UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DANA ROMERO,

Appellant,

v. 

DEPARTMENT OF THE NAVY,

Agency. 

DOCKET NUMBER

DC-0752-15-0045-I-1

DATE: July 18, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Sara McDonough, Washington, D.C., for the appellant. 

Malcolm G. Schaefer, Cherry Point, North Carolina, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his removal for unauthorized removal of Government property. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. 5 C.F.R. § 1201.117(c). 
2

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, and based on the 

following points and authorities, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 Prior to his removal, the appellant was an Air Conditioning Equipment 

Mechanic, WG-5306-11, at the agency’s Fleet Readiness Center (FRC) East in 

Cherry Point, North Carolina. Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 42. 

The agency charged him with Unauthorized Removal of Government Property 

(five specifications) and proposed his removal. IAF, Tab 4 at 112-13. After 

considering his oral reply and the record evidence, the deciding official sustained 

four of the five specifications and determined that the sustained specifications 

justified the penalty of removal. Id. at 43-45. The appellant filed this appeal. 

IAF, Tab 1. The agency has since withdrawn all specifications except the fifth 

one, which states that the appellant “removed eight pieces of copper [heating, 

ventilation, and air conditioning] coils from FRC East controlled property without 

authorization.” Hearing Compact Disc (HCD) (May 7, 2015) (withdrawing 

Specifications 1 through 3); IAF, Tab 4 at 113. 

¶3 After a 2-day hearing, the administrative judge found that the agency 

proved its remaining charge by preponderant evidence. IAF, Tab 35, Initial 

Decision (ID) at 3-17. The administrative judge rejected the appellant’s 

contentions that the charge was unconstitutionally vague and that the agency

deprived him of his right of due process. ID at 17‐19. The administrative judge 
3

sustained the charge and found that removal was a reasonable penalty that

promoted the efficiency of the service. ID at 19‐24. 

¶4 The appellant filed this petition for review. 2

 Petition for Review (PFR) 

File, Tabs 9, 23. On review, he asserts that the administrative judge made 

erroneous findings of material fact and did not properly conduct an analysis of

witness credibility pursuant to Hillen v. Department of the Army, 35 M.S.P.R. 453

(1987). He asserts that, for this reason, the agency failed to meet its evidentiary 

burden. PFR File, Tab 23 at 4, 10‐18. 

¶5 The following facts are pertinent to this appeal. The appellant’s job duties 

included cleaning up after finishing installation and maintenance assignments, for 

example, removing scrap materials to the FRC East recycling facility or “scrap

yard,” or to another area for the collection of surplus materials known as the “lay

down yard.” IAF, Tab 14 at 51-52. The scrap yard is located on post, but it is 

necessary to leave and re-enter the post to access it. IAF, Tab 19 at 29. The lay

down yard is also located on post. It is unlocked and accessible to anyone 

already on post. IAF, Tab 14 at 33. 

¶6 In November 2013, the appellant was one of a group of employees who 

replaced condenser coils, compressors, and other components of the heating and 

cooling units located on the roof of Building 133. IAF, Tab 19 at 7. The required 

clean-up for this job included moving the old coil panels and other parts to the 

scrap or lay down yard for eventual recycling. IAF, Tab 14 at 51. At some point 

between November 2013 and February 15, 2014, the old coil panels were cut into 

approximately 36 pieces. Id. at 53. Employees used a crane to remove most of 

these pieces from the roof of Building 133. Id. at 51. In February, however, the 

 2 The Board allowed the appellant to file a corrected petition for review to change

certain citations and to delete two sentences in the original petition for review to which 

the agency had objected. PFR File, Tabs 9, 20, 22‐23. We have cited the corrected 

petition for review in this order. PFR File, Tab 23. The agency submitted a response to 

the corrected petition for review, and the appellant replied. PFR File, Tabs 24-25. We 

deny the agency’s subsequent motion to strike the appellant’s reply. PFR File, Tab 26. 
4

appellant moved approximately eight remaining coil pieces into a penthouse on 

the roof of Building 133. IAF, Tab 17 at 23. 

¶7 In February 2014, the agency became aware of the coil pieces remaining on 

the roof of Building 133 after two employees who were on the roof for another 

purpose discovered the coils. IAF, Tab 14 at 53, Tab 19 at 48. Later the same 

day, the appellant moved two of the coil pieces to an area behind Building 133. 

IAF, Tab 15 at 19. Suspecting that the appellant was planning to steal the 

remaining coil pieces, L.R., an agency official responsible for maintenance, asked 

K.T., the post Command Investigator, to conduct surveillance on the 

appellant. Id. at 48-49; IAF, Tab 22. 

¶8 On the morning of February 23, 2014, K.T. and two other investigators 

began surveillance of the appellant. IAF, Tab 22 at 8-10. The investigators 

tracked the appellant’s activities for most of the day, though there were times 

when they did not have a direct line of sight of him. IAF, Tab 14 at 33, Tab 19 

at 63-66. They did not monitor or observe the lay down yard at all. IAF, Tab 14

at 33, Tab 19 at 85. They observed the appellant, however, using an electric cart 

to move approximately eight coil pieces to the exterior side of Building 139. 

IAF, Tab 15 at 21, Tab 19 at 63-64. 

¶9 The appellant asserted that later that day, he placed the coil pieces inside a 

white Government van and attempted to drop the coils at the scrap yard, which 

was closed. IAF, Tab 15 at 23. He further asserted that he instead took the 

pieces to the lay down yard. Id. He asserted that, after he left the coils in the lay 

down yard, he left the post via the Main Gate driving the van. Id.; IAF, Tab 16 

at 5. The investigators saw the appellant leaving the post in the van at 1:40 p.m. 

IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant asserted that there were no coil 

pieces in the van at that time and that he drove the van directly to a nearby Shell

station and filled the gasoline tank. IAF, Tab 16 at 13, 22, Tab 19 at 96. He

returned to post at approximately 2:19 p.m. IAF, Tab 16 at 22, Tab 19 at 66. 
5

¶10 K.T. approached the appellant upon his return and asked about the coils, 

which were not in the back of the van. IAF, Tab 19 at 66. The appellant 

explained that he had left the coils in the lay down yard earlier that day. Id. 

K.T., the appellant, and an agency maintenance supervisor, R.H., went to the lay 

down yard, where they did not find the coil pieces. Id. at 67; IAF, Tab 23 at 10. 

The ground also appeared undisturbed in the area where the appellant said he had

placed the coils. IAF, Tab 19 at 67. 

¶11 The coil pieces were never found. IAF, Tab 23 at 10. The appellant 

averred that he did not steal or sell the coils to a business that purchased scrap 

metal. IAF, Tab 16 at 13, Tab 20 at 76-78 (receipts and statements from local 

metal buyers). In sustaining the charge, however, the deciding official, J.G., 

stated that the appellant should have secured permission from his supervisor 

before moving the coils. IAF, Tab 14 at 35. J.G. explained that the appellant 

removed the coils from where they had been located on a Sunday and that 

removal of the coils “was not his tasking on that day.” Id. at 36. The appellant 

averred otherwise, presenting testimony from a coworker that moving scrap 

materials to the recycling area was part of his job. IAF, Tab 19 at 7. 

¶12 On review, the appellant challenges several of the administrative judge’s 

findings of fact. PFR File, Tab 23 at 10-18. The most critical of those findings, 

which we consider here, is whether an agency security guard, F.D., saw the coil 

pieces in the van before the appellant left the post to purchase gas. Id. at 11-15. 

The administrative judge found it more likely than not that F.D. saw the coils in 

the van, ID at 12 n.2, which supported an inference that the appellant removed the 

coils from the facility when he left. In contrast, the appellant asserted that he left 

the coils in the lay down yard prior to leaving the post and that the coils were 

taken from the lay down yard by unknown persons before he returned later that

day. ID at 14. 

¶13 The appellant now argues that the administrative judge failed to apply the 

Hillen factors in determining which of the conflicting accounts was true. PFR 
6

File, Tab 23 at 11-15. 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. 

Hillen, 35 M.S.P.R. at 458. 

¶14 F.D. was one of the investigators tasked with surveilling the appellant on 

February 23, 2014. IAF, Tab 22 at 8-9. At about 1:26 p.m., he walked over and 

approached the parked van that the appellant was using and looked in the rear 

window, where he spotted several dark metal rectangular objects stacked in the 

cargo bay. IAF, Tab 19 at 64-65; HCD (May 7, 2015) (testimony of F.D.). F.D. 

testified that the objects “looked like car radiators”; were “dull,” “flat,” and 

“dirty” in appearance; and seemed to be made of oxidized aluminum. 

HCD (May 7, 2015) (testimony of F.D.). In recounting F.D.’s testimony, the 

administrative judge concluded that “the precise metallurgy of the coils is less 

important than the uniformly consistent words ‘discolored,’ ‘dark,’ and ‘metallic’ 

combined with the photographs [of the coil pieces] provided by [K.T.],” and that 

the agency established by preponderant evidence that F.D. had seen the coils in 

the van. ID at 12 n.2. 

¶15 The appellant asserts that F.D. was unable in his testimony to positively 

identify the coil pieces in the van despite having seen photographs of them, IAF,

Tab 4 at 152-54, and that he testified that the items he saw were made of oxidized 

aluminum, whereas the coil pieces were made of copper, PFR File, Tab 23 at 11‐

13. 
7

¶16 The administrative judge, however, conducted a proper Hillen analysis of 

the testimony. The administrative judge did not ignore F.D.’s refusal to state 

with certainty that he saw the coil pieces in the van. Instead, he reasonably 

considered the significant consistency between the testimony of F.D. and K.T., 

and the photographs of the coil pieces in the record. ID at 12 n.2; Hillen, 

35 M.S.P.R. at 458 (holding that the administrative judge should consider the 

consistency of the witness’s testimony with other evidence). He also pointed out

that the appellant admitted to placing the coils in the van. ID at 12. We 

additionally note that, because F.D. was retired at the time of the hearing, he had 

nothing to gain or lose from testifying truthfully. HCD (May 7, 2015) (testimony 

of F.D.). On the other hand, the administrative judge found much of the 

appellant’s account of the events of February 23, 2014, to be inconsistent and 

improbable, and some of his behavior to be inexplicable. ID at 15-17; Hillen, 

35 M.S.P.R. at 458 (holding that the administrative judge should consider the 

inherent improbability of the witness’s version of events and the contradiction of 

the witness’s version of events with other evidence). The administrative judge

thus reasonably concluded that F.D. saw the coils in the back of the van. 

¶17 Further, the administrative judge reasonably found that the appellant 

removed the coils from agency property without authorization. ID at 17. The 

appellant did not deny that he was under surveillance on February 23, 2014. He 

stipulated that he moved the coil pieces to the exterior wall of Building 139 using 

an electric cart and later returned to that building driving an agency van to 

remove the coils. IAF, Tab 27 at 5. He did not dispute that security personnel

saw him on surveillance video driving the van to various locations on post and 

leaving the post at 1:40 p.m. 3 IAF, Tab 22 at 8-10, Tab 34 at 4. The appellant 

 3 The agency used the appellant’s cellular phone records to establish the time of his 

departure. IAF, Tab 34 at 4. Employees were required to contact security to open the 

gate when they entered and exited the post. HCD (May 7, 2015) (testimony of 

M.D., F.D.).
8

admitted that the coils were in his possession until at least 11:54 a.m. HCD

(May 8, 2015) (testimony of appellant). He declined to affirmatively testify that 

he removed the coils from the van before leaving the facility, and he could not 

recall the precise time that he took the coils to the lay down yard. IAF, Tab 4 

at 168, 182; HCD (May 8, 2015) (testimony of appellant). 

¶18 In contrast, F.D. saw items that resembled radiator fins in the van at 

1:26 p.m. HCD (May 7, 2015) (testimony of F.D.). The van was under the 

surveillance of security personnel at various times between 1:26 p.m. and 

1:40 p.m., when the appellant left the post. HCD (May 7, 2015) (testimony of 

F.D., M.D.). At 2:55 p.m., the coils were not in the lay down yard, where the 

appellant claimed to have taken them. IAF, Tab 22 at 10. The agency had no 

record of any submission of scrap copper for recycling during the relevant time 

period. HCD (May 7, 2015) (testimony of D.G., A.K.). It is thus reasonable to 

infer that the appellant removed the coils when he left the post to purchase fuel. 

Accordingly, we find that the administrative judge considered the evidence as a 

whole, drew appropriate inferences, and made reasoned conclusions on 

credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); 

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987). We will not disturb the findings of fact. 

¶19 The appellant also argues that the administrative judge improperly deferred

to the agency’s penalty selection. PFR File, Tab 23 at 18-24. He asserts that the 

deciding official, J.G., based his decision on K.T.’s report that F.D. had seen the 

coils in the van and that F.D.’s testimony did not support such a conclusion. Id.

at 19. Further, he asserts J.G. did not testify that he considered what the penalty 

should be if only one specification were sustained. Id. The appellant additionally

argues that J.G. cited the unproven allegations upon which Specifications 1 

through 3 were based as evidence of his guilt, suggesting that he had moved the 

coil pieces around the post to prepare for the ultimate act of removing them. Id.

at 20. 
9

¶20 However, F.D.’s reluctance to state definitively that he saw the coils in the 

van does not devalue his hearing testimony or any information he offered K.T. 

during the investigation. F.D. testified that he saw a stack of weathered metal 

fins in the van, and both K.T. and the administrative judge inferred that the fins 

were the coil pieces.

4

 ID at 12 n.2; HCD May 7, 2015 (testimony of F.D., K.T.). 

As for J.G.’s reliance on the evidence underlying Specifications 1 through 3, 

much of that information is also part of the factual predicate for Specification 5. 

As for the appellant’s assertion that the single sustained specification justified a 

lesser penalty, we note that an agency only need prove a single specification of a 

charge for that charge to be sustained. Burroughs v. Department of the 

Army, 918 F.2d 170, 172 (Fed. Cir. 1990). 

¶21 The appellant additionally asserts that J.G. failed to properly weigh the 

Douglas factors, especially mitigating factors such as his consistently satisfactory 

performance evaluations; 13-year tenure with the agency, awards, pay increases, 

and promotion; and the fact that no disciplinary action had been taken against him 

since 2006. PFR File, Tab 23 at 21-24; Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 305-06 (1981). He further asserts that J.G.’s 

assessment of his rehabilitation potential was based on false or unsubstantiated 

allegations and that he did not clearly explain why rehabilitation was 

impossible. Id. at 22. 

¶22 The record shows that the proposing official set forth a thorough analysis of 

the Douglas factors in the proposal notice and that J.G. considered and adopted 

this analysis in full. IAF, Tab 4 at 43-44, 114-18. The proposing official 

specifically considered as mitigating factors the appellant’s past work record, 

including length of service, performance on the job, ability to get along with 

fellow workers, and dependability. Id. at 116, 118. He found that the mitigating 

factors were outweighed by the aggravating factors, including the nature and 

 4 K.T. testified that the items F.D. saw were “consistent with” what a person examining

the air conditioning coils might see. HCD (May 7, 2015) (testimony of K.T.). 
10

seriousness of the offense and the appellant’s job level and type of 

employment. Id. at 114-16. He also noted the clarity with which the appellant 

was on notice regarding the importance of honesty and integrity in performing the 

duties of his position, and he considered an incident of prior discipline involving

dishonest behavior. Id. at 114-17. He explained that he considered lesser 

penalties, but did not find one that would be sufficient to correct the appellant’s

behavior. Id. at 118. Accordingly, based on our review of the record, we 

conclude that the agency considered all of the relevant factors and exercised 

management discretion within tolerable limits of reasonableness. 5

 Douglas, 

5 M.S.P.R. at 306. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

 5 The appellant also alleges that, because he did not remove Government property 

without authorization, there was no nexus between the penalty and the efficiency of the 

service. PFR File, Tab 23 at 19. He bases this argument on the fact that his job duties 

often required him to transport recyclable materials to the scrap or lay down yards. Id. 

Although the appellant was allowed to transport these items on post, however, he 

was not allowed to remove them without authorization. IAF, Tab 14 at 50-52. He thus 

failed to act with integrity regarding the Government property in his care. Cf. 

Mertins v. Department of the Navy, 61 M.S.P.R. 157, 159 (1994) (finding that removal 

was a reasonable penalty for unauthorized possession of Government property, where 

the employee took seemingly surplus items without making any serious inquiry

regarding their ownership). 
11

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board