                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     AHMED A. OSMAN,                                 DOCKET NUMBER
                  Appellant,                         PH-0752-15-0030-I-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 11, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Adam D. Meshkov, Esquire, Easton, Pennsylvania, for the appellant.

           Tyler A. Gattermeyer, 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 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED by this Final Order to find
     that the appellant created a hostile work environment in violation of Title VII, we
     AFFIRM the initial decision.

                                       BACKGROUND
¶2         The appellant was formerly employed as a Sheet Metal Worker,
     WG‑3806‑08, at the agency’s Tobyhanna Army Depot (TYAD) in Tobyhanna,
     Pennsylvania.     Initial Appeal File (IAF), Tab 6 at 47.      In January 2014, a
     coworker, M.K., reported to his supervisor and the agency’s equal employment
     opportunity (EEO) office that the appellant had been harassing him by making
     obscene sexual and racial comments, thus creating a hostile work environment.
     Id. at 15.   The EEO office forwarded the matter to the military police for
     investigation.   Id. at 12.   On March 10, 2014, the investigator issued a report
     including sworn statements from the appellant, M.K., and two other TYAD
     employees, who at least partially corroborated M.K.’s account. Id. at 12-27. For
     his part, the appellant admitted to asking M.K. a sexually graphic question and to
     making a “duck face” (which was misconstrued as a blown kiss), but he otherwise
     denied M.K.’s allegations. Id.
¶3         On April 1, 2014, the agency proposed to remove the appellant for
     “Conduct Unbecoming a Federal Employee related to Violation of Tobyhanna
     Army Depot Policy Memorandum #4‑‑Equal Employment Opportunity and the
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     Prevention of Unlawful Harassment.”      Id. at 27-36.   The specification was in
     narrative form and included several allegations that the appellant harassed M.K.
     continually from about October 2013 to the present by the appellant repeatedly
     stating vulgar, disgusting comments and making obscene gestures to M.K.; and
     that M.K. had repeatedly told the appellant to stop, but the appellant persisted.
     The appellant provided an oral response, along with a handwritten note in which
     he apologized for his conduct but also asserted that “most of the allegations
     against me are not true and made up.” Id. at 38; see Refiled Appeal File (RAF),
     Tab 8 at 56. The deciding official sustained the charge and removed the appellant
     effective September 16, 2014. Id. at 38‑45.
¶4        The appellant filed a timely Board appeal, which was subsequently
     dismissed without prejudice and automatically refiled. IAF, Tabs 1, 20; RAF,
     Tab 1.   Following a hearing, the administrative judge sustained the removal,
     finding that the agency proved the charged misconduct, established nexus, and
     showed that the penalty was reasonable.       RAF, Tab 11, Initial Decision (ID).
     This petition for review followed. Petition for Review (PFR) File, Tab 1. The
     agency has responded. PFR File, Tab 3.

                                       ANALYSIS
     The agency’s charge requires proof under the Title VII standard.
¶5        When an agency charges an employee with violating its hostile work
     environment sexual harassment policy but not with violating Title VII, and the
     agency policy defines sexual harassment without explicit reference to Federal law
     and without tracking Title VII, the agency is required to prove only that the
     appellant’s conduct violated the agency’s policy.     Viens v. Department of the
     Interior, 92 M.S.P.R. 256, ¶ 6 (2002).   When, however, an agency charges an
     employee with violating its sexual harassment policy and that policy explicitly
     references the Title VII standard, including creating a hostile work environment,
     the Title VII standard must be applied, and the agency is required to prove that
                                                                                       4

     the appellant’s conduct violated Title VII. Id. Similarly, when an agency charges
     an employee with violating its hostile work environment sexual harassment policy
     and that policy tracks the language of Title VII’s regulations, even though the
     policy does not explicitly reference them, the proper standard for judging the
     alleged misconduct is that of Title VII. Id.
¶6        Here, the administrative judge found that Title VII standards do not apply
     because neither the proposal notice nor the cited agency policy refers explicitly to
     Title VII. ID at 2 n.3. However, while the policy memorandum does not refer to
     Title VII by name, it pertains to “Unlawful Harassment,” and contains a statement
     that “[u]nlawful harassment (including sexual harassment) violates Federal law.”
     RAF, Tab 8 at 53. The reference to Title VII is implicit but unmistakable. We
     therefore find that, to prove its charge, the agency must establish that the
     appellant created a hostile work environment in violation of Title VII. While the
     agency could have charged the appellant with inappropriate behavior without
     reference to the policy memorandum in question, the Board is required to review
     the agency’s decision on an adverse action solely on the grounds invoked by the
     agency, and may not substitute what it considers to be a more adequate or proper
     basis. Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989).

     The appellant’s conduct created a hostile work environment in violation of
     Title VII.
¶7        Title VII is violated when the workplace is permeated with unwelcome
     discriminatory intimidation, ridicule, and insult that is sufficiently severe or
     pervasive to alter the conditions of the victim’s employment and create an
     abusive working environment. Viens, 92 M.S.P.R. 256, ¶ 9. The standard for
     determining whether conduct violates Title VII takes a middle path between
     making actionable any conduct that is merely offensive and requiring the conduct
     to cause a tangible psychological injury.         Id.   Determining whether the
     environment is hostile or abusive must be made by examining all the
     circumstances.   Id., ¶ 10.   These include the frequency of the discriminatory
                                                                                      5

     conduct, its severity, whether it was physically threatening or humiliating, or a
     mere offensive utterance, and whether it unreasonably interfered with an
     employee’s work performance. Id. The effect on the employee’s psychological
     well-being is relevant to determining whether the victim actually found the
     environment abusive, but psychological harm is not required for a finding of
     harassment.   Id.   Simple teasing, offhand comments, and isolated incidents
     (unless extremely serious) will not amount to discriminatory changes in the terms
     and conditions of employment that constitute sexual harassment. Id.
¶8        Based on our review of the evidence, the agency clearly met its burden of
     proving that the appellant created a hostile work environment in violation of
     Title VII. In proposing the appellant’s removal, the agency described numerous
     obscene and humiliating remarks and gestures, some racially charged, that the
     appellant directed toward M.K. on a daily basis over a period of several months.
     IAF, Tab 6 at 29. The proposal notice further related that M.K. felt “creeped out”
     and “disgusted” by the appellant’s comments, that he told the appellant to stop
     making such comments, that he tried to keep his distance from the appellant, that
     he requested that the appellant be moved to another shop, and that he believed the
     appellant created a hostile work environment.     Id.   The administrative judge
     credited the agency’s version of events over the appellant’s, based in part on his
     observations of witness demeanor, and the appellant has not identified
     sufficiently sound reasons to overturn his credibility determinations.         See
     Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Under
     these circumstances, it is unnecessary to remand the appeal for further
     development of the record, and we may sustain the charge at the Board level. See
     Booker v. Department of Veterans Affairs, 110 M.S.P.R. 72, ¶ 7 (2008).

     The removal action is sustained.
¶9        It is well settled that there is a sufficient nexus between an employee’s
     conduct and the efficiency of the service when the conduct occurred at work.
     Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006).          Moreover,
                                                                                  6

regardless of whether the agency’s penalty determination is entitled to deference,
the Board has held that removal is a reasonable penalty in cases of sexual
harassment creating a hostile work environment in violation of Title VII. See
Booker, 110 M.S.P.R. 72, ¶ 20; Viens, 92 M.S.P.R. 256, ¶ 23.              While the
appellant contends that the penalty is too harsh, the sustained misconduct is
egregious, and we do not discern any mitigating factors that would warrant a
different result. Accordingly, we sustain the removal.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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,
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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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
