Smiley v. Department of Defense , 384 F. App'x 996 ( 2010 )

United States Court of Appeals
for the Federal Circuit
__________________________
THYRMAN F. SMILEY,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2010-3039
__________________________
Petition for review of the Merit Systems Protection
Board in PH0752090312-I-1.
__________________________
Decided: October 12, 2010
__________________________
KEITH E. KENDALL, Keith Kendall, P.C., of Harris-
burg, Pennsylvania, for petitioner.
P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. On the brief
were TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, BRIAN M. SIMKIN, Assistant Director,
and SAMEER P. YERAWADEKAR, Senior Trial Counsel. Of
counsel on the brief was ZLATKO JURISIC, Defense Distri-
SMILEY v. DEFENSE 2
bution Center, Defense Logistics Agency, of New Cumber-
land, Pennsylvania.
__________________________
Before LINN, CLEVENGER, and PROST, Circuit Judges.
PER CURIAM.
Thyrman F. Smiley seeks review of the final decision
of the Merit Systems Protection Board (“Board”) sustain-
ing his removal from the position of Supervisory Supply
Technician at the Defense Logistics Agency’s New Cum-
berland, Pennsylvania facility. Smiley v. Dep’t of Defense,
Docket No. PH0752090312-I-1 (Sept. 23, 2009). We
affirm.
I
The Defense Logistics Agency (“agency”) removed Mr.
Smiley as a result of two charges against him: conduct
unbecoming a supervisor and conduct unbecoming a work
leader. The conduct in question involved assertions by
female employees at his work facility that he had inap-
propriate uninvited physical contact with them and that
he had, over a course of time, made numerous sexual
comments referring to the physical assets of the women
and revealing Mr. Smiley’s considerable sexual appetite
and his desire to share that appetite with the women.
The charges were triggered by a co-worker observing Mr.
Smiley rubbing the shoulders of one of the women on
August 7, 2008 and reporting the incident to the authori-
ties. An investigation ensued.
The investigation unearthed detailed recollections
from the women in question recounting the occasions on
which Mr. Smiley had made unwanted physical contact or
directed sexual comments to them. Many of Mr. Smiley’s
3 SMILEY v. DEFENSE
co-workers gave statements saying that they had never
heard Mr. Smiley make any sexual statements. Other co-
workers, however, gave statements saying that Mr.
Smiley had participated in “locker room” talk with male
employees. Such talk made sexually explicit references to
fellow female workers. Mr. Smiley steadfastly denied
ever having made any explicit sexually oriented com-
ments, although he did admit that he had engaged in
“locker room” talk with fellow male employees.
Satisfied that Mr. Smiley’s conduct proved the two
charges, the agency’s deciding official conducted a thor-
ough Douglas factors analysis before imposing the penalty
of removal. The deciding official gave Mr. Smiley credit
for his lack of past discipline and his fully successful
previous work performances, citing these as mitigating
factors. However, the very serious nature of the charges
and the fact that such charges undermine Mr. Smiley’s
ability to be a supervisor counted against Mr. Smiley.
The deciding official recognized that other supervisors in
the past had received lesser penalties for similar miscon-
duct, but found the conduct in those cases to be less
egregious because Mr. Smiley’s conduct here was “serious,
repetitive, and involved more than one individual.” Other
Douglas factors did not counsel against removal. Al-
though the deciding official found little potential for
rehabilitation in this case, the slim chance of rehabilita-
tion led the deciding official to offer Mr. Smiley a last
chance agreement, which he declined on the grounds that
the terms were “too onerous.” Upon issuance of the
agency’s removal notice, Mr. Smiley appealed to the
Board.
SMILEY v. DEFENSE 4
II
The administrative judge (“AJ”) assigned to this case
held a hearing at which Mr. Smiley and the two affected
women testified. As before the agency, Mr. Smiley admit-
ted rubbing the shoulders of one of the women. His
explanation of this event was that he lived in Italy for 10
years and “[i]t’s a different culture there. They express
themselves with their hands a lot and I, I find myself
doing it even today.” He however denied having other
physical contact with either of the women or talking dirty
to them. The women stood by the statements they had
given to the agency.
The AJ recognized that he thus had a credibility deci-
sion to make: whether to believe the women or Mr.
Smiley. Under Hillen v. Department of the Army, 35
M.S.P.R. 453, 458 (1987), several factors guide an admin-
istrative judge in deciding which of conflicting testimony
to credit. The AJ assessed the testimony of the female
witnesses and Mr. Smiley under the Hillen factors, and
concluded that the women’s testimony should be credited.
With regard to Mr. Smiley, the AJ “could not believe the
appellant’s general denials” because “[h]is testimony was
neither straight-forward nor candid. Even his own wit-
ness acknowledged that he and others made inappropri-
ate comments about females at the worksite.” Having
credited the extensive testimony of the women and ex-
cluded Mr. Smiley’s explanations in defense, the AJ
concluded that the agency had established by preponder-
ant evidence that Mr. Smiley had committed the charged
offenses. Accordingly, the AJ sustained the agency’s
charges of conduct unbecoming a supervisor and a work
leader, and Mr. Smiley’s removal for that conduct.
5 SMILEY v. DEFENSE
Mr. Smiley sought review from the full Board, which
denied his petition, thereby making the decision of the AJ
the final decision of the Board. Mr. Smiley timely sought
review in this court.
III
The scope of our review authority over a final decision
of the Board is limited by statute. We must affirm the
Board’s final decision unless we determine that it is
arbitrary, capricious, an abuse of discretion or otherwise
contrary to law. 5 U.S.C. § 7703(c). We review matters
of law without deference, and matters of fact to determine
if substantial evidence supports the Board’s findings. The
Board’s credibility determinations are “virtually unre-
viewable” on appeal. Chambers v. Dep’t of the Interior,
515 F.3d 1362, 1370 (Fed. Cir. 2008). Whether the Board
appropriately used the Hillen factors to guide its credibil-
ity decisions may be reviewed in a given case to determine
if the Board deviated so far from those factors as to un-
dermine our confidence in its credibility decisions. The
penalty to be imposed for employee misconduct is left to
the sound discretion of the agency and accordingly is
reviewed by this court under the abuse of discretion
standard. Miguel v. Dep’t of the Army, 727 F.2d 1081,
1083 (Fed. Cir. 1984).
IV
Mr. Smiley raises three challenges to the Board’s final
decision. First, he questions the Board’s credibility deci-
sion to favor the women over himself. He further con-
tends that the Board misapplied the Hillen factors by
giving undue weight to the testimony of the women and
by unduly discounting the evidence provided by other co-
workers who stated that they had never seen Mr. Smiley
SMILEY v. DEFENSE 6
engage in inappropriate contact, nor heard him make any
inappropriate statements.
Second, Mr. Smiley argues that the procedures used
to remove him violated law because the offenses with
which he was charged do not appear in the agency’s Table
of Offenses and Penalties (“Table”). Because Mr. Smiley
did not present this argument to the Board, he has
waived it for consideration by this court. Synan v. Merit
Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985). Even
if not waived, the argument lacks merit, as the agency is
not restricted to the offenses listed in the Table, which is
only a suggested guide. The Table does suggest removal
for first offenses of “indecent conduct on government
premises during work hours” and for “sexual harass-
ment,” both of which are similar to Mr. Smiley’s conduct.
Mr. Smiley was fully aware of the nature of the charges
against him and the fact that engaging in such conduct
surely is adverse to the agency’s mission. As the agency
notes in its brief, “the notion that Mr. Smiley could make
repeated sexual comments, offer promotions and money
for sex, and grab female employees’ breasts without being
removed is hard to fathom.”
Third, Mr. Smiley argues that the agency misapplied
the Douglas factors in deciding that removal is appropri-
ate in his case.
With regard to Mr. Smiley’s first challenge, he essen-
tially asks this court to reweigh the evidence on the
question of whether he committed the charged offenses.
In his favor, he points to the evidence given by individuals
who never saw or heard Mr. Smiley do anything wrong.
In his brief, he paints himself as a “charismatic, likeable,
hard working, harmlessly amorous” person. He asserts
that the agency “coerce[ed] other employees to paint
7 SMILEY v. DEFENSE
Appellant as the monster that he is not.” The testimony
of the women involved, however, belies his claim to being
harmlessly amorous, and the record is devoid of evidence
to support a charge that the agency coerced anyone to
testify against him. In short, our review of the record
demonstrates that substantial evidence supports the
Board’s decision sustaining Mr. Smiley’s removal. His
first challenge, like his second, is rejected.
Mr. Smiley’s third argument hinges upon his asser-
tion that the agency conducted a “cherry picking” exercise
when it applied the Douglas factors in this case, by em-
phasizing the factors adverse to Mr. Smiley and discount-
ing the factors favorable to him. For example, Mr.
Smiley claims he should have been given credit for an
“unusual” mitigating circumstance, which was the fact
that he had lived and worked for 10 years in Italy, where
it was customary for people to be “touchy/feely” with each
other.
This argument lacks merit. The record is clear that
the deciding official considered each of the pertinent
Douglas factors, and, where appropriate, gave Mr. Smiley
mitigating credit. At the end of the day, the deciding
official concluded that the nature of the offenses, his lack
of trust in Mr. Smiley’s ability to act as a supervisor, and
Mr. Smiley’s slim chance for rehabilitation counseled in
favor of removal as the appropriate penalty. When the
severity of a penalty is “totally unwarranted,” the Board
abuses its discretion by affirming the agency’s penalty —
as was the case in Miguel, where an employee was re-
moved for theft of two bars of soap. 727 F.2d at 1084.
This is an altogether different case. Here, a supervisor is
proven to have engaged in wholly inappropriate conduct
which undermines his trustworthiness and ability to
perform the duties required by his position. Whether a
SMILEY v. DEFENSE 8
penalty is an abuse of discretion “depends on the unique
circumstances of each case.” Miguel, 727 F.2d at 1083. In
the circumstances of this case, the penalty of removal is
not an abuse of discretion.
For the foregoing reasons, we affirm the final decision
of the Board.
COSTS
No costs.
AFFIRMED