[00:00:10] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
I'm Anthony Wallach from San Antonio, Texas, representing Mr. Zerick Scott in his petition for review of a Merit Assistance Protection Board case.

[00:00:24] Speaker 01:
As you're probably aware, this resulted from a removal action by the State Department of an employee in Houston, Texas.

[00:00:35] Speaker 01:
The remaining allegations after it was heard by the Merit Assistance Protection Board

[00:00:40] Speaker 01:
were five specifications of failure to comply with an investigation, cooperate with an investigation, and two specifications of misconduct.

[00:00:52] Speaker 01:
This case arose from a EEO training session that occurred in Houston.

[00:00:58] Speaker 05:
Our time is very limited, so why don't you just get to where you think the error lies that justify our reversing the board.

[00:01:07] Speaker 01:
We have three issues, ma'am.

[00:01:09] Speaker 01:
One issue is whether or not he did fail to participate by answering questions in the compelled... That was dropped, wasn't it?

[00:01:17] Speaker 00:
Pardon, sir?

[00:01:18] Speaker 00:
That issue was dropped.

[00:01:19] Speaker 00:
No, sir.

[00:01:19] Speaker 00:
That was not.

[00:01:21] Speaker 00:
Failure to cooperate is still one of the specifications?

[00:01:24] Speaker 00:
Yes, sir.

[00:01:24] Speaker 00:
It's five of the specifications.

[00:01:25] Speaker 03:
Is that something the board relied upon in continuing to affirm the penalty?

[00:01:31] Speaker 01:
The board did not rely on those.

[00:01:32] Speaker 01:
However, we believe that there are significant issues

[00:01:35] Speaker 01:
because they were five of the seven total specifications and they were significant as far as the seriousness of the offenses.

[00:01:44] Speaker 05:
So I think we're all free, as you are, to get those off the table because the board didn't sustain those specifications.

[00:01:52] Speaker 05:
It relied exclusively on the alleged misconduct.

[00:01:56] Speaker 05:
So why don't we talk about that because we've already taken the other step off the table.

[00:02:01] Speaker 01:
Yes, ma'am.

[00:02:02] Speaker 01:
Those specifications were considered as part of the Douglas Factors.

[00:02:08] Speaker 01:
And one of our arguments are that the Douglas Factors were not properly applied, properly considered.

[00:02:13] Speaker 01:
So we felt that those were still significant, notwithstanding the MSPB not accepting those or not looking further into those.

[00:02:20] Speaker 01:
So I'll press on to the other issue, the remaining two issues, and that is the severity of the specifications regarding sexual harassment.

[00:02:33] Speaker 01:
This came out of a sexual harassment investigation.

[00:02:35] Speaker 01:
And it's clearly a sexual harassment issue.

[00:02:39] Speaker 01:
That was the allegations that were submitted to the investigation that resulted in all the charges.

[00:02:45] Speaker 01:
It was also referenced on three different occasions in the deciding official's Douglas Factors considerations.

[00:02:52] Speaker 05:
And there's a lot of deference allotted to the deciding official with respect to the Douglas Factor Inquiry, right?

[00:02:59] Speaker 01:
Ma'am, I have a difficult hearing.

[00:03:02] Speaker 05:
There's a lot of deference that we allow to the agency in its consideration of the Douglas Factors.

[00:03:09] Speaker 05:
Is there not?

[00:03:10] Speaker 01:
Yes, there is, Your Honor.

[00:03:11] Speaker 01:
But it still has to be reasonable.

[00:03:12] Speaker 01:
The Douglas Factors require when there's an adverse action, such as removal, that it should be made only after responsible termination that a less severe penalty, such as a lesser punishment, are adequate.

[00:03:27] Speaker 01:
And we don't think that that was done.

[00:03:29] Speaker 01:
that was not inadequate.

[00:03:30] Speaker 01:
Yes, they gave him deference, but they can't ignore the Douglas Factors.

[00:03:34] Speaker 01:
They do have to make it up.

[00:03:34] Speaker 05:
Well, what makes you think they ignored that Douglas Factor?

[00:03:37] Speaker 05:
They spoke, did they not, about the fact that he was a supervisor, he had certain responsibilities, they looked at the charges.

[00:03:44] Speaker 05:
Yes, ma'am.

[00:03:45] Speaker 05:
I mean, I understand this case is a little bit unusual because there were two glitches in the consideration of the Douglas Factors, but those, I think, were

[00:03:56] Speaker 05:
remedy when the deciding official said, even with his years of service, whatever, I still made this decision.

[00:04:04] Speaker 05:
And she explained why.

[00:04:06] Speaker 05:
What's wrong with that?

[00:04:07] Speaker 05:
Why is that sufficient basis to overturn really what's a pretty discretionary call, right?

[00:04:12] Speaker 01:
Well, again, we're looking at the seriousness of it.

[00:04:16] Speaker 01:
All right.

[00:04:18] Speaker 01:
The deciding official considered two of the specifications that were dropped by the administrative judge to be particularly egregious.

[00:04:30] Speaker 01:
In the record of the hearing, at 55 minutes and 23 seconds, the deciding official in her testimony stated that the physical sexual harassment specifications were particularly egregious.

[00:04:45] Speaker 01:
And that was part of her consideration when she looked at the seriousness of the offenses as well as the rehabilitation and all the others and the Douglas factors.

[00:04:52] Speaker 01:
Those two specifications were thrown out by the administrative judge.

[00:04:56] Speaker 01:
So what we're saying is

[00:04:58] Speaker 01:
that when the allegations of touching of actual assault were dismissed, all you have left are essentially comments, locker room type comments that are made a year apart, one in 2009, one in 2010.

[00:05:13] Speaker 01:
There was no complaint made of them.

[00:05:16] Speaker 01:
They were obviously not taken as unwanted comments because the deciding official in her decision letter

[00:05:25] Speaker 01:
Quotes the witnesses saying whatever that was her response to it is whatever and There was no complaining the complaints were ultimately made after they all went through sexual harassment training and on reflection they realized certain Mischief was going on and decided to report this individual There was no complaint in the sense of an EEO complaint that would be investigated or would be resolved through the EEO system

[00:05:52] Speaker 01:
These were complaints that were referred to the Office of Professional Responsibility in Washington for them to do the investigation.

[00:06:00] Speaker 01:
Now, they were referred to sexual harassment complaints.

[00:06:03] Speaker 01:
That is, on page 102 of the appendix, it's referred as a sexual harassment complaint.

[00:06:11] Speaker 01:
And that's our issue.

[00:06:12] Speaker 01:
This is a sexual harassment complaint.

[00:06:14] Speaker 01:
When the other serious charges were removed, and there were other charges that were removed by the deciding official also.

[00:06:21] Speaker 01:
But when those two serious ones were removed that she had so much emphasis on, both in her decision as well as her testimony, we believe that the evaluation of the Douglas factors on the specifications that remained did not justify, under the Douglas criteria, justify the severe punishment, the maximum punishment.

[00:06:45] Speaker 01:
You know, it's hard.

[00:06:47] Speaker 05:
I mean, I know you're probably familiar with our caseload.

[00:06:50] Speaker 05:
It's very uncommon for us to overturn a board affirmance of a deciding issue based on Douglas factors simply because it's so discretionary.

[00:07:01] Speaker 05:
We have cases sometimes when the employee comes up and says the agency

[00:07:07] Speaker 05:
only suspended six different people for the exact same conduct, and now they've removed this individual.

[00:07:13] Speaker 05:
You have none of that evidence here, right?

[00:07:15] Speaker 01:
No, ma'am.

[00:07:16] Speaker 01:
We do not.

[00:07:16] Speaker 01:
No.

[00:07:16] Speaker 05:
So all you're asking us is to kind of almost do a de novo evaluation that we don't think this is serious to remove a supervisor.

[00:07:27] Speaker 05:
I mean, so we should decide in the first instance whether or not we think it's only a 30-day suspension.

[00:07:32] Speaker 05:
I mean, you understand this is a difficult position to bear on the appellate level, right?

[00:07:37] Speaker 01:
That is essentially what we're asking, Your Honor, and we believe that that's justified because the Douglas decision does require specific consideration of the various elements, the 12 elements.

[00:07:50] Speaker 01:
And in these, two of those are very, the most important things that people usually look at in these situations is how long has this guy been working here?

[00:08:00] Speaker 01:
How long is employment?

[00:08:01] Speaker 01:
And have they had any other misconduct?

[00:08:03] Speaker 01:
she misinterpreted both of those and misapplied them.

[00:08:05] Speaker 05:
Yes, but that was rehabilitated on the witness stand, and the administrative judge said that she credibly testified, she meaning the deciding official, credibly testified that she would have taken the same action evaluating the Douglas Factors as they should have been evaluated, 29 years and no misconduct, right?

[00:08:25] Speaker 05:
So you're right.

[00:08:26] Speaker 05:
If they hadn't cured that, that could be a problem.

[00:08:29] Speaker 05:
But in our cases, isn't that typically

[00:08:33] Speaker 05:
sufficient in terms of curative?

[00:08:36] Speaker 01:
Well, we questioned whether that was sufficiently curative at that level, because again, she still had two other specifications that she was considering as egregious, which were later removed by the administrative judge.

[00:08:50] Speaker 01:
So at some point, if a deciding official is looking at 10 or 12 factors, and only two or three of those wind up being ultimately proven,

[00:09:00] Speaker 01:
Her consideration, the deciding official's consideration of those earlier possible specifications as contributing to the seriousness, it has to be reevaluated at some point.

[00:09:14] Speaker 01:
It's after the fact for the deciding official.

[00:09:16] Speaker 01:
The deciding official cannot make that reevaluation.

[00:09:19] Speaker 01:
The administrative judge certainly can, and we believe the administrative judge erred in the determination that she made.

[00:09:25] Speaker 01:
And that's why, yes, we are asking essentially the board to overcome

[00:09:29] Speaker 01:
what we see as an error in the evaluation of the Douglas Factors.

[00:09:33] Speaker 01:
And to do what?

[00:09:34] Speaker 01:
And to either remand it back to the MSPB or to direct that he be placed back into his position with the State Department.

[00:09:47] Speaker 00:
So there was a deciding official here.

[00:09:50] Speaker 00:
And then there was an administrative judge.

[00:09:53] Speaker 00:
And then there was the full board, or at least two-thirds of the board.

[00:09:57] Speaker 00:
Yes, sir.

[00:09:59] Speaker 01:
Well, the administrative, I'm sorry, the MSPB, we believe that they were wrong in not looking at those additional five specifications.

[00:10:09] Speaker 01:
We think that was an error.

[00:10:10] Speaker 01:
He did go and answer those questions and to have... No, well, they did.

[00:10:14] Speaker 05:
They did exactly what you wanted.

[00:10:16] Speaker 05:
They said they're not sustained and you can't rely on those.

[00:10:19] Speaker 05:
I mean, I don't really understand your argument about those additional... You won on that issue.

[00:10:24] Speaker 05:
Those were taken off the table.

[00:10:26] Speaker 05:
And then it was up to the board and then us to evaluate whether the penalty was appropriate based on solely the misconduct allegations and not the uncooperation.

[00:10:36] Speaker 05:
So I don't understand what you think you can gain by that.

[00:10:40] Speaker 01:
You've already, you know.

[00:10:43] Speaker 01:
Yes ma'am.

[00:10:43] Speaker 01:
The remaining sexual harassment issues that the

[00:10:50] Speaker 01:
the deciding official indicated that she would have based the removal on it separately by themselves.

[00:10:56] Speaker 01:
Again, all of them were not sustained by the administrative judge, number one.

[00:11:02] Speaker 01:
Number two, when you look at the circumstances, if you look at the nexus, for example, between the removal and the sufficiency of the service, there was none in this situation because the time that passed between these two events

[00:11:19] Speaker 01:
2009-2010 finally being reported a year later.

[00:11:23] Speaker 01:
The record shows that he had satisfactory service and it was either fully successful or outstanding.

[00:11:30] Speaker 01:
There were no other issues.

[00:11:31] Speaker 01:
There were no other events that occurred.

[00:11:35] Speaker 01:
So we would suggest that her evaluation just based on the nexus requirement of the Douglas Factors was not properly supported.

[00:11:45] Speaker 01:
What was the

[00:11:47] Speaker 01:
What was the benefit to the service, or what was the exigency to the admission of the service?

[00:11:53] Speaker 00:
How about a comfortable environment for other workers?

[00:11:55] Speaker 00:
I'm sorry, sir?

[00:11:56] Speaker 00:
How about a comfortable environment for other workers?

[00:11:59] Speaker 00:
Well, certainly.

[00:11:59] Speaker 00:
Isn't that the efficiency of the service?

[00:12:01] Speaker 01:
Well, yes it is, Your Honor.

[00:12:03] Speaker 01:
But there's no suggestion that this occurred to any other co-workers as far as the findings went.

[00:12:10] Speaker 01:
The facts just don't support that.

[00:12:12] Speaker 05:
So it has to happen five times before you can say that this is not acceptable?

[00:12:18] Speaker 01:
Well, you're aware that the civil service system really has a progressive punishment aspect to it, where people usually would take you up through a chain of different punishments if things do reoccur.

[00:12:35] Speaker 05:
So we would suggest that certainly something... Well, I mean, maybe what you're suggesting isn't completely out of the question and completely improper or completely out of the box.

[00:12:46] Speaker 05:
But that's not what we're reviewing here in a level of review.

[00:12:50] Speaker 05:
Maybe somebody could have done something else.

[00:12:53] Speaker 05:
Maybe if the agency had decided to suspend him for 45 days, we would have affirmed that too.

[00:12:59] Speaker 05:
But that's not what our job here is as an appellate

[00:13:03] Speaker 05:
just because you think that was the better, that would have been the better or more appropriate avenue for the agency to take.

[00:13:11] Speaker 05:
That's just not what we're doing here.

[00:13:12] Speaker 01:
One of the ultimate requirements of the decision to remove the employee is that the removal has to be supported by substantial evidence and in the bottom line is that's what we're arguing that there was not sufficient evidence in this case to require removal of a 29-year

[00:13:30] Speaker 01:
individual with no prior disciplinary actions and with a satisfactory service record of service and evaluations.

[00:13:43] Speaker 01:
We do not believe that there's substantial evidence in this file to justify that extreme measure.

[00:13:49] Speaker 01:
We don't think it was quantified by the testimony of the deciding official.

[00:13:56] Speaker 01:
We don't think it's in the evidence file.

[00:13:59] Speaker 01:
And given the nature of... We're not saying that sexual harassment is not a pernicious thing in the federal government.

[00:14:08] Speaker 01:
You just read the paper, watch the news any day, we know what's going on.

[00:14:12] Speaker 01:
But there are levels of it.

[00:14:13] Speaker 01:
It goes from a minor range to a very, you know, to sexual assault.

[00:14:18] Speaker 01:
And in that scale, we think that the evidence shows that this was at the very minor level, that there was not sufficient justification in there by the administrative

[00:14:28] Speaker 01:
I'm sorry, by the deciding official's testimony or the documentation to justify it going that far by itself, those things by itself.

[00:14:36] Speaker 01:
All the specifications taken together, maybe they were sufficient for removal.

[00:14:40] Speaker 01:
But just on the sexual harassment issues, we disagree that those in and of themselves justify the action taken.

[00:14:49] Speaker 00:
Thank you, ma'am.

[00:15:01] Speaker 02:
Good morning.

[00:15:02] Speaker 02:
May I please the court?

[00:15:03] Speaker 02:
The board concluded that Mr. Scott's inappropriate conduct was sufficient to justify his removal.

[00:15:09] Speaker 02:
Mr. Scott's assertion that his conduct was not serious or minor does not satisfy the standard necessary to reverse the board's decision.

[00:15:18] Speaker 02:
For example, this court in Miguel v. Department of Army, which Mr. Scott attempts to rely on, determined that removal for the theft of a $2 bar of soap was grossly disproportionate penalty.

[00:15:30] Speaker 02:
Mr. Scott's conduct goes well beyond the theft of a bar of soap.

[00:15:35] Speaker 02:
Mr. Scott, who was a supervisor, made inappropriate statements of a sexual nature and displayed inappropriate pictures to a coworker.

[00:15:44] Speaker 02:
The board's conclusion that these constitute serious acts of misconduct was not an abuse of discretion.

[00:15:50] Speaker 02:
And this court, in its precedent, reviews the penalty in a highly deferential manner.

[00:15:56] Speaker 02:
The board also appropriately affirmed the administrative judge's determination that the nexus is established when a supervisor makes inappropriate comments of a sexual nature to coworkers.

[00:16:08] Speaker 02:
With regard to the Douglas factors, Mr. Scott's expressed disagreement in his brief, but he's not identified any heirs.

[00:16:15] Speaker 02:
As the courts point out, there were glitches, but these were cured by the administrative judge and then by the board itself.

[00:16:21] Speaker 05:
It raises a suspicion in these cases.

[00:16:24] Speaker 05:
These types of cases, though, does it not?

[00:16:27] Speaker 05:
If you charge someone with 16 different specifications, and the AJ throws out 10 of them, and you're only left with the original six, and then the board throws out a portion of the original six, I understand here, I guess, the deciding officer said I would have taken the same action, notwithstanding that.

[00:16:47] Speaker 05:
But it is a basis to take a more careful look under those circumstances, is it not?

[00:16:53] Speaker 02:
Absolutely, Your Honor.

[00:16:54] Speaker 02:
It is a basis to step back and take a closer look.

[00:16:57] Speaker 02:
And that is what the administrative judge did.

[00:16:59] Speaker 02:
In her decision, she goes through the Douglas Factors, not quite de novo, but she goes through each one and weighs them.

[00:17:07] Speaker 02:
And as Your Honor pointed out, there was rehabilitation testimony in this case, which the administrative judge credited.

[00:17:17] Speaker 02:
So I think the step back was taken, and the administrative judge determined that the Douglas Factors

[00:17:23] Speaker 02:
doing her own analysis still warranted removal in this case.

[00:17:28] Speaker 02:
And this court's precedent also looks to whether the agency gives any indication that if there is some charges that are not sustained or differences in the Douglas Factors, if they would have chosen a different course of action.

[00:17:41] Speaker 02:
And there's nothing in the record here that the agency

[00:17:43] Speaker 02:
would have chosen a different course of action.

[00:17:45] Speaker 05:
Well, it kind of works the opposite.

[00:17:46] Speaker 05:
The agency then should get up and kind of establish that they would have taken the action even under the more limited factors.

[00:17:53] Speaker 05:
The burden isn't otherwise.

[00:17:55] Speaker 05:
I mean, the suggestion is that if you remove someone for 10 things and two are left standing, that you've got to explain why these two are sufficient, right?

[00:18:06] Speaker 02:
Your Honor, it still has to pass the

[00:18:09] Speaker 02:
the reasonableness test.

[00:18:11] Speaker 02:
The board still has to determine that it is a reasonable punishment for the sustained charges.

[00:18:18] Speaker 02:
But in cases such as Hathaway v. Department of Justice, the board looks at whether the agency has made any indication that it would have applied a lesser penalty.

[00:18:28] Speaker 02:
And in this case, there is none.

[00:18:31] Speaker 04:
Are there any examples either that this agency or perhaps the federal government has

[00:18:40] Speaker 04:
administer the exact same kind of penalty of removal for conduct that's similar to this?

[00:18:47] Speaker 02:
The board did cite two cases, the Longo and Alberto cases, which are similar in that they are comments of a sexual nature and removal was deemed appropriate.

[00:19:02] Speaker 02:
And that's what the agency took, and that was upheld by the board.

[00:19:08] Speaker 02:
I can't remember what happened if and when it came here, but the board determined that inappropriate comments of sexual nature are enough to justify removal in those two cases.

[00:19:22] Speaker 02:
We therefore ask the boards to affirm the board's decision that Mr. Scott's misconduct also warrants removal.

[00:19:28] Speaker 02:
And unless there are further questions, we'll rest on the briefs.

[00:19:34] Speaker 05:
So you had about a minute left in your time.

[00:19:36] Speaker 05:
I did not have a question.

[00:19:39] Speaker 05:
Okay, thank you.

[00:19:40] Speaker 05:
We thank both sides.

[00:19:41] Speaker 05:
The case is submitted.