                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES HANES,                                    DOCKET NUMBER
                         Appellant,                  CH-0752-15-0111-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: February 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Raymond Schultz, Esquire, Belleville, Illinois, for the appellant.

           Loren H. Duffy, Esquire, Scott Air Force Base, Illinois, 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. 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 the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant held the position of Information Technology Specialist for the
     agency’s 375th Airlift Wing at Scott Air Force Base. Initial Appeal File (IAF),
     Tab 1 at 1, Tab 8 at 8. In March 2014, the agency reprimanded him for sexual
     discrimination and harassment of a coworker. 2 IAF, Tab 8 at 29-31. Underlying
     the reprimand was an allegation that the appellant granted computer systems
     access to a homosexual coworker by giving him a post-it note with the password
     “SmithisGay1.”      IAF, Tab 9 at 23.          Approximately 5 months later, in
     August 2014, another coworker, K.S., filed a sexual harassment complaint against
     the appellant.   IAF, Tab 8 at 25.       The complaint alleged that the appellant
     approached K.S. and said, “Do you know what would make your day even
     better . . . a blowjob, now get on your knees.” Id. It further alleged that the
     appellant put his hand on the shoulder of K.S. and “push[ed] down as if to signal
     [K.S.] to get on [his] knees.” Id.    Based upon that incident, the agency charged
     the appellant with conduct unbecoming and proposed his removal. Id. at 21-22.
     After the appellant responded, the deciding official sustained the proposed
     removal. Id. at 10-20.

     2
       The agency initially processed the action as a 3-day suspension, but an alternative
     dispute resolution panel reduced the penalty to a letter of reprimand. IAF, Tab 8 at 26,
     29, Tab 9 at 23.
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¶3         The appellant timely filed the instant appeal. IAF, Tab 1. He admitted the
     conduct underlying the charge, but disputed the penalty and presented a harmful
     error affirmative defense. E.g., IAF, Tab 10 at 4-5. After holding the requested
     hearing, the administrative judge affirmed his removal.           IAF, Tab 14, Initial
     Decision (ID). The appellant has filed a petition for review. Petition for Review
     (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶4         On review, the appellant alleges that his comments and actions were a poor
     attempt at humor in the workplace, but the deciding official interpreted them
     literally. PFR File, Tab 1 at 2-4. According to the appellant, he was unaware of
     that literal interpretation until the deciding official testified below, and this
     amounts to a Ward/Stone due process violation. Id. (citing Ward v. U.S. Postal
     Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance
     Corporation, 179 F.3d 1368 (Fed. Cir. 1999)). 3 We disagree.
¶5         When an agency intends to rely on aggravating factors as the basis for the
     imposition of a penalty, such factors should be included in the advance notice of
     adverse action so that the employee will have a fair opportunity to respond to
     those factors before the agency’s deciding official. Lopes v. Department of the
     Navy, 116 M.S.P.R. 470, ¶ 5 (2011). Our reviewing court has explained that, if
     an employee has not been given “notice of any aggravating factors supporting an
     enhanced penalty,” an ex parte communication with the deciding official


     3
       The appellant’s petition also poses the following questions: “Is the penalty of removal
     harsh, unreasonable, and/or punitive?” and “Should the penalty of removal be mitigated
     to a lesser discipline due to the appellant’s long tenure of over twenty years, and prior
     record of reprimand?” PFR File, Tab 1 at 2. However, the appellant failed to present
     any corresponding arguments, and we discern no basis for disturbing the administrative
     judge’s well-reasoned penalty analysis. See ID at 10-17; see generally Alaniz v. U.S.
     Postal Service, 100 M.S.P.R. 105, ¶ 16 (2005) (recognizing that removal may be an
     appropriate penalty, even for relatively minor misconduct, for an employee with a
     record of prior discipline); cf. Sublette v. Department of the Army, 68 M.S.P.R.
     82, 89-90 (1995) (mitigating a removal to a demotion for inappropriate remarks where
     factors such as the employee’s mental condition and the absence of prior progressive
     discipline weighed in favor of the lesser penalty).
                                                                                       4

     regarding such factors may constitute a constitutional due process violation
     because it potentially deprives the employee of notice of all the evidence being
     used against him and the opportunity to respond to it. Ward, 634 F.3d at 1280
     (citing Stone, 179 F.3d at 1376).
¶6        The appellant suggests that he was surprised to learn, at his hearing, that his
     comments and actions were interpreted as something other than a joke. PFR File,
     Tab 1 at 2-4. We are not persuaded. The facts of this case differ from those in
     which an employee is on notice of one charge, but a deciding official treats that
     charge as something altogether different in determining the appropriate penalty.
     Cf. Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12
     (2012) (finding a Ward/Stone violation where the deciding official relied on
     portions of a table of penalties concerning a charge other than the one brought
     against the employee and referenced in the notice of proposed removal); Culley v.
     Defense Logistics Agency, 60 M.S.P.R. 204, 214-15 (1993) (finding that the
     deciding official erred by treating an “unauthorized possession of government
     property” charge as theft in determining an appropriate penalty); Dubiel v. U.S.
     Postal Service, 54 M.S.P.R. 428, 431-32 (1992) (finding that the deciding official
     erred by treating a specific charge of “improperly addressing” a subordinate by
     calling her “sweet thing” as if it were a charge of sexual harassment while
     assessing the appropriate penalty).
¶7        The agency did not charge the appellant with telling a joke. It proposed his
     removal for “conduct unbecoming” based upon his directing K.S. to perform a sex
     act on demand.    IAF, Tab 8 at 21.     In addition to describing the underlying
     comments and actions, the proposal notice characterized the appellant’s conduct
     as “inappropriate,” “demeaning,” and “unprofessional.”        Id.   The supporting
     material included the sexual harassment complaint from K.S., which included the
     declaration, “I was annoyed and irritated by the conversation, but when [the
     appellant] decided to add the unwanted physical touch, I was disgusted and
     offended.”   Id. at 23-25.   The appellant had the opportunity to respond, and
                                                                                  5

largely did so by asserting that his comments and actions were bad humor. Id.
at 20. The fact that the deciding official discounted that explanation does not
amount to the revelation of a previously undisclosed aggravating factor or due
process violation. Id. at 12-18; Hearing Transcript (HT) at 75-76, 84, 86; see
also HT at 95. The appellant may have assumed that all relevant parties believed
he was joking, PFR File, Tab 1 at 2, but that is by no fault of the agency. In
addition, as found by the deciding official and the administrative judge, the fact
that the appellant persisted in his belief that “he was subjectively operating in a
workplace atmosphere that allowed the type of behavior he engaged in . . . was
part of the problem,” ID at 14, was one of the reasons why the agency and the
administrative judge properly sustained the charges and imposed the removal
penalty under the circumstances. Accordingly, we affirm the initial decision.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          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
                                                                                 6

title 5 of the U.S. 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 U.S. 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems 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.
