                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-3031


                                 DONALD R. LEWIS,

                                                            Petitioner,

                                           v.


                         DEPARTMENT OF AGRICULTURE,

                                                            Respondent.


      Donald R. Lewis, of Kirbyville, Texas, pro se.

       Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director.


Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                       2008-3031

                                  DONALD R. LEWIS,

                                                Petitioner,

                                           v.

                           DEPARTMENT OF AGRICULTURE,

                                                Respondent.


    Petition for review of the Merit Systems Protection Board in DA0752060686-I-1.


                            ___________________________

                            DECIDED: March 7, 2008
                            ___________________________


Before BRYSON, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.

         After the Department of Agriculture removed appellant Donald R. Lewis from his

position, Mr. Lewis appealed the agency’s decision to the Merit Systems Protection

Board.     The Board sustained each of the six charges against him and upheld his

removal. We affirm.
                                            I

       Mr. Lewis was employed by the National Finance Center (“NFC”) of the

Department of Agriculture as the program manager for the agency’s Equal Employment

Opportunity and Workforce Services Staff.       His duties encompassed a number of

matters related to the resolution of discrimination complaints. On March 28, 2006, the

agency sent Mr. Lewis a notice of proposed removal in which it listed seven charges

against him: (1) receipt of government funds without securing required management

approval; (2) failure to take appropriate management action; (3) allowing subordinate

employees to conduct private business for personal gain using government time and

equipment; (4) directing subordinate employees to perform personal work or errands for

him on government time and equipment; (5) taking retaliatory action against subordinate

employees following their making protected disclosures during an official investigation;

(6) inappropriate management and personal conduct; and (7) making false statements

during an official investigation.

       After Mr. Lewis responded to the notice, the NFC Director removed Mr. Lewis

from his position, sustaining all of the charges except the retaliatory action charge. Mr.

Lewis appealed his removal to the Merit Systems Protection Board, challenging both the

findings of misconduct and the penalty. He also raised an affirmative defense based on

alleged deficiencies in the agency’s investigation of his misconduct.         The Board

sustained the charges and the penalty, and it rejected Mr. Lewis’s affirmative defense.

In his petition for review, Mr. Lewis asserts that the Board erred in (1) affirming the

charges against him, (2) finding that he had not established an affirmative defense




2008-3031                                   2
based on harmful error in the application of the agency’s procedures, and (3) finding

that his removal was a penalty in the range of reasonableness.

                                            II

      As an initial matter, Mr. Lewis asks us to reverse the Board’s decision based on

what he sees as a concerted effort among a number of NFC employees to effect his

removal.    Mr. Lewis asserts that the investigation into his alleged misconduct was

initiated and orchestrated by an employee who hoped to get a promotion and another

employee whose position was eliminated because of a reduction in force in July 2005.

Mr. Lewis argues that the Board failed to follow its decision in Seavello v. Department of

Navy, 4 M.S.P.B. 239, 241 (1980), a case in which the Board reversed an agency’s

demotion of an employee after finding “the case against the appellant irrevocably

tainted by personal animus and testimony lacking in credibility.” We will address Mr.

Lewis’s concerns related to bias against him as those concerns affect the Board’s

conclusion with respect to each charge. As Mr. Lewis challenges the Board’s decision

on each of the charges against him, we address each charge in turn.

                                            A

      In its first charge, the agency alleged that Mr. Lewis received government funds

without management approval. That allegation was based on agency records showing

that Mr. Lewis received lump-sum payments for unused compensatory time without

obtaining supervisory approval.    The agency’s policy regarding compensatory time

requires all compensatory time to be liquidated by the end of the leave year.

Employees who do not use their compensatory time by that deadline forfeit their right to

use their compensatory time and to receive overtime pay, unless an employee can




2008-3031                                   3
establish that he or she was unable to use compensatory time “due to an exigency of

the service beyond the employee’s control.” For employees to receive overtime pay for

unused time, they must obtain supervisory approval, which requires timekeepers to

submit a specific form to the human resources staff before the deadline (i.e., the end of

the leave year). Mr. Lewis received seven payments for compensatory time, and the

agency had no record that the proper form for supervisory approval was submitted.

      Mr. Lewis testified that he was unaware that the timekeeper who processed his

payments did not follow the proper procedure and that he was unaware that supervisory

approval had not been obtained. Based on Mr. Lewis’s supervisory position, the Board

found that Mr. Lewis should have been aware of the proper procedures for receiving

payment for unused compensatory time. From that finding, the Board concluded that he

knew or should have known that he received his overtime payments in violation of

agency procedure. That conclusion, however, does not necessarily follow. Mr. Lewis

may have been aware of the proper procedures, yet he may not have known that his

timekeeper had not obtained supervisory approval. In any event, the Board found that

the agency’s charge against him did not require a finding of intent, and it was

undisputed that the proper procedure was not followed. We agree with the Board that

the charge does not specify an element of intent, and we therefore affirm the Board’s

determination with respect to that charge.

                                             B

      The agency’s second charge was based on Mr. Lewis’s failure to take

appropriate management action when two of his subordinate employees complained of

sexual harassment by a contract employee. The agency’s first specification in support




2008-3031                                    4
of that charge stated that Ms. Adimu Kushindana complained to Mr. Lewis several times

about the contract employee’s behavior, only to have Mr. Lewis laugh in response. The

second specification stated that Ms. Julie Nguyen first began having problems with the

contract employee on February 9, 2005.          The notice specified that Ms. Nguyen

complained to Mr. Lewis but that Mr. Lewis responded by either laughing or ignoring

her.

       Before the administrative judge, both Ms. Nguyen and Ms. Kushindana testified

that they approached Mr. Lewis about the contract employee’s conduct on February 9,

but that Mr. Lewis did not take any action until February 17. Mr. Lewis, however,

testified that the first time he learned of the contract employee’s conduct was on

February 17, and he stated that he contacted the contract employee’s supervisor, Ms.

Debra Byrne, that same day. The administrative judge, however, found Mr. Lewis’s

testimony to lack credibility and concluded that Mr. Lewis likely learned of the contract

employee’s conduct earlier than February 17. The administrative judge did not find that

Mr. Lewis had laughed about the allegations of the contract employee’s conduct, but did

find that, having learned of the allegations prior to February 17, Mr. Lewis should have

taken some action prior to that date and failed to do so.

       On appeal, Mr. Lewis challenges the administrative judge’s credibility

determination. He argues that the administrative judge failed to explain why she chose

not to credit Mr. Lewis’s testimony, but instead only stated that his “general demeanor

while testifying, i.e., his carriage, behavior, manner, and appearance, demonstrated a

lack of candor.” Mr. Lewis also asserts that several of the employees who testified

against him on this charge were upset about a July 2005 reduction in force in the




2008-3031                                   5
agency. Ms. Nguyen was the employee whose position was eliminated, and Mr. Lewis

asserts that several of her former co-workers, including Ms. Kushindana, were upset

about Mr. Lewis’s decision to eliminate her position.

      The administrative judge acknowledged that the reduction in force “may very well

have caused some witnesses to now have a bias against the appellant.” In light of that

possibility, the administrative judge explained that she relied “to a large extent” on the

testimony and affidavit of Ms. Byrne in sustaining this charge. Ms. Byrne’s affidavit

stated that she learned of the contract employee’s conduct from another employee to

whom Ms. Nguyen and Ms. Kushindana had complained. According to Ms. Byrne, that

employee stated that Ms. Nguyen “had been trying to handle [the situation] internally

with her supervisor but that the situation was persisting.” Ms. Byrne’s affidavit also

stated that, when she contacted Mr. Lewis, she “was told that Ms. Nguyen had

complained to him about the situation but he had not taken her complaint seriously.”

Based on Ms. Byrne’s affidavit, we find the Board’s conclusion that Mr. Lewis knew of

the contract employee’s conduct before February 17 to be supported by substantial

evidence. We therefore affirm the Board’s holding with respect to the second charge.

                                            C

      The agency’s third charge was “Allowing Subordinate Employees to Conduct

Private Business for Personal Gain on Government Equipment and Time.” The agency

based that charge on the activities of two of Mr. Lewis’s employees. The first employee,

Ms. Myloc Nguyen, used NFC equipment during government time for a restaurant,

convenience store, and other businesses that she operated. The second employee,

Ms. Kushindana, performed work as a travel agent during work hours.                   The




2008-3031                                   6
administrative judge found that Mr. Lewis knew of the activities of Ms. Kushindana. As

for Ms. Nguyen, the administrative judge found that Mr. Lewis had sufficient knowledge

of possible wrongdoing on her part that he should have taken action and failed to do so.

       With respect to Ms. Kushindana’s activities, it was undisputed that Ms.

Kushindana performed work as a travel agent on government time. Ms. Kushindana

testified that Mr. Lewis asked her for information on a trip to Disney World during work

and that she provided him with rates. In his testimony, Mr. Lewis did not directly refute

that assertion, but rather stated that Ms. Kushindana never planned a trip for him. The

administrative judge explicitly credited Ms. Kushindana’s testimony over Mr. Lewis’s

testimony.

       Mr. Lewis again contends that Ms. Kushindana testified against him out of

personal animus.       Mr. Lewis’s claim of bias was before the administrative judge,

however, and the administrative judge was entitled to weigh the evidence in light of that

asserted bias.

       With respect to Ms. Nguyen’s activities, Mr. Lewis argues that the Board’s finding

that he failed to take appropriate action to curtail her business-related activities in the

office is erroneous.    Specifically, Mr. Lewis points to an affidavit from Ms. Nguyen

stating that she made efforts to conceal her business-related activities from Mr. Lewis

and others close to him. Mr. Lewis also asserts that after he learned of Ms. Nguyen’s

activities from his discussion with Ms. Kushindana, which he states took place in June

or July 2005, he began monitoring Ms. Nguyen more closely. He contends that the

Board erred in finding that Ms. Nguyen’s activities continued through August 2005

because she went on a 30-day vacation and did not return until November 2005 on




2008-3031                                   7
account of Hurricane Katrina. Mr. Lewis states that when she returned, he moved her

office closer to his so that he could observe her more closely and that he also

established a time log to track how official time was used.

       Although Mr. Lewis asserts that he took action after Ms. Kushindana brought Ms.

Nguyen’s activities to his attention, the administrative judge found that he was likely on

notice of possible wrongdoing by Ms. Nguyen from an earlier date. The administrative

judge found it to be improbable that Mr. Lewis was unaware of Ms. Nguyen’s activities,

as it was common knowledge that Ms. Nguyen performed work for her businesses at

the NFC office on government time. Mr. Lewis’s reliance on Ms. Nguyen’s affidavit

does not persuade us that the administrative judge erred, because the record shows

that her activities were well known throughout the office. Several employees testified

that documents relating to Ms. Nguyen’s personal businesses were frequently found in

the office fax machine, and Mr. Lewis acknowledged that on at least one occasion he

picked up one of Ms. Nguyen’s faxes and delivered it to her.                Because the

administrative judge was entitled to credit the agency’s evidence over Mr. Lewis’s, we

affirm the Board’s ruling with respect to the third charge.

                                             D

       Mr. Lewis next challenges the Board’s determination with respect to the fourth

charge, that he directed his subordinate employees to perform personal work for him on

government time and equipment. The specification that was sustained by the deciding

official alleged that Mr. Lewis directed a number of employees to prepare various

personal documents such as personal letters, letters to banks, and bills of sale for real




2008-3031                                    8
estate.   Mr. Lewis was also charged with directing a student employee to write a

research paper for Mr. Lewis’s son.

      In sustaining the fourth charge, the administrative judge found unconvincing Mr.

Lewis’s assertion that he merely asked his employees to perform his personal work for

him but that he never directed them to do so, and his contention that none of his

employees ever objected to performing the work. The administrative judge also found

that because of Mr. Lewis’s supervisory position, the student employees that he

directed to perform his personal work, including the student employee who wrote a

research paper for his son, would have been highly unlikely to object to his requests.

      Mr. Lewis argues that the Board erred in finding that he directed employees to

perform his personal work.    He states that none of the employees who testified or

provided statements stated that they were actually ordered to perform personal work for

Mr. Lewis. We find, however, that it was reasonable for the Board to infer that when Mr.

Lewis asked his subordinate employees to perform personal work for him, the request

was equivalent to an order based on the relationship between Mr. Lewis and the

employees.    The Board’s finding on the fourth charge was therefore supported by

substantial evidence.

                                            E

      The Board next addressed the charge in the notice of proposed removal that

alleged that Mr. Lewis engaged in inappropriate management and personal conduct.

That charge was supported by four specifications, all of which were sustained by the

Board. The specifications alleged that Mr. Lewis (1) made inappropriate comments to

his subordinates regarding religion, sexual orientation, and employees’ weight, (2)




2008-3031                                   9
pounded his fist loudly on his desk and on other employees’ desks, (3) harshly criticized

employees, causing them to cry, and (4) on January 15, 2005, grabbed Julie Nguyen’s

arm so hard that it left a bruise.

       Relying on the Board’s decision in Mason v. Department of Navy, 70 M.S.P.R.

584, 586-89 (1996), Mr. Lewis argues that the first three allegations were too vague to

provide proper notice to him because they did not specify the dates or locations of the

alleged conduct.     In Mason, the Board reversed an agency action based on an

employee’s alleged use of racial slurs because the agency’s proposed notice of removal

“did not give any indication of when or where this misconduct allegedly occurred.” Id. at

587. In this case, Mr. Lewis submitted an interrogatory requesting specific details with

respect to the alleged offensive comments and conduct, but the agency provided none.

       Mr. Lewis contends that because of the lack of specificity in the first three

specifications, he was denied a fair opportunity to respond to those charges. It was

inherent in the nature of the charges in those specifications, however, that great

specificity was not possible.        Three of the four specifications alleged a pattern of

conduct over time, rather than a particular incident. And the individual instances of

inappropriate conduct, such as angry remarks or insulting words, were not the type as

to which witnesses would ordinarily be expected to recall the precise date and

surrounding circumstances. Nonetheless, while the agency was not able to provide the

particular date and location for each incident of allegedly inappropriate conduct, the

agency provided, with regard to each specification, the names of those employees who

had complained about Mr. Lewis’s conduct and the particular nature of his conduct.

Moreover, a number of the witnesses prepared affidavits containing details regarding




2008-3031                                      10
Mr. Lewis’s inappropriate conduct, and he had copies of those affidavits prior to the

hearing before the agency and before the administrative judge.              Under these

circumstances, we are satisfied that the agency’s failure to provide additional details

about the alleged misconduct did not constitute an unfair failure to provide discovery.

      With respect to the first specification, the Board sustained the charge that on

multiple occasions Mr. Lewis had used inappropriate language and made offensive

comments in front of subordinates. While Mr. Lewis challenges this finding and at the

hearing denied making such comments, the administrative judge made a credibility

determination with respect to the conflicting evidence on this point, and such credibility

determinations are virtually unreviewable. See Chambers v. Dep’t of the Interior, No.

2007-3050, slip op. at 111 (Fed. Cir. Feb. 14, 2008). Accordingly, we conclude that the

Board’s decision sustaining the first specification was supported by substantial

evidence.

      With respect to the fourth specification, the Board sustained a charge relating to

a specific instance of misconduct. The agency alleged that on January 15, 2005, Mr.

Lewis grabbed Ms. Julie Nguyen’s arm and squeezed it to the point of causing bruising.

According to the agency, Mr. Lewis did not let go until Ms. Nguyen kicked him. Mr.

Lewis characterized the incident differently, testifying that he caught Ms. Nguyen’s arm

in his hand because she was motioning with her arms without realizing that he was

walking by. He explained that Ms. Nguyen then kicked him while he was walking away.

The administrative judge, however, rejected Mr. Lewis’s explanation, finding it

implausible that he would simply walk away and do nothing after being gratuitously

kicked by one of his employees.




2008-3031                                  11
       Mr. Lewis argues that the incident with Ms. Nguyen should be disregarded

because Ms. Nguyen characterized the incident as “petty” in explaining why she did not

report it at an earlier date. Even if Ms. Nguyen thought the incident to be “petty” at the

time, however, the agency was entitled to consider it to be a serious matter that raised

concerns about Mr. Lewis’s ability to manage employees. Notwithstanding Mr. Lewis’s

argument that Ms. Nguyen was biased against him because Mr. Lewis eliminated her

position, the administrative judge’s reason for doubting Mr. Lewis’s testimony provides a

sufficient basis for crediting Ms. Nguyen’s testimony, and we therefore affirm the

Board’s determination that the agency met its burden of proof. Because we affirm the

Board’s determination with respect to two of the factual specifications, we affirm the

Board’s decision to sustain the overall charge.      See Burroughs, 918 F.2d at 172.

Accordingly, we need not reach the other two specifications under charge seven, which

are less clearly sustainable.

                                            F

       The last charge that the Board sustained against Mr. Lewis was that Mr. Lewis

made false statements during an official investigation. The Board sustained that charge

after finding that Mr. Lewis falsely stated in an affidavit that he never made derogatory

remarks about his employees’ weight. The Board made a factual determination that Mr.

Lewis made such statements in connection with the charge regarding Mr. Lewis’s

alleged inappropriate personal and managerial conduct. The Board therefore found that

Mr. Lewis’s statement in his affidavit was made knowingly with the intention of

misleading the agency. Because we have upheld the Board’s findings with respect to




2008-3031                                  12
Mr. Lewis’s remarks to subordinate employees, we sustain the administrative judge’s

finding that his denial of making those remarks was false.

                                           III

       Mr. Lewis argues that the Board erred in rejecting his affirmative defense based

on “harmful error in the application of the agency’s procedures in arriving at” its

decision.   See 5 U.S.C. § 7701(c)(2)(A).        Mr. Lewis asserts that the agency’s

investigation into his alleged misconduct did not follow the guidelines established in an

agency memorandum that was circulated in March 2003. That memorandum specified

that investigators should avoid including personal opinions or conclusions in their

reports, and should refrain from making disciplinary recommendations. The agency

hired an outside contractor to investigate Mr. Lewis’s misconduct, and the report that

she prepared for the agency contained her personal opinions, conclusions, and

recommendations for disciplinary action.

       The Board rejected Mr. Lewis’s argument for two reasons. First, it found that the

March 2003 memorandum was not intended to have the effect of a law, rule, regulation,

or other official policy.   Rather, it was intended to provide guidance for agency

investigators.   The Board further found that the official policy of the Department of

Agriculture with respect to investigations of employee misconduct, as described in the

pertinent agency manual, did not prohibit investigators from including their opinions,

conclusions, or recommendations. Moreover, the manager who wrote the March 2003

memorandum testified that he did not intend the memorandum to apply to outside

investigators.




2008-3031                                  13
       Second, the deciding official testified that he gave no consideration to the

investigator’s summary, which was the only portion of the report that contained the

investigator’s opinions. Instead, he stated that he relied solely on the evidence and

affidavits contained in the report.

       On appeal, Mr. Lewis argues that the agency’s position that the March 2003

memorandum does not apply to outside investigators violates principles of equal

protection.   We reject that argument because the agency has maintained that the

memorandum does not have the force of law, either for internal or outside investigators.

Mr. Lewis also challenges the deciding official’s testimony that he did not consider the

investigator’s opinion when he decided to remove Mr. Lewis.               Mr. Lewis quotes

statements in the notice of proposed removal and the removal letter that indicate that

the official who proposed Mr. Lewis’s removal and the deciding official both relied on the

investigator’s report. Those statements, however, are not inconsistent with the deciding

official’s testimony. The deciding official did not testify that he did not rely on the report.

He merely stated that he did not rely on the investigator’s recommendation as to

penalty. We therefore find that the Board did not err in rejecting Mr. Lewis’s affirmative

defense.

                                              IV

       Mr. Lewis also complains that the agency and the Board engaged in ex parte

communications because the agency submitted hearing transcripts to the Board without

serving Mr. Lewis with any transcripts or transmission of the communication. Because

the agency provided the Board with accurate copies of the hearing transcripts and

engaged in no other communication, Mr. Lewis’s argument is without merit.




2008-3031                                     14
                                           V

      Lastly, Mr. Lewis challenges the Board’s determination that removal was an

appropriate penalty. Because we uphold the Board’s finding with respect to each of the

charges against Mr. Lewis, and because removal was not a grossly disproportionate

sanction for the charged misconduct, we sustain the Board’s decision as to penalty.




2008-3031                                 15
