       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                 WILLIAM T. JONES,
                      Petitioner,

                            v.

    ENVIRONMENTAL PROTECTION AGENCY,
                  Respondent.
            ______________________

                       2012-3167
                 ______________________

    Petition for review of an arbitrator’s decision in FMCS
No. 11-58940 by Jerome H. Ross.
                  ______________________

                  Decided: April 3, 2013
                 ______________________

   WILLIAM T. JONES, of Stone Mountain, Georgia, pro se.

    JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Principal Depu-
ty Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and STEVEN J. GILLINGHAM, Assistant Director.
Of counsel on the brief was KAROL S. BERRIEN, Associate
2                                      WILLIAM JONES   v. EPA

Regional Counsel, Environmental Protection Agency, of
Atlanta, Georgia.
                 ______________________

Before RADER, Chief Judge, LOURIE, and WALLACH, Circuit
                        Judges.
PER CURIAM
    William T. Jones appeals the arbitrator’s decision af-
firming the Environmental Protection Agency’s (“EPA” or
“the Agency”) decision to remove Mr. Jones from his
position of Attorney-Advisor, GS-14, with the Region 4
Office of Environmental Accountability. Because the
arbitrator’s decision is supported by substantial evidence,
this court affirms.
                      BACKGROUND
    Mr. Jones began working as an attorney advisor with
the EPA in June 1993. The Office of Inspector General
(“OIG”) initiated an investigation into Mr. Jones following
a complaint from another EPA employee Femi Akindele,
whom Mr. Jones had earlier represented in a family
matter. 1 There had been a fee dispute between Mr.
Akindele and Mr. Jones, in which Mr. Jones, in turn, was
represented by another EPA lawyer, Richard Glaze. At
some point, Mr. Akindele became concerned that Mr.
Glaze had accessed Mr. Akindele’s confidential financial
disclosure form and improperly relayed its information to
Mr. Jones.



    1  Mr. Jones had been granted authorization to prac-
tice law outside his duties as an EPA attorney advisor in
the areas of family law, real property, and business law.
However, even with such authorization, Mr. Jones was
prohibited from using official government time, equip-
ment, and facilities to facilitate his outside law practice.
 WILLIAM JONES   v. EPA                                 3
    As part of its investigation into this matter, the OIG
examined Mr. Jones’s work computer and email database,
and discovered messages relating to Mr. Jones’s outside
practice of law that were sent during EPA work hours and
a multitude of inappropriate e-mail messages, some of
which attached sexually explicit photographs.
    The OIG interviewed Mr. Jones about what it had
found. See Petitioner’s Appendix (“A”) 161, 167. In a
sworn statement to OIG, Mr. Jones denied practicing
family law at the workplace and denied that he had seen
Mr. Akindele’s financial disclosure form.
     On June 21, 2010, the EPA sent Mr. Jones a Notice of
Proposed Removal (“NOPR”) alleging five charges: (1) lack
of candor/misrepresentation of facts; (2) misuse of gov-
ernment property; (3) misuse of official time; (4) improper
use of EPA title, address, and phone number; and (5)
inappropriate access to confidential information. Follow-
ing a reply by Mr. Jones, the EPA issued a final action
removing Mr. Jones. Mr. Jones’s union invoked arbitra-
tion to challenge the removal decision. The arbitrator
sustained all charges, and affirmed the penalty of remov-
al. In re Arbitration Between Envtl. Prot. Agency and Am.
Fed’n of Gov’t Emp., FMCS Case No. 11-58940 (June 2,
2012) (Ross, Arb.) (“Arbitrator’s Decision”). Mr. Jones
timely appealed. This court has jurisdiction pursuant to 5
U.S.C. §§ 7121(f) and 7703.
                          DISCUSSION
     This court reviews an appeal from an arbitrator’s de-
cision under the same standard of review that governs
appeals from the Merit Systems Protection Board
(“Board”). 5 U.S.C. § 7121(f); Norris v. Sec. & Exch.
Comm’n, 675 F.3d 1349, 1352–53 (Fed. Cir. 2012). Thus,
this court may set aside the arbitrator’s decision only to
the extent it is found to be “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule
4                                         WILLIAM JONES   v. EPA
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703. The majority of
Mr. Jones’s contentions on appeal are best interpreted to
argue that the arbitrator’s findings are unsupported by
substantial evidence. 2 He also argues removal was an
improper penalty.
 1. Substantial Evidence Supports the Arbitrator’s Find-
ings That All Five Charges Were Proven By Preponderant
                        Evidence
    A. Charge 1: Lack of Candor/Misrepresentation of Facts
     Substantial evidence supports the arbitrator’s finding
sustaining charge 1, which alleged that Mr. Jones’s re-
sponses during the OIG investigation lacked candor
and/or deliberately represented a material fact. Arbitra-
tor’s Decision at 7. In one of Mr. Jones’s sworn state-
ments to the OIG, he stated: “I do not practice family law
at my workplace.” A.167. This contradicts record evidence
of numerous e-mail messages to and from Mr. Jones
during EPA work hours relating to his outside law prac-
tice. See, e.g., Supplemental Appendix (“S.A.”) 9–20, 27–
48, 221–315; see also Arbitrator’s Decision at 6–7 (discuss-
ing the investigation of Mr. Jones’s computer, which
yielded “a nearly immeasurable volume of materials
relating to [Mr. Jones’s] outside real estate practice and
law business.”). Mr. Jones also stated that he had not
“seen” Mr. Akindele’s financial disclosure form. Even if
this statement was not a direct misrepresentation, it
supports the lack of candor finding because it conflicts

      2  Alongside arguments that certain findings were
unsupported by the record, see, e.g., Pet’r’s Br. at 8 (argu-
ing charge 2 was “not supported by the record”), Mr. Jones
repeatedly states, without explanation, that the arbitra-
tor’s decision was “erroneous in that it engage[d] in im-
proper bootstrapping . . . .” Pet’r’s Br. at 5; see also Pet’r’s
Br. at 8, 9, 12, 13 (making the same argument).
 WILLIAM JONES   v. EPA                                   5
with the arbitrator’s finding in charge 5 that Mr. Glaze
had provided Mr. Jones with confidential information
from that document. See Ludlum v. Dep’t of Justice, 278
F.3d 1280, 1284 (Fed. Cir. 2002) (lack of candor is a
“broader and more flexible concept” than affirmative
misrepresentation, and “may involve a failure to disclose
something that, in the circumstances, should have been
disclosed in order to make the given statement accurate
and complete.”).
    Mr. Jones argues that the arbitrator improperly con-
sidered out of context his sworn statement that he “may
have used [his] email less than 5 times to communicate
with [Mr. Akindele]” (“the ‘five times’ statement”). 3 A.167;
Petitioner’s Informal Brief (“Pet’r’s Br.”) at 3–4. Although
the “five times” statement referred only to Mr. Akindele,
charge 1 alleged, in part, that Mr. Jones claimed he had
used his EPA e-mail only five times for all outside clients.
A.2. The arbitrator noted this mischaracterization, but
nevertheless found that the lack of candor charge was
proven by, for example, Mr. Jones’s inaccurate statement
that he did not do family law at the EPA workplace. A.8.
As discussed above, substantial evidence supports this
decision. See LaChance v. Merit Sys. Prot. Bd., 147 F.3d
1367, 1371 (Fed. Cir. 1998) (quoting Burroughs v. Dep’t of
Army, 918 F.3d 170, 172 (Fed. Cir. 1990)) (“‘[W]here more
than one event or factual specification is set out to sup-
port a single charge, proof of one or more, but not all, of
the supporting specifications is sufficient to sustain the
charge.’”).

    3  Relatedly, Mr. Jones argues he was denied the op-
portunity to cross-examine the OIG investigators, which
he maintains would have shown the “five times” state-
ment referred to Mr. Akindele only. Pet’r’s Br. at 6–7.
This contention is meritless because the union, acting as
Mr. Jones’s representative at the time, could have called
those investigators as witnesses if it chose.
6                                       WILLIAM JONES   v. EPA
      B. Charge 2: Misuse of Government Property
     The arbitrator found that Mr. Jones engaged in “ma-
jor misuse of government property” by receiving and
sending “a significant volume” of inappropriate and/or
sexually explicit material and by engaging in outside legal
and real estate work on his government-issued computer.
Arbitrator’s Decision at 10. Substantial evidence sup-
ports this finding, both with respect to Mr. Jones’s inap-
propriate emails, see, e.g., S.A.49–210 (samples of
inappropriate e-mail messages), and his outside business,
see, e.g., S.A.27–48, 221–315 (samples of emails showing
Mr. Jones engaging in outside business on his work
computer). Mr. Jones’s argument that he was not the
initiator of much of the inappropriate e-mail activity does
not negate this evidence. Although the arbitrator agreed
it was a “stretch of the facts” to characterize Mr. Jones as
“‘the hub’ of the email activity,” he nonetheless found Mr.
Jones’s computer misuse “involved a significant volume of
material” and “constituted a major misuse of government
property.” Arbitrator’s Decision at 10. The record sup-
ports this finding.
    Mr. Jones next argues that “the Agency did not pro-
duce objective criteria defining an ‘inappropriate joke’ or a
‘sexually explicit photograph.’” Pet’r’s Br. at 8. Although
such phrases are subjective to some extent, many of Mr.
Jones’s emails were beyond the pale. See, e.g., S.A.181–
210 (email attaching photos of a naked woman in lewd
poses); S.A.150–151 (graphic “jokes” about adulterous
women); S.A.157–71 (a “joke” featuring photographs of
muscular women, and unclothed women). Accordingly,
this argument lacks merit.
           C. Charge 3: Misuse of Official Time
    The arbitrator sustained charge 3, finding that Mr.
Jones “consistently misused government property during
hours ranging from 7:06 a.m. to 4:08 p.m. with numerous
other times between those hours in the course of his
 WILLIAM JONES   v. EPA                                  7
workdays.” Arbitrator’s Decision at 11. In response to the
union’s argument that Mr. Jones was permitted some
personal time during breaks throughout the day, the
arbitrator found “it is clear that the time spent [working
on outside employment] was not within the periods of one
30-minute lunch break and two other 15-minute breaks.”
Id. Record evidence showing Mr. Jones repeatedly en-
gaged in outside work at various times throughout the
day supports this finding. See, e.g., S.A.27–48, 221–315.
Additionally, Mr. Jones’s argument that no evidence
shows the exact amount of time spent on outside activities
is unpersuasive, because doing outside work was prohib-
ited at all times. See A.337 (EPA policy prohibiting the
use of government office equipment in support of “‘for
profit’ activities such as outside employment or business-
es (e.g., selling real estate, preparing tax returns for a
fee).”).
  D. Charge 4: Improper Use of EPA Title, Address, and
                    Phone Number
    The arbitrator found Mr. Jones had repeatedly
transmitted documents relating to his outside business
using his EPA signature, and thus sustained charge 4.
That Mr. Jones had apparently ceased using his EPA
phone number in court filings several years earlier, and
that the EPA signature was automatically included in
outgoing emails were “mitigating factors” that did “not
establish a basis for not sustaining the charge where the
emails were being sent in [Mr. Jones’s] official capacity as
an EPA attorney and he was aware of the prohibition
against such conduct.” Arbitrator’s Decision at 12; A.170.
Mr. Jones’s conclusory argument that this finding “as-
sumes incompetent evidence and/or evidence that was not
submitted to the record” is unpersuasive in light of the
substantial record evidence showing Mr. Jones’s use of his
EPA signature block and/or EPA telephone number in
outgoing emails related to his outside business. See, e.g.,
S.A.29, 41, 223, 247, 254, 258, 265, 267, 268–69.
8                                      WILLIAM JONES   v. EPA
    E. Charge 5: Inappropriate Access to Confidential
                      Information
     Charge 5 alleged that Mr. Jones gained “inappropri-
ate access” to Mr. Akindele’s confidential financial infor-
mation. Arbitrator’s Decision at 4.         The arbitrator
sustained charge 5 after considering all submitted evi-
dence, including Mr. Jones’s testimony, Mr. Akindele’s
testimony, and, in particular, Mr. Glaze’s testimony that
he obtained Mr. Akindele’s financial disclosure form and
“may have” disclosed its contents to Mr. Jones. Arbitra-
tor’s Decision at 13. Mr. Jones argues, again without
explanation, that this conclusion “assume[d] incompetent
evidence and/or evidence that was not submitted into the
record . . . .” Pet’r’s Br. at 12. To the contrary, the evi-
dence cited by the arbitrator provides substantial support
for this finding. See, e.g., A.169–170 (Mr. Glaze’s inter-
view) (stating that he obtained Mr. Akindele’s financial
disclosure form “and looked at it ‘a few months ago’” and
“may have said something” to Mr. Jones about it); A.159
(Mr. Akindele’s interview) (explaining that he did not
know how Mr. Jones could have learned the specific
number of his rental homes absent improper access to the
information in his financial disclosure). 4



    4 Mr. Jones argues on appeal that “the Arbitrator
failed to appropriately assess Mr. Akindele’s credibility,”
because other evidence (particularly Mr. Jones’s own
testimony) contradicted Mr. Akindele’s testimony. Pet’r’s
Br. at 15. However, it is not the function of this court to
“re-weigh conflicting evidence,” so this argument does not
provide a basis for upsetting the arbitrator’s factual
findings. Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002) (“The credibility determinations of an
administrative judge are virtually unreviewable on ap-
peal.”)).
 WILLIAM JONES   v. EPA                                  9
    The arbitrator also correctly found that EPA’s use of a
redacted OIG Report did not impinge upon Mr. Jones’s
due process rights. The OIG Report was redacted because
it pertained to multiple employees other than Mr. Jones,
whose statements were statutorily protected from release.
Mr. Jones does not appear to contest that, until he trig-
gered in camera review before the arbitrator, EPA offi-
cials deciding his case relied only on the redacted
document. 5 Pet’r’s Br. at 12–13 (quoting Arbitrator’s
Decision at 15) (reciting and not appearing to dispute
these facts from the Arbitrator’s Decision). Following in
camera review, the arbitrator affirmed the propriety of
using the redacted document. Arbitrator’s Decision at 15.
     On appeal, Mr. Jones argues the arbitrator should
have considered his due process argument in accordance
with Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed.
Cir. 1998). In Stone, this court held that a deciding
official’s ex parte receipt of new and material evidence
constituted a violation of the employee’s due process
rights. Id. at 1377 (However, “[i]f the Board finds that an
ex parte communication has not introduced new and
material information, then there is no due process viola-
tion.”). In this case, unlike Stone, the deciding officials
did not appear to have ex parte access to the unredacted
report, but instead relied on the redacted report in pursu-
ing the charges against Mr. Jones. Moreover, there is no
error in the arbitrator’s implicit finding that the redacted
portion of the report was not “new and material evidence”
pursuant to the Stone standard. The arbitrator found Mr.
Jones had the opportunity to review and respond to the
unredacted document, and the deciding officials testified
that “they would not have decided the case differently

   5     Rather, Mr. Jones appears to dispute the arbitra-
tor’s finding that many sources of evidence other than the
OIG Report supported the five charges against Mr. Jones.
Pet’r’s Br. at 13.
10                                      WILLIAM JONES   v. EPA
regardless of information in the unredacted report.”
Arbitrator’s Decision at 15; see Stone, 179 F.3d at 1377
(factors to consider in determining whether evidence is
“new and material” include “whether the employee knew
of the error and had a chance to respond to it[,] and
whether the ex parte communications were of the type
likely to result in undue pressure upon the deciding
official to rule in a particular manner.”). Accordingly, this
case does not present a due process violation under
Stone. 6
     Finally, Mr. Jones argues that a note from the OIG
agent conducting the investigation was improperly with-
held from him during the grievance process. Pet’r’s Br. at
2–3. EPA provided this disputed document to Mr. Jones’s
union attorney prior to arbitration and it was admitted
into evidence at the hearing without objection. Mr. Jones
has thus waived this argument by failing to raise it before
the arbitrator. Zingg v. Dep’t of the Treasury, 388 F.3d
839, 843 (Fed. Cir. 2004).
2. The Arbitrator Did Not Err In Upholding the Agency’s
              Chosen Penalty of Removal
    “It is a well-established rule of civil service law that
the penalty for employee misconduct is left to the sound

     6  EPA also argues that the redacted portions of the
report are not “new and material” because the arbitrator
found “‘no evidence’” that Mr. Jones’s “‘lack of knowledge
of the contents of the redacted portions . . . disadvantaged
him in any way.’” Respondent’s Br. at 22 (quoting Arbitra-
tor’s Decision at 15). However, the lack of harm to Mr.
Jones seems more pertinent to whether he suffered preju-
dice from the asserted due process violation, and Stone
instructs that “such a violation is not subject to the harm-
less error test.” 179 F.3d at 1377. In any event, this
prejudice analysis is irrelevant, because there was no due
process violation in this case.
 WILLIAM JONES   v. EPA                                 11
discretion of the agency.” Miguel v. Dep’t of Army, 727
F.2d 1081, 1083 (Fed. Cir. 1984). The Board—or the
arbitrator in this case—is tasked with assessing whether
the agency’s penalty is within the “bounds of reasonable-
ness” when considered in light of the relevant Douglas
factors. Hayes v. Dep’t of Navy, 727 F.2d 1535, 1540 (Fed.
Cir. 1984); see also Douglas v. Veterans Admin., 5
M.S.P.B. 313, 332 (1981) (listing twelve factors relevant to
the reasonableness of an agency’s chosen penalty). Upon
consideration of such factors, including Mr. Jones’s “egre-
gious violations” and supervisors’ resulting “lack of confi-
dence in [his] ability to perform assigned duties,” the
arbitrator affirmed the agency’s chosen penalty of remov-
al. Arbitrator’s Decision at 16–17 (applying the relevant
Douglas factors).
    Mr. Jones argues that removal was improper, because
other EPA employees and supervisors misused govern-
ment time and equipment by participating in an annual
NCAA office basketball pool. Pet’r’s Br. at 14; see Wil-
liams v. Social Sec. Admin., 586 F.3d 1365, 1368 (Fed.
Cir. 2009) (quoting Douglas, 5 M.S.P.B. at 332) (“One of
the Douglas factors that agencies are required to consider
in determining an appropriate penalty for employee
misconduct is ‘(6) consistency of the penalty with those
imposed upon other employees for the same or similar
offences.’”). The arbitrator, however, found that partici-
pating in the annual office basketball pool was not similar
to engaging in outside business during work hours or
sending inappropriate emails.       The arbitrator acted
within his discretion in so finding, and in affirming the
penalty of removal. See Kumferman v. Dep’t of Navy, 785
F.2d 286, 291-92 (Fed. Cir. 1986) (quoting DeWitt v. Dep’t
of Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984)) (holding
the Board’s affirmance of the penalty of removal was
“within the discretionary authority of the Board ‘because
the record reflects a reasoned concern for the factors
appropriate to evaluating a penalty.’”).
12                                  WILLIAM JONES   v. EPA
                     CONCLUSION
    Having considered Mr. Jones’s remaining arguments
and finding them unpersuasive, this court affirms the
arbitrator’s decision upholding Mr. Jones’s removal from
the EPA.
                     AFFIRMED
