Ensley v. Puget Sound Naval Shipyard

Case: 21-2082 Document: 21 Page: 1 Filed: 12/08/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SEAN M. ENSLEY,
Petitioner
v.
PUGET SOUND NAVAL SHIPYARD AND
INTERMEDIATE MAINTENANCE FACILITY,
Respondent
______________________
2021-2082
______________________
Petition for review of an arbitrator's decision by Law-
rence E. Little.
______________________
Decided: December 8, 2021
______________________
SEAN MICHAEL ENSLEY, Bremerton, WA, pro se.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E. WHITE, JR.
______________________
Before LOURIE, HUGHES, and CUNNINGHAM, Circuit
Judges.
Case: 21-2082 Document: 21 Page: 2 Filed: 12/08/2021
2 ENSLEY v. PUGET SOUND NAVAL SHIPYARD
PER CURIAM.
Sean M. Ensley appeals from the decision of an arbi-
trator sustaining his removal from the Puget Sound Naval
Shipyard and Intermediate Maintenance Facility
(“PSNS”). Bremerton Metal Trades Council (Union) (Sean
Ensley) v. Puget Sound Naval Shipyard & Intermediate
Maintenance Facility (Employer), (May 20, 2021), SAppx
1–32. 1 Because the arbitrator’s decision was supported by
substantial evidence, we affirm.
BACKGROUND
Ensley began working as a welder for PSNS in 2013.
SAppx 230. In 2020, several PSNS employees complained
to their supervisor regarding Ensley’s behavior. They spe-
cifically alleged that he touched them without consent and
made inappropriate comments. SAppx 154–61, 561.
In light of those complaints, a special team began to
investigate. SAppx 173. After the team interviewed sev-
eral witnesses, it determined that Ensley had acted inap-
propriately toward his co-workers. SAppx 621. As a result,
Ensley’s superintendent proposed removing him based on
a charge of Inappropriate Conduct supported by six speci-
fications. SAppx 471–76. The specifications, as provided
in the proposed removal letter, are as follows:
Specification 1: In or around July 2015 through
October 2015, you asked a female employee to walk
up the stairs in front of you and you smacked her
on her bottom and said words to the effect of,
“[y]our jeans look tighter around your butt when
you climb the stairs,” “[y]our assets look good in
your jeans,” and “I miss those tight skinny jeans
you had, you looked so good in those.”
1 “SAppx” refers to the supplemental appendix filed
by the government.
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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 3
Specification 2: In or around July 2015, you
texted a female employee and asked her to “[c]ome
take a bubble bath” or words to that effect.
Specification 3: Around approximately the sum-
mer of 2018, you and a female employee were walk-
ing to the smoke shack when you told her “I had a
wet dream about you” or words to that effect.
Specification 4: Around approximately the end
of 2018, you walked up to a female employee and
grabbed her ponytail and yanked it backward[].
Specification 5: In or around approximately De-
cember 2019, while at work, you told a female em-
ployee words to the effect of “you look cute in your
hat.”
Specification 6: Between approximately October
and December 2013, while at work, you asked a fe-
male employee, “[w]hen are you going to leave your
boyfriend and date me?” or words to that effect.
Id.
After receiving the letter, Ensley submitted a response
to the deciding official disputing several of the allegations.
However, the deciding official sustained PSNS’s decision to
remove Ensley. SAppx 481–83. Consequently, Ensley in-
voked arbitration pursuant to his rights under the union’s
collective bargaining agreement. 5 U.S.C. § 7121(e)(1). 2
After the arbitrator held a hearing, he upheld PSNS’s
removal decision. First, he found that there was “exten-
sive” corroborating evidence that Ensley had engaged in
problematic conduct. SAppx 9–20, 31–32. Second, he
2 Under 5 U.S.C. § 7121(e)(1), a federal employee
may appeal his removal to the Merit Systems Protection
Board (“the Board”) or invoke arbitration.
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4 ENSLEY v. PUGET SOUND NAVAL SHIPYARD
determined that Ensley’s conduct adversely affected
PSNS’s work environment. SAppx 29–31. Third, he deter-
mined that the removal penalty was reasonable in light of
Ensley’s “egregious, inappropriate, and repetitive” con-
duct. SAppx 27, 29–32.
Ensley appealed to this court. We have jurisdiction to
review an arbitrator’s decision pursuant to 5 U.S.C.
§§ 7121(f), 7703, and 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review the decision of an arbitrator “in the same
manner and under the same conditions as if the matter had
been decided by the [Merit Systems Protection] Board.” 5
U.S.C. § 7121(f). Accordingly, we must set aside the deci-
sion of the arbitrator if it was “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
We review the arbitrator’s “legal conclusions de novo
and its fact findings for substantial evidence.” Smith v.
Gen. Servs. Admin., 930 F.3d 1359, 1364 (Fed. Cir. 2019)
(citing Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560, 1564
(Fed. Cir. 1994)). A finding is supported by substantial ev-
idence if a reasonable mind might accept the evidence to
support the finding. See Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938).
Ensley raises four arguments on appeal. First, he chal-
lenges the arbitrator’s determination that he received suf-
ficient notice of the charges against him. Second, he
challenges the arbitrator’s finding that he committed the
alleged conduct. Third, he challenges the arbitrator’s find-
ing that his conduct had a nexus to PSNS’s ability to func-
tion efficiently. Finally, he contends that the arbitrator
applied the incorrect law. We address each argument in
turn.
Case: 21-2082 Document: 21 Page: 5 Filed: 12/08/2021
ENSLEY v. PUGET SOUND NAVAL SHIPYARD 5
I
Ensley first argues that PSNS’s charge in the proposed
removal letter was “incredibly vague,” which deprived him
of notice and an opportunity to defend himself. Appellant’s
Informal Br. at 2. The government responds that PSNS
described the charged conduct in sufficient detail.
We agree with the government that PSNS’s notice let-
ter was sufficiently detailed. An agency’s notice of pro-
posed removal is sufficient if “it apprises the employee of
the nature of the charges ‘in sufficient detail to allow the
employee to make an informed reply.’” King v. Alston, 75
F.3d 657, 661 (Fed. Cir. 1996) (quoting Brook v. Corrado,
999 F.2d 523, 526 (Fed. Cir. 1993)). Here, PSNS satisfied
that requirement. Specifically, PSNS’s proposed removal
letter explained that Ensley was charged with Inappropri-
ate Conduct. It then described each element of that con-
duct in detail, citing dates, actions, and specific statements
(as shown above). SAppx 471–76. And, as the record
shows, Ensley had no trouble understanding the charge or
defending himself. Indeed, in his response to the letter, he
addressed several of the allegations in detail. See, e.g.,
SAppx 740–46. Accordingly, Ensley’s argument is unavail-
ing.
II
Next, Ensley asserts that the arbitrator improperly as-
sumed that he committed the alleged acts, without consid-
ering contrary evidence. The government responds that
the arbitrator’s decision was supported by substantial evi-
dence. According to the government, the arbitrator care-
fully evaluated Ensley’s testimony and found that it was
outweighed by the extensive, credible testimony of multiple
other witnesses.
We agree with the government that the arbitrator’s de-
cision was supported by substantial evidence.
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6 ENSLEY v. PUGET SOUND NAVAL SHIPYARD
First, the arbitrator did not simply assume that the
charged conduct occurred. Rather, he carefully considered
the evidence and found that it overwhelmingly weighed
against Ensley. See SAppx 9–20, 31–32. Specifically, the
arbitrator explained that multiple witnesses “divulged
their own uncomfortable experiences with [Ensley],” thus
corroborating the allegations and establishing that he en-
gaged in an inappropriate “pattern of behavior.”
SAppx 31–32. That pattern involved “placing multiple
women in positions where they felt uncomfortable, and
then taking advantage of them in workplace moments
where he found himself alone with them.” Id. The arbitra-
tor also pointed out that, although Ensley supplied un-
sworn witness statements attesting to his good conduct, he
did not provide any witnesses at the hearing to refute the
Inappropriate Conduct charge. SAppx 32. According to the
arbitrator, “th[a]t absence” of witness testimony was “sig-
nificant.” Id. We agree.
Second, even more fatal to Ensley’s argument, he ad-
mitted to some of the conduct. For example, in his signed
statement to the investigator, his oral reply, and his hear-
ing testimony, Ensley conceded that he texted one of his co-
workers and asked her to “come take a bubble bath,” as al-
leged in specification 2. SAppx 205, 235, 275–76. He sim-
ilarly conceded to the deciding official that he asked a co-
worker, “[w]hen are you going to leave your boyfriend and
date me?” as alleged in specification 6. SAppx 208, 277.
Accordingly, substantial evidence supports the arbitrator’s
finding that the conduct occurred.
III
Ensley next contends that, even if the charged conduct
occurred, the arbitrator improperly found that it had a
nexus to PSNS’s ability to function efficiently, as required
by 5 U.S.C. § 7513(a); see also Doe v. Dep’t of Justice, 565
F.3d 1375, 1379 (Fed. Cir. 2009) (citing Brown v. Dep’t of
the Navy, 229 F.3d 1356, 1358 (Fed. Cir. 2000)) (The agency
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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 7
must establish “a nexus between the employee’s miscon-
duct and the work of the agency, i.e., the agency’s perfor-
mance of its functions.”).
We disagree with Ensley. The arbitrator evaluated the
evidence and reasonably found that it supported a nexus
between Ensley’s conduct and PSNS’s performance.
SAppx 29–31. As the arbitrator explained, multiple wit-
nesses testified that Ensley’s conduct adversely affected
their ability to work efficiently. For example, one witness
testified that she felt “uncomfortable” at work “all the
time.” SAppx 24, 30. Another witness felt compelled to
wear men’s clothing in order to protect herself from
Ensley’s advances. Id. Yet another witness testified that
she felt “vulnerable, weak, and really uncomfortable.” Id.That evidence was more than sufficient to establish a
nexus.
Still, Ensley contends that there can be no nexus be-
cause his alleged conduct occurred outside of work hours.
His argument is not persuasive. First, Ensley does not re-
but the extensive evidence that his conduct occurred while
at work. Second, even assuming that his conduct occurred
outside of work, substantial evidence supports the arbitra-
tor’s nexus determination. “[A]s long as the agency can
prove that the removal of [the employee] promoted the ef-
ficiency of the service . . . nothing prevents [it] from relying
upon off-duty behavior.” Weekes v. Dep’t of Homeland Sec.,
351 F. App’x 442, 445 (Fed. Cir. 2009) (citing Brown v.
Dep't of the Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000));
Allred v. Dep’t of Health & Human Servs., 786 F.2d 1128,
1130 (Fed. Cir. 1986). Such is the case here. As explained
above, Ensley’s behavior affected his co-workers’ ability to
work efficiently during work hours, thus establishing a
nexus.
IV
Finally, Ensley asserts that the arbitrator committed
two legal errors. First, Ensley argues that the arbitrator
Case: 21-2082 Document: 21 Page: 8 Filed: 12/08/2021
8 ENSLEY v. PUGET SOUND NAVAL SHIPYARD
incorrectly applied state law. Second, Ensley contends that
the arbitrator should have required PSNS to prove that his
conduct violated Title VII of the Civil Rights Act. We ad-
dress each argument in turn.
First, as an initial matter, Ensley is correct that the
arbitrator erred in citing state law. An arbitrator must ap-
ply the “same substantive standards” as the Board. Cor-
nelius v. Nutt, 472 U.S. 648, 652 (1985). Here, the Board
would have considered federal law rather than state law in
evaluating Ensley’s removal. However, because the arbi-
trator’s citation of state law was either harmless or extra-
neous, we decline to reverse his determination. For
example, the arbitrator explained that, under state law, he
must consider whether Ensley’s conduct was simply an “ac-
tion[] of camaraderie” (subsequently concluding that it was
not). SAppx 28. Ensley does not explain how that extra-
neous consideration was prejudicial or affected the out-
come of the decision. Similarly, the arbitrator, citing state
law, explained that he must evaluate “the case as a whole
in determining whether or not the disciplinary action taken
was appropriate.” SAppx 27. Again, Ensley does not ex-
plain how the arbitrator’s consideration of the case “as a
whole” was prejudicial.
Second, we disagree with Ensley’s argument regarding
Title VII. PSNS was not required to prove the elements of
a Title VII violation because it did not charge Ensley with
violating that law. Rather, it charged him with committing
Inappropriate Conduct. SAppx 471. Because Ensley does
not explain the relevance of Title VII here, we reject his
argument.
In summary, substantial evidence supports the arbi-
trator’s determination that Ensley received sufficient no-
tice of the charge against him, that he engaged in
inappropriate conduct, and that the conduct affected
PSNS’s ability to operate efficiently.
Case: 21-2082 Document: 21 Page: 9 Filed: 12/08/2021
ENSLEY v. PUGET SOUND NAVAL SHIPYARD 9
CONCLUSION
We have considered Ensley’s remaining arguments but
find them unpersuasive. For the foregoing reasons, the de-
cision of the arbitrator is affirmed.
AFFIRMED
COSTS
No costs.