The Board Reverses Administrative Judge’s Penalty Mitigation in Sexual Misconduct Case
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Samuel King, Jr. | U.S. Air Force
The Department of the Army removed the appellant in September 2015 based on one charge of conduct unbecoming a supervisor. The charge was supported by two specifications. The first specification alleged that the appellant made unwanted comments to female employees calling them ‘sexy’ or ‘beautiful,’ which the appellant’s supervisor addressed with him several times over a 6-month period. The second specification alleged that, during this same 6-month period, the supervisor addressed with the appellant complaints about his practice of engaging in closed-door meetings and personal conversations with one female employee.
The appellant filed an appeal of his removal. After a hearing, the administrative judge issued an initial decision sustaining the charge, but finding that the agency did not prove specification 1 in its entirety, and mitigating the removal penalty. She reasoned that “although serious, the appellant’s misconduct did not involve more serious charges such as sexual harassment, making sexual advances, or inappropriate conduct” towards the woman during closed-door meetings. She also noted the appellant’s prior disciplinary record as an aggravating factor, and his length of service, good performance, and claims of stress and tension as mitigating factors. She mitigated the removal to a 14-day suspension. The agency filed a petition for review at the Merit Systems Protection Board.
On review, the Board held that the agency proved the appellant’s conduct toward his female employees was inappropriate and unwanted, and that the administrative judge relied on a mischaracterization of the misconduct. The Board must defer to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on observing the demeanor of witnesses testifying at a hearing; but, where the administrative judge’s findings are not based on witness demeanor, “the Board is free to reweigh the evidence and substitute its own judgment on credibility issues.” “Moreover, the Board may overturn an administrative judge’s credibility determinations when they are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole.” Here, the Board determined the record was sufficiently well developed and for it to reweigh the evidence.
In overturning the administrative judge’s findings on specification one, it clarified that the appellant’s misconduct spanned several months and “went well beyond two instances” of calling female employees ‘beautiful.’ In determining this, the Board relied on multiple employee statements setting forth numerous examples of inappropriate behavior toward female subordinates. Specifically, it found that the statements and testimony provided by the agency’s witnesses were consistent, not inherently improbable, and not likely to be the result of bias against the appellant. Therefore, it found the agency’s witnesses to be more credible than the appellant.
Next, the Board turned to the Douglas factors to assess the penalty, and it agreed with the agency that the administrative judge failed to recognize the seriousness of the appellant’s conduct. “It is well established that the most important factor in assessing whether the agency’s chosen penalty is” reasonable “is the nature and seriousness of the conduct and its relation to the employee’s duties, position, and responsibilities.” The Board pointed to employee testimony and statements demonstrating that the appellant’s behavior made his subordinates uncomfortable, and that the seriousness of his misconduct is amplified by his role as a supervisor wherein he occupies a position of trust. It additionally considered the appellant’s position—here, a Supervisory Human Resources Specialist—in determining that the misconduct was especially egregious because of its relation to his duties. As a result, the Board reversed the administrative judge’s findings and held that there was no basis to mitigate the appellant’s removal.
For these reasons, the Board modified the analysis of the first specification, vacated and reversed the initial decision with respect to the penalty, and sustained the agency’s removal action.
Find the full case here: Thomas v. Department of the Army.
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