. Id.
xxxxx has denied any knowledge of an intimate relationship between xxxxxxx
and the appellant at the time she suggested xxxxxxx for the acting
OIC-xxxxxxxx position. Agency File, Tab 4E at 32-34, 91, HT (xxxxx).
xxxx, who is currently retired and was the MPOO xxxxx replaced (while xxxx
was on a detail), testified that the MPOO makes the selections for
available OIC positions, both permanent and details. HT. xxxx testified
that he and the appellant agreed to choose xxxxx to replace xxxx as acting
MPOO, and that he, the appellant, and xxxxxx then met, in February, 2002,
to discuss filling xxxxx’s slot in xxxxxxxx. Id. xxxxx suggested xxxxxxx
for the detail, asserting that she was mentoring xxxxxxx and that xxxxxxx
was good, and xxxx agreed. Id. xxxx stated that he did not find out that
the appellant and xxxxxxx were in a relationship until July or August,
2002. Id.; Agency File, Tab 4E at 85 (PIS interview with xxxx). He
explained that, as MPOO, he picked more than 12 OIC’s, and more than six
of the selections were made while the appellant was District Manager. He
testified that he always discussed his selections for an OIC position with
the appellant, and they would discuss the pros and cons of the selection,
but the appellant never overruled his decision. Id.
xxxxxxx testified that, when he finally found out the appellant had been
having a relationship with xxxxxxx, he was “shocked” that the appellant
had given her the OIC-xxxxxxxx position. HT. He stated that it was not
abnormal for xxxxxxx to get the level 22 position, but it was rare for her
to go from a level 16 to level 20 to level 22 like she did. Even if she
was qualified for the job, the appellant should have disclosed his
relationship with xxxxxxx to him or to Human Resources. Id. On
cross-examination, xxxxxxx testified that it was not against the rules for
the appellant to have the relationship, but that the decision-making that
involved xxxxxxx was improper. He stated that all executives receive
ethical training from the law department about sexual harassment and other
policies, and the appellant was well aware of the agency’s policies. He
admitted, however, that he was unaware of any specific counseling the
appellant received about the need to reveal intimate relationships, or the
need to recuse himself when making personnel decisions regarding an
employee with whom he is involved. Id. xxxxxxx testified that the
appellant was a concurring official in xxxxxxx’s selection for the detail,
and it was his knowledge of the selection that constituted a wrongful act.
Id. In response to further questioning, he stated that all District
Managers approve acting OIC positions at that level, although maybe not
for smaller post offices. He described the OIC assignment as
“developmental,” and asserted that there was no paper trail of the
selection process, as it is done verbally. Id.
The appellant testified that he did not disclose to xxxxxxx that he and
xxxxxxx were in a relationship prior to her selection for the OIC-xxxxxxxx
detail because he did not think it was a conflict, and he did not know he
was required to do so. HT. He stated that he was not the decision maker
with regard to the detail, so he could not recuse himself. As to his
involvement in the selection, the appellant testified that xxxxx mentioned
xxxxxxx for the detail, and he did not voice disagreement or review
xxxxxxx’s records, as he thought the selection was okay. At the time, he
asserted, there were 29 or 30 supervisory vacancies, and xxxxx said that
xxxxxxx would do a good job. Id. He provided no input into the selection,
as it is the MPOO’s job to make such choices, and he is unaware of any
agency policy requiring him to approve the detail, although there is such
a requirement if a selection is for a permanent position. He stated that
he does not believe xxxxx was aware of the relationship between him and
xxxxxxx at the time she selected xxxxxxx for the detail. The appellant
further testified that, after all that has happened to him, if he could do
things differently, he would contact xxxxxxx or the General Counsel’s
office about xxxxxxx’s selection.
On cross-examination, the appellant testified that he did not have
authority to approve xxxxxxx’s detail, but he “accepted” it. HT. He stated
that if approval means accepted, then he did approve the action. He
admitted that, during his deposition, in response to a question about
whether he approved the detail, he stated “yes,” it was fine with him. Id.
He further admitted that he probably had the authority to prevent an MPOO
from placing an employee in a detail, and he acknowledged that the agency
has nepotism rules, but stated that he did not necessarily see a parallel
between those rules and this situation because in this case, there was no
blood relation or marriage license. In response to further questioning, he
admitted he received annual ethics training, and that there was the
appearance of impropriety in his actions. Id.
After consideration of all of the evidence, I find that the agency
established that the appellant created an actual or apparent conflict of
interest by approving xxxxxxx’s selection for the OIC-xxxxxxxx position.
First, based in this record, I find that there is no evidence that xxxxx
was aware the appellant and xxxxxxx were involved in an intimate
relationship at the time xxxxx suggested xxxxxxx for the detail to the
OIC-xxxxxxxx position, nor is there any evidence that the appellant had
any input into the suggestion before xxxxx made it. Nonetheless, while
there is also no evidence that the appellant ever overruled xxxx or xxxxx
when they informed him of a choice for an OIC position, both testified
that they always discussed their selections with the appellant, and xxxxx
stated that the appellant had the authority to overrule any selection she
intended. Even the appellant admitted that he “probably” had the authority
to do so. Based on this evidence, I find that the appellant’s actions
amounted to approval of xxxxxxx’s selection for the OIC-xxxxxxxx position
while he and xxxxxxx were in an intimate relationship.
I agree with the appellant’s argument that the agency has failed to show
that his actions in this specification violated any specific agency rule,
or any specific government-wide law, rule, or regulation.4 Nevertheless, I
find that the agency did not charge the appellant with any such violation,
but rather with specified conduct that was detrimental to the agency’s
interests. To the extent the appellant argues that he did not know that
his conduct was improper, or could have such an effect, I find no merit to
his claim. The appellant was a supervisor with the agency for
approximately 30 years, was the highest-ranked employee in his District of
11,000 employees at the time of his action, and admitted he received
ethics training every year. I find that he either knew, or should have
known, that his approval of xxxxxxx for the detail created, at minimum,
the appearance of a conflict of interest. And, the anonymous letters
alleging favoritism on the appellant’s part in xxxxxxx’s selection
constitutes evidence that others believed a conflict existed.
I SUSTAIN this specification.
Specification Two
The agency charged the appellant with two improprieties related to his
involvement in xxxxxxxx’s request for a transfer to North Carolina.
Accordingly, I will divide them into subspecifications. First, the
appellant was charged with attempting to obtain a hardship transfer for
xxxxxxxx under false pretenses. Second, he was charged with having xxxxxx
process the transfer without disclosing his interest or his knowledge that
the transfer was based on false pretenses.5 Agency File, Tab 4D.
As background to this specification, it is undisputed that xxxxxxx had a
personal relationship with xxxxxxxx prior to her relationship with
Faciane, although the extent of their relationship is disputed. xxxxxxxx
described the relationship to Postal Inspectors as a “deep” relationship
that lasted for two years, and asserted that they lived together from
November, 2000 to March, 2001 at xxxxxxx’s xxxxxxxx, California residence.
Agency File, Tab 4E at 164-65. He stated that xxxxxxx got very upset when
she found out he was married and broke up with him, and he got very
depressed after their breakup and required counseling. Id. at 165. xxxxxxx
initially tried to deny or minimize any personal relationship with
xxxxxxxx, id. at 109-110, but later admitted that she had an intimate
relationship with him, which she testified began while she was in the
agency’s Associate Supervisor Program, in February or March, 1999, and
lasted for three to six months. HT, Previously, she had claimed the
relationship with xxxxxxxx had lasted for only one month. Agency File, Tab
4E at 29.
xxxxxxx and xxxxxxxx both asserted, largely consistently, that on March 6,
2002, xxxxxxxx went to xxxxxxx’s home to help her with a work project and
saw Valentine’s Day cards on her counter from xxxxxxx to the appellant,
and from the appellant to xxxxxxx. He got very upset and distraught and
began to cry. Agency File, Tab 4E at 165; IAF, Tab 4, Subtab I; HT (xxxxxxx).
xxxxxxxx contended that, on Saturday, March 9, 2002, he went to xxxxxxx’s
house and when he saw the appellant’s car there, he began frantically
knocking on the door until she finally answered. Agency File, Tab 4E at
165, 172. When she did, he saw the appellant in her bedroom. xxxxxxx
convinced him to leave, and he spoke to her later that night, at which
time she called his friend, xxxx, from North Carolina, out of concern for
xxxxxxxx’s well-being, and xxxx flew in to be with him. Id. xxxxxxx
testified that xxxxxxxx was pounding on her door that day (March 9, 2002)
while she and the appellant were eating lunch. HT. She told the appellant
it was xxxxxxxx and she was not going to answer it, but she eventually
opened the latch and asked him to leave. xxxxxxx described xxxxxxxx as
very upset, and stated that he tried to reach in the door, before he
finally left. Then, the appellant left. Id. xxxxxxx testified that she
told the appellant that xxxxxxxx had been trying to get a transfer to
North Carolina to be near his best friend and to play golf, and she was
not certain if xxxxxxxx had said he was seeking a “hardship” transfer. Id.
The appellant also testified that xxxxxxxx came by xxxxxxx’s while they
were eating lunch there on March 9, 2002, and that she did not want to
answer the door to avoid a confrontation. HT. After xxxxxxxx left, she
told him about the Valentine’s Day card incident of several days before,
and mentioned that xxxxxxxx wanted a transfer and that she was afraid of
him. Later that day on the telephone, the appellant testified, xxxxxxx
admitted to having had a relationship with xxxxxxxx, and told the
appellant that xxxxxxxx was upset and had threatened to go to the
appellant’s home. Id.
It is undisputed that, on March 11, 2002, the appellant met with xxxxxxxx
and xxxxxxxx’s friend xxxx at a restaurant. The appellant claims that
xxxxxxxx called him on that day, told him he wanted a transfer, and
suggested the meeting, while xxxxxxxx admitted that he called the
appellant to set up the meeting, but also asserted that xxxxxxx told him
that the appellant wanted the meeting. HT (Faciane); Agency File, Tab 4E
at 165, 173; IAF, Tab 4, Ex. PPP. At this point, the stories diverge
sharply: The appellant contends that he did not encourage xxxxxxxx to
claim that his reason for requesting the transfer was a hardship, but
rather that he told xxxxxxxx that he would need to state a reason for the
transfer, among other requirements. Agency File, Tab D (appellant’s
response to proposal); HT. According to the appellant, at the restaurant
meeting, xxxxxxxx discussed his relationship with xxxxxxx and difficulties
he was having at the xxxxxxx Post office, and mentioned hardship as a
reason for the transfer, but did not go into detail about the specifics.
HT. He told xxxxxxxx to explain the basis, but never told him to fabricate
a reason. Id. The appellant testified that, the following Friday, March
15, xxxxxxxx dropped off the paperwork for the transfer, and on Monday, he
called xxxxxxxx and told him that he had given the paperwork to xxxxxx to
process. The appellant stated that he had no way to know whether
xxxxxxxx’s claimed hardship was true, and he still does not know if it is
true, but that he told xxxxxx to keep it confidential because it was
sensitive. Id. He claimed that he was not aware of any threats made by
xxxxxxxx to expose his relationship with xxxxxxx, and he was not concerned
with that possibility. Id.
On cross-examination, the appellant admitted that he had authored an
e-mail to xxxxxxxx on March 12, 2002 about the transfer request, but that
the reference to the reason being a hardship was just a confirmation of
what was said at the meeting the day before. HT: IAF, Tab 4, Ex. HHH. He
denied that his request for xxxxxxxx’s work history from xxxx was related
to the transfer, stating that it was to provide to Postal Inspector xxxx,
even though xxxx never asked for it. HT.
In his interview with the Postal Inspectors, xxxxxxxx stated that he told
the appellant at the meeting at the restaurant that he wanted to leave the
area, and the appellant stated that the March 9 incident was unfortunate.
Agency File, Tab 4E at 166. He asserted that the appellant said someone
had called his wife, and he wanted people to stay out of his personal
life, then told xxxxxxxx they needed to come up with a story to sell as a
hardship, and that xxxxxxxx would have to be willing to take a detail or a
downgrade. Id. The next day the appellant sent him the e-mail with the
details of the transfer; he felt that the appellant was pressuring him to
leave Oakland. Id. xxxxxxxx stated that he hand-delivered the documents to
the appellant, and the appellant told him by telephone that what he had
submitted was good. Id.; Agency File, Tab 4E at 45 (Request for Hardship
Transfer from xxxxxxxx to appellant). The appellant told him he was going
to have xxxxxx handle the transfer because it was sensitive; he took this
to mean the incident with xxxxxxx was sensitive.
xxxxxxxx further stated to the investigators that he had told xxxxxxx he
was going to go to the appellant’s house, and they thought he did so,
although he never did. Agency File, Tab 4E at 166. He stated that the
story he used in the hardship request, that his daughter had been raped
and had given birth to a baby as a result of the rape, was true, and that
it was true that the perpetrator had been released from prison, but it was
not true he was living in the Oakland area. Id. xxxxxxxx’s written
statement is consistent with the investigators’ memorandum. Id. at 172-74.
In the excerpt from xxxxxxxx’s deposition that is in the record, xxxxxxxx
stated that, at the meeting at the restaurant, he told the appellant he
needed to get out of the Bay area, that he would not be able to function
there with the appellant and xxxxxxx in a relationship. IAF, Tab 4, Ex.
PPP. The appellant told him they needed to come up with a story that they
could both support. xxxxxxxx stated that he did not tell the appellant
what the story would be because he did not know himself at that point,
although he was not sure if he told the appellant the story about his
daughter at the meeting. Id. After he gave the appellant the information,
the appellant called him at home and told him that he did a good job with
the letter he wrote and preparing everything. xxxxxxxx claimed he did not
threaten to expose the appellant’s relationship with xxxxxxx, but the
reason he was seeking the transfer was because of the appellant’s
relationship with xxxxxxx, and the appellant knew that; it was not because
of the story about his daughter’s rapist being released from prison back
to the Bay area. Id.
According to the memorandum of his statement to Postal Inspectors, xxxx
asserted that he had been a friend of xxxxxxxx’s for 35 years, and that he
came to stay with xxxxxxxx on the week in question because xxxxxxx had
called him and told him that she was worried about xxxxxxxx. Agency File,
Tab 4E at 187. He stated he was at the restaurant meeting with the
appellant and xxxxxxxx, and that xxxxxxxx told the appellant he wanted to
leave the area due to the situation with the appellant and xxxxxxx. The
appellant stated that he would help xxxxxxxx, and told him to come up with
a “story” about a hardship transfer, and to send the appellant various
forms. Id. xxxx told the investigators that he perceived that the
appellant wanted a believable story that would make them look good, and
that the appellant indicated he had not known that xxxxxxxx and xxxxxxx
had a prior relationship, and seemed to want xxxxxxxx out of the picture.
Id. at 188. His handwritten statement was consistent with the
investigative memorandum. Id. at 189.
After reviewing all of the evidence related to the first subspecification
in specification two, I find that, more likely than not, the appellant
attempted to obtain a hardship transfer for xxxxxxxx under false
pretenses. First, the record is replete with evidence, and the appellant
does not dispute, that he wanted to keep his affair with xxxxxxx secret,
both from the agency and from his wife, at the time he met with xxxxxxxx
and got involved with the transfer request. And, the appellant admitted,
consistent with xxxxxxxx’s assertion, that xxxxxxx told him that xxxxxxxx
wanted a transfer, and that he had told her he was going to go to the
appellant’s house. In addition, there is no evidence that the appellant
knew of the basis for xxxxxxxx’s transfer request prior to agreeing to
meet with xxxxxxxx at a restaurant, and I find it highly irregular for a
Manager at the appellant’s level to meet with a subordinate under such
circumstances simply to conduct normal business. These facts, coupled with
xxxxxxx’s admission to the appellant that she was scared of xxxxxxxx, and
the fact that the incident at xxxxxxx’s house had occurred only two days
earlier, support a finding that the appellant went to the meeting with the
intention of facilitating xxxxxxxx’s desire for a transfer for his and
xxxxxxx’s benefit.
While I recognize that xxxxxxxx’s behavior during the period in question
was, at minimum, erratic, and that he was not entirely truthful in his
dealings with the agency with regard to a number of issues, as discussed
below, I also find that the appellant’s credibility is highly suspect,
both because of his actions at issue in this appeal, and because his
testimony that he was ever asked directly whether he was in a relationship
with xxxxxxx is unworthy of belief. Because xxxxxxxx has consistently
claimed that the appellant initiated the idea that he request a transfer
based on hardship, and that claim is supported by xxxx, the only other
eyewitness to their conversation, I credit xxxxxxxx’s version of the
meeting. I also find that, considering all of the circumstances discussed
above, it is more likely than not that xxxxxxxx told the appellant that he
wanted the transfer to get away from the appellant and xxxxxxx6, and not
because he had a hardship related to his daughter. To the extent the
appellant argues that this portion of the charge fails because he was not
aware if xxxxxxxx’s stated hardship was false, so he could not have
attempted to obtain the transfer under false pretenses, I find that this
subspecification does not require proof that he knew the story xxxxxxxx
proffered was false, but rather that he knew it was not the actual reason
xxxxxxxx wanted the transfer.
Subspecification One of specification two is SUSTAINED.
Without need for extensive analysis, I find that the agency has also
proven the second subspecification, that the appellant instructed xxxxxx
to personally process xxxxxxxx’s transfer request without disclosing his
interest or his knowledge that the request was based on false pretenses.
xxxxxx testified credibly, and without any rebuttal by any other witness,
that the appellant gave her the transfer request to process. HT. She
stated that she never looked into the truth of xxxxxxxx’s hardship claim,
that the appellant did not tell her anything about the situation, and that
she does not believe she knew about xxxxxxx’s involvement at that time.
Id. There is no evidence that the appellant told xxxxxx about his personal
interest in xxxxxxxx being transferred, and, as I found above, the
appellant knew that the real reason for the transfer request was his
relationship with xxxxxxx.
This subspecification is SUSTAINED.
Specification two is SUSTAINED.
Charge one is SUSTAINED.
Interference with Investigation
The agency charged the appellant with three specifications of taking
actions that interfered with the agency’s investigation into the contents
of the anonymous letters received on March 31, April 16, July 4, and July
10, 2004. Agency File, Tab 4D.
Specification One
The agency charged the appellant with falsely denying the existence of any
relationship with xxxxxxx in response to direct questions by xxxxxxx and
xxxxxxx, Pacific Area Human Resources Manager. Agency File, Tab 4D
xxxxxxx testified that he received the first anonymous letter, dated March
31, 2002, in the first week of April, 2002. HT. He sent the letter to
Human Resources (HR) and discussed what to do with xxxxxxx and xxxxxx,
Managing Counsel for the Pacific Area, and they told him to ask the
appellant about it. He held a copy of the letter to discuss with the
appellant at a scheduled off-site meeting. The bi-monthly meeting for
executives of the Pacific Area was held in Cambria, California, from April
8-10, 2002. Id. xxxxxxx stated that he spoke with the appellant at the
meeting, asked him if there was any truth to anything in the letter, and
the appellant said “No, none whatsoever.” He called xxxxxxx over and told
him the appellant denied the contents of the letter. xxxxxxx testified
that he believed the appellant, and intended to take no further action.
Id.
On April 16, 2002, xxxxxxx received another anonymous letter, this one
more detailed. HT; IAF, Tab 4, Ex. D. He asked xxxxxxx to conduct an
investigation because he wanted people outside Oakland to handle the
matter. xxxxxxx had the investigation performed, and told him there was no
evidence of inappropriate conduct on the part of the appellant. xxxxxxx
sent him a letter to that effect, IAF, Tab 4, Ex. K, and xxxxxxx saw no
reason to further investigate, HT. On July 10, 2002, xxxxxxx asserted, he
received two more anonymous letters, which he again sent to HR. HT; IAF,
Tab 4, Exs. E, F. xxxxxxx stated that he had another conversation with the
appellant about the letters, and the appellant again denied their content,
stating that he was being set up, and he wanted an investigation. At that
point, xxxxxxx sent the letters to xxxx, in the Inspection Service, for
investigation. All along, xxxxxxx testified, he believed the appellant and
thought that people were out to sabotage him. He told xxxx, xxxxxxx, and
the Office of Inspector General that they needed to find out where the
letters were coming from, and if there was any truth to them. HT.
Subsequently, xxxxxxx found out that there was truth to the letters, when
the appellant admitted to the Inspectors that he was having an affair with
an employee. The appellant had denied all of the contents of the March 31,
2002 letter, even though it turned out to be true that he was in a
relationship with xxxxxxx, and that he had given xxxxxxx the job
referenced in the letter.
On cross-examination, xxxxxxx clarified that the second conversation with
the appellant about the letters was during a business review. HT. He went
into the appellant’s office with xxxxxxx and they talked to the appellant.
Id. He admitted that some of the allegations in the letters were not true,
but denied that it stood to reason that the appellant would want an
investigation in light of the untruths. At the Cambria meeting, he
specifically asked the appellant if he was having affairs with any of the
individuals mentioned in the March 31, 2002 letter, and the appellant lied
to him by answering no. Id.
xxxxxxx testified that he received the March 31, 2002 letter from xxxxxxx,
and he had xxxxxxxx, from the EEO office, speak with the individuals named
in the letter to determine if there was any truth to the allegations. HT.
xxxxxxxx conducted interviews with xxxxxxx and xxxxxx, who were named in
the March 31, 2002 letter, and provided a memorandum to xxxxxxx of the
outcome of the interviews. Id. In the interviews, xxxxxxx stated that the
appellant had never approached her in an unprofessional or sexual manner,
and she found the letter insulting, and xxxxxx also denied the contents of
the letter. Id.; IAF, Tab 4, Ex. D. xxxxxxx then advised xxxxxxx of the
outcome of the investigation. HT; IAF, Tab 4, Ex. K. xxxxxxx testified
that, at the April meeting in Cambria, xxxxxxx met with the appellant
alone about the March 31, 2002 letter, and then returned with the
appellant and told him to tell xxxxxxx what he had said, and the appellant
denied everything in the letter. xxxxxxx testified that, when he received
the April 16 letter, he went to the appellant’s office to discuss it with
him, and the appellant denied the contents of the letter. HT; IAF, Tab 4,
Ex. D. xxxxxxx testified that he asked the appellant if he had had sexual
relationships with any of the named women and the appellant said “No” very
adamantly. He also asked the appellant if he had been at xxxxxxx’s condo,
as the letter stated, and the appellant said he had only been there to
drop off materials. Id.
On cross-examination, xxxxxxx explained that, at the meeting in Cambria,
after xxxxxxx brought the appellant over to him, xxxxxxx said, “I asked
Kirby if anything in the letter was true,” at which point the appellant
stated that nothing was true. HT. xxxxxxx had the letter with him that
day, and he and xxxxxxx had discussed it earlier. Id. He admitted that he
did not hear the prior conversation between the appellant and xxxxxxx, and
he did not recall if he saw the letter in the appellant’s hands that day.
With regard to his conversation with the appellant regarding the second
letter, xxxxxxx testified that he believes it occurred on April 16 or 17,
2002. He handed the appellant a copy of the letter, believes the appellant
stated he had already seen it, the appellant read the letter, and when he
asked if anything in there was true, the appellant said no. Id. When he
then asked the appellant if he was having sexual relations with any of the
named women, the appellant angrily responded “absolutely not.” Ten minutes
later, xxxxxxx testified, he returned to the appellant’s office and asked
about the allegation in the letter that the appellant had been at
xxxxxxx’s residence, although he did not specify the date of the alleged
incident at the condo. xxxxxxx stated that he has no notes of his
conversations with the appellant regarding the second letter. Id.
The appellant testified that on April 9, 2002, at the meeting in Cambria,
xxxxxxx came up to him at the break and asked him if he got the March 31
letter. HT. He asked if anything in the letter was true, and the appellant
said no, and then xxxxxxx asked again, and he again said no. The appellant
claimed that xxxxxxx never asked him if he had an intimate relationship
with xxxxxxx, and xxxxxxx did not show him the letter as they spoke. The
appellant did not have a copy of it at that time, and he thought the
letter was alleging sexual harassment-favors for sex-which he had never
committed. He admitted that he now sees that there are true statements in
the letter, and that it was a mistake to say that nothing in the letter
was true. The appellant denied that xxxxxxx ever asked him if he had a
relationship with xxxxxxx, and he asserted that xxxxxxx never asked him
about the March 31 letter, nor was xxxxxxx there when he spoke with
xxxxxxx. Id. He admitted that he and xxxxxxx spoke about the April 16
letter, and he told xxxxxxx this one had more lies. He told xxxxxxx he had
not been at xxxxxxx’s condo on March 8, and when xxxxxxx came back and
asked about March 9, he admitted he had been there to drop off some
information, and that he had been there before. The appellant testified
that none of the allegations in the April 16, 2002 letter are true, and
that when he told xxxxxxx that, he did not know xxxxxxx was interested in
any relationship with xxxxxxx. Id.
On cross-examination, the appellant denied that xxxxxxx walked the
appellant over to xxxxxxx at the Cambria meeting and asked him to repeat
what he had told xxxxxxx. HT. He further denied that xxxxxxx had asked him
if he was having sex with any of the women mentioned in the April 16
letter. Id. The appellant admitted that he was aware xxxxxxx had been
interviewed the day before he and xxxxxxx had their conversation, but he
thought the whole thing was about sexual harassment. Id.
After considering all of the evidence bearing on this specification, I
find that the appellant falsely denied the existence of a relationship
with xxxxxxx when asked directly about it by xxxxxxx and xxxxxxx. This
specification must be resolved largely on the basis of the credibility of
the three individuals involved. Hillen v. Department of the Army, 35
M.S.P.R. 453, 458 (1987) (to resolve credibility issues, an administrative
judge must identify the factual questions in dispute, summarize the
evidence on each disputed question, state which version he believes, and
explain in detail why he found the chosen version more credible,
considering such factors as: (1) the witness's opportunity and capacity to
observe the event or act in question; (2) the witness's character; (3) any
prior inconsistent statement by the witness; (4) a witness's bias, or lack
of bias; (5) the contradiction of the witness's version of events by other
evidence or its consistency with other evidence; (6) the inherent
improbability of the witness's version of events; and (7) the witness's
demeanor).
First, I recognize that there are some inconsistencies between the
testimonies of xxxxxxx and xxxxxxx, and certain inconsistencies between
their testimony and their prior statements and/or interviews with PIS. For
example, xxxxxxx testified about a second conversation he and xxxxxxx had
with the appellant about the letters, while xxxxxxx did not mention having
another conversation with the appellant with xxxxxxx present after the
Cambria meeting. In addition, xxxxxxx did not mention in his written
statement that the appellant had denied the allegations in the March 31,
2002 letter in front of xxxxxxx at the Cambria meeting, Agency File, Tab
4E at 209, nor is it clear from xxxxxxx’s interview with the Postal
Inspectors that he was involved in the questioning at the Cambria meeting,
id. at 270-271.
Nonetheless, I found xxxxxxx to be a very credible witness, based in large
part on the straightforward and direct manner in which he testified, and I
attribute some of the inconsistencies mentioned above to the fact that the
hearing took place approximately 2 and ½ years after the conversations at
issue, and the fact that the written statements and PIS interviews were
not directed at resolving whether the appellant had falsely denied the
existence of a relationship with xxxxxxx, but whether he had sexually
harassed any employees and who was sending the letters. xxxxxxx’s
testimony that he asked the appellant directly if any of the allegations
in the March 31, 2002 letter were true is consistent with his written
statement, the appellant admitted that the question was posed to him in
that manner, and further admitted he denied the truth of any of the
allegations, even though the letter accused him of having a relationship
with xxxxxxx, which was true.
Moreover, the appellant admitted that he had seen the March 31, 2002
letter at the time he had the conversation with xxxxxxx in Cambria, and
there is ample evidence in this record that, at that time, the appellant
and xxxxxxx were going to great lengths to keep the existence of the
relationship from any agency employees, as evidenced by the appellant’s
extraordinary involvement in attempting to obtain the hardship transfer
for xxxxxxxx several weeks before. Finally, I find the appellant’s
testimony that he believed xxxxxxx was asking him in Cambria if
allegations of sexual harassment were true, and not if he was involved
with either of the women named in the March 31, 2002 letter, to be
unworthy of belief. In his response to the agency’s proposal action, the
appellant stated that, during the April 8, 2002 conversation with xxxxxxx,
he did not intend to be deceitful concerning his relationship with xxxxxxx,
but he “perceived the question to be an invasion of his privacy.” Agency
File, Tab 4C at 4. Clearly, if he believed he was being asked about sexual
harassment allegations, he could not reasonably have believed he had a
right to privacy. It is more likely his reference to a “right to privacy”
referred to his belief he did not have to answer questions about the
existence of his extra-marital relationship. Under all of the
circumstances here, I find that the appellant falsely denied the existence
of the relationship with xxxxxxx when questioned by xxxxxxx.
Likewise, I find that the appellant falsely denied the existence of the
relationship with xxxxxxx when directly asked by xxxxxxx in mid-April,
after the second anonymous letter was sent. I found xxxxxxx’s testimony
about the conversation with the appellant in the appellant’s office to be
very straightforward and believable, as he recalled the appellant’s words
and his demeanor in response to xxxxxxx’s question whether he was having
sexual relations with any of the women mentioned in the April 16 letter.
Considering the fact that this was the second anonymous letter that
referenced a relationship between the appellant and multiple women,
including xxxxxxx, I find it likely that xxxxxxx would have asked the
appellant directly if he was involved with any of the named women. Unlike
the later letters, this letter did not allege that the appellant was
“forcing” himself on employees, but rather that he was rewarding women
involved in personal relationships with him, and that the relationships
were, to some extent, mutual. In addition, the letter referenced the
appellant being “caught” at xxxxxxx’s condo, although the date xxxxxxxx
found him there was March 9, not March 8, and the appellant’s responses to
xxxxxxx when questioned about that portion of the letter were, at minimum,
evasive, and indicate that he was still trying to cover up the existence
of the relationship, and that he is less than truthful. I conclude that
xxxxxxx directly asked the appellant if he was involved with any of the
women mentioned in the April 16 letter, that the appellant knew the letter
stated he was involved with xxxxxxx, and that he falsely denied he was
having a relationship with her.
I find that the appellant committed the conduct as charged, and that his
actions interfered with the agency’s investigation.
Specification one is SUSTAINED.
Specification Two
The agency charged the appellant with encouraging xxxxxxx to deny the
existence of her relationship with him. Agency File, Tab 4D.
xxxxxxx testified that she felt she had no responsibility to tell anyone
about her relationship with the appellant because she has an expectation
of privacy. HT. She further testified that the appellant never encouraged
her to conceal their relationship, and that they never formed an agreement
to conceal it. On cross-examination, she denied that xxxxxxxx asked her
directly if she was in a relationship with the appellant during the April,
2002 interview. Although she had seen the March 31 letter alleging an
affair between her and the appellant, xxxxxxxx asked her if the appellant
had approached her in an inappropriate sexual manner, which she
interpreted as a question as to whether there was sexual harassment. Id.
She admitted, however, that she and the appellant had an understanding
that their relationship was a private manner. She also admitted that the
appellant provided some input into a July 12, 2002 letter she wrote to
xxxxxxx, in which she asserted that the accusations in the July 11 letter
were false, and she demanded an investigation into all of the letters.
Id.; IAF, Tab 4, Ex. M. She also admitted that she had initially denied
having an intimate relationship with both xxxxxxxx and the appellant when
asked by the Postal Inspectors, and then later recanted. HT. She denied
that she had spoken with the appellant when she ultimately disclosed to
the investigators that they were in a relationship. Id.
The appellant also denied that he ever told or encouraged xxxxxxx to
conceal their relationship. HT. The relationship was personal, and he did
not want it discussed at work because he was married. They never formed an
agreement to conceal the relationship from management or from
investigators. Id. On cross-examination, the appellant also admitted that
he helped xxxxxxx prepare her July 12 letter to xxxxxxx. Id.
Although the evidence pertaining to this specification is largely
circumstantial, I find that, more likely than not, the appellant
encouraged xxxxxxx to deny the existence of their relationship when she
was questioned about it.7 First, I found xxxxxxx’s claim that she and the
appellant never discussed denying that they were in a relationship to be
unworthy of belief. Although xxxxxxx claimed that xxxxxxxx never asked her
if she was in a relationship during their April 16 interview, and
xxxxxxxx’s Memorandum does not make it clear if that question was ever
asked, xxxxxxx admitted she had seen the March 31 anonymous letter
alleging that she and the appellant were in a relationship, and she told
xxxxxxxx that the appellant had “never approached her in … [a] sexual
manner.” This response was, at minimum, misleading. And, xxxxxxx lied to
investigators about her relationships with the appellant and with xxxxxxxx
when questioned. xxxxxxx’s prior lack of veracity about the same subject
at issue here, and her clear bias in favor of the appellant, render her
claim that he never encouraged her to deny the existence of their
relationship incredible.
Likewise, I find the appellant’s claim that he never encouraged xxxxxxx to
deny the existence of their relationship undercut by his lack of
credibility on other issues, and his admission that he helped xxxxxxx
write the July 12, 2002 letter demanding an investigation into all of the
anonymous letters. While it is understandable that the appellant and
xxxxxxx were upset about some of the outrageous and false allegations in
some of the letters and wanted those investigated, the July 12 letter
implies that there is no truth to anything in any of the letters, despite
the fact that both the appellant and xxxxxxx knew that the allegation they
were in a relationship was true. Considering they collaborated on this
letter, and had spent the past three-plus months since the first letter
was received denying they were in an intimate relationship, I find it
highly unlikely they never discussed their decision not to admit the truth
to anyone at the agency.8 The appellant has admitted that he did not want
their relationship discussed at work because he was married, and, under
all of these circumstances, I find that it is also highly likely that he
conveyed this desire to xxxxxxx. I find that the appellant committed the
conduct as charged, and that his conduct had the effect of interfering
with the agency’s investigation.
Specification two is SUSTAINED.
Specification Three
The agency charged the appellant with using his District Director position
to request Inspector xxxx to investigate xxxxxxxx as the source of the
March 31, 2002 letter while failing to advise xxxx of his relationship
with xxxxxxx or even to provide him with xxxxxxxx’s March 29, 2002
correspondence that directly implicated xxxxxxxx in the matter. Agency
File, Tab 4D.
On April 8, 2002, the appellant sent a copy of the March 31, 2002 letter
to xxxx and stated that the letter contained untrue allegations about his
personal conduct. IAF, Tab 4, Ex. H. He asserted that the letter was
threatening and harassing, and he requested xxxx’s assistance in
identifying the sender. Id. He stated that his suspicion was that xxxxxxxx
was the sender, because xxxxxxxx had accused him of being involved in
discipline taken against him by his postmaster. Id. The appellant admits
that he sent xxxx this letter, and he does not claim that he told xxxx
about his relationship with xxxxxxx, despite the fact that it was
referenced in the March 31, 2002 letter, nor does he claim he provided
xxxx with xxxxxxxx’s lengthy March 29, 2002 e-mail, which xxxxxxxx sent
from another employee’s computer. HT; IAF, Tab 3, Subtab 4. The appellant
claims only that he planned to provide xxxx with additional documents, but
xxxx ignored his request for an investigation. HT. He further stated that
he did not admit his relationship with xxxxxxx to xxxx until he sent xxxx
a packet on July 18, to which he attached xxxxxxxx’s e-mail. Id.; IAF, Tab
4, Ex. S.
It is clear that, by requesting that xxxx investigate who sent the March
31, 2002 letter, without admitting that some of the information in the
letter was true, and without providing xxxxxxxx’s March 29 e-mail that
showed his knowledge of the appellant’s relationship with xxxxxxx and his
possible motive for sending the anonymous letter, the appellant was not
forthcoming to the Inspection Service. However, the record reflects that
the Inspection Service did not get involved in this matter until July,
2002, as the earlier investigations were conducted by HR and the Managing
Counsel’s Office, so the question arises whether the appellant’s actions
even interfered with the agency’s investigation. Although the Inspection
Service began its investigation on July 12, 2002, the record reflects that
the Inspectors did not begin interviewing witnesses until July 22, 2002,
on which date the appellant’s letter admitting his relationship with
xxxxxxx, with attachments that included the March 29, 2002 e-mail, was
delivered to xxxx. While it is possible the appellant’s failure to provide
xxxx with this information in April interfered with the Inspection
service’s investigation, and that xxxx would have forwarded the
information to HR or the counsel’s office had the appellant provided it to
him, there is no evidence in this record from which such a conclusion can
be drawn.
Specification three is NOT SUSTAINED.
Charge two is SUSTAINED
Harmful Procedural Error9
The appellant is alleging that the agency’s action should be reversed
because it was tainted by harmful procedural error. More specifically, he
alleges that the agency failed to follow the following Management
Instruction, applicable in demotions or removals of PCES executives:
Prior to issuing a notice of proposed adverse action involving a removal
or demotion, the proposing postal official must be satisfied of all of the
following:
a. The individual has not performed in a manner that satisfied the
requirements of the position.
b. The individual has been made fully aware of his or her responsibilities
and has been counseled on remedial measures, where appropriate.
c. The individual has been judged on factors and conditions which were
within his or her authority or control.
d. The relevant facts are substantiated.
e. The action is based upon just cause.
f. Removal or demotion of the individual would be in the best interests of
the Postal Service.
IAF, Tab 4, Ex. VV.
To prove harmful procedural error, the appellant must prove, by
preponderant evidence, that the agency committed an error in the
application of its procedures that is likely to have caused the agency to
reach a conclusion different from the one it would have reached in the
absence or cure of the error. See 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R. §
1201.56(c)(3). The burden is upon the appellant to show that the agency
committed an error and that the error was harmful, i.e., that it caused
substantial prejudice to his rights. Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991) (harmful error cannot be presumed;
an agency error is harmful only where the record shows that the procedural
error was likely to have caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the error).
Here, xxxxxxx, the proposing official, admitted he did not review the
aforementioned Management Instruction before issuing the proposal letter
to the appellant. HT. The appellant argues that he was not made aware or
counseled that he should have recused himself from any personnel decisions
involving xxxxxxx while they were in a relationship, that the agency
relied on factors outside of his control (the anonymous letters), and that
the action was not based upon just cause. Agency File, Tab 4D at 2. I find
no merit to the appellant’s assertions. It is undisputed that the
appellant did not reveal he was in a relationship with xxxxxxx until long
after he approved her OIC assignment to xxxxxxxx, so there is no way
xxxxxxx, or any other agency official, could have made him aware of his
responsibilities with regard to personnel actions involving xxxxxxx, or
counseled him about the action. In addition, contrary to the appellant’s
argument, the agency did not propose his removal based on the facts in the
anonymous letters, but on misconduct he committed related to his reaction
to the letters. Finally, since there is evidence to support both of the
charges, and, as discussed below, the penalty was reasonable, I cannot
find that “just cause” for the action was lacking.
I conclude that the appellant has failed to show that the agency was
likely to have reached a different conclusion had xxxxxxx reviewed and
formally satisfied the requirements in the above-mentioned Management
Instruction. Thus, he has not shown that the agency committed a harmful
procedural error.
Nexus and the Penalty
The agency must show that there is a nexus between the sustained charges
and either the employee’s ability to accomplish his duties satisfactorily
or some other legitimate government interest. See Merrit v. Department of
Justice, 6 M.S.P.R. 585, 596 (1981), modified, Kruger v. Department of
Justice, 32 M.S.P.R. 71, 175 n.2 (1987). There can be no doubt that the
agency has a legitimate interest in its employees, especially those at the
appellant’s level, avoiding apparent or actual conflicts of interest and
refraining from promoting personnel actions such as hardship transfers for
other than business reasons. Likewise, the agency has a clear interest in
conducting necessary investigations without interference by its management
employees. I find that the agency has shown a nexus between the sustained
charges and a legitimate government interest.
Where, as here, all of the agency’s charges have been sustained, the Board
will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 306 (1981). In making that determination,
the Board must give due weight to the agency’s primary discretion in
maintaining employee discipline and efficiency, recognizing that the
Board’s function is not to displace management’s responsibility but to
insure that management discretion has been properly exercised. See, e.g.,
Brown v. Department of the Treasury, 91 M.S.P.R. 60, ¶ 7 (2002). Thus, the
Board will disturb the agency's chosen penalty only if it finds that the
agency failed to weigh relevant factors or that the agency's judgment
clearly exceeded the limits of reasonableness. Toth v. U.S. Postal
Service, 76 M.S.P.R. 36, 39 (1997).
xxxx, the deciding official, testified that he considered the appellant’s
offenses to be very serious, and it was unfortunate that, having worked
for the agency for so many years and attained the position of District
Manager, the appellant made the errors he did. HT. The appellant should
have been aware that what he had done was wrong, due to the training he
receives. Id. xxxx further testified that he gave a lot of thought to
mitigation, but the appellant had lied to his immediate supervisor, and he
was in a position of great trust and could no longer be trusted in a
supervisory role. For that reason, he felt the appellant did not have
potential for rehabilitation. xxxx was aware of no similar cases involving
a District Manager. Id.
On cross-examination, xxxx stated that he considered the appellant’s
relationship with xxxxxxx while she was given a higher level assignment
and his denial of the existence of the relationship when asked by his
supervisors to be the most serious of the misconduct. HT. He testified
that he considered the appellant’s “spotless” disciplinary record, and his
prior work record, although he did not look at the appellant’s OPF but
rather the fact that the appellant had progressed to increasingly more
responsible positions. Id. xxxx stated that he also considered the
appellant’s length of service (approximately 37 years), but noted that it
indicated he should have known his responsibilities. xxxx admitted he read
the anonymous letters, but asserted he did not consider the allegations of
sexual harassment in making his decision. He acknowledged that the
appellant may have been under stress from the anonymous letters when he
answered the questions posed by xxxxxxx and xxxxxxx. Finally, in response
to further questioning, xxxx clarified that he was aware of the
appellant’s recent performance and that the appellant had no performance
problems, and he considered the appellant’s length of service to be both a
mitigating and an aggravating factor. Id.
I find that, between his testimony and the penalty analysis set out in the
decision letter, xxxx considered all of the relevant Douglas factors.
Nonetheless, I agree with the appellant that he improperly considered the
appellant’s many years of service with the agency to be an aggravating
factor, as well as a mitigating factor. See Shelly v. Department of the
Treasury, 75 M.S.P.R. 677, 684 (1997) (Board disagrees with deciding
official’s consideration of appellant’s 23 years of service as an
aggravating factor). Unlike in Shelly, however, here, the deciding
official also considered the appellant’s length of service to be a
mitigating factor, and he testified that he gave serious consideration to
assessing a lesser penalty based, among other factors, on the appellant’s
length of service. This fact, coupled with my agreement with the deciding
official’s assessment of the other Douglas factors, leads me to conclude
that any error the deciding official committed by holding the appellant’s
37 years of service against him was not harmful.
The Board has asserted that, in evaluating whether a penalty is merited,
it must first examine the nature and seriousness of the misconduct and its
relation to the employee’s duties, position, and responsibilities,
including whether the offense was intentional or frequently repeated. See,
e.g., Brown v. Department of the Army, 96 M.S.P.R. 232, ¶ 11 (2004). Here,
there can be no question that the appellant’s misconduct, especially his
lying to more than one agency official and his use of his high-level
position to attempt to get xxxxxxxx the transfer under false pretenses,
was very serious, was repeated, and was intentional. The appellant now
admits that his actions were improper, in some respects. Accordingly,
despite the appellant’s many years of service, his clean disciplinary
record, his service awards, and the fact that he was likely under extreme
pressure at the time he committed the misconduct, due both to his attempts
to hide his affair and the content of the anonymous letters, I cannot find
that the penalty of removal is beyond the bounds of reasonableness.10
Therefore, I must affirm the agency’s action.
decision
The agency’s action is AFFIRMED.
FOR THE BOARD: ______________________________
Craig A. Berg
Administrative Judge
NOTICE TO APPELLANT
This initial decision will become final on April 8, 2005, unless a
petition for review is filed by that date or the Board reopens the case on
its own motion. This is an important date because it is usually the last
day on which you can file a petition for review with the Board. However,
if this initial decision is received by you more than 5 days after the
date of issuance, you may file a petition for review within 30 days after
the date you actually receive the initial decision. The date on which the
initial decision becomes final also controls when you can file a petition
for review with the Court of Appeals for the Federal Circuit. The
paragraphs that follow tell you how and when to file with the Board or the
federal court. These instructions are important because if you wish to
file a petition, you must file it within the proper time period.
BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review. Your petition, with supporting evidence and argument, must be
filed with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.,
Washington, DC 20419
A petition for review may be filed by mail, facsimile (fax), personal or
commercial delivery, or electronic filing. A petition for review submitted
by electronic filing must comply with the requirements of 5 C.F.R. §
1201.14, and may only be accomplished at the Board's e-Appeal website
(https://e-appeal.mspb.gov).
If you file a petition for review, the Board will obtain the record in
your case from the administrative judge and you should not submit anything
to the Board that is already part of the record. Your petition must be
filed with the Clerk of the Board no later than the date this initial
decision becomes final, or if this initial decision is received by you
more than 5 days after the date of issuance, 30 days after the date you
actually receive the initial decision. The date of filing by mail is
determined by the postmark date. The date of filing by electronic filing
is the date of submission. The date of filing by personal delivery is the
date on which the Board receives the document. The date of filing by
commercial delivery is the date the document was delivered to the
commercial delivery service. Your petition may be rejected and returned to
you if you fail to provide a statement of how you served your petition on
the other party. See 5 C.F.R. § 1201.4(j).
JUDICIAL REVIEW
If you are dissatisfied with the Board's final decision, you may file a
petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439
You may not file your petition with the court before this decision becomes
final. To be timely, your petition must be received by the court no later
than 60 calendar days after the date this initial decision becomes final.
If you need further information about your right to appeal this decision
to court, you should refer to the federal law that gives you this right.
It is found in 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 court's website, http://fedcir.gov/contents.html.
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.
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
PEN HOME
|