UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2006 MSPB 245 

Docket No. NY-0752-05-0252-I-1 

Richard B. Martin, 

Appellant, 

v. 

Department of Transportation, 

Agency. 

August 14, 2006 

Harvey A. Levine, Esquire, New York, New York, for the appellant. 

Brunhilda Sanders-Lane, Esquire, Jamaica, New York, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 The agency has petitioned for review of an initial decision which sustained 

the agency’s charges but mitigated the agency’s chosen penalty from a demotion 

to a 30-day suspension. The appellant has filed a cross-petition for review. For 

the reasons set forth below, we GRANT the agency’s petition, DENY the 

appellant’s cross-petition, REVERSE the initial decision regarding the penalty, 

and SUSTAIN the appellant’s demotion to the position of Aviation Safety 

Inspector Operations, FG-1825-14. 
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BACKGROUND

¶2 The appellant was demoted from the position of Supervisory Aviation 

Safety Inspector, FV-1825-K, to the position of Aviation Safety Inspector 

Operations, FG-1825-14, based on charges that he misused government resources, 

interfered with an official investigation, and made false statements during an 

official investigation. Initial Appeal File (IAF), Tab 1; Tab 5, Subtabs 4A-4B. 

As specifications of the charge of misuse of government resources, the agency 

claimed that the appellant “regularly conducted extended non-work-related 

Internet searches during business hours, most of which were for images of female 

celebrities,” and that an analysis of the hard drive on his official government 

computer revealed “71 pictures of nude or partially nude men and women, some 

of which depict sexual acts.” IAF, Tab 5, Subtab 4F at 1-2. 

¶3 On appeal, the appellant contested the agency’s charges, arguing, with 

respect to the charge of misuse of government resources, that his computer may 

have been accessed by other individuals and that the nude and sexually explicit 

images found on his hard drive may have been placed there due to “involuntary 

pop-ups.” IAF, Tab 1 at 4; see IAF, Tabs 9, 15. After conducting a hearing, the 

administrative judge found that the agency proved by preponderant evidence both 

specifications of the first charge. Initial Decision (ID) at 7-32. However, the 

administrative judge found that the agency failed to meet its burden of proof with 

respect to the remaining charges. Id. at 32-60. In reviewing the agency’s penalty 

determination, the administrative judge determined that, based on the testimony 

presented, “the deciding official conceded [that] the first charge, standing alone, 

warrants something less than the selected penalty.” Id. at 67. As a result, the 

administrative judge mitigated the penalty of demotion to a 30-day suspension. 

Id. at 69. 

¶4 The agency has filed a petition for review of the initial decision, arguing 

that the administrative judge erred in mitigating the penalty. Petition for Review 

File (PFR File), Tab 1. The agency does not contest the administrative judge’s 
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findings that it failed to prove by preponderant evidence the remaining charges 

brought against the appellant. The appellant has filed a cross-petition for review, 

contesting the administrative judge’s finding which sustained the second 

specification of the first charge, and arguing that the 30-day suspension imposed 

by the administrative judge should be further reduced to 15 days. PFR File, 

Tab 4. 

ANALYSIS

The appellant’s cross-petition for review

¶5 The appellant asserts that the administrative judge erred in sustaining 

Specification 2 of the first charge—that he misused government resources by 

possessing 71 pictures of nude or partially nude men and women, some of which 

depicted sexual acts, on the hard drive on his official government computer—and 

in not further mitigating the penalty of demotion to a 15-day suspension. PFR 

File, Tab 4. We note that the appellant does not contest the administrative 

judge’s decision to sustain Specification 1 of the first charge. 

¶6 We have considered the appellant’s assertions and find that they constitute 

mere disagreement with the administrative judge’s explained factual findings, 

credibility determinations, and legal conclusions; therefore, they do not provide a 

basis for Board review. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 

133-34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam). 

Accordingly, the appellant’s cross-petition for review is DENIED. 

The agency’s petition for review

¶7 The agency contends that the administrative judge erred in mitigating 

the appellant’s demotion to a 30-day suspension. PFR File, Tab 1. We agree. 

¶8 When not all of the charges are sustained, as in the present appeal, the 

Board will consider carefully whether the sustained charge merited the penalty 

imposed by the agency. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 

308 (1981). If fewer than all of the charges are sustained and the agency has not 
4

indicated in either its final decision or in proceedings before the Board that it 

desires that a lesser penalty be imposed on fewer charges, the Board may mitigate 

the agency’s penalty to the maximum reasonable penalty. Lachance v. Devall, 

178 F.3d 1246, 1260 (Fed. Cir. 1999). The Board likewise may mitigate to the 

maximum reasonable penalty for the sustained misconduct when the deciding 

official failed to demonstrate that he considered any specific, relevant mitigating 

factors before deciding upon a penalty, or when the chosen penalty exceeds the 

tolerable bounds of reasonableness. Id.; Wynne v. Department of Veterans 

Affairs, 75 M.S.P.R. 127, 135 (1997). 

¶9 In the present appeal, the administrative judge mitigated the penalty 

because he found that the deciding official, Mr. Martin J. Ingram, conceded in his 

hearing testimony that “the first charge, standing alone, warrants something less 

than the selected penalty.” ID at 67. In support of this finding, the 

administrative judge quoted portions of the hearing transcript in which Mr. 

Ingram discussed the severity of Specification 2 of the first charge and its 

relation to the chosen penalty. Id. at 66-67. On petition for review, the agency 

contends that the administrative judge erred in mitigating the appellant’s 

demotion to a 30-day suspension, arguing that the chosen penalty of demotion 

was reasonable and supported by the nature of the sustained charge, that the 

deciding official clearly determined that demotion was the most appropriate 

penalty for the sustained charge, and that the administrative judge improperly 

substituted his judgment for that of the deciding official. PFR File, Tab 1 at 7-

16. The appellant, in his cross-petition for review, contests the agency’s 

arguments and, as noted above, contends that the administrative judge did not 

sufficiently mitigate the penalty. PFR File, Tab 4. 

¶10 After reviewing the record, in particular the hearing testimony of Mr. 

Ingram, we find that the agency has not indicated that it desires a lesser penalty 

be imposed on the sustained charge. During the hearing, Mr. Ingram noted that 

the appellant “as an office manager . . . is responsible [for] creat[ing] a model 
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work environment,” and that he “felt that by viewing sexually explicit materials 

[the appellant] did not set the example . . . [he] need[ed] to set . . . [since] from 

that example everything else filters down within the office and within the 

aviation community.” Hearing Transcript (HT) at 413. The discovery of the 

sexually explicit photos on the hard drive of the appellant’s official government 

computer “concerned [Mr. Ingram] a lot because [the agency has] a lot of trust in 

a field office manager . . . and to find something of that nature without any 

previous reports of it . . . was real significant.” Id. at 394-95. According to Mr. 

Ingram, the appellant “violated the trust and confidence required of the 

management official within the [agency].” Id. at 414. However, despite the 

“egregious” nature of the charge, misconduct that “could lead to removal,” Mr. 

Ingram “felt that removal would not be appropriate” due to the resources already 

invested in the appellant by the agency. Id. at 407, 414; see id. at 436-37. 

Ultimately, for each charge brought against the appellant, Mr. Ingram noted that 

the maximum penalty was removal, and he “felt that any singular one of the three 

could sustain the demotion penalty, which [the agency] thought was extremely 

fair.” Id. at 465. 

¶11 Under the circumstances presented in this appeal, we find that the 

agency has not indicated that it would have imposed a lesser penalty for the 

sustained misconduct. As discussed above, Mr. Ingram repeatedly addressed the 

severity of the appellant’s misconduct, particularly in light of the appellant’s 

supervisory position, and noted that demotion was reasonable for any one of the 

charges brought. Furthermore, although the initial decision quoted a portion of 

Mr. Ingram’s testimony which indicated that he may have considered a lesser 

penalty, his quoted testimony is ambiguous at best and, moreover, speaks only to 

Specification 2 of the first charge. See id. at 467-70. The questioning from the 

administrative judge that elicited the responses cited in the initial decision did not 

take into account the appellant’s misconduct which led to Specification 1 of the 

first charge—that the appellant spent an excessive amount of time accessing non-
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work-related websites with his government computer—about which the 

administrative judge did not question Mr. Ingram until a later point in the 

hearing. See id. at 470-71. Finally, neither the notice of proposed demotion nor 

the decision to demote indicates that the agency would have selected a lesser 

penalty for the first charge alone. Therefore, we find that the agency has not 

indicated that it would have imposed a lesser penalty for the sustained 

misconduct. 

¶12 We also note that Mr. Ingram considered all of the relevant mitigating 

factors in imposing the appellant’s demotion. In reaching the decision to demote 

the appellant, Mr. Ingram considered the record evidence, the appellant’s written 

and oral responses to the notice of proposed demotion, the range of punishment 

set forth in the agency’s Table of Penalties, and the relevant Douglas factors. See

IAF, Tab 5, Subtabs 4B-4G. He acknowledged the existence of mitigating factors 

in this case, including the appellant’s length of service and past job performance. 

IAF, Tab 5, Subtabs 4B-4C. However, such mitigating factors were outweighed 

by, inter alia, the seriousness of the sustained misconduct and the appellant’s 

past disciplinary record, particularly in light of the appellant’s position as a 

supervisor. See IAF, Tab 5, Subtabs 4B-4C, 4F. 

¶13 Finally, we find that the agency’s decision to demote the appellant is 

within the tolerable bounds of reasonableness. In assessing whether the agency’s 

chosen penalty is within the tolerable bounds of reasonableness, the most 

important factor is the nature and seriousness of the misconduct and its relation to 

the employee’s duties, position, and responsibilities. Gaines v. Department of the 

Air Force, 94 M.S.P.R. 527, ¶ 9 (2003). Agencies are entitled to hold 

supervisors, like the appellant, to a higher standard of conduct than nonsupervisors because they occupy positions of trust and responsibility. Gebhardt 

v. Department of the Air Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, No. 05-3335 

(Fed. Cir. May 4, 2006) (NP); Brown v. U.S. Postal Service, 64 M.S.P.R. 425, 

433-34 (1994). The Board’s role is not to displace the judgment of senior agency 
7

managers who must have confidence that employees—particularly those in a 

supervisory role—will act appropriately at all times. See Gebhardt, 99 M.S.P.R. 

49, ¶¶ 18, 21; see also Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20 

(2001) (the agency has primary discretion in maintaining employee discipline and 

efficiency; the Board will not displace management’s responsibility in this 

respect but instead will ensure that managerial judgment has been properly 

exercised). Here, the sustained specifications evince serious misconduct, 

particularly for a supervisor whose duties and responsibilities include serving as 

“a role model for employees and . . . enforce[ing] the rules against computer 

misuse and access to sexually explicit materials.” IAF, Tab 5, Subtab 4C at 1; 

see Cobb v. Department of the Air Force, 57 M.S.P.R. 47, 51-54 (1993) (finding 

the penalty of removal to be within the bounds of reasonableness for a charge of 

misuse of government resources arising from an appellant’s personal use of a 

government computer). The appellant spent an excessive amount of work time 

using the internet for personal use, and the presence of sexually explicit material 

on the hard drive of his government-issued computer raises concerns about his 

ability to function as an effective supervisor. See IAF, Tab 5, Subtabs 4B, 4J, 

4Q. In addition, the appellant’s prior disciplinary record, which consists of a 

letter of admonishment for misconduct, and the agency’s Table of Penalties 

support a finding that the chosen penalty of demotion is within the tolerable 

bounds of reasonableness. See IAF, Tab 5, Subtabs 4K, 4M. 

¶14 In sum, based on a consideration of the factors outlined above, we find 

that the agency’s decision to demote the appellant to the position of Aviation 

Safety Inspector Operations, FG-1825-14, a non-supervisory position, must be 

upheld. 

ORDER

¶15 For the foregoing reasons, the initial decision is REVERSED with respect 

to the penalty, and the agency’s demotion of the appellant to the position of 
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Aviation Safety Inspector Operations, FG-1825-14, is SUSTAINED. This is the 

final decision of the Merit Systems Protection Board in this appeal. Title 5 of the 

Code of Federal Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. 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 your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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 United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. Additional information is available at the 

court's website, http://fedcir.gov/contents.html. Of particular relevance is the 
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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. 

FOR THE BOARD: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C.