                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     PHILLIP C. YOUNG,                               DOCKET NUMBER
                    Appellant,                       DA-0752-13-0564-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: March 20, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Gilbert T. Dunn, San Antonio, Texas, for the appellant.

           Faith Fillman, Fort Sam Houston, Texas, 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 removal based on a charge of conduct unbecoming a federal
     employee. 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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     of the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant worked as a vocational nurse for the agency’s Brooke Army
     Medical Center at Fort Sam Houston, Texas. Initial Appeal File (IAF), Tab 6 at
     31.   In December 2012, two medical center employees made complaints to
     supervisors regarding the appellant’s behavior. IAF, Tab 7 at 34-35. The agency
     placed the appellant on administrative leave while it conducted an investigation
     into the employees’ allegations.    Id. at 26-27, 38.    The agency’s investigator
     concluded upon completion of multiple interviews of medical center employees
     that the appellant engaged in inappropriate behavior and sexual harassment based
     on agency regulations. Id. at 131-32.
¶3         Based upon the results of the investigation, the agency proposed to remove
     the appellant for the charge of conduct unbecoming a federal employee. Id. at 17.
     The charge included four specifications, one for each incident included in the
     complaints by the two employees that were the subject of the agency’s
     investigation. Id. The appellant provided a written reply to the proposal but did
     not present an oral reply to the deciding official.     IAF, Tab 6 at 44-46.    The
     deciding official sustained the charge, reviewed the Douglas factors as they
                                                                                      3

     related to the penalty determination, and directed the appellant’s removal. Id. at
     34, 39-42.
¶4        The appellant initiated a Board appeal challenging his removal and
     requested a hearing. IAF, Tab 1 at 2-3. In addition, the appellant alleged that his
     due process rights were violated during the removal process.       Id. at 3.   The
     administrative judge conducted a prehearing conference during which he
     identified the issues to be adjudicated and approved witnesses to testify at the
     hearing. IAF, Tab 11 at 1-3. The appellant objected to the administrative judge’s
     denial of his request to call the agency representative as a witness. Id. at 3. The
     appellant subsequently withdrew his request for a hearing. IAF, Tab 19 at 1. The
     parties submitted additional evidence and argument for the administrative judge
     to make a decision based on the record. IAF, Tabs 21, 23. The administrative
     judge issued an initial decision that found the agency proved all four
     specifications of the charge and sustained the removal.      IAF, Tab 29, Initial
     Decision (ID) at 6, 10, 16. He found that the agency did not unreasonably delay
     taking the adverse action and the appellant did not demonstrate how any alleged
     delay prejudiced his ability to defend the appeal. ID at 11-12. The administrative
     judge also found that the agency did not violate the appellant’s due process rights
     because he failed to identify any procedures or rights that the agency denied to
     him. ID at 13-14.
¶5        The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. The agency has filed a response to which the appellant has
     filed a reply. PFR File, Tabs 4, 6.

     The agency did not violate the appellant’s due process rights.
¶6        The appellant has not challenged on review the administrative judge’s
     finding that the agency proved its charge. The Board normally will consider only
     issues raised in a timely filed petition for review. 5 C.F.R. § 1201.115. We see
     no reason to disturb this finding on review.
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¶7        The appellant continues to argue on review, as he did below, that the agency
     denied him due process throughout the adverse action and appeal process. PFR
     File, Tab 1 at 2, 5-6, Tab 6 at 1. He argues that the agency’s legal representative
     was the de facto deciding official based on assistance she provided to the
     individual named as the deciding official.       PFR File, Tab 6 at 1-2.    After the
     agency proposed his removal and before submitting his written reply to the
     charge, the appellant requested that the agency make available for interview all
     witnesses it interviewed during its investigation.       IAF, Tab 7 at 8.    He also
     requested an extension of at least 180 days to make his reply, along with
     clarification of the actual charge against him. Id. at 14-15. Finally, the appellant
     requested the personnel folder of one of the two employees who accused him of
                               2
     inappropriate behavior.       IAF, Tab 6 at 45. We disagree that the agency’s denials
     of these requests amounted to due process violations. See id.
¶8        The U.S. Supreme Court has previously concluded that the essential
     requirements of constitutional due process for a tenured public employee are:
     (1) notice of the charges against him, with an explanation of the evidence; and
     (2) an opportunity for the employee to present his account of events. Cleveland
     Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).                The Court
     concluded that to require more prior to termination, “would intrude to an
     unwarranted extent on the government’s interest in quickly removing an
     unsatisfactory employee.” Id.
¶9        It is undisputed that the agency provided written notice of the charges to the
     appellant along with the underlying materials. IAF, Tab 7 at 8-9. The agency

     2
       The appellant included in his written rep ly an offer to appear before the deciding
     official to answer questions under oath and to take a po lygraph examination. IAF,
     Tab 6 at 45. However, 5 U.S.C. § 7513(b)(2) does not provide an employee with any
     response rights beyond the opportunity to make a written and oral rep ly and furnish
     affidavits and other documentary evidence in support of the employee’s answer, unless
     agency regulations provide additional benefits. 5 U.S.C. § 7513(b)-(c). The appellant
     submitted no evidence of any agency regulations that provided for the meeting as he
     requested. Therefore, the agency had no obligation to grant the appellant’s request.
                                                                                          5

      provided its table of penalties to the appellant and a new electronic copy of all
      materials when the appellant informed the agency that the original disc was not
      functional. Id. at 6, 205-19. The agency denied the appellant’s request for a
      180-day extension but granted an additional 20 days for him to make his reply.
      Id. at 5. The agency representative confirmed that the appellant wished to make
      an oral reply and provided the deciding official’s availability with instructions
      that the appellant should advise what time option worked for him. Id. at 6. Yet,
      the appellant did not exercise his right to present an oral reply of his account of
      events. The agency denied his requests to interview witnesses, have unrestricted
      access to the facility while on administrative leave, have access to the personnel
      files of the two employees that complained about his conduct, and answer
      questions under oath at an additional meeting before his oral reply. Id. at 4-6.
      The agency indicated it was denying these requests because the appellant had no
      statutory or constitutional right to these procedures at that point in the process. 3
      Based on our review, we agree with the administrative judge’s finding that the
      appellant did not prove that he was denied due process.
¶10        Although the agency’s conduct was not a constitutional violation, we must
      still decide whether the agency committed harmful error. See Ward v. U.S. Postal
      Service, 634 F.3d 1274, 1281-83 (2011). The Board will not sustain an agency
      decision if the appellant shows harmful error in the application of the agency’s
      procedures or the protections found in 5 U.S.C. § 7513(b), which include advance
      written notice of a proposed adverse action and at least 7 days to
      respond.     5 U.S.C. §§ 7513(b), 7701(c)(2)(A); Campbell v. U.S. Postal
      Service, 95 M.S.P.R. 185, ¶¶ 8, 10 (2003). To show harmful error, an appellant
      must prove that any procedural error substantially prejudiced his rights by


      3
        The appellant was informed of his right to engage in discovery as part of the appeal
      process. IAF, Tab 2 at 2. During the discovery process, the appellant could have
      deposed the various witnesses that he sought to question prior to his removal. See
      5 C.F.R. § 1201.72(c). However, there is no evidence that he exercised these rights.
                                                                                     6

      possibly affecting the agency’s decision.        Salter v. Department of the
      Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). The appellant has not submitted below or
      on review any law, rule, or regulation that required the agency to comply with
      any of his requests. In addition, the appellant has not shown that, even if the
      agency had complied, it would have reached a different outcome. Therefore, we
      discern no harmful procedural error.

      The penalty of removal is within the range of reasonableness based on the
      deciding official’s review of the Douglas factors.
¶11        The appellant alleges on review that, when assessing which penalty to
      impose, the deciding official did not consider the mitigating factors. PFR File,
      Tab 1 at 1.    The administrative judge found the deciding official properly
      considered all relevant Douglas factors. ID at 15-16. We agree.
¶12        Where, as here, the agency’s charge has 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.   See Douglas v. Veterans Administration, 5 M.S.P.R.
      280, 306 (1981).     The Board’s function in this regard is not to displace
      management’s responsibility but to assure that managerial judgment has been
      properly exercised. Id. at 302. In evaluating a penalty, the Board will consider,
      first and foremost, the nature and seriousness of the misconduct and its
      relationship to the employee’s duties, position, and responsibilities. Gaines v.
      Department of the Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). Even a single instance
      of indecent and disgraceful conduct toward a coworker can support a penalty of
      removal. Stephens v. Department of the Air Force, 58 M.S.P.R. 502, 506 (1993).
¶13        The appellant’s allegation that the deciding official did not consider the
      Douglas factors is contradicted by the evidence in the record detailing the
      deciding official’s review and signed by him. IAF, Tab 7 at 39-42. The deciding
      official considered the appellant’s prior work record and lack of any prior
      discipline of a similar nature but found the appellant was a poor candidate for
                                                                                        7

      rehabilitation because of multiple accusations.      IAF, Tab 6 at 40-41.       The
      deciding official also noted that removal was within the range of the agency’s
      table of penalties. Id. Therefore, we find that the appellant has not shown that
      the deciding official failed to consider the Douglas factors in assessing the
      penalty. The administrative judge found the deciding official properly considered
      the Douglas factors and that the penalty promoted the efficiency of the service.
      ID at 16. We agree that the penalty was reasonable given the seriousness of the
      conduct and that the appellant engaged in this conduct towards multiple female
      employees. See Cisneros v. Department of Defense, 83 M.S.P.R. 390, ¶ 20 (1999)
      (removal for inappropriate comments and physical contact was reasonable in view
      of the seriousness of the appellant’s sexual misconduct, particularly its continual,
      unrelenting nature, its pervasiveness, its perpetuation on several female
      employees, and his position as a supervisor), aff’d, 243 F.3d 562 (Fed. Cir. 2000)
      (Table).

      None of the appellant’s procedural claims warrant reversal of the initial decision.
¶14        The appellant continues to allege that the administrative judge erred when
      he denied the appellant’s request to call the agency representative as a witness.
      PFR File, Tab 1 at 5. He argues that the agency’s representative was the true
      deciding official because she was copied on the response to his Freedom of
      Information Act (FOIA) request, the deciding official directed the appellant to
      provide his written reply to the legal office because he was not available, and a
      statement by the representative provided that questions about the process could be
      referred to her and that she would respond. Id. at 1, 5; Tab 6 at 1-2.
¶15        As a general rule, the federal courts have not permitted a party to call
      opposing counsel as a witness unless there is a compelling need for the lawyer’s
      testimony.   See Restatement (Third) of the Law Governing Lawyers § 108(4)
      (2000) (“A tribunal should not permit a lawyer to call opposing trial counsel as a
      witness unless there is a compelling need for the lawyer’s test imony.”); see also
      United States v. Dupuy, 760 F.2d 1492, 1498 (9th Cir. 1985); U.S. v.
                                                                                      8

      Alu, 246 F.2d 29, 33-34 (2d Cir. 1957); Gulf Group General Enterprises Co.
      W.L.L. v. United States, 98 Fed. Cl. 647, 651 (Fed. Cl. 2011) (citing Shelton v.
      American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), for one test used to
      determine when such testimony will be permitted). We find the general rule also
      to be applicable to Board proceedings. However, applying this general rule, the
      appellant did not have a compelling need to call the agency’s representative
      because he could have obtained the testimony that he sought through other
      witnesses. The appellant could have called the deciding official to testify at the
      hearing regarding his role in the adverse action process. The administrative judge
      approved the deciding official as a witness prior to the appellant’s decision to
      withdraw his hearing request.     IAF, Tab 11 at 2-3.    In addition, the agency
      proposed to call a Management Employee Relations Specialist to testify regarding
      his involvement in advising management on the removal. IAF, Tab 9 at 8. The
      administrative judge also approved this individual as a witness. IAF, Tab 11 at 2.
      The appellant could have questioned the witness during the hearing regarding his
      testimony and his sworn statement submitted by the agency regarding his
      involvement in this appeal. IAF, Tab 21 at 27-29. Because the appellant could
      have obtained the information he was seeking through other witnesses, we find no
      compelling need for the agency’s representative’s testimony and affirm the
      administrative judge’s denial of the witness request.
¶16        Next, the appellant alleges that the administrative judge denied him a
      subpoena for one of his witnesses. PFR File, Tab 1 at 5. A party may request a
      subpoena to obtain the testimony of a witness and the Board has the authority to
      issue a subpoena requiring the witness’s attendance. 5 C.F.R. § 1201.81(a). The
      administrative judge advised the appellant of his right to request a subpoena for
      the witness. IAF, Tab 14 at 1-2. The administrative judge advised the appellant
      10 days later in an order that he needed to provide the witness’s contact
      information for the subpoena to be prepared. IAF, Tab 16 at 1-2. There is no
      evidence in the record that the appellant provided this information to anyone in
                                                                                       9

      the regional office. Under these circumstances, we find that the administrative
      judge did not deny the appellant the subpoena.

      We decline to consider evidence presented for the first time on review because
      the appellant did not exercise due diligence.
¶17         On review, the appellant presents new evidence the agency gave him in
      response to his FOIA request.         PFR File, Tab 1 at 1, 5.      Under 5 C.F.R.
      § 1201.115, the Board normally will not consider evidence submitted for the first
      time with the petition for review absent a showing that it was unavailable before
      the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980). The information provided by the appellant
      concerns other employees at the Brooke Army Medical Center who were charged
      with the offense of conduct unbecoming a federal employee. PFR File, Tab 1 at
      7. The appellant presents no evidence that he requested this information durin g
      the   discovery    process.    See     Figueroa   v.   Department    of   Homeland
      Security, 119 M.S.P.R. 422, ¶¶ 9-12 (2013) (discovery allowed for disciplinary
      action of potential comparator employees for similar misconduct because it may
      lead to information that similarly-situated employees were treated differently).
      Further, he did not file a motion to compel below and, in this regard, failed to
      exercise due diligence. See Nelson v. Veterans Administration, 22 M.S.P.R. 65,
      68-69 (1984). Because there is no evidence that the appellant sought to obtain
      this information during discovery, the Board will not consider this information on
      review.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                 10

                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to 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
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     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) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional       information         is     available      at      the       court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court”s Rules of Practice, and Forms 5, 6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           11

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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