                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JASON KRAFT,                                    DOCKET NUMBER
                         Appellant,                  DA-0752-14-0259-I-1

                  v.

     DEPARTMENT OF                                   DATE: February 26, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Sean Lafferty, Esquire, Burlington, Massachusetts, for the appellant.

           Elizabeth J. Head, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     sustained his removal from his position as an Air Traffic Control Specialist.
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application 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).

                                      BACKGROUND
¶2         Prior to his removal, the appellant was employed as an Air Traffic Control
     Specialist in Austin, Texas. The Air Traffic Manager at that facility proposed the
     appellant’s removal on a charge of criminal conduct. Initial Appeal File (IAF),
     Tab 5, Subtab 4e at 76. As described in the proposal notice, the appellant on two
     occasions engaged in online communication with individuals he believed were
     13- or 14-year-old girls, which included not only sexually explicit conversation,
     but also his engaging in lewd conduct via webcam. Id. at 76-77. On the second
     occasion, when he believed he also was communicating with the girl’s mother,
     the appellant made arrangements to meet both of them.           Id. at 77.   He was
     arrested when he arrived at the designated location, later pleaded guilty to
     Attempted Online Solicitation of a Minor under the Texas Penal Code, and was
     sentenced to 10 years deferred adjudication, 90 days in the county jail, and a fine.
     Id.   The Air Traffic Manager cited the agency’s Standards of Conduct, which
     state that employees are expected to conduct themselves in a manner that will not
     adversely reflect on the agency’s ability to discharge its mission, cause
                                                                                          3

     embarrassment to the agency, or cause the public or managers to question the
     employee’s reliability, judgment, and trustworthiness.       Id.   He stated that the
     appellant’s criminal conduct was serious and cast grave doubt on his judgment,
     trustworthiness, integrity, and reliability. Id.    In his response to the proposed
     removal, the appellant did not dispute any of the factual allegations or that he had
     pleaded guilty and was sentenced as described above.          IAF, Tab 5, Subtab 4f
     at 72-73. He instead argued that there was no nexus between his criminal conduct
     and the efficiency of the service. Id. A decision to remove the appellant was
     made on January 14, 2014, and effected on January 25, 2014.               IAF, Tab 5,
     Subtabs 4b-4c at 62, 65-68. 2
¶3        In finding that the agency established that disciplinary action would
     “promote the efficiency of the service,” as required by 5 U.S.C. § 7513(a), the
     administrative judge stated that this nexus requirement is satisfied when the
     grounds for the action relate to either the employee’s ability to accomplish his
     duties or some other legitimate government interest and that removal is a
     reasonable penalty for off-duty misconduct that adversely affects the agency’s
     trust and confidence in the appellant’s job performance or that interferes with or
     adversely affects the agency’s mission. IAF, Tab 21, Initial Decision (ID) at 8.
     The administrative judge found that agency management reasonably lost
     confidence in the appellant’s reliability, integrity, trustworthiness, and job
     performance because he engaged in criminal conduct, not merely private
     dishonesty, and that the agency therefore satisfied the nexus requirement.          ID
     at 8-9. The administrative judge further found that the agency did not commit
     harmful procedural error by violating its Manager’s Guide to Discipline or a
     provision of the applicable collective bargaining agreement. ID at 4-8. Finally,


     2
       We note that the same person was both the proposing and deciding official. The
     Board has held that this is permissible in chapter 75 proceedings. Fontes v. Department
     of Transportation, 51 M.S.P.R. 655, 667 n.10 (1991); Davis v. Department of
     Transportation, 39 M.S.P.R. 470, 479, aff’d, 892 F.2d 1051 (Fed. Cir. 1989) (Table).
                                                                                      4

     the administrative judge determined that the removal penalty was within the
     bounds of reasonableness. ID at 9-10.
¶4        The appellant filed a timely petition for review in which he challenges the
     administrative judge’s determination that nexus was established between his
     off-duty misconduct and the efficiency of the service and that the removal penalty
     was reasonable. 3 Petition for Review (PFR) File, Tab 1.

                                        ANALYSIS
     The administrative judge correctly found that the agency established nexus
     between the appellant’s off-duty misconduct and the efficiency of the service.
¶5        The Board has long held that an agency may show nexus between off-duty
     misconduct and the efficiency of the service by any of three means:           (1) a
     rebuttable presumption in certain egregious circumstances; (2) preponderant
     evidence that the misconduct adversely affects the appellant’s or coworkers’ job
     performance or the agency’s trust and confidence in the appellant’s job
     performance; or (3) preponderant evidence that the misconduct interfered with or
     adversely affected the agency’s mission.    E.g., Scheffler v. Department of the
     Army, 117 M.S.P.R. 499, ¶ 10 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013);
     Kruger v. Department of Justice, 32 M.S.P.R. 71, 74 (1987).          Although the
     agency’s proposal notice relied on both of the first two criteria, IAF, Tab 5
     at 77-78, the administrative judge relied only on the second criterion. ID at 8-10.
     In finding justification for the agency’s position, the administrative judge found
     that it had properly relied on its Standards of Conduct, which provide that
     employees are expected to conduct themselves in a manner that will not “cause
     the public or managers to question the employee’s reliability, judgment, and
     trustworthiness.”   See id. (quoting the agency’s Standards of Conduct, IAF,
     Tab 5, Subtab 4e at 78). Here, the record reflects that the appellant’s off-duty

     3
       We concur with the administrative judge’s determination that the removal penalty
     did not exceed the bounds of reasonableness for the reasons stated in the initial
     decision. ID at 8-10.
                                                                                        5

     misconduct reasonably led his managers to question his reliability, judgment,
     and trustworthiness.
¶6          The appellant devotes most of his petition for review to arguing that the
     agency failed to establish nexus under the first criterion, i.e., a rebuttable
     presumption for certain egregious conduct. PFR File, Tab 1 at 6-12. We address
     his arguments in this regard because there is not always a clear distinction
     between the first and second Kruger criteria, in that an employee’s egregious
     off-duty misconduct may also lead managers to lose trust and confidence in his
     performance. The Board and its reviewing court have found nexus for egregious
     off-duty conduct in a number of cases similar to the present case. See Allred v.
     Department of Health & Human Services, 786 F.2d 1128 (Fed. Cir. 1986)
     (employee pleaded nolo contendere to a charge of child molestation involving a
     12-year old boy); Graybill v. U.S. Postal Service, 782 F.2d 1567 (Fed. Cir. 1986);
     Williams v. General Services Administration, 22 M.S.P.R. 476 (1984) (employee
     pled guilty to a charge of sexual assault on a child), aff’d, 770 F.2d 182 (Fed. Cir.
     1985) (Table); Hayes v. Department of the Navy, 15 M.S.P.R. 378 (1983)
     (employee convicted of assault and battery of a 10-year old girl), aff’d, 727 F.2d
     1535 (Fed. Cir. 1984).      Although the appellant’s behavior did not involve a
     physical assault on a child, we conclude that his criminal misconduct was
     sufficiently egregious to meet this criterion.
¶7          The appellant cites an MSPB initial decision and two arbitration decisions
     for his contention that his conduct did not establish nexus under the egregious
     misconduct criterion. PFR File, Tab 1 at 8-11. However, MSPB initial decisions
     have   no   precedential   value.     Roche      v. Department   of   Transportation,
     110 M.S.P.R. 286, ¶ 13 (2008), aff’d sub nom. Roche v. Merit Systems Protection
     Board, 596 F.3d 1375 (Fed. Cir. 2010); Rockwell v. Department of Commerce,
     39 M.S.P.R. 217, 222 (1988). The Board gives great deference to an arbitrator’s
     factual determinations and will reverse or modify an arbitration decision only
     when the arbitrator has erred as a matter of law in interpreting a civil service law,
                                                                                     6

     rule, or regulation. E.g., Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 8
     (2014); Vena v. Department of Labor, 111 M.S.P.R. 165, ¶ 5 (2009). Arbitrators
     must, however, apply the same substantive rules that the Board applies.
     Cornelius v. Nutt, 472 U.S. 648, 660 (1985); Newman v. Corrado, 897 F.2d 1579,
     1582 (Fed. Cir. 1990).    The Board and Federal Circuit decisions cited in the
     preceding paragraph, not the arbitration decisions cited by the appellant, are
     controlling authority for establishing nexus for off-duty misconduct.
¶8         As the appellant points out, the commission of egregious off-duty
     misconduct creates a rebuttable presumption of nexus, not a conclusive one, and
     can be overcome by evidence showing an absence of adverse effect on service
     efficiency.   See Allred, 786 F.2d at 1131; Johnson v. Department of Health &
     Human Services, 22 M.S.P.R. 521, 524 (1984); Doe v. National Security Agency,
     6 M.S.P.R. 555, 561 (1981), aff’d sub nom. Stalans v. National Security Agency,
     678 F.2d 482 (4th Cir. 1982).       The appellant asserts that he rebutted any
     presumption of nexus, in that the deciding official admitted that the appellant’s
     off-duty misconduct did not involve any publicity or notoriety that might damage
     the reputation of the agency and that his coworkers were not aware of the
     misconduct.    PFR File, Tab 1 at 3; IAF, Tab 5, Subtab 4c at 66.       The mere
     absence of publicity or notoriety and coworkers’ ignorance is not sufficient under
     the facts of this case to rebut the bare presumption of nexus created by egregious
     conduct. See Allred, 786 F.2d at 1131-32; Johnson, 22 M.S.P.R. at 529-30; Doe,
     6 M.S.P.R. at 562. As set forth above, the appellant’s off-duty misconduct led his
     managers to question his reliability, judgment, and trustworthiness. See Allred,
     786 F.2d at 1131-32 (evidence of good performance between an arrest for child
     molestation and an indefinite suspension, as well as absence of adverse publicity,
     were insufficient to rebut the presumption of nexus when “pitted against the
     direct relationship of his misconduct to the agency’s mission and the showing that
     his supervisors had lost trust and confidence in him.”).
                                                                                           7

     The appellant did not establish harmful procedural error or that violation of an
     agency policy or collective bargaining agreement precluded a finding that the
     agency established nexus.
¶9         The appellant alleges that the agency’s Guide to Discipline precluded the
     agency from taking disciplinary action for his off-duty misconduct. PFR File,
     Tab 1 at 12-14. 4 The Guide included the following provisions:
           The agency’s Standards of Conduct states [sic] that all employees are
           responsible for conducting themselves in a manner which will ensure
           that their activities do not reflect discredit on the federal government
           or the FAA. However, failure to meet this standard when off duty
           does not always mandate discipline. You have to be able to show the
           required nexus. Even instances of criminal conduct do not always
           establish nexus. This may seem shocking to some and not to others
           but there are convicted felons working in the federal government. A
           criminal conviction, by itself, does not establish nexus. What the
           employee did which resulted in the criminal conviction has to be
           evaluated. However, there are some criminal behaviors that are so
           egregious, i.e. murder, where nexus is presumed.
           …
           There have been several third party litigations involving abhorrent or
           deviant off-duty behavior by FAA employees.             This behavior
           included sexual molestation, incest with a child, and taking indecent
           liberties with a child. In each of these cases, a third party decided
           the employee’s ability to make the kind of decisions required by an
           Air Traffic Control Specialist was not affected by the off-duty
           misconduct.      Therefore, no nexus was established and the
           disciplinary actions were overturned.           However, the nexus
           requirement would have certainly been met if an employee’s job
     4
       The appellant argues that the admin istrative judge erred in treating h is contentions
     with respect to the Guide to Discipline and the terms of the collective bargaining
     agreement as constituting an allegation of harmful procedural error under 5 U.S.C.
     § 7701(c)(2)(A). PFR File, Tab 1 at 15. He argues that these authorities are pertinent
     only to whether nexus was established between the charged conduct and the efficiency
     of the service. I d. He later cited the proposition that an agency is required to act in
     accordance with its procedures and collective bargaining agreements. PFR File, Tab 1
     at 16. Although there is support for this proposition, it is pertinent to whether the
     agency has committed harmful procedural error. It does not matter whether these
     authorities are discussed in connection with the nexus requirement of 5 U.S.C.
     § 7513(a) or whether the agency committed harmful procedural error under 5 U.S.C.
     § 7701(c)(2)(A).
                                                                                      8

            duties included responsibilities such as managing a childcare center,
            providing Employee Assistance Program services, or providing
            conduct and discipline advice to managers.
      PFR File, Tab 1 at 13-14; IAF, Tab 20, Subtab H at 102-03.
¶10        We note that the first paragraph quoted above does not in any way conflict
      with our jurisprudence about creating a rebuttable presumption of nexus when an
      employee has engaged in egregious off-duty conduct.          The reasoning of the
      second paragraph would tend to support a finding of no nexus and is in accord
      with the arbitration decisions cited by the appellant. As the administrative judge
      found, however, it is merely a “Guide” and does not state any rule, regulation, or
      collective bargaining procedure. ID at 6; IAF, Tab 20, Subtab H at 100-101.
¶11        Turning to the terms of the collective bargaining agreement, Article 10,
      section 4 provides that an employee’s off-duty misconduct shall not result in
      disciplinary action unless nexus can be shown between the employee’s off-duty
      misconduct and the efficiency of the service. IAF, Tab 5, Subtab 2 at 50. The
      collective bargaining agreement does nothing more than reiterate the nexus
      requirement of 5 U.S.C. § 7513(a).     As discussed above, that requirement has
      been met in this case.

                      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:
                                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
                                                                                  9

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
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.
