UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ZERIK A. SCOTT,

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBER

DA-0752-14-0618-I-1

DATE: September 16, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant. 

Alexandra H. Perina, Haley B. Shellito, and Niels von Deuten, Washington, 

D.C., 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 

sustained his removal. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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). 
2

erroneous application of 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. See 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. Except as expressly MODIFIED by 

this Final Order, to find that the penalty of removal is reasonable based solely on 

the sustained specifications of inappropriate conduct, we AFFIRM the 

initial decision. 

BACKGROUND

¶2 Prior to his removal, the appellant was employed as a GS-12 Supervisory 

Passport Specialist in the agency’s Bureau of Consular Affairs, Houston Passport 

Agency. Initial Appeal File (IAF), Tab 6 at 15. On the morning of August 18, 

2011, the appellant participated in a compelled interview conducted by the 

Bureau of Diplomatic Security (DS), regarding allegations of sexual harassment 

and misconduct. IAF, Tab 7 at 73-78. During that interview, the appellant 

declined to provide yes-or-no answers to several questions concerning his 

relationship with subordinate employees and expressed his wish to leave the 

interview. Id.; Hearing Compact Disc (HCD) (testimony of interviewing agent 

B.F. and the appellant). In an email issued later that same day, DS advised the 

appellant that his refusal to cooperate in the first interview could result in 

disciplinary action and offered him an opportunity to participate in a second 

compelled interview that afternoon at which he would reply fully and truthfully to 

the specific questions. IAF, Tab 23 at 85. After consulting with his attorney, the 
3

appellant returned for a second interview, at which he responded to the same 

questions by answering “no.” Id. at 88-89; HCD (testimony of B.F. and 

the appellant). 

¶3 On August 25, 2014, the agency removed the appellant based on charges of 

inappropriate conduct and failure to cooperate in an official investigation. IAF, 

Tab 6 at 15, 17-28. Although the proposal notice included additional charges and 

an additional specification, the deciding official sustained the charge of 

inappropriate conduct based on three specifications: (1) that in April 2011, the 

appellant kissed an employee on an elevator at work, and, although she pushed 

away and told him “no,” he nonetheless tried to kiss her again on two other 

occasions shortly thereafter; (2) that sometime between May and June 2010, the 

appellant showed another employee, Ms. G.-B., a naked photo of his sister-in-law 

and stated that he was “still trying to decide whether to hit that”; and (3) that the 

appellant stated to Ms. G.-B., in reference to another passport specialist, that he 

wanted to “hit that” or “tap that.” Id. at 18-23. The deciding official sustained 

the charge of failure to cooperate in an official investigation based on five 

specifications relating to the first compelled interview conducted by DS on 

August 18, 2011: (1) that the appellant repeatedly refused to answer questions 

about whether he had any kind of physical relationship or sexual contact with his 

subordinates; (2) that he declined to answer a question as to whether he had ever 

had sex with one of his subordinates; (3) that he refused to answer a question as 

to whether he had ever seen one of his subordinates naked; (4) that he declined to 

answer a question as to whether any of his subordinates had ever seen him naked; 

and (5) that he did not respond to a question as to whether his wife knew about 

his relationship with a subordinate. Id. at 21-22. 

¶4 The appellant filed a timely appeal. IAF, Tab 1. Following a hearing, the 

administrative judge issued an initial decision sustaining the removal action. 

IAF, Tab 35, Initial Decision (ID). Regarding the inappropriate conduct charge, 

the administrative judge sustained the second and third specifications set forth 
4

above, but did not sustain the specification that the appellant kissed a coworker 

on an elevator. ID at 3-6. The administrative judge sustained all of the 

specifications under the failure to cooperate in an official investigation charge. 

ID at 6-8. She further found that the appellant failed to establish his affirmative 

defenses of harmful procedural error and denial of due process. ID at 8-11. 

Finally, she found that the agency established a nexus between the sustained 

misconduct and the efficiency of the service and that the penalty of removal was 

reasonable. ID at 11-14. 

¶5 This petition for review followed. Petition for Review (PFR) File, Tab 1. 

The agency has filed a response, to which the appellant has replied. PFR File, 

Tabs 5-6. 

ARGUMENTS ON REVIEW

¶6 On review, the appellant first argues that the agency failed to prove the 

charge of failure to cooperate in an official investigation because, even though he 

did not provide yes-or-no answers during the first compelled interview on 

August 18, 2011, he did so during the second interview that same afternoon, and 

thus responded to the questions within a reasonable period of time. PFR File, 

Tab 1 at 5-10. We have given careful consideration to the appellant’s argument. 

As discussed below, however, we find that the sustained specifications of 

inappropriate conduct are by themselves sufficient to warrant the appellant’s 

removal. Accordingly, we need not and do not decide whether the administrative 

judge was correct in sustaining the charge of failure to cooperate in an 

official investigation. 

¶7 The appellant further contends that, in sustaining the charge of failure to 

cooperate in an official investigation, the deciding official committed harmful 

procedural error by failing to properly consider the facts surrounding the second 

compelled interview. Id. at 13-14. However, the appellant does not identify any 

agency procedures the deciding official may have violated in that regard, but 
5

instead reiterates his challenge to the merits of the charge. Id. at 14. In any 

event, in light of our finding that the charge of inappropriate conduct by itself 

warrants removal, the appellant has not established that any error on the part of 

the deciding official 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.

See Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991). 

¶8 The appellant also argues that the deciding official committed harmful error 

in applying the Douglas factors 2 in her penalty determination. PFR File, Tab 1 

at 14. In particular, he contends that the deciding official erred in relying on a 

prior 5-day suspension as an aggravating factor and also erred in considering only 

his 6 years of service with the agency, instead of his 29 years of total Federal 

service. Id. As the administrative judge found below, the deciding official did 

err in considering the prior suspension, which the appellant served in May 2007, 

when all records of that suspension should have been destroyed pursuant to an 

agency policy requiring that records relating to adverse actions be destroyed 

within 7 years after the case is closed. ID at 10-11; see IAF, Tab 26 at 92. We 

also agree with the administrative judge that the deciding official should have 

considered the appellant’s 29 combined years of Federal service, although this 

oversight does not appear to implicate any particular agency procedure. ID

at 12-13; see DiMaggio v. Department of the Air Force, 28 M.S.P.R. 321, 324 

(1985) (indicating that, in considering the length of an employee’s Federal 

service for purposes of the Douglas factors analysis, the employee’s military and 

civilian service should be considered). However, as discussed below, we have 

concluded that the removal penalty is reasonable, without considering the 

appellant’s prior suspension, and while giving due weight to his 29 years of 

Federal service. Consequently, we find that the appellant has not shown that he 

 2 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board 

articulated a nonexhaustive list of factors relevant to the penalty determination in 

adverse actions. 
6

suffered harm as a result of the deciding official’s erroneous application of the 

Douglas factors. 

¶9 Finally, the appellant argues that the penalty of removal was not reasonable 

based solely on the sustained specifications of inappropriate conduct. We 

disagree. The most important factor in assessing whether the agency’s chosen 

penalty is within the tolerable bounds of reasonableness is the nature and 

seriousness of the misconduct and its relation to the employee’s duties, position, 

and responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 

(2010). Inappropriate statements of a sexual nature and displaying an image of a 

naked woman constitute serious acts of misconduct, particularly when, as here, 

the acts were committed by a supervisor. See Luongo v. Department of Justice, 

95 M.S.P.R. 643, ¶¶ 2-3, 16 (2004), aff’d, 123 F. App’x 405 (Fed. Cir. 2005); see

also Morrison v. National Aeronautics & Space Administration, 65 M.S.P.R. 348, 

358 (1994) (stating that introducing sexually explicit material into the Federal 

work environment was serious because it “could create a debilitating and 

potentially discriminatory work environment and its presence inherently impedes 

the full inclusion of all employees as professional equals”). The Board has held 

that removal may be appropriate in such circumstances. See Alberto v. 

Department of Veterans Affairs, 98 M.S.P.R. 50, ¶¶ 2, 12 (2004); see also 

Luongo, 95 M.S.P.R. 643, ¶¶ 12-16.

3

 While we have considered the appellant’s 

29 years of Federal service as a mitigating factor, we nonetheless find that the 

sustained charges of inappropriate conduct are sufficiently serious that the 

penalty of removal is within the bounds of reasonableness. Accordingly, we 

sustain the agency’s action. 

 3 In his reply to the agency’s response to his petition for review, the appellant cites 

Batten v. U.S. Postal Service, 101 M.S.P.R. 222, aff’d, 208 F. App’x 868 (Fed. 

Cir. 2006), in which the Board sustained a demotion action based on four incidents of 

inappropriate sexual comments directed at a subordinate employee. PFR File, Tab 6 

at 9-10. Contrary to the appellant’s assertions, the Board did not mitigate the agency’s 

chosen penalty in that case. Batten, 101 M.S.P.R. 222, ¶ 14. 
7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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: 

United States 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 

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 
8

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