UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ARTHUR LEWIS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-18-0856-I-1

DATE: May 20, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

M. Jefferson Euchler, Esquire, Virginia Beach, Virginia, for the appellant.

Christopher J. Robbins and Sandra Compton Simmons, Esquire, Norfolk, 

Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained his removal for misconduct. Generally, we grant petitions such as this

one only in the following circumstances: 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 the law to

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. See 5 C.F.R. § 1201.117(c).
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, 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). 

BACKGROUND

The appellant was a GS-11 Financial Management Analyst for the agency.

Initial Appeal File (IAF), Tab 8 at 14. On August 13, 2018, the agency proposed

his removal based on a charge of conduct unbecoming, supported by six

specifications. IAF, Tab 9 at 55-60. The agency alleged that, between June 2017

and early 2018, the appellant engaged in repeated inappropriate behavior of a

sexual nature, the majority of which was directed toward a single female

colleague and consisted of unwanted touching, remarks, and solicitations. Id.

at 56-57. The agency also specified that, on May 24, 2018, another female

colleague witnessed the appellant expose himself in his cubicle to take pictures of

his penis. Id. at 57. It appears that this latter incident precipitated the

investigation that uncovered the remainder of the alleged misconduct and led the

agency to propose the appellant’s removal. Id. at 140, 143. The appellant

responded to the proposal both orally and in writing, addressing each of the six

specifications. Id. at 2-45. After receiving the appellant’s responses, the

deciding official issued a decision removing him effective September 17, 2018.

IAF, Tab 8 at 14-17. The deciding official found that the charge was supported

by the evidence and that removal was the appropriate penalty. Id. at 16.

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The appellant filed a Board appeal, contesting the merits of the removal

and raising a due process defense based on lack of specificity in the proposal

notice. IAF, Tab 1, Tab 13, Tab 24 at 2-3. After a hearing, the administrative

judge issued an initial decision affirming the removal. IAF, Tab 33, Initial

Decision (ID). He sustained five of the six specifications, ID at 3-9, found that

the agency satisfied its burden on the issues of nexus and penalty, ID at 10-11,

and found that the appellant failed to prove his affirmative defense, ID at 12-13.

The administrative judge acknowledged that most of the specifications did not

contain precise dates and times when the incidents were supposed to have

occurred, but he found that the proposal notice nevertheless contained sufficient

detail to allow the appellant to make an informed reply. Id.

The appellant has filed a petition for review directed solely toward his due

process claim. Petition for Review (PFR) File, Tab 1 at 5-7. He has attached a

transcript of the deposition taken from the coworker whom he allegedly harassed

and who was the main source of information for the majority of the

specifications. Id. at 10-71. The deposition, which significantly predates the

close of the record below, is intended to illustrate the lack of specificity

surrounding her accusations. Id. at 4-5. The agency has filed a substantive

response in opposition. PFR File, Tab 3.

ANALYSIS

Fundamental due process requires that notice of charges against an

employee be sufficiently detailed to provide a meaningful opportunity to be

heard. Mason v. Department of the Navy, 70 M.S.P.R. 584, 586 (1996). In other

words, when an agency proposes to discipline an employee, it must notify him of

the conduct with which he is charged in sufficient detail to permit him to make an

informed reply. Pope v. U.S. Postal Service, 114 F.3d 1144, 1148 (Fed. Cir.

1997).

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In this case, the appellant argues that the notice of proposed removal was

not sufficiently specific regarding the times when and places where his

misconduct was alleged to have occurred. The specifications read in relevant part

as follows: Under Specification 1, the agency alleged that “on multiple

(approximately four) occasions during the period on or around June 2017 through

January 2018, you kissed [your coworker] on her cheek during work hours in

work spaces, such as by the water fountain, exiting the women’s restroom or in

the hallway.” IAF, Tab 9 at 56. Under Specification 2, the agency alleged that

“on one Friday between June 2017 and January 2018, when [your coworker] was

leaving the Payroll office, you smacked [her] buttocks with your hand.” Id.

Under Specification 3, the agency alleged that “between June 2017 and January

2018, on multiple occasions, primarily while [your coworker] was passing the

hallway and once when she was sitting in [your supervisor’s] office, you held a

paper towel dispenser roll to your genital area implying the size of your penis,”

and on one of these occasions stated, “In case you were wondering.” 2 Id. Under

Specification 4, the agency alleged, “in or around Fall 2017 when [your

coworker] was in the payroll office, you walked by her and told her, ‘One night

with me and you won’t want to be with your husband.’” Id. Under

Specification 5, the agency alleged, “on 24 May 2018 while you were sitting

down on your chair facing towards the walkway, you exposed your penis in full

view and were taking pictures of your penis with your cellphone in your cubicle.”

Id. at 57. Under Specification 6, the agency alleged, “in early winter of 2017,

you went to [your coworker’s] office while she was working alone, you walked

behind [your coworker] who was sitting in her chair, and you placed both of your

arms around her. Your face was touching her cheek and you whispered in her ear,

‘I noticed your leave was low and I am known for padding people’s leave for

“special favors.”’” She rebuffed you. “You kissed her cheek on your way out

and told her, ‘Let me know if you change your mind.’” Id. at 58. Accompanying

2

 The administrative judge did not sustain Specification 3. ID at 6.

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the notice of proposed removal were the interview statements from which the

allegations were drawn. Id. at 55, 148-49, 156-58.

Having reviewed each specification in detail, we disagree with the

appellant that the notice of proposed removal lacked specificity regarding the

places where his alleged misconduct occurred. Each specification is clear that it

pertains to misconduct that occurred in the workplace and refers to particular

areas of the office, such as “by the water fountain,” “in the hallway,” and in the

coworker’s office. Id. at 56-57.

However, we agree with the appellant that the notice was, for the most part,

not specific with regard to times and dates. Most of the specifications refer to a

range of dates or general time periods such as “between June 2017 and January

2018,” “early winter of 2017,” and “one Friday between June 2017 and January

2018.” Id. We have therefore carefully reviewed the precedent that the appellant

cites in support of his due process argument. Most notably, in Mason,

70 M.S.P.R. at 588, the Board reversed the appellant’s suspension on due process

grounds because the proposal letter did not specify the dates during which the

misconduct was alleged to have occurred. In particular, the agency alleged that

the appellant made racist remarks in front of contractors on three occasions but

apparently failed to allege even approximate dates or locations for these events.

The appellant requested this information during discovery but the agency

represented that it was not in possession of it. Id. at 587. For the first time at the

Board hearing, the appellant learned from the contract employees’ testimony that

the incidents were alleged to have occurred 3 or 4 years prior. Id. at 588. The

Board concluded as follows:

The lack of specificity in the agency’s notice thus clearly caused the

appellant surprise at the hearing and affected him detrimentally

because he could not obtain any information regarding the time and

location of the charged misconduct until the agency’s witnesses

offered details on those matters at the hearing. As the appellant

rightly complains, . . . receipt of more specific information about the

time and location of the alleged incidents would perhaps have

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allowed him to determine whether he was working on the dates in

question and whether there were any other individuals who might

have heard the remarks attributed to him. Without that specific

information, the appellant had no alternative but to present a very

general defense through his witnesses, a defense which the

administrative judge rejected as insufficient to rebut the testimony of

the agency’s witnesses.

Id. This case presents a similar situation to the extent that the appellant here

would have been unable to rebut the agency’s allegations by, for example,

showing that he was on leave on a particular day. Nevertheless, we decline to

interpret Mason so broadly as to impose a due process requirement that agencies

in all cases affix a specific date to alleged misconduct. This is particularly so in

cases like this one, where the agency itself lacked sufficient information to

narrow down the occurrences to specific dates. A blanket rule imposing such a

requirement could effectively prevent agencies from disciplining employees

when it is unclear exactly when their misconduct occurred, and we do not think

that this would be a desirable outcome.

In any event, we find that Mason is factually distinguishable from the

instant appeal in three ways. First, the agency in this case did at least provide an

approximate range of dates (up to about 6 months) for each specification, whereas

the agency in Mason did not even notify the appellant of the year when he was

alleged to have committed his misconduct. Id.; IAF, Tab 9 at 56-57. Second, the

agency in this case offered the appellant all of the information in its possession

concerning dates for the specifications, whereas the agency in Mason withheld

such information even though it could have supplied it. Mason, 70 M.S.P.R.

at 587; IAF, Tab 9 at 56-57. Third, the agency in Mason surprised the appellant

at the hearing by eliciting testimony about the precise dates of the alleged

misconduct, whereas there was no such surprise in the instant appeal. Mason,

70 M.S.P.R. at 587-88 (“In analyzing a claim of denial of due process, the Board

will examine, among other things, whether lack of specificity in the notice

6
affected the appellant detrimentally or caused him any surprise during the

hearing.”); Hearing Recording at 1:34:00 (the appellant’s closing argument).

Looking at this issue more broadly, we do not think that any lack of

specificity in the notice of proposed removal deprived the appellant of a

meaningful opportunity to respond, which he did in detail to each of the six

specifications, thus indicating that he understood what he was being charged

with. ID at 12-13; IAF, Tab 9 at 6-8, 43-44; see Lockett v. U.S. Marine Corps,

37 M.S.P.R. 427, 430 (1988). The Board has found that a mistake in the proposal

notice regarding the date of the misconduct did not constitute a due process

violation where the charged misconduct was otherwise clearly identified. Hayes

v. Department of the Navy, 15 M.S.P.R. 378, 379-80 (1983).

In sum, although a more specific proposal notice may have offered the

appellant additional bases to challenge the proposal, due process did not require

any greater specificity under the facts of this case. The proposal notice disclosed

all of the known facts with respect to time and place, and it was otherwise

sufficient to put the appellant on notice of the reasons for his removal. We find

that the administrative judge made no error in analyzing the appellant’s due

process defense. The appellant has not challenged the administrative judge’s

findings on the agency’s case in chief, and we find no reason to disturb them.

NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

3

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

7
statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

8
Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

9
with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.4 The court of appeals must receive your petition for

4

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

10
review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

11
Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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