Robacker v. Department of Agriculture ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DAVID C. ROBACKER,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2009-3289
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA-0752-08-0549-I-1.
______________________
Decided: July 9, 2010
_______________________
GEORGE P. POWELL, Law Office of George P. Powell,
P.C., of McAllen, Texas, for petitioner.
ELIZABETH M. HOSFORD, Senior Trial Counsel, Com-
mercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
ROBACKER v. AGRICULTURE 2
Attorney General, JEANNE E. DAVIDSON, Director, and
BRIAN M. SIMKIN, Assistant Director.
__________________________
Before PROST, MAYER, and SCHALL, Circuit Judges.
PER CURIAM.
David C. Robacker seeks review of the final order of
the Merit Systems Protection Board denying his appeal of
the action by the Department of Agriculture (the
“agency”) to remove him from his position. See Robacker
v. Dep’t of Agriculture, No. DA-0752-08-0549-I-1 (M.S.P.B.
July 24, 2009). We affirm.
Robacker worked as a research entomologist for the
agency for over 25 years. During that time, he had ro-
mantic relationships with three subordinates. When one
of the women with whom he had been romantically in-
volved began to threaten that she would report him for
sexual harassment, he contacted the agency’s Office of
Outreach Diversity and Equal Opportunity. The coun-
selor with whom he spoke said she did not believe she
could give him advice and directed him to her supervisor.
Robacker spoke with the counselor’s supervisor and
explained his relationships with the three women, includ-
ing an arrangement he had made with one of the women
under which he would assign her the same performance
rating that he received for the year. This conversation
triggered an administrative inquiry, which eventually
resulted in Robacker retiring to avoid removal for conduct
unbecoming a federal employee. He then appealed the
removal action to the board, which affirmed the agency’s
decision to remove him. *
* The board had jurisdiction over Robacker’s ap-
peal, despite his retirement, pursuant to 5 U.S.C.
§ 7701(j). See Cooper v. Dep’t of the Navy, 108 F.3d 324,
3 ROBACKER v. AGRICULTURE
We must affirm a decision of the board unless we find
it to be: (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c).
Robacker’s central argument is that consensual ro-
mantic relationships between employees are not contrary
to any official regulation or policy and therefore the
agency had no foundation for his removal. However, the
removal action was based on the charge of conduct unbe-
coming a federal employee and the agency acted within its
discretion in determining that Robacker’s actions were
unprofessional, prevented him from adequately fulfilling
his supervisory role in the workplace, and caused his
superiors to lose confidence in his judgment. Further-
more, the record supports the agency’s view that Ro-
backer’s actions negatively impacted the efficiency of the
agency by affecting the interactions between Robacker
and two of the women with whom he had been romanti-
cally involved. Both the agency and the board considered
the mitigating factors provided in Douglas v. Veterans
Administration, 5 MSPB 313, 5 M.S.P.R. 280 (1981), such
as the length of Robacker’s service. While Robacker
argues that the penalty of removal is too harsh in light of
these factors, the determination that the mitigating
factors do not outweigh the seriousness of the agency’s
concerns about Robacker’s actions is not unreasonable.
We have considered Robacker’s remaining arguments
and do not find them persuasive. Because the board’s
326 (Fed. Cir. 1997) (“[S]ection 7701(j) was intended to
ensure that an employee who was eligible for retirement
at the time of his removal could take a retirement annuity
without forfeiting his right to challenge his removal.”).
ROBACKER v. AGRICULTURE 4
decision is supported by substantial evidence and because
Robacker has failed to show that the decision is arbitrary,
capricious, or contrary to law or regulation, the decision is
affirmed.