                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DANA ROMERO,                                    DOCKET NUMBER
                         Appellant,                  DC-0752-15-0045-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 18, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sara McDonough, Washington, D.C., for the appellant.

           Malcolm G. Schaefer, Cherry Point, North Carolina, 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
     affirmed his removal for unauthorized removal of Government property.
     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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 5 C.F.R. § 1201.117(c).
                                                                                      2

     the law to the facts of the case; the administrative 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. 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).
¶2        Prior to his removal, the appellant was an Air Conditioning Equipment
     Mechanic, WG-5306-11, at the agency’s Fleet Readiness Center (FRC) East in
     Cherry Point, North Carolina. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 42.
     The agency charged him with Unauthorized Removal of Government Property
     (five specifications) and proposed his removal.     IAF, Tab 4 at 112-13.    After
     considering his oral reply and the record evidence, the deciding official sustained
     four of the five specifications and determined that the sustained specifications
     justified the penalty of removal. Id. at 43-45. The appellant filed this appeal.
     IAF, Tab 1. The agency has since withdrawn all specifications except the fifth
     one, which states that the appellant “removed eight pieces of copper [heating,
     ventilation, and air conditioning] coils from FRC East controlled property without
     authorization.”   Hearing Compact Disc (HCD) (May 7, 2015) (withdrawing
     Specifications 1 through 3); IAF, Tab 4 at 113.
¶3        After a 2-day hearing, the administrative judge found that the agency
     proved its remaining charge by preponderant evidence.         IAF, Tab 35, Initial
     Decision (ID) at 3-17.      The administrative judge rejected the appellant’s
     contentions that the charge was unconstitutionally vague and that the agency
     deprived him of his right of due process. ID at 17‑19. The administrative judge
                                                                                             3

     sustained the charge and found that removal was a reasonable penalty that
     promoted the efficiency of the service. ID at 19‑24.
¶4         The appellant filed this petition for review. 2 Petition for Review (PFR)
     File, Tabs 9, 23.     On review, he asserts that the administrative judge made
     erroneous findings of material fact and did not properly conduct an analysis of
     witness credibility pursuant to Hillen v. Department of the Army, 35 M.S.P.R. 453
     (1987). He asserts that, for this reason, the agency failed to meet its evidentiary
     burden. PFR File, Tab 23 at 4, 10‑18.
¶5         The following facts are pertinent to this appeal. The appellant’s job duties
     included cleaning up after finishing installation and maintenance assignments, for
     example, removing scrap materials to the FRC East recycling facility or “scrap
     yard,” or to another area for the collection of surplus materials known as the “lay
     down yard.” IAF, Tab 14 at 51-52. The scrap yard is located on post, but it is
     necessary to leave and re-enter the post to access it. IAF, Tab 19 at 29. The lay
     down yard is also located on post.         It is unlocked and accessible to anyone
     already on post. IAF, Tab 14 at 33.
¶6         In November 2013, the appellant was one of a group of employees who
     replaced condenser coils, compressors, and other components of the heating and
     cooling units located on the roof of Building 133. IAF, Tab 19 at 7. The required
     clean-up for this job included moving the old coil panels and other parts to the
     scrap or lay down yard for eventual recycling. IAF, Tab 14 at 51. At some point
     between November 2013 and February 15, 2014, the old coil panels were cut into
     approximately 36 pieces. Id. at 53. Employees used a crane to remove most of
     these pieces from the roof of Building 133. Id. at 51. In February, however, the

     2
       The Board allowed the appellant to file a corrected petition for review to change
     certain citations and to delete two sentences in the original petition for review to which
     the agency had objected. PFR File, Tabs 9, 20, 22‑23. We have cited the corrected
     petition for review in this order. PFR File, Tab 23. The agency submitted a response to
     the corrected petition for review, and the appellant replied. PFR File, Tabs 24-25. We
     deny the agency’s subsequent motion to strike the appellant’s reply. PFR File, Tab 26.
                                                                                           4

     appellant moved approximately eight remaining coil pieces into a penthouse on
     the roof of Building 133. IAF, Tab 17 at 23.
¶7           In February 2014, the agency became aware of the coil pieces remaining on
     the roof of Building 133 after two employees who were on the roof for another
     purpose discovered the coils. IAF, Tab 14 at 53, Tab 19 at 48. Later the same
     day, the appellant moved two of the coil pieces to an area behind Building 133.
     IAF, Tab 15 at 19.       Suspecting that the appellant was planning to steal the
     remaining coil pieces, L.R., an agency official responsible for maintenance, asked
     K.T.,    the post    Command      Investigator,   to   conduct   surveillance   on   the
     appellant. Id. at 48-49; IAF, Tab 22.
¶8           On the morning of February 23, 2014, K.T. and two other investigators
     began surveillance of the appellant.       IAF, Tab 22 at 8-10.      The investigators
     tracked the appellant’s activities for most of the day, though there were times
     when they did not have a direct line of sight of him. IAF, Tab 14 at 33, Tab 19
     at 63-66. They did not monitor or observe the lay down yard at all. IAF, Tab 14
     at 33, Tab 19 at 85. They observed the appellant, however, using an electric cart
     to move approximately eight coil pieces to the exterior side of Building 139.
     IAF, Tab 15 at 21, Tab 19 at 63-64.
¶9           The appellant asserted that later that day, he placed the coil pieces inside a
     white Government van and attempted to drop the coils at the scrap yard, which
     was closed.     IAF, Tab 15 at 23.    He further asserted that he instead took the
     pieces to the lay down yard. Id. He asserted that, after he left the coils in the lay
     down yard, he left the post via the Main Gate driving the van. Id.; IAF, Tab 16
     at 5. The investigators saw the appellant leaving the post in the van at 1:40 p.m.
     IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant asserted that there were no coil
     pieces in the van at that time and that he drove the van directly to a nearby Shell
     station and filled the gasoline tank. IAF, Tab 16 at 13, 22, Tab 19 at 96. He
     returned to post at approximately 2:19 p.m. IAF, Tab 16 at 22, Tab 19 at 66.
                                                                                          5

¶10         K.T. approached the appellant upon his return and asked about the coils,
      which were not in the back of the van.         IAF, Tab 19 at 66.      The appellant
      explained that he had left the coils in the lay down yard earlier that day. Id.
      K.T., the appellant, and an agency maintenance supervisor, R.H., went to the lay
      down yard, where they did not find the coil pieces. Id. at 67; IAF, Tab 23 at 10.
      The ground also appeared undisturbed in the area where the appellant said he had
      placed the coils. IAF, Tab 19 at 67.
¶11         The coil pieces were never found.        IAF, Tab 23 at 10.      The appellant
      averred that he did not steal or sell the coils to a business that purchased scrap
      metal. IAF, Tab 16 at 13, Tab 20 at 76-78 (receipts and statements from local
      metal buyers).   In sustaining the charge, however, the deciding official, J.G.,
      stated that the appellant should have secured permission from his supervisor
      before moving the coils. IAF, Tab 14 at 35. J.G. explained that the appellant
      removed the coils from where they had been located on a Sunday and that
      removal of the coils “was not his tasking on that day.” Id. at 36. The appellant
      averred otherwise, presenting testimony from a coworker that moving scrap
      materials to the recycling area was part of his job. IAF, Tab 19 at 7.
¶12         On review, the appellant challenges several of the administrative judge’s
      findings of fact. PFR File, Tab 23 at 10-18. The most critical of those findings,
      which we consider here, is whether an agency security guard, F.D., saw the coil
      pieces in the van before the appellant left the post to purchase gas. Id. at 11-15.
      The administrative judge found it more likely than not that F.D. saw the coils in
      the van, ID at 12 n.2, which supported an inference that the appellant removed the
      coils from the facility when he left. In contrast, the appellant asserted that he left
      the coils in the lay down yard prior to leaving the post and that the coils were
      taken from the lay down yard by unknown persons before he returned later that
      day. ID at 14.
¶13         The appellant now argues that the administrative judge failed to apply the
      Hillen factors in determining which of the conflicting accounts was true. PFR
                                                                                       6

      File, Tab 23 at 11-15. To resolve credibility issues, an administrative judge must
      identify the factual questions in dispute, summarize the evidence on each disputed
      question, state which version he believes, and explain in detail why he found the
      chosen version more credible, considering such factors as:       (1) the witness’s
      opportunity and capacity to observe the event or act in question; (2) the witness’s
      character; (3) any prior inconsistent statement by the witness; (4) a witness’s
      bias, or lack of bias; (5) the contradiction of the witness’s version of events by
      other evidence or its consistency with other evidence; (6) the inherent
      improbability of the witness’s version of events; and (7) the witness’s demeanor.
      Hillen, 35 M.S.P.R. at 458.
¶14         F.D. was one of the investigators tasked with surveilling the appellant on
      February 23, 2014. IAF, Tab 22 at 8-9. At about 1:26 p.m., he walked over and
      approached the parked van that the appellant was using and looked in the rear
      window, where he spotted several dark metal rectangular objects stacked in the
      cargo bay. IAF, Tab 19 at 64-65; HCD (May 7, 2015) (testimony of F.D.). F.D.
      testified that the objects “looked like car radiators”; were “dull,” “flat,” and
      “dirty” in appearance; and seemed to be made of oxidized aluminum.
      HCD (May 7, 2015) (testimony of F.D.).       In recounting F.D.’s testimony, the
      administrative judge concluded that “the precise metallurgy of the coils is less
      important than the uniformly consistent words ‘discolored,’ ‘dark,’ and ‘metallic’
      combined with the photographs [of the coil pieces] provided by [K.T.],” and that
      the agency established by preponderant evidence that F.D. had seen the coils in
      the van. ID at 12 n.2.
¶15         The appellant asserts that F.D. was unable in his testimony to positively
      identify the coil pieces in the van despite having seen photographs of them, IAF,
      Tab 4 at 152-54, and that he testified that the items he saw were made of oxidized
      aluminum, whereas the coil pieces were made of copper, PFR File, Tab 23 at 11‑
      13.
                                                                                         7

¶16        The administrative judge, however, conducted a proper Hillen analysis of
      the testimony.   The administrative judge did not ignore F.D.’s refusal to state
      with certainty that he saw the coil pieces in the van.      Instead, he reasonably
      considered the significant consistency between the testimony of F.D. and K.T.,
      and the photographs of the coil pieces in the record.         ID at 12 n.2; Hillen,
      35 M.S.P.R. at 458 (holding that the administrative judge should consider the
      consistency of the witness’s testimony with other evidence). He also pointed out
      that the appellant admitted to placing the coils in the van.         ID at 12.   We
      additionally note that, because F.D. was retired at the time of the hearing, he had
      nothing to gain or lose from testifying truthfully. HCD (May 7, 2015) (testimony
      of F.D.).   On the other hand, the administrative judge found much of the
      appellant’s account of the events of February 23, 2014, to be inconsistent and
      improbable, and some of his behavior to be inexplicable. ID at 15-17; Hillen,
      35 M.S.P.R. at 458 (holding that the administrative judge should consider the
      inherent improbability of the witness’s version of events and the contradiction of
      the witness’s version of events with other evidence). The administrative judge
      thus reasonably concluded that F.D. saw the coils in the back of the van.
¶17        Further, the administrative judge reasonably found that the appellant
      removed the coils from agency property without authorization. ID at 17. The
      appellant did not deny that he was under surveillance on February 23, 2014. He
      stipulated that he moved the coil pieces to the exterior wall of Building 139 using
      an electric cart and later returned to that building driving an agency van to
      remove the coils. IAF, Tab 27 at 5. He did not dispute that security personnel
      saw him on surveillance video driving the van to various locations on post and
      leaving the post at 1:40 p.m. 3 IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant


      3
        The agency used the appellant’s cellular phone records to establish the time of his
      departure. IAF, Tab 34 at 4. Employees were required to contact security to open the
      gate when they entered and exited the post. HCD (May 7, 2015) (testimony of
      M.D., F.D.).
                                                                                        8

      admitted that the coils were in his possession until at least 11:54 a.m.       HCD
      (May 8, 2015) (testimony of appellant). He declined to affirmatively testify that
      he removed the coils from the van before leaving the facility, and he could not
      recall the precise time that he took the coils to the lay down yard. IAF, Tab 4
      at 168, 182; HCD (May 8, 2015) (testimony of appellant).
¶18            In contrast, F.D. saw items that resembled radiator fins in the van at
      1:26 p.m.      HCD (May 7, 2015) (testimony of F.D.).      The van was under the
      surveillance of security personnel at various times between 1:26 p.m. and
      1:40 p.m., when the appellant left the post. HCD (May 7, 2015) (testimony of
      F.D., M.D.). At 2:55 p.m., the coils were not in the lay down yard, where the
      appellant claimed to have taken them. IAF, Tab 22 at 10. The agency had no
      record of any submission of scrap copper for recycling during the relevant time
      period. HCD (May 7, 2015) (testimony of D.G., A.K.). It is thus reasonable to
      infer that the appellant removed the coils when he left the post to purchase fuel.
      Accordingly, we find that the administrative judge considered the evidence as a
      whole, drew appropriate inferences, and made reasoned conclusions on
      credibility.    Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
      Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987). We will not disturb the findings of fact.
¶19            The appellant also argues that the administrative judge improperly deferred
      to the agency’s penalty selection. PFR File, Tab 23 at 18-24. He asserts that the
      deciding official, J.G., based his decision on K.T.’s report that F.D. had seen the
      coils in the van and that F.D.’s testimony did not support such a conclusion. Id.
      at 19. Further, he asserts J.G. did not testify that he considered what the penalty
      should be if only one specification were sustained. Id. The appellant additionally
      argues that J.G. cited the unproven allegations upon which Specifications 1
      through 3 were based as evidence of his guilt, suggesting that he had moved the
      coil pieces around the post to prepare for the ultimate act of removing them. Id.
      at 20.
                                                                                           9

¶20           However, F.D.’s reluctance to state definitively that he saw the coils in the
      van does not devalue his hearing testimony or any information he offered K.T.
      during the investigation. F.D. testified that he saw a stack of weathered metal
      fins in the van, and both K.T. and the administrative judge inferred that the fins
      were the coil pieces. 4 ID at 12 n.2; HCD May 7, 2015 (testimony of F.D., K.T.).
      As for J.G.’s reliance on the evidence underlying Specifications 1 through 3,
      much of that information is also part of the factual predicate for Specification 5.
      As for the appellant’s assertion that the single sustained specification justified a
      lesser penalty, we note that an agency only need prove a single specification of a
      charge for that charge to be sustained.          Burroughs v. Department of the
      Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
¶21           The appellant additionally asserts that J.G. failed to properly weigh the
      Douglas factors, especially mitigating factors such as his consistently satisfactory
      performance evaluations; 13-year tenure with the agency, awards, pay increases,
      and promotion; and the fact that no disciplinary action had been taken against him
      since     2006.       PFR     File,   Tab 23   at 21-24;    Douglas     v.   Veterans
      Administration, 5 M.S.P.R. 280, 305-06 (1981).        He further asserts that J.G.’s
      assessment of his rehabilitation potential was based on false or unsubstantiated
      allegations and that he did not clearly explain why rehabilitation was
      impossible. Id. at 22.
¶22           The record shows that the proposing official set forth a thorough analysis of
      the Douglas factors in the proposal notice and that J.G. considered and adopted
      this analysis in full.      IAF, Tab 4 at 43-44, 114-18.     The proposing official
      specifically considered as mitigating factors the appellant’s past work record,
      including length of service, performance on the job, ability to get along with
      fellow workers, and dependability. Id. at 116, 118. He found that the mitigating
      factors were outweighed by the aggravating factors, including the nature and
      4
        K.T. testified that the items F.D. saw were “consistent with” what a person examining
      the air conditioning coils might see. HCD (May 7, 2015) (testimony of K.T.).
                                                                                     10

seriousness of the offense and the appellant’s job level and type of
employment. Id. at 114-16. He also noted the clarity with which the appellant
was on notice regarding the importance of honesty and integrity in performing the
duties of his position, and he considered an incident of prior discipline involving
dishonest behavior.       Id. at 114-17.   He explained that he considered lesser
penalties, but did not find one that would be sufficient to correct the appellant’s
behavior.   Id. at 118.     Accordingly, based on our review of the record, we
conclude that the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness. 5            Douglas,
5 M.S.P.R. at 306.

                 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:
                                U.S. 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

5
  The appellant also alleges that, because he did not remove Government property
without authorization, there was no nexus between the penalty and the efficiency of the
service. PFR File, Tab 23 at 19. He bases this argument on the fact that his job duties
often required him to transport recyclable materials to the scrap or lay down yards. Id.
Although the appellant was allowed to transport these items on post, however, he
was not allowed to remove them without authorization. IAF, Tab 14 at 50-52. He thus
failed to act with integrity regarding the Government property in his care. Cf.
Mertins v. Department of the Navy, 61 M.S.P.R. 157, 159 (1994) (finding that removal
was a reasonable penalty for unauthorized possession of Government property, where
the employee took seemingly surplus items without making any serious inquiry
regarding their ownership).
                                                                                 11

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 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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
