                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL HENRY,                                  DOCKET NUMBER
                 Appellant,                          PH-0752-15-0290-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: February 29, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John Durishan, Esquire, Atlanta, Georgia, for the appellant.

           David K. Siegle, Esquire, Tobyhanna, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his 30-day suspension and two-grade demotion. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     the facts of the case; the administrative judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed. See title
     5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, we conclude that the petitioner
     has not established any basis under section 1201.115 for granting the petition for
     review.   Therefore, we DENY the petition for review.          Except as expressly
     MODIFIED by this Final Order to VACATE the administrative judge’s
     consideration of a second charge that the agency did not sustain, we AFFIRM the
     initial decision.
¶2         At all times relevant to this appeal, the appellant held the GS-13 position of
     Supervisory Distributions Facilities Specialist. Initial Appeal File (IAF), Tab 11
     at 18. In October 2014, one of the appellant’s subordinates, S.M., filed a sexual
     harassment complaint against him.          Id. at 27-29.      During the agency’s
     investigation, the appellant provided a sworn statement, acknowledging that he
     had “inappropriate sexual harassing contact” with S.M., though some details
     differed between his account and that of S.M. Id. at 24-26.
¶3         The agency initially proposed the appellant’s removal on October 23, 2014.
     Id. at 34-41. The appellant submitted a response in December 2014. IAF, Tab 9
     at 4-20, Tab 10 at 10-52.       Around that same time, S.M. provided another
     statement, this time to the agency’s Criminal Investigation Division (CID). IAF,
     Tab 9 at 22-26. Citing the CID investigation and new information, the agency
     rescinded the October 2014 proposal and replaced it with a new one. Id. at 28.
¶4         On February 10, 2015, the agency issued its revised proposal to remove the
     appellant. Id. at 30-38. The charges included conduct unbecoming and sexual
     harassment involving a subordinate employee.         Id. at 31-32.    The appellant
     submitted another response. IAF, Tab 8 at 4-45, Tab 9 at 45-49. Subsequently,
                                                                                           3

     the deciding official did not impose the proposed removal, but instead chose to
     suspend the appellant for 30 days and demote him two grade levels. IAF, Tab 7
     at 4-9, 11, Tab 8 at 47. This appeal followed. IAF, Tab 1.
¶5         After holding the requested hearing, the administrative judge affirmed the
     appellant’s suspension and demotion. IAF, Tab 22, Initial Decision (ID). The
     appellant has filed a petition for review.        Petition for Review (PFR) File,
     Tabs 1, 4. 2     The agency has filed a response, and the appellant has replied.
     PFR File, Tabs 5-6.
¶6         On review, the appellant alleges that the administrative judge erred in
     sustaining two charges because the deciding official sustained only one.
     PFR File, Tab 1 at 14-15. He also alleges that, while the administrative judge
     properly required that the agency prove sexual harassment under Title VII for the
     conduct unbecoming charge, he erred in concluding that the agency did so. Id.
     at 20-29.      Next, the appellant disputes the penalty.   Id. at 15-20. 3 Lastly, he
     reasserts his affirmative defenses of age discrimination, sex discrimination, and
     reprisal for equal employment opportunity (EEO) activity. Id. at 29-33.

     We vacate the administrative judge’s consideration of a second charge, sexual
     harassment involving a subordinate employee.
¶7         As the appellant observes, the deciding official sustained only one of the
     two charges in the proposed removal. PFR File, Tab 1 at 14-15; compare IAF,
     Tab 9 at 30-31, with IAF, Tab 7 at 4, Tab 8 at 47; Hearing Compact Disc (HCD)
     (testimony of the deciding official). The deciding official sustained the conduct
     unbecoming charge, but did not sustain the charge of sexual harassment involving
     a subordinate employee. IAF, Tab 7 at 4, Tab 8 at 47; HCD (testimony of the

     2
       The appellant submitted his petition for review twice, because some of the text in his
     first submission was slightly distorted. See, e.g., PFR File, Tab 1 at 9, 10, 13, Tab 4
     at 1. We will cite exclusively to the first submission because the distortions are
     inconsequential.
     3
       The appellant presented no arguments concerning nexus, and we find no reason to
     revisit the issue on review.
                                                                                                       4

     deciding official).         Yet, the administrative judge erroneously considered and
     found that the agency proved both charges. ID at 6-8; see Akers v. Department of
     the Treasury, 100 M.S.P.R. 270, ¶ 7 (2005) (finding that the administrative
     judge’s action of sustaining a specification that the deciding official did not
     sustain was error), aff’d, 190 F. App’x 941 (Fed. Cir. 2006). We therefore vacate
     the administrative judge’s consideration of the second charge. Nevertheless, we
     find   the        error   harmless.        See       Panter    v.     Department     of    the   Air
     Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
     prejudicial to a party’s substantive rights provides no basis for reversal of an
     initial decision). The agency imposed its chosen penalty based upon the single
     charge of conduct unbecoming and, as discussed below, that penalty was
     reasonable. IAF, Tab 7 at 4-9, Tab 8 at 47.

     The administrative judge properly sustained the conduct unbecoming charge.
¶8          Because the agency’s conduct unbecoming charge referenced agency policy
     that tracked the language of Title VII, the parties agree that Title VII provides the
     proper standard for proving the charge. ID at 6-7; IAF, Tab 9 at 30; PFR File,
     Tab    1     at    20-22,    Tab      5   at   14;    see     Viens    v.     Department    of   the
     Interior, 92 M.S.P.R. 256, ¶ 6 (2002) (observing that if an agency charges an
     employee with violating a sexual harassment policy that references Title VII
     standards or tracks the language of Title VII regulations, the proper standard for
     judging the alleged misconduct is that of Title VII).                       However, the appellant
     disputes the administrative judge’s conclusion that the agency met that standard.
     PFR File, Tab 1 at 21-29. We find no merit to his arguments.
¶9          To establish its charge under Title VII, the agency was required to prove
     that the appellant’s conduct was offensive, based on the victim’s sex, unwelcome,
     and sufficiently severe or pervasive to interfere with the victim’s job performance
     or to create an abusive work environment. Booker v. Department of Veterans
     Affairs, 110 M.S.P.R. 72, ¶ 13 (2008). The environment must be both one that a
     reasonable person would find hostile or abusive and one that was subjectively
                                                                                          5

      perceived    as     such   by   the   victim.      Harris    v.   Forklift   Systems,
      Inc., 510 U.S. 17, 21-22 (1993). Whether an environment is hostile or abusive
      within the meaning of the law requires an examination of all the circumstances;
      “no single factor is required.” Id. at 23.
¶10         The agency’s local military police initially investigated the alleged incident.
      IAF, Tab 11 at 21-23. S.M. provided a statement to the investigator regarding her
      October 7, 2014 encounter with the appellant, in which she described it as
      follows:    the appellant called her into his office, shut the door, grabbed her
      shoulders and spun her around, hugged her tightly enough that she could not
      break free, picked her up and sat her on his desk, lifted her right leg up and
      placed it on top of his desk, stood between her legs, and stated “the things I
      would like to do to you, I would like to bend you over the desk and drive you so
      hard.” Id. at 27.
¶11         As compared to the aforementioned description, the appellant provided a
      sworn statement acknowledging the following: he asked his subordinate, S.M., to
      come to his office, he told others to stay outside, he shut the door, he embraced
      S.M. in a “tight bear hug,” she backed up and sat on his desk, he placed a hand on
      her knee, he embraced her a second time, and he said “now bend over the desk.”
      Id. at 24. When asked if he had “inappropriate sexual[ly] harassing contact,” the
      appellant replied, “Yes, I screwed up big time.” Id. When asked if S.M. ever
      made any sexual advances towards him, the appellant alleged that S.M. pulled the
      top of her shirt down and showed him the top of her breasts during the incident at
      issue. Id. He also claimed that the two had previously been flirtatious. Id.
¶12         When CID later interviewed S.M., she provided another description of the
      incident, with additional details. 4 IAF, Tab 9 at 22-26. Among other things, S.M.
      alleged that when the appellant embraced her, he pressed himself into her,
      moaning. Id. at 24. Because he was reportedly pressed into her inner thigh, S.M.
      4
       CID’s investigation was separate from the initial investigation by the agency’s local
      military police. IAF, Tab 11 at 7-8.
                                                                                            6

      alleged that she could feel that the appellant was physically aroused and he
      acknowledged the same before she left his office. Id. S.M. described their prior
      interactions as including occasional flirting from the appellant, and her
      responding by laughing it off, tapping his wedding ring, and telling him to go
      away. Id. at 23, 26.
¶13         On review, the appellant alleges that it defies logic to conclude that his
      conduct was unwelcome because S.M. left the encounter with a happy demeanor.
      PFR File, Tab 1 at 22, 25-27. We disagree. S.M. described being in shock and
      disbelief about the encounter. IAF, Tab 9 at 22, 24. Given the circumstances, we
      believe that the purported happy demeanor does not reflect that S.M. welcomed
      the conduct.
¶14         The appellant also alleges that his conduct was welcome because the
      meeting started as a conversation about S.M.’s new position, but S.M. changed
      the tone of the meeting by pulling down the front of her blouse. PFR File, Tab 1
      at 26. However, we discern no basis for disturbing the administrative judge’s
      conclusion that S.M.’s description of the encounter as entirely unwelcome was
      more credible than the appellant’s suggestion that S.M. was a willing participant.
      ID at 6; see Haebe v. Department of Justice, 288 F.3d 1288, 1300-01
      (Fed. Cir. 2002)   (holding   that   the   Board   must   defer   to   the   credibility
      determinations of an administrative judge when they are based, explicitly or
      implicitly, upon the observation of the demeanor of witnesses testifying at a
      hearing because the administrative judge is in the best position to observe the
      demeanor of the witnesses and determine which witnesses were testifying
      credibly).
¶15         The appellant next argues that two excluded witnesses should have been
      permitted to testify to establish that his conduct was not unwelcome. PFR File,
      Tab 1 at 22-23. Again, we disagree. An administrative judge has wide discretion
      under 5 C.F.R. § 1201.41(b)(8), (10) to exclude witnesses where it has not been
      shown that their testimony would be relevant, material, and nonrepetitious.
                                                                                       7

      Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985). According to the
      appellant, these excluded witnesses would have established that laughter, and no
      other unusual sounds, emanated from his office during the incident. PFR File,
      Tab 1 at 23. They also would have reportedly described S.M. as appearing happy
      when she left the encounter.     Id.   However, the excluded witnesses already
      provided written statements. IAF, Tab 8 at 19-21. Among other things, their
      statements demonstrate that they were unable to hear everything that was
      happening in the office, including actions and statements the appellant has
      admitted.   Compare id., with IAF, Tab 11 at 24.       In addition, the excluded
      witnesses were among several that the appellant requested to detail their
      observations outside of the closed-door encounter. IAF, Tab 14 at 10-12. We are
      not persuaded that the administrative judge’s decision to permit some, but not all,
      of those witnesses represents an abuse of discretion.      Compare IAF, Tab 14
      at 10-12, with IAF, Tab 17 at 2-3.
¶16        Concerning the excluded witnesses, the appellant also asserts that it was
      impermissible for the administrative judge to make credibility determinations
      about their written statements, since they were not permitted to testify. PFR File,
      Tab 1 at 22-23. However, in finding the conduct unwelcome, the administrative
      judge relied on his finding that S.M.’s version of events was more credible than
      that of the appellant, without mentioning the statements of the excluded
      witnesses. ID at 6.

      We sustain the agency’s chosen penalty.
¶17        Although the proposing official recommended removal, the deciding official
      imposed a 30-day suspension and demotion of two grade levels. Compare IAF,
      Tab 9 at 30-38, with IAF, Tab 7 at 4-9, Tab 8 at 47. The appellant reasserts that
      the Board should further mitigate the penalty. PFR File, Tab 1 at 15-20. We
      disagree.
¶18         If the Board sustains an agency’s charges, it will defer to the agency’s
      penalty determination unless the penalty exceeds the range of allowable
                                                                                       8

      punishment specified by statute or regulation, or unless the penalty is so harsh
      and unconscionably disproportionate to the offense that it amounts to an abuse of
      discretion. Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 5 (2015). The
      Board will not displace management’s responsibility, but instead will ensure that
      managerial judgment has been properly exercised. Id.
¶19         The appellant first alleges that his penalty exceeds the tolerable limits of
      reasonableness. PFR File, Tab 1 at 15-18. To support the argument, he compares
      the    case    before    us     to    Woodford      v.    Department      of    the
      Army, 75 M.S.P.R. 350, 357-58 (1997), where the Board mitigated a removal to a
      demotion to the highest nonsupervisory position available.       PFR File, Tab 1
      at 16-17. However, that case is distinguishable. Woodford involved an employee
      taking a subordinate behind closed doors, telling her that he had feelings for her,
      holding her hand, hugging her, and kissing the top of her head.         Woodford,
      75 M.S.P.R. at 353, 357. The administrative judge found that the conduct was
      not overtly sexual, but rather was romantic in nature. Id. at 354. In contrast, the
      appellant admitted embracing S.M. in a “tight bear hug” and telling her, “now
      bend over the desk.”    IAF, Tab 11 at 24.       Moreover, S.M.’s account of the
      incident, which the administrative judge found more credible than the appellant’s,
      includes additional details that are also much more sexual, aggressive, and
      intimidating than the facts of Woodford.     IAF, Tab 9 at 22-26, Tab 11 at 27.
      Accordingly, we disagree with the appellant’s contention that the agency’s
      penalty is unreasonable.      See generally, e.g., Booker, 110 M.S.P.R. 72,
      ¶¶ 8-10, 19-24 (deferring to the agency’s chosen removal penalty based upon a
      single incident of sexual comments and inappropriate touching of a coworker,
      despite the employee’s 17 years of unblemished work history and prompt
      apology).
¶20         The appellant also alleges that the deciding official failed to consider his
      remorse in determining the appropriate penalty. PFR File, Tab 1 at 19-20; see
      Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 10-15 (2013) (Member
                                                                                           9

      Robbins, dissenting). According to the appellant, he did express remorse over his
      actions, but the deciding official erroneously found otherwise. PFR File, Tab 1
      at 19-20.   We find the argument factually inaccurate.       Although the appellant
      expressed sorrow when first questioned about his actions, IAF, Tab 11 at 24-25,
      his response to the proposed adverse action struck a different tone, suggesting
      that his actions were both innocuous and welcome, IAF, Tab 8 at 4, 5, Tab 9
      at 49. The deciding official properly considered both in rendering his decision.
      IAF, Tab 7 at 4, Tab 8 at 47.
¶21         In terms of the penalty, the appellant lastly argues that the agency’s chosen
      penalty is inconsistent with the penalties imposed on other employees. PFR File,
      Tab 1 at 18-19. 5 To establish disparate penalties, an appellant must show that
      there is enough similarity between both the nature of the misconduct and the
      other factors to lead a reasonable person to conclude that the agency treated
      similarly situated employees differently.       Lewis v. Department of Veterans
      Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). In this case, the appellant has failed to
      establish that requisite similarity. The first comparator he identified received a
      3-day suspension for engaging in unwelcome contact, such as resting a hand on or
      wrapping an arm around a subordinate’s shoulder. IAF, Tab 7 at 10-19. The
      other comparator the appellant identified received a 30-day suspension for
      engaging in inappropriate sexual behavior with subordinates, such as inviting
      them to an adult-only establishment, explicitly describing a prior visit to the
      adult-only establishment, and telling a subordinate that looking at her resulted in
      the need to take a cold shower. Id. at 20-35. The deciding official determined
      that the appellant’s misconduct was notably more serious than that of other
      employees who received lesser penalties, and we agree. IAF, Tab 7 at 6, Tab 16
      at 10-49.   We find that, even if the identified comparators were otherwise

      5
       The appellant’s argument concerning comparators cites “IAF, Tab 4 at 42-43.” PFR
      File, Tab 1 at 19. However, that exhibit does not contain 43 pages; it appears that the
      appellant intended to cite part four of the agency’s file. See IAF, Tab 8 at 42-43.
                                                                                       10

      similarly situated, their conduct does not rise to the level of severity of the
      appellant’s.

      The appellant failed to prove his affirmative defenses of age discrimination, sex
      discrimination, and EEO reprisal.
¶22         After the initial decision was issued, the Board issued a decision that
      clarified the evidentiary standards and burdens of proof under which the Board
      analyzes age discrimination, sex discrimination, and EEO reprisal affirmative
      defenses. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 39-43, 51
      (2015).   We find that applying the analytical framework in Savage would not
      change the result in this case. Thus, based on the existing record, and for the
      reasons contained in the initial decision, we affirm the administrative judge’s
      finding that the appellant did not meet his burdens of proving these claims. See,
      e.g., ID at 8-11.
¶23         Concerning his allegation of age discrimination, the appellant refers to a
      section of the original proposal, which was rescinded and replaced, discussing
      relevant factors in determining an appropriate penalty. PFR File, Tab 1 at 30-31;
      compare IAF, Tab 11 at 39, with IAF, Tab 9 at 36. In terms of rehabilitation
      potential, that rescinded proposal stated, “Given your length of service of nearly
      30 years with 20 years in a leadership capacity . . . I believe you will no longer
      add value to the mission, but rather a detriment to it.”       IAF, Tab 11 at 39.
      Although we do not endorse that interpretation of lengthy service, we find that
      this lone, rescinded statement does not evidence age discrimination. ID at 9; see
      generally Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997)
      (finding that a 23-year career with no prior discipline was a factor supporting
      leniency; it should not have been considered an aggravating factor in determining
      an appropriate penalty). Further, the revised proposal notice properly considered
      the appellant’s length of service as a mitigating factor. IAF, Tab 9 at 35.
¶24         For his sex discrimination claim, the appellant essentially reasserts that the
      agency exhibited bias by believing S.M.’s allegations, rather than his. PFR File,
                                                                                   11

      Tab 1 at 32-33. We disagree. The agency’s crediting one account over another,
      without more, does not amount to sex discrimination. ID at 9.
¶25        The appellant’s EEO reprisal claim is similarly meritless. PFR File, Tab 1
      at 31-32.   The appellant reportedly filed an EEO complaint after the agency
      issued the October 2014 proposal to remove him, but before it replaced that
      proposal with the February 2015 version.        Id.   However, the appellant has
      provided no basis for concluding that the agency officials responsible for the
      adverse action before us knew of that EEO activity, nor has he otherwise shown
      that EEO reprisal was a motivating factor. ID at 10-11.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

            You should send your request to EEOC no later than 30 calendar days after
      your receipt of this order. If you have a representative in this case, and your
                                                                                12

representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.        See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
