Below is the redacted initial decision from MSPB.

Here is a PDF version of MSPB decision | Federal Circuit Court Decision (3/10/06)

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE

Norman F. Nivens, Esquire, Fair Oaks, California, for the appellant.

Anthony W. Du Comb, Esquire, San Francisco, California, for the agency.

Robert T. Grueneberg, Esquire, Chicago, Illinois, for the agency.

BEFORE

Craig A. Berg
Administrative Judge

INITIAL DECISION

INTRODUCTION

On October 1, 2003, the appellant filed a petition appealing the agency’s action removing him from the position of District Manager, PCES 1, Oakland, California District, effective November 9, 2002.[1]  Initial Appeal File (IAF) I, Tab 1.[2]  The Board has jurisdiction over this appeal under 39 U.S.C. § 1005(a)(4)(A)(ii); 5 U.S.C. § 7513(d), 7701(a).  A hearing was held on February 9 & 10, 2005.  For the reasons discussed below, the agency’s action is AFFIRMED.

ANALYSIS AND FINDINGS

Background

The appellant has been employed by the U.S. Postal Service since 1963.  He started as a Distribution Clerk, moved on to a number of supervisory positions beginning in 1972, and was appointed Postmaster in Los Angeles, California in 1998.  In August, 1999, he was appointed to the position of District Manager in Oakland, California.  In that position, the appellant was the head of the entire Oakland District, which has approximately 11,000 employees, and is one of 10 Districts in the agency’s Pacific Area.  His first-level supervisor was xxxxxxx, Vice President, Operations, for the Pacific Area.

In approximately November, 2001, the appellant, who was married at the time, began an intimate relationship with xxxxxxx, a Postal Supervisor who had begun a detail as the acting Officer-in Charge (OIC) at the xxxxx, California Post Office shortly before that time.  In February, 2002, xxxxxxx was selected for a detail as acting OIC at the xxxxxxxx, California Post Office, a level 22 position.  In the first week of April, 2002, xxxxxxx received an anonymous letter, dated March 31, 2002, alleging that the appellant was having affairs with two employees, xxxxxxx and xxxxxx, who had been level 16’s before being placed in level 22 details.  IAF, Tab 3, Subtab 1.  The letter stated that the appellant’s actions were “disgusting” because he was preventing others from having opportunities and because he was a married man.  On the bottom of the letter, the author indicated that copies had been sent to the appellant, the Postmaster General (John Potter), xxxxxx, xxxxxxx, and the appellant’s wife.  Id.  On April 8, 2002, the appellant sent a copy of the letter to xxxx, of the Postal Inspection Service, stating that the letter contained untrue allegations about his conduct, and was threatening and harassing.  Id., Subtab 2.  The appellant stated that he believed the letter had been sent by xxxxxxxx, Manager of Customer Service, xxxxxxx Post Office, and he requested assistance in identifying the letter’s sender.  Id.

Subsequent anonymous letters were sent to xxxxxxx and others regarding the appellant in April and July, 2002.  IAF, Tab 4, Exhibits (Exs.) D, E, F.  The letters accused the appellant of forcing specified female employees, including xxxxxxx, into sexual relationships with him, asserted that there were photos of the appellant and xxxxxxx “caught in the act,” claimed that the appellant favored his “mistresses” with job assignments and also favored African-American managers and supervisors, accused the appellant of forcing xxxxxxx to have sex with him against her will on March 9, and threatened to release “hard evidence” on the internet.  Id.  In April, 2002, the Pacific Area Human Resources and General Counsel’s Offices investigated the allegations in the first two letters (March 31, 2002 and April 16, 2002) and determined that their contents lacked merit.  Id., Ex. K.  Following receipt of the July, 2002 letters, the matter was referred to the Postal Inspection Service (PIS or Inspection Service), and the PIS undertook an investigation into whether the appellant had engaged in acts of sexual harassment.  Agency File, Subtab 4E. 

On September 20, 2002, xxxxxxx proposed the appellant’s removal on charges of Unacceptable Conduct (two specifications) and Interference with Investigation (three specifications).  Agency File, Subtab 4D.  Following the appellant’s response, the agency issued a decision sustaining all specifications of both charges and finding that removal was the appropriate penalty.  Id., Subtabs 4B, 4C.

The Merits

The agency has the burden to prove the charges by preponderant evidence[3]  5 C.F.R. § 1201.56(a)(ii).  Proof of one or more specification supporting a charge is sufficient to sustain the charge.  See Greenough v. Department of the Army, 73 M.S.P.R. 648, 657 (1997), review dismissed, 119 F.3d 14.  

Unacceptable Conduct

The Board has held that an agency need not affix any specific label to its charges, but can instead describe actions that constitute misbehavior in narrative form and have its discipline sustained if the efficiency of the service suffers because of the misconduct.  See Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202-203 (1997).  There is nothing inappropriate about an agency using a broad label such as “improper conduct” as long as the reasons for the proposed action are described in sufficient detail to allow the employee to make an informed reply.  Id.  The Board has also made clear that it must construe a charge in light of the accompanying specifications.  See James v. Department of the Air Force, 73 M.S.P.R. 300, 303 (1997).  In resolving the issue of how charges should be construed, the structure and language in the proposal notice must be examined.  Id.  After reviewing the agency’s proposal notice, as discussed below, I determined, and the parties agreed, that the agency charged the appellant with two specifications of unacceptable conduct.

Specification One

In this specification, the agency charged the appellant with creating an actual or apparent conflict of interest by failing to disclose his relationship with xxxxxxx and recusing himself from the decision to place her in the detail to the OIC-xxxxxxxx position and instead approving her selection for that position by xxxxx, the acting Manager Post Office Operations (MPOO) for the Oakland District.  Agency File, Tab 4D.

First, it is undisputed that the appellant had been involved in an intimate relationship with xxxxxxx for several months at the time xxxxx proposed xxxxxxx for the OIC position, in February, 2002.  Hearing Tapes (HT) (Faciane, xxxxxxx); IAF, Tab 4, Subtab QQ (notice from xxxxx that xxxxxxx was detailed as Acting OIC-xxxxxxxx, effective March 2, 2002).  The disputed issues with regard to this specification are whether the appellant was required to approve xxxxx’s selection of xxxxxxx, whether he did, in fact, approve the choice, and if so, whether his actions were improper.

xxxxx stated during the PIS investigation that she was detailed as the acting MPOO on February 26, 2002, and she testified that the appellant was her immediate supervisor while she held that position.  Agency File, Tab 4E at 32-34.  HT (xxxxx).  She testified that she met xxxxxxx when she (xxxxx) was a xxxxxxxx xxxxxxx xxxxxxx in 1998/99 and xxxxxxx was a Delivery Supervisor in xxxxxx xxxxx.  She explained that she mentored xxxxxxx and recommended xxxxxxx for the position of OIC-xxxxx in 2001 when xxxxx was OIC-xxxxxxxxxx.  xxxxx stated that, when she became the acting MPOO, she first considered xxxxx, the OIC-xxxxxxx, to replace her at xxxxxxxx, but when he stated he was not interested, she recommended xxxxxxx for the position.  HT.  xxxxx testified that the appellant never told her who he wanted to replace her with in xxxxxxxx; she stated that they were in the appellant’s office shortly after she became acting MPOO, she told the appellant that she wanted xxxxxxx to replace her, and he said “fine.”  Id.  xxxxx stated that, as acting MPOO, she was required to tell the appellant who she was putting in positions, and that he had the authority to stop her from selecting the particular employee.  While she was acting under the appellant, for 4 months, she always spoke with the appellant when filling other details, and he gave feedback, but never overruled her choice.  Id.  xxxxx has denied any knowledge of an intimate relationship between xxxxxxx and the appellant at the time she suggested xxxxxxx for the acting OIC-xxxxxxxx position.  Agency File, Tab 4E at 32-34, 91, HT (xxxxx). 

xxxx, who is currently retired and was the MPOO xxxxx replaced (while xxxx was on a detail), testified that the MPOO makes the selections for available OIC positions, both permanent and details.  HT.  xxxx testified that he and the appellant agreed to choose xxxxx to replace xxxx as acting MPOO, and that he, the appellant, and xxxxxx then met, in February, 2002, to discuss filling xxxxx’s slot in xxxxxxxx.  Id.  xxxxx suggested xxxxxxx for the detail, asserting that she was mentoring xxxxxxx and that xxxxxxx was good, and xxxx agreed.  Id.  xxxx stated that he did not find out that the appellant and xxxxxxx were in a relationship until July or August, 2002.  Id.; Agency File, Tab 4E at 85 (PIS interview with xxxx).  He explained that, as MPOO, he picked more than 12 OIC’s, and more than six of the selections were made while the appellant was District Manager.  He testified that he always discussed his selections for an OIC position with the appellant, and they would discuss the pros and cons of the selection, but the appellant never overruled his decision.  Id.

xxxxxxx testified that, when he finally found out the appellant had been having a relationship with xxxxxxx, he was “shocked” that the appellant had given her the OIC-xxxxxxxx position.  HT.  He stated that it was not abnormal for xxxxxxx to get the level 22 position, but it was rare for her to go from a level 16 to level 20 to level 22 like she did.  Even if she was qualified for the job, the appellant should have disclosed his relationship with xxxxxxx to him or to Human Resources.  Id.  On cross-examination, xxxxxxx testified that it was not against the rules for the appellant to have the relationship, but that the decision-making that involved xxxxxxx was improper.  He stated that all executives receive ethical training from the law department about sexual harassment and other policies, and the appellant was well aware of the agency’s policies.  He admitted, however, that he was unaware of any specific counseling the appellant received about the need to reveal intimate relationships, or the need to recuse himself when making personnel decisions regarding an employee with whom he is involved.  Id.  xxxxxxx testified that the appellant was a concurring official in xxxxxxx’s selection for the detail, and it was his knowledge of the selection that constituted a wrongful act.  Id.  In response to further questioning, he stated that all District Managers approve acting OIC positions at that level, although maybe not for smaller post offices.  He described the OIC assignment as “developmental,” and asserted that there was no paper trail of the selection process, as it is done verbally.  Id.

The appellant testified that he did not disclose to xxxxxxx that he and xxxxxxx were in a relationship prior to her selection for the OIC-xxxxxxxx detail because he did not think it was a conflict, and he did not know he was required to do so.  HT.  He stated that he was not the decision maker with regard to the detail, so he could not recuse himself.  As to his involvement in the selection, the appellant testified that xxxxx mentioned xxxxxxx for the detail, and he did not voice disagreement or review xxxxxxx’s records, as he thought the selection was okay.  At the time, he asserted, there were 29 or 30 supervisory vacancies, and xxxxx said that xxxxxxx would do a good job.  Id.  He provided no input into the selection, as it is the MPOO’s job to make such choices, and he is unaware of any agency policy requiring him to approve the detail, although there is such a requirement if a selection is for a permanent position.  He stated that he does not believe xxxxx was aware of the relationship between him and xxxxxxx at the time she selected xxxxxxx for the detail.  The appellant further testified that, after all that has happened to him, if he could do things differently, he would contact xxxxxxx or the General Counsel’s office about xxxxxxx’s selection. 

On cross-examination, the appellant testified that he did not have authority to approve xxxxxxx’s detail, but he “accepted” it.  HT.  He stated that if approval means accepted, then he did approve the action.  He admitted that, during his deposition, in response to a question about whether he approved the detail, he stated “yes,” it was fine with him.  Id.  He further admitted that he probably had the authority to prevent an MPOO from placing an employee in a detail, and he acknowledged that the agency has nepotism rules, but stated that he did not necessarily see a parallel between those rules and this situation because in this case, there was no blood relation or marriage license.  In response to further questioning, he admitted he received annual ethics training, and that there was the appearance of impropriety in his actions.  Id.

After consideration of all of the evidence, I find that the agency established that the appellant created an actual or apparent conflict of interest by approving xxxxxxx’s selection for the OIC-xxxxxxxx position.  First, based in this record, I find that there is no evidence that xxxxx was aware the appellant and xxxxxxx were involved in an intimate relationship at the time xxxxx suggested xxxxxxx for the detail to the OIC-xxxxxxxx position, nor is there any evidence that the appellant had any input into the suggestion before xxxxx made it.  Nonetheless, while there is also no evidence that the appellant ever overruled xxxx or xxxxx when they informed him of a choice for an OIC position, both testified that they always discussed their selections with the appellant, and xxxxx stated that the appellant had the authority to overrule any selection she intended.  Even the appellant admitted that he “probably” had the authority to do so.  Based on this evidence, I find that the appellant’s actions amounted to approval of xxxxxxx’s selection for the OIC-xxxxxxxx position while he and xxxxxxx were in an intimate relationship.

I agree with the appellant’s argument that the agency has failed to show that his actions in this specification violated any specific agency rule, or any specific government-wide law, rule, or regulation.[4]  Nevertheless, I find that the agency did not charge the appellant with any such violation, but rather with specified conduct that was detrimental to the agency’s interests.  To the extent the appellant argues that he did not know that his conduct was improper, or could have such an effect, I find no merit to his claim.  The appellant was a supervisor with the agency for approximately 30 years, was the highest-ranked employee in his District of 11,000 employees at the time of his action, and admitted he received ethics training every year.  I find that he either knew, or should have known, that his approval of xxxxxxx for the detail created, at minimum, the appearance of a conflict of interest.  And, the anonymous letters alleging favoritism on the appellant’s part in xxxxxxx’s selection constitutes evidence that others believed a conflict existed.

I SUSTAIN this specification.

Specification Two

The agency charged the appellant with two improprieties related to his involvement in xxxxxxxx’s request for a transfer to North Carolina.  Accordingly, I will divide them into subspecifications.  First, the appellant was charged with attempting to obtain a hardship transfer for xxxxxxxx under false pretenses.  Second, he was charged with having xxxxxx process the transfer without disclosing his interest or his knowledge that the transfer was based on false pretenses.[5]  Agency File, Tab 4D. 

As background to this specification, it is undisputed that xxxxxxx had a personal relationship with xxxxxxxx prior to her relationship with Faciane, although the extent of their relationship is disputed.  xxxxxxxx described the relationship to Postal Inspectors as a “deep” relationship that lasted for two years, and asserted that they lived together from November, 2000 to March, 2001 at xxxxxxx’s xxxxxxxx, California residence.  Agency File, Tab 4E at 164-65.  He stated that xxxxxxx got very upset when she found out he was married and broke up with him, and he got very depressed after their breakup and required counseling.  Id. at 165.  xxxxxxx initially tried to deny or minimize any personal relationship with xxxxxxxx, id. at 109-110, but later admitted that she had an intimate relationship with him, which she testified began while she was in the agency’s Associate Supervisor Program, in February or March, 1999, and lasted for three to six months.  HT, Previously, she had claimed the relationship with xxxxxxxx had lasted for only one month.  Agency File, Tab 4E at 29. 

xxxxxxx and xxxxxxxx both asserted, largely consistently, that on March 6, 2002, xxxxxxxx went to xxxxxxx’s home to help her with a work project and saw Valentine’s Day cards on her counter from xxxxxxx to the appellant, and from the appellant to xxxxxxx.  He got very upset and distraught and began to cry.  Agency File, Tab 4E at 165; IAF, Tab 4, Subtab I; HT (xxxxxxx).  xxxxxxxx contended  that, on Saturday, March 9, 2002, he went to xxxxxxx’s house and when he saw the appellant’s car there, he began frantically knocking on the door until she finally answered.  Agency File, Tab 4E at 165, 172.  When she did, he saw the appellant in her bedroom.  xxxxxxx convinced him to leave, and he spoke to her later that night, at which time she called his friend, xxxx, from North Carolina, out of concern for xxxxxxxx’s well-being, and xxxx flew in to be with him.  Id.  xxxxxxx testified that xxxxxxxx was pounding on her door that day (March 9, 2002) while she and the appellant were eating lunch.  HT.  She told the appellant it was xxxxxxxx and she was not going to answer it, but she eventually opened the latch and asked him to leave.  xxxxxxx described xxxxxxxx as very upset, and stated that he tried to reach in the door, before he finally left.  Then, the appellant left.  Id.  xxxxxxx testified that she told the appellant that xxxxxxxx had been trying to get a transfer to North Carolina to be near his best friend and to play golf, and she was not certain if xxxxxxxx had said he was seeking a “hardship” transfer.  Id. 

The appellant also testified that xxxxxxxx came by xxxxxxx’s while they were eating lunch there on March 9, 2002, and that she did not want to answer the door to avoid a confrontation.  HT.  After xxxxxxxx left, she told him about the Valentine’s Day card incident of several days before, and mentioned that xxxxxxxx wanted a transfer and that she was afraid of him.  Later that day on the telephone, the appellant testified, xxxxxxx admitted to having had a relationship with xxxxxxxx, and told the appellant that xxxxxxxx was upset and had threatened to go to the appellant’s home.  Id. 

It is undisputed that, on March 11, 2002, the appellant met with xxxxxxxx and xxxxxxxx’s friend xxxx at a restaurant.  The appellant claims that xxxxxxxx called him on that day, told him he wanted a transfer, and suggested the meeting, while xxxxxxxx admitted that he called the appellant to set up the meeting, but also asserted that xxxxxxx told him that the appellant wanted the meeting.  HT (Faciane); Agency File, Tab 4E at 165, 173; IAF, Tab 4, Ex. PPP.  At this point, the stories diverge sharply:  The appellant contends that he did not encourage xxxxxxxx to claim that his reason for requesting the transfer was a hardship, but rather that he told xxxxxxxx that he would need to state a reason for the transfer, among other requirements.  Agency File, Tab D (appellant’s response to proposal); HT.  According to the appellant, at the restaurant meeting, xxxxxxxx discussed his relationship with xxxxxxx and difficulties he was having at the xxxxxxx Post office, and mentioned hardship as a reason for the transfer, but did not go into detail about the specifics.  HT.  He told xxxxxxxx to explain the basis, but never told him to fabricate a reason.  Id.  The appellant testified that, the following Friday, March 15, xxxxxxxx dropped off the paperwork for the transfer, and on Monday, he called xxxxxxxx and told him that he had given the paperwork to xxxxxx to process.  The appellant stated that he had no way to know whether xxxxxxxx’s claimed hardship was true, and he still does not know if it is true, but that he told xxxxxx to keep it confidential because it was sensitive.  Id.  He claimed that he was not aware of any threats made by xxxxxxxx to expose his relationship with xxxxxxx, and he was not concerned with that possibility.  Id.

On cross-examination, the appellant admitted that he had authored an e-mail to xxxxxxxx on March 12, 2002 about the transfer request, but that the reference to the reason being a hardship was just a confirmation of what was said at the meeting the day before.  HT: IAF, Tab 4, Ex. HHH.  He denied that his request for xxxxxxxx’s work history from xxxx was related to the transfer, stating that it was to provide to Postal Inspector xxxx, even though xxxx never asked for it.  HT. 

In his interview with the Postal Inspectors, xxxxxxxx stated that he told the appellant at the meeting at the restaurant that he wanted to leave the area, and the appellant stated that the March 9 incident was unfortunate.  Agency File, Tab 4E at 166.  He asserted that the appellant said someone had called his wife, and he wanted people to stay out of his personal life, then told xxxxxxxx they needed to come up with a story to sell as a hardship, and that xxxxxxxx would have to be willing to take a detail or a downgrade.  Id.  The next day the appellant sent him the e-mail with the details of the transfer; he felt that the appellant was pressuring him to leave Oakland.  Id.  xxxxxxxx stated that he hand-delivered the documents to the appellant, and the appellant told him by telephone that what he had submitted was good.  Id.; Agency File, Tab 4E at 45 (Request for Hardship Transfer from xxxxxxxx to appellant).  The appellant told him he was going to have xxxxxx handle the transfer because it was sensitive; he took this to mean the incident with xxxxxxx was sensitive.

xxxxxxxx further stated to the investigators that he had told xxxxxxx he was going to go to the appellant’s house, and they thought he did so, although he never did.  Agency File, Tab 4E at 166.  He stated that the story he used in the hardship request, that his daughter had been raped and had given birth to a baby as a result of the rape, was true, and that it was true that the perpetrator had been released from prison, but it was not true he was living in the Oakland area.  Id.  xxxxxxxx’s written statement is consistent with the investigators’ memorandum.  Id. at 172-74.

In the excerpt from xxxxxxxx’s deposition that is in the record, xxxxxxxx stated that, at the meeting at the restaurant, he told the appellant he needed to get out of the Bay area, that he would not be able to function there with the appellant and xxxxxxx in a relationship.  IAF, Tab 4, Ex. PPP.  The appellant told him they needed to come up with a story that they could both support.  xxxxxxxx stated that he did not tell the appellant what the story would be because he did not know himself at that point, although he was not sure if he told the appellant the story about his daughter at the meeting.  Id.  After he gave the appellant the information, the appellant called him at home and told him that he did a good job with the letter he wrote and preparing everything.  xxxxxxxx claimed he did not threaten to expose the appellant’s relationship with xxxxxxx, but the reason he was seeking the transfer was because of the appellant’s relationship with xxxxxxx, and the appellant knew that; it was not because of the story about his daughter’s rapist being released from prison back to the Bay area.  Id.

According to the memorandum of his statement to Postal Inspectors, xxxx asserted that he had been a friend of xxxxxxxx’s for 35 years, and that he came to stay with xxxxxxxx on the week in question because xxxxxxx had called him and told him that she was worried about xxxxxxxx.  Agency File, Tab 4E at 187.  He stated he was at the restaurant meeting with the appellant and xxxxxxxx, and that xxxxxxxx told the appellant he wanted to leave the area due to the situation with the appellant and xxxxxxx.  The appellant stated that he would help xxxxxxxx, and told him to come up with a “story” about a hardship transfer, and to send the appellant various forms.  Id.  xxxx told the investigators that he perceived that the appellant wanted a believable story that would make them look good, and that the appellant indicated he had not known that xxxxxxxx and xxxxxxx had a prior relationship, and seemed to want xxxxxxxx out of the picture.  Id. at 188.  His handwritten statement was consistent with the investigative memorandum.  Id. at 189.

After reviewing all of the evidence related to the first subspecification in specification two, I find that, more likely than not, the appellant attempted to obtain a hardship transfer for xxxxxxxx under false pretenses.  First, the record is replete with evidence, and the appellant does not dispute, that he wanted to keep his affair with xxxxxxx secret, both from the agency and from his wife, at the time he met with xxxxxxxx and got involved with the transfer request.  And, the appellant admitted, consistent with xxxxxxxx’s assertion, that xxxxxxx told him that xxxxxxxx wanted a transfer, and that he had told her he was going to go to the appellant’s house.  In addition, there is no evidence that the appellant knew of the basis for xxxxxxxx’s transfer request prior to agreeing to meet with xxxxxxxx at a restaurant, and I find it highly irregular for a Manager at the appellant’s level to meet with a subordinate under such circumstances simply to conduct normal business.  These facts, coupled with xxxxxxx’s admission to the appellant that she was scared of xxxxxxxx, and the fact that the incident at xxxxxxx’s house had occurred only two days earlier, support a finding that the appellant went to the meeting with the intention of facilitating xxxxxxxx’s desire for a transfer for his and xxxxxxx’s benefit.

While I recognize that xxxxxxxx’s behavior during the period in question was, at minimum, erratic, and that he was not entirely truthful in his dealings with the agency with regard to a number of issues, as discussed below, I also find that the appellant’s credibility is highly suspect, both because of his actions at issue in this appeal, and because his testimony that he was ever asked directly whether he was in a relationship with xxxxxxx is unworthy of belief.  Because xxxxxxxx has consistently claimed that the appellant initiated the idea that he request a transfer based on hardship, and that claim is supported by xxxx, the only other eyewitness to their conversation, I credit xxxxxxxx’s version of the meeting.  I also find that, considering all of the circumstances discussed above, it is more likely than not that xxxxxxxx told the appellant that he wanted the transfer to get away from the appellant and xxxxxxx[6], and not because he had a hardship related to his daughter.  To the extent the appellant argues that this portion of the charge fails because he was not aware if xxxxxxxx’s stated hardship was false, so he could not have attempted to obtain the transfer under false pretenses, I find that this subspecification does not require proof that he knew the story xxxxxxxx proffered was false, but rather that he knew it was not the actual reason xxxxxxxx wanted the transfer.

Subspecification One of specification two is SUSTAINED.

Without need for extensive analysis, I find that the agency has also proven the second subspecification, that the appellant instructed xxxxxx to personally process xxxxxxxx’s transfer request without disclosing his interest or his knowledge that the request was based on false pretenses.  xxxxxx testified credibly, and without any rebuttal by any other witness, that the appellant gave her the transfer request to process.  HT.  She stated that she never looked into the truth of xxxxxxxx’s hardship claim, that the appellant did not tell her anything about the situation, and that she does not believe she knew about xxxxxxx’s involvement at that time.  Id.  There is no evidence that the appellant told xxxxxx about his personal interest in xxxxxxxx being transferred, and, as I found above, the appellant knew that the real reason for the transfer request was his relationship with xxxxxxx.

This subspecification is SUSTAINED.

Specification two is SUSTAINED.

Charge one is SUSTAINED.

Interference with Investigation

The agency charged the appellant with three specifications of taking actions that interfered with the agency’s investigation into the contents of the anonymous letters received on March 31, April 16, July 4, and July 10, 2004.  Agency File, Tab 4D. 

Specification One

The agency charged the appellant with falsely denying the existence of any relationship with xxxxxxx in response to direct questions by xxxxxxx and xxxxxxx, Pacific Area Human Resources Manager.  Agency File, Tab 4D

xxxxxxx testified that he received the first anonymous letter, dated March 31, 2002, in the first week of April, 2002.  HT.  He sent the letter to Human Resources (HR) and discussed what to do with xxxxxxx and xxxxxx, Managing Counsel for the Pacific Area, and they told him to ask the appellant about it.  He held a copy of the letter to discuss with the appellant at a scheduled off-site meeting.  The bi-monthly meeting for executives of the Pacific Area was held in Cambria, California, from April 8-10, 2002.  Id.  xxxxxxx stated that he spoke with the appellant at the meeting, asked him if there was any truth to anything in the letter, and the appellant said “No, none whatsoever.”  He called xxxxxxx over and told him the appellant denied the contents of the letter.  xxxxxxx testified that he believed the appellant, and intended to take no further action.  Id.

On April 16, 2002, xxxxxxx received another anonymous letter, this one more detailed.  HT; IAF, Tab 4, Ex. D.  He asked xxxxxxx to conduct an investigation because he wanted people outside Oakland to handle the matter.  xxxxxxx had the investigation performed, and told him there was no evidence of inappropriate conduct on the part of the appellant.  xxxxxxx sent him a letter to that effect, IAF, Tab 4, Ex. K, and xxxxxxx saw no reason to further investigate, HT.  On July 10, 2002, xxxxxxx asserted, he received two more anonymous letters, which he again sent to HR.  HT; IAF, Tab 4, Exs. E, F.  xxxxxxx stated that he had another conversation with the appellant about the letters, and the appellant again denied their content, stating that he was being set up, and he wanted an investigation.  At that point, xxxxxxx sent the letters to xxxx, in the Inspection Service, for investigation.  All along, xxxxxxx testified, he believed the appellant and thought that people were out to sabotage him.  He told xxxx, xxxxxxx, and the Office of Inspector General that they needed to find out where the letters were coming from, and if there was any truth to them.  HT.  Subsequently, xxxxxxx found out that there was truth to the letters, when the appellant admitted to the Inspectors that he was having an affair with an employee.  The appellant had denied all of the contents of the March 31, 2002 letter, even though it turned out to be true that he was in a relationship with xxxxxxx, and that he had given xxxxxxx the job referenced in the letter. 

On cross-examination, xxxxxxx clarified that the second conversation with the appellant about the letters was during a business review.  HT.  He went into the appellant’s office with xxxxxxx and they talked to the appellant.  Id.  He admitted that some of the allegations in the letters were not true, but denied that it stood to reason that the appellant would want an investigation in light of the untruths.  At the Cambria meeting, he specifically asked the appellant if he was having affairs with any of the individuals mentioned in the March 31, 2002 letter, and the appellant lied to him by answering no.  Id. 

xxxxxxx testified that he received the March 31, 2002 letter from xxxxxxx, and he had xxxxxxxx, from the EEO office, speak with the individuals named in the letter to determine if there was any truth to the allegations.  HT.  xxxxxxxx conducted interviews with xxxxxxx and xxxxxx, who were named in the March 31, 2002 letter, and provided a memorandum to xxxxxxx of the outcome of the interviews.  Id.  In the interviews, xxxxxxx stated that the appellant had never approached her in an unprofessional or sexual manner, and she found the letter insulting, and xxxxxx also denied the contents of the letter.  Id.; IAF, Tab 4, Ex. D.  xxxxxxx then advised xxxxxxx of the outcome of the investigation.  HT; IAF, Tab 4, Ex. K.  xxxxxxx testified that, at the April meeting in Cambria, xxxxxxx met with the appellant alone about the March 31, 2002 letter, and then returned with the appellant and told him to tell xxxxxxx what he had said, and the appellant denied everything in the letter.  xxxxxxx testified that, when he received the April 16 letter, he went to the appellant’s office to discuss it with him, and the appellant denied the contents of the letter.  HT; IAF, Tab 4, Ex. D.  xxxxxxx testified that he asked the appellant if he had had sexual relationships with any of the named women and the appellant said “No” very adamantly.  He also asked the appellant if he had been at xxxxxxx’s condo, as the letter stated, and the appellant said he had only been there to drop off materials.  Id.

On cross-examination, xxxxxxx explained that, at the meeting in Cambria, after xxxxxxx brought the appellant over to him, xxxxxxx said, “I asked Kirby if anything in the letter was true,” at which point the appellant stated that nothing was true.  HT.  xxxxxxx had the letter with him that day, and he and xxxxxxx had discussed it earlier.  Id.  He admitted that he did not hear the prior conversation between the appellant and xxxxxxx, and he did not recall if he saw the letter in the appellant’s hands that day.  With regard to his conversation with the appellant regarding the second letter, xxxxxxx testified that he believes it occurred on April 16 or 17, 2002.  He handed the appellant a copy of the letter, believes the appellant stated he had already seen it, the appellant read the letter, and when he asked if anything in there was true, the appellant said no.  Id.  When he then asked the appellant if he was having sexual relations with any of the named women, the appellant angrily responded “absolutely not.”  Ten minutes later, xxxxxxx testified, he returned to the appellant’s office and asked about the allegation in the letter that the appellant had been at xxxxxxx’s residence, although he did not specify the date of the alleged incident at the condo.  xxxxxxx stated that he has no notes of his conversations with the appellant regarding the second letter.  Id.

The appellant testified that on April 9, 2002, at the meeting in Cambria, xxxxxxx came up to him at the break and asked him if he got the March 31 letter.  HT.  He asked if anything in the letter was true, and the appellant said no, and then xxxxxxx asked again, and he again said no.  The appellant claimed that xxxxxxx never asked him if he had an intimate relationship with xxxxxxx, and xxxxxxx did not show him the letter as they spoke.  The appellant did not have a copy of it at that time, and he thought the letter was alleging sexual harassment-favors for sex-which he had never committed.  He admitted that he now sees that there are true statements in the letter, and that it was a mistake to say that nothing in the letter was true.  The appellant denied that xxxxxxx ever asked him if he had a relationship with xxxxxxx, and he asserted that xxxxxxx never asked him about the March 31 letter, nor was xxxxxxx there when he spoke with xxxxxxx.  Id.  He admitted that he and xxxxxxx spoke about the April 16 letter, and he told xxxxxxx this one had more lies.  He told xxxxxxx he had not been at xxxxxxx’s condo on March 8, and when xxxxxxx came back and asked about March 9, he admitted he had been there to drop off some information, and that he had been there before.  The appellant testified that none of the allegations in the April 16, 2002 letter are true, and that when he told xxxxxxx that, he did not know xxxxxxx was interested in any relationship with xxxxxxx.  Id.

On cross-examination, the appellant denied that xxxxxxx walked the appellant over to xxxxxxx at the Cambria meeting and asked him to repeat what he had told xxxxxxx.  HT.  He further denied that xxxxxxx had asked him if he was having sex with any of the women mentioned in the April 16 letter.  Id.  The appellant admitted that he was aware xxxxxxx had been interviewed the day before he and xxxxxxx had their conversation, but he thought the whole thing was about sexual harassment.  Id.

After considering all of the evidence bearing on this specification, I find that the appellant falsely denied the existence of a relationship with xxxxxxx when asked directly about it by xxxxxxx and xxxxxxx.  This specification must be resolved largely on the basis of the credibility of the three individuals involved.  Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (to resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, considering such factors as:  (1) the witness's opportunity and capacity to observe the event or act in question; (2) the witness's character; (3) any prior inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the witness's version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness's version of events; and (7) the witness's demeanor).

First, I recognize that there are some inconsistencies between the testimonies of xxxxxxx and xxxxxxx, and certain inconsistencies between their testimony and their prior statements and/or interviews with PIS.  For example, xxxxxxx testified about a second conversation he and xxxxxxx had with the appellant about the letters, while xxxxxxx did not mention having another conversation with the appellant with xxxxxxx present after the Cambria meeting.  In addition, xxxxxxx did not mention in his written statement that the appellant had denied the allegations in the March 31, 2002 letter in front of xxxxxxx at the Cambria meeting, Agency File, Tab 4E at 209, nor is it clear from xxxxxxx’s interview with the Postal Inspectors that he was involved in the questioning at the Cambria meeting, id. at 270-271. 

Nonetheless, I found xxxxxxx to be a very credible witness, based in large part on the straightforward and direct manner in which he testified, and I attribute some of the inconsistencies mentioned above to the fact that the hearing took place approximately 2 and ½ years after the conversations at issue, and the fact that the written statements and PIS interviews were not directed at resolving whether the appellant had falsely denied the existence of a relationship with xxxxxxx, but whether he had sexually harassed any employees and who was sending the letters.  xxxxxxx’s testimony that he asked the appellant directly if any of the allegations in the March 31, 2002 letter were true is consistent with his written statement, the appellant admitted that the question was posed to him in that manner, and further admitted he denied the truth of any of the allegations, even though the letter accused him of having a relationship with xxxxxxx, which was true. 

Moreover, the appellant admitted that he had seen the March 31, 2002 letter at the time he had the conversation with xxxxxxx in Cambria, and there is ample evidence in this record that, at that time, the appellant and xxxxxxx were going to great lengths to keep the existence of the relationship from any agency employees, as evidenced by the appellant’s extraordinary involvement in attempting to obtain the hardship transfer for xxxxxxxx several weeks before.  Finally, I find the appellant’s testimony that he believed xxxxxxx was asking him in Cambria if allegations of sexual harassment were true, and not if he was involved with either of the women named in the March 31, 2002 letter, to be unworthy of belief.  In his response to the agency’s proposal action, the appellant stated that, during the April 8, 2002 conversation with xxxxxxx, he did not intend to be deceitful concerning his relationship with xxxxxxx, but he “perceived the question to be an invasion of his privacy.”  Agency File, Tab 4C at 4.  Clearly, if he believed he was being asked about sexual harassment allegations, he could not reasonably have believed he had a right to privacy.  It is more likely his reference to a “right to privacy” referred to his belief he did not have to answer questions about the existence of his extra-marital relationship.  Under all of the circumstances here, I find that the appellant falsely denied the existence of the relationship with xxxxxxx when questioned by xxxxxxx.

Likewise, I find that the appellant falsely denied the existence of the relationship with xxxxxxx when directly asked by xxxxxxx in mid-April, after the second anonymous letter was sent.  I found xxxxxxx’s testimony about the conversation with the appellant in the appellant’s office to be very straightforward and believable, as he recalled the appellant’s words and his demeanor in response to xxxxxxx’s question whether he was having sexual relations with any of the women mentioned in the April 16 letter.  Considering the fact that this was the second anonymous letter that referenced a relationship between the appellant and multiple women, including xxxxxxx, I find it likely that xxxxxxx would have asked the appellant directly if he was involved with any of the named women.  Unlike the later letters, this letter did not allege that the appellant was “forcing” himself on employees, but rather that he was rewarding women involved in personal relationships with him, and that the relationships were, to some extent, mutual.  In addition, the letter referenced the appellant being “caught” at xxxxxxx’s condo, although the date xxxxxxxx found him there was March 9, not March 8, and the appellant’s responses to xxxxxxx when questioned about that portion of the letter were, at minimum, evasive, and indicate that he was still trying to cover up the existence of the relationship, and that he is less than truthful.  I conclude that xxxxxxx directly asked the appellant if he was involved with any of the women mentioned in the April 16 letter, that the appellant knew the letter stated he was involved with xxxxxxx, and that he falsely denied he was having a relationship with her.

I find that the appellant committed the conduct as charged, and that his actions interfered with the agency’s investigation.

Specification one is SUSTAINED.

Specification Two

The agency charged the appellant with encouraging xxxxxxx to deny the existence of her relationship with him.  Agency File, Tab 4D.

xxxxxxx testified that she felt she had no responsibility to tell anyone about her relationship with the appellant because she has an expectation of privacy.  HT.  She further testified that the appellant never encouraged her to conceal their relationship, and that they never formed an agreement to conceal it.  On cross-examination, she denied that xxxxxxxx asked her directly if she was in a relationship with the appellant during the April, 2002 interview.  Although she had seen the March 31 letter alleging an affair between her and the appellant, xxxxxxxx asked her if the appellant had approached her in an inappropriate sexual manner, which she interpreted as a question as to whether there was sexual harassment.  Id.  She admitted, however, that she and the appellant had an understanding that their relationship was a private manner.  She also admitted that the appellant provided some input into a July 12, 2002 letter she wrote to xxxxxxx, in which she asserted that the accusations in the July 11 letter were false, and she demanded an investigation into all of the letters.  Id.; IAF, Tab 4, Ex. M.  She also admitted that she had initially denied having an intimate relationship with both xxxxxxxx and the appellant when asked by the Postal Inspectors, and then later recanted.  HT.  She denied that she had spoken with the appellant when she ultimately disclosed to the investigators that they were in a relationship.  Id.

The appellant also denied that he ever told or encouraged xxxxxxx to conceal their relationship.  HT.  The relationship was personal, and he did not want it discussed at work because he was married.  They never formed an agreement to conceal the relationship from management or from investigators.  Id.  On cross-examination, the appellant also admitted that he helped xxxxxxx prepare her July 12 letter to xxxxxxx.  Id.

Although the evidence pertaining to this specification is largely circumstantial, I find that, more likely than not, the appellant encouraged xxxxxxx to deny the existence of their relationship when she was questioned about it.[7]  First, I found xxxxxxx’s claim that she and the appellant never discussed denying that they were in a relationship to be unworthy of belief.  Although xxxxxxx claimed that xxxxxxxx never asked her if she was in a relationship during their April 16 interview, and xxxxxxxx’s Memorandum does not make it clear if that question was ever asked, xxxxxxx admitted she had seen the March 31 anonymous letter alleging that she and the appellant were in a relationship, and she told xxxxxxxx that the appellant had “never approached her in … [a] sexual manner.”  This response was, at minimum, misleading.  And, xxxxxxx lied to investigators about her relationships with the appellant and with xxxxxxxx when questioned.  xxxxxxx’s prior lack of veracity about the same subject at issue here, and her clear bias in favor of the appellant, render her claim that he never encouraged her to deny the existence of their relationship incredible.

Likewise, I find the appellant’s claim that he never encouraged xxxxxxx to deny the existence of their relationship undercut by his lack of credibility on other issues, and his admission that he helped xxxxxxx write the July 12, 2002 letter demanding an investigation into all of the anonymous letters.  While it is understandable that the appellant and xxxxxxx were upset about some of the outrageous and false allegations in some of the letters and wanted those investigated, the July 12 letter implies that there is no truth to anything in any of the letters, despite the fact that both the appellant and xxxxxxx knew that the allegation they were in a relationship was true.  Considering they collaborated on this letter, and had spent the past three-plus months since the first letter was received denying they were in an intimate relationship, I find it highly unlikely they never discussed their decision not to admit the truth to anyone at the agency.[8]  The appellant has admitted that he did not want their relationship discussed at work because he was married, and, under all of these circumstances, I find that it is also highly likely that he conveyed this desire to xxxxxxx.  I find that the appellant committed the conduct as charged, and that his conduct had the effect of interfering with the agency’s investigation.

Specification two is SUSTAINED.

Specification Three

The agency charged the appellant with using his District Director position to request Inspector xxxx to investigate xxxxxxxx as the source of the March 31, 2002 letter while failing to advise xxxx of his relationship with xxxxxxx or even to provide him with xxxxxxxx’s March 29, 2002 correspondence that directly implicated xxxxxxxx in the matter.  Agency File, Tab 4D. 

On April 8, 2002, the appellant sent a copy of the March 31, 2002 letter to xxxx and stated that the letter contained untrue allegations about his personal conduct.  IAF, Tab 4, Ex. H.  He asserted that the letter was threatening and harassing, and he requested xxxx’s assistance in identifying the sender.  Id.  He stated that his suspicion was that xxxxxxxx was the sender, because xxxxxxxx had accused him of being involved in discipline taken against him by his postmaster.  Id.  The appellant admits that he sent xxxx this letter, and he does not claim that he told xxxx about his relationship with xxxxxxx, despite the fact that it was referenced in the March 31, 2002 letter, nor does he claim he provided xxxx with xxxxxxxx’s lengthy March 29, 2002 e-mail, which xxxxxxxx sent from another employee’s computer.  HT; IAF, Tab 3, Subtab 4.  The appellant claims only that he planned to provide xxxx with additional documents, but xxxx ignored his request for an investigation.  HT.  He further stated that he did not admit his relationship with xxxxxxx to xxxx until he sent xxxx a packet on July 18, to which he attached xxxxxxxx’s e-mail.  Id.; IAF, Tab 4, Ex. S.

It is clear that, by requesting that xxxx investigate who sent the March 31, 2002 letter, without admitting that some of the information in the letter was true, and without providing xxxxxxxx’s March 29 e-mail that showed his knowledge of the appellant’s relationship with xxxxxxx and his possible motive for sending the anonymous letter, the appellant was not forthcoming to the Inspection Service.  However, the record reflects that the Inspection Service did not get involved in this matter until July, 2002, as the earlier investigations were conducted by HR and the Managing Counsel’s Office, so the question arises whether the appellant’s actions even interfered with the agency’s investigation.  Although the Inspection Service began its investigation on July 12, 2002, the record reflects that the Inspectors did not begin interviewing witnesses until July 22, 2002, on which date the appellant’s letter admitting his relationship with xxxxxxx, with attachments that included the March 29, 2002 e-mail, was delivered to xxxx.  While it is possible the appellant’s failure to provide xxxx with this information in April interfered with the Inspection service’s investigation, and that xxxx would have forwarded the information to HR or the counsel’s office had the appellant provided it to him, there is no evidence in this record from which such a conclusion can be drawn. 

Specification three is NOT SUSTAINED.

Charge two is SUSTAINED

Harmful Procedural Error[9]

The appellant is alleging that the agency’s action should be reversed because it was tainted by harmful procedural error.  More specifically, he alleges that the agency failed to follow the following Management Instruction, applicable in demotions or removals of PCES executives:

Prior to issuing a notice of proposed adverse action involving a removal or demotion, the proposing postal official must be satisfied of all of the following:

a. The individual has not performed in a manner that satisfied the requirements of the position.

b. The individual has been made fully aware of his or her responsibilities and has been counseled on remedial measures, where appropriate.

c. The individual has been judged on factors and conditions which were within his or her authority or control.

d. The relevant facts are substantiated.

e. The action is based upon just cause.

f. Removal or demotion of the individual would be in the best interests of the Postal Service.

IAF, Tab 4, Ex. VV.

To prove harmful procedural error, the appellant must prove, by preponderant evidence, that the agency committed an error in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.  See 5 U.S.C. § 7701(c)(2)(A); 5 C.F.R. § 1201.56(c)(3).  The burden is upon the appellant to show that the agency committed an error and that the error was harmful, i.e., that it caused substantial prejudice to his rights.  Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991) (harmful error cannot be presumed; an agency error is harmful only where the record shows that the procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error).

Here, xxxxxxx, the proposing official, admitted he did not review the aforementioned Management Instruction before issuing the proposal letter to the appellant.  HT.  The appellant argues that he was not made aware or counseled that he should have recused himself from any personnel decisions involving xxxxxxx while they were in a relationship, that the agency relied on factors outside of his control (the anonymous letters), and that the action was not based upon just cause.  Agency File, Tab 4D at 2.  I find no merit to the appellant’s assertions.  It is undisputed that the appellant did not reveal he was in a relationship with xxxxxxx until long after he approved her OIC assignment to xxxxxxxx, so there is no way xxxxxxx, or any other agency official, could have made him aware of his responsibilities with regard to personnel actions involving xxxxxxx, or counseled him about the action.  In addition, contrary to the appellant’s argument, the agency did not propose his removal based on the facts in the anonymous letters, but on misconduct he committed related to his reaction to the letters.  Finally, since there is evidence to support both of the charges, and, as discussed below, the penalty was reasonable, I cannot find that “just cause” for the action was lacking.

I conclude that the appellant has failed to show that the agency was likely to have reached a different conclusion had xxxxxxx reviewed and formally satisfied the requirements in the above-mentioned Management Instruction.  Thus, he has not shown that the agency committed a harmful procedural error.

Nexus and the Penalty

The agency must show that there is a nexus between the sustained charges and either the employee’s ability to accomplish his duties satisfactorily or some other legitimate government interest.  See Merrit v. Department of Justice, 6 M.S.P.R. 585, 596 (1981), modified, Kruger v. Department of Justice, 32 M.S.P.R. 71, 175 n.2 (1987).  There can be no doubt that the agency has a legitimate interest in its employees, especially those at the appellant’s level, avoiding apparent or actual conflicts of interest and refraining from promoting personnel actions such as hardship transfers for other than business reasons.  Likewise, the agency has a clear interest in conducting necessary investigations without interference by its management employees.  I find that the agency has shown a nexus between the sustained charges and a legitimate government interest. 

Where, as here, all of the agency’s charges have been sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness.  Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981).  In making that determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility but to insure that management discretion has been properly exercised.  See, e.g., Brown v. Department of the Treasury, 91 M.S.P.R. 60, ¶ 7 (2002).  Thus, the Board will disturb the agency's chosen penalty only if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness.  Toth v. U.S. Postal Service, 76 M.S.P.R. 36, 39 (1997). 

xxxx, the deciding official, testified that he considered the appellant’s offenses to be very serious, and it was unfortunate that, having worked for the agency for so many years and attained the position of District Manager, the appellant made the errors he did.  HT.  The appellant should have been aware that what he had done was wrong, due to the training he receives.  Id.  xxxx further testified that he gave a lot of thought to mitigation, but the appellant had lied to his immediate supervisor, and he was in a position of great trust and could no longer be trusted in a supervisory role.  For that reason, he felt the appellant did not have potential for rehabilitation.  xxxx was aware of no similar cases involving a District Manager.  Id. 

On cross-examination, xxxx stated that he considered the appellant’s relationship with xxxxxxx while she was given a higher level assignment and his denial of the existence of the relationship when asked by his supervisors to be the most serious of the misconduct.  HT.  He testified that he considered the appellant’s “spotless” disciplinary record, and his prior work record, although he did not look at the appellant’s OPF but rather the fact that the appellant had progressed to increasingly more responsible positions.  Id.  xxxx stated that he also considered the appellant’s length of service (approximately 37 years), but noted that it indicated he should have known his responsibilities.  xxxx admitted he read the anonymous letters, but asserted he did not consider the allegations of sexual harassment in making his decision.  He acknowledged that the appellant may have been under stress from the anonymous letters when he answered the questions posed by xxxxxxx and xxxxxxx.  Finally, in response to further questioning, xxxx clarified that he was aware of the appellant’s recent performance and that the appellant had no performance problems, and he considered the appellant’s length of service to be both a mitigating and an aggravating factor.  Id.

I find that, between his testimony and the penalty analysis set out in the decision letter, xxxx considered all of the relevant Douglas factors.  Nonetheless, I agree with the appellant that he improperly considered the appellant’s many years of service with the agency to be an aggravating factor, as well as a mitigating factor.  See Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997) (Board disagrees with deciding official’s consideration of appellant’s 23 years of service as an aggravating factor).  Unlike in Shelly, however, here, the deciding official also considered the appellant’s length of service to be a mitigating factor, and he testified that he gave serious consideration to assessing a lesser penalty based, among other factors, on the appellant’s length of service.  This fact, coupled with my agreement with the deciding official’s assessment of the other Douglas factors, leads me to conclude that any error the deciding official committed by holding the appellant’s 37 years of service against him was not harmful.

The Board has asserted that, in evaluating whether a penalty is merited, it must first examine the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or frequently repeated.  See, e.g., Brown v. Department of the Army, 96 M.S.P.R. 232, ¶ 11 (2004).  Here, there can be no question that the appellant’s misconduct, especially his lying to more than one agency official and his use of his high-level position to attempt to get xxxxxxxx the transfer under false pretenses, was very serious, was repeated, and was intentional.  The appellant now admits that his actions were improper, in some respects.  Accordingly, despite the appellant’s many years of service, his clean disciplinary record, his service awards, and the fact that he was likely under extreme pressure at the time he committed the misconduct, due both to his attempts to hide his affair and the content of the anonymous letters, I cannot find that the penalty of removal is beyond the bounds of reasonableness.[10]  Therefore, I must affirm the agency’s action.

DECISION

The agency’s action is AFFIRMED.

FOR THE BOARD:;           ______________________________

Craig A. Berg
Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 8, 2005, unless a petition for review is filed by that date or the Board reopens the case on its own motion.  This is an important date because it is usually the last day on which you can file a petition for review with the Board.  However, if this initial decision is received by you more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision.  The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit.  The paragraphs that follow tell you how and when to file with the Board or the federal court.  These instructions are important because if you wish to file a petition, you must file it within the proper time period.