United States Court of Appeals 

for the Federal Circuit 

__________________________ 

THYRMAN F. SMILEY, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

__________________________ 

2010-3039 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in PH0752090312-I-1. 

__________________________ 

Decided: October 12, 2010 

__________________________ 

KEITH E. KENDALL, Keith Kendall, P.C., of Harrisburg, Pennsylvania, for petitioner. 

P. DAVIS OLIVER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. On the brief 

were TONY WEST, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, BRIAN M. SIMKIN, Assistant Director, 

and SAMEER P. YERAWADEKAR, Senior Trial Counsel. Of 

counsel on the brief was ZLATKO JURISIC, Defense Distri-
SMILEY v. DEFENSE 2

bution Center, Defense Logistics Agency, of New Cumberland, Pennsylvania. 

__________________________ 

Before LINN, CLEVENGER, and PROST, Circuit Judges. 

PER CURIAM. 

Thyrman F. Smiley seeks review of the final decision 

of the Merit Systems Protection Board (“Board”) sustaining his removal from the position of Supervisory Supply 

Technician at the Defense Logistics Agency’s New Cumberland, Pennsylvania facility. Smiley v. Dep’t of Defense, 

Docket No. PH0752090312-I-1 (Sept. 23, 2009). We 

affirm. 

I 

The Defense Logistics Agency (“agency”) removed Mr. 

Smiley as a result of two charges against him: conduct 

unbecoming a supervisor and conduct unbecoming a work 

leader. The conduct in question involved assertions by 

female employees at his work facility that he had inappropriate uninvited physical contact with them and that 

he had, over a course of time, made numerous sexual 

comments referring to the physical assets of the women 

and revealing Mr. Smiley’s considerable sexual appetite 

and his desire to share that appetite with the women. 

The charges were triggered by a co-worker observing Mr. 

Smiley rubbing the shoulders of one of the women on 

August 7, 2008 and reporting the incident to the authorities. An investigation ensued. 

The investigation unearthed detailed recollections 

from the women in question recounting the occasions on 

which Mr. Smiley had made unwanted physical contact or 

directed sexual comments to them. Many of Mr. Smiley’s 
3 SMILEY v. DEFENSE

co-workers gave statements saying that they had never 

heard Mr. Smiley make any sexual statements. Other coworkers, however, gave statements saying that Mr. 

Smiley had participated in “locker room” talk with male 

employees. Such talk made sexually explicit references to 

fellow female workers. Mr. Smiley steadfastly denied 

ever having made any explicit sexually oriented comments, although he did admit that he had engaged in 

“locker room” talk with fellow male employees. 

Satisfied that Mr. Smiley’s conduct proved the two 

charges, the agency’s deciding official conducted a thorough Douglas factors analysis before imposing the penalty 

of removal. The deciding official gave Mr. Smiley credit 

for his lack of past discipline and his fully successful 

previous work performances, citing these as mitigating 

factors. However, the very serious nature of the charges 

and the fact that such charges undermine Mr. Smiley’s 

ability to be a supervisor counted against Mr. Smiley. 

The deciding official recognized that other supervisors in 

the past had received lesser penalties for similar misconduct, but found the conduct in those cases to be less 

egregious because Mr. Smiley’s conduct here was “serious, 

repetitive, and involved more than one individual.” Other 

Douglas factors did not counsel against removal. Although the deciding official found little potential for 

rehabilitation in this case, the slim chance of rehabilitation led the deciding official to offer Mr. Smiley a last 

chance agreement, which he declined on the grounds that 

the terms were “too onerous.” Upon issuance of the 

agency’s removal notice, Mr. Smiley appealed to the 

Board. 
SMILEY v. DEFENSE 4

II 

The administrative judge (“AJ”) assigned to this case 

held a hearing at which Mr. Smiley and the two affected 

women testified. As before the agency, Mr. Smiley admitted rubbing the shoulders of one of the women. His 

explanation of this event was that he lived in Italy for 10 

years and “[i]t’s a different culture there. They express 

themselves with their hands a lot and I, I find myself 

doing it even today.” He however denied having other 

physical contact with either of the women or talking dirty 

to them. The women stood by the statements they had 

given to the agency. 

The AJ recognized that he thus had a credibility decision to make: whether to believe the women or Mr. 

Smiley. Under Hillen v. Department of the Army, 35 

M.S.P.R. 453, 458 (1987), several factors guide an administrative judge in deciding which of conflicting testimony 

to credit. The AJ assessed the testimony of the female 

witnesses and Mr. Smiley under the Hillen factors, and 

concluded that the women’s testimony should be credited. 

With regard to Mr. Smiley, the AJ “could not believe the 

appellant’s general denials” because “[h]is testimony was 

neither straight-forward nor candid. Even his own witness acknowledged that he and others made inappropriate comments about females at the worksite.” Having 

credited the extensive testimony of the women and excluded Mr. Smiley’s explanations in defense, the AJ 

concluded that the agency had established by preponderant evidence that Mr. Smiley had committed the charged 

offenses. Accordingly, the AJ sustained the agency’s 

charges of conduct unbecoming a supervisor and a work 

leader, and Mr. Smiley’s removal for that conduct. 
5 SMILEY v. DEFENSE

Mr. Smiley sought review from the full Board, which 

denied his petition, thereby making the decision of the AJ 

the final decision of the Board. Mr. Smiley timely sought 

review in this court. 

III 

The scope of our review authority over a final decision 

of the Board is limited by statute. We must affirm the 

Board’s final decision unless we determine that it is 

arbitrary, capricious, an abuse of discretion or otherwise 

contrary to law. 5 U.S.C. § 7703(c). We review matters 

of law without deference, and matters of fact to determine 

if substantial evidence supports the Board’s findings. The 

Board’s credibility determinations are “virtually unreviewable” on appeal. Chambers v. Dep’t of the Interior, 

515 F.3d 1362, 1370 (Fed. Cir. 2008). Whether the Board 

appropriately used the Hillen factors to guide its credibility decisions may be reviewed in a given case to determine 

if the Board deviated so far from those factors as to undermine our confidence in its credibility decisions. The 

penalty to be imposed for employee misconduct is left to 

the sound discretion of the agency and accordingly is 

reviewed by this court under the abuse of discretion 

standard. Miguel v. Dep’t of the Army, 727 F.2d 1081, 

1083 (Fed. Cir. 1984). 

IV 

Mr. Smiley raises three challenges to the Board’s final 

decision. First, he questions the Board’s credibility decision to favor the women over himself. He further contends that the Board misapplied the Hillen factors by 

giving undue weight to the testimony of the women and 

by unduly discounting the evidence provided by other coworkers who stated that they had never seen Mr. Smiley 
SMILEY v. DEFENSE 6

engage in inappropriate contact, nor heard him make any 

inappropriate statements. 

Second, Mr. Smiley argues that the procedures used 

to remove him violated law because the offenses with 

which he was charged do not appear in the agency’s Table 

of Offenses and Penalties (“Table”). Because Mr. Smiley 

did not present this argument to the Board, he has 

waived it for consideration by this court. Synan v. Merit 

Sys. Prot. Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985). Even 

if not waived, the argument lacks merit, as the agency is 

not restricted to the offenses listed in the Table, which is 

only a suggested guide. The Table does suggest removal 

for first offenses of “indecent conduct on government 

premises during work hours” and for “sexual harassment,” both of which are similar to Mr. Smiley’s conduct. 

Mr. Smiley was fully aware of the nature of the charges 

against him and the fact that engaging in such conduct 

surely is adverse to the agency’s mission. As the agency 

notes in its brief, “the notion that Mr. Smiley could make 

repeated sexual comments, offer promotions and money 

for sex, and grab female employees’ breasts without being 

removed is hard to fathom.” 

Third, Mr. Smiley argues that the agency misapplied 

the Douglas factors in deciding that removal is appropriate in his case. 

With regard to Mr. Smiley’s first challenge, he essentially asks this court to reweigh the evidence on the 

question of whether he committed the charged offenses. 

In his favor, he points to the evidence given by individuals 

who never saw or heard Mr. Smiley do anything wrong. 

In his brief, he paints himself as a “charismatic, likeable, 

hard working, harmlessly amorous” person. He asserts 

that the agency “coerce[ed] other employees to paint 
7 SMILEY v. DEFENSE

Appellant as the monster that he is not.” The testimony 

of the women involved, however, belies his claim to being 

harmlessly amorous, and the record is devoid of evidence 

to support a charge that the agency coerced anyone to 

testify against him. In short, our review of the record 

demonstrates that substantial evidence supports the 

Board’s decision sustaining Mr. Smiley’s removal. His 

first challenge, like his second, is rejected. 

Mr. Smiley’s third argument hinges upon his assertion that the agency conducted a “cherry picking” exercise 

when it applied the Douglas factors in this case, by emphasizing the factors adverse to Mr. Smiley and discounting the factors favorable to him. For example, Mr. 

Smiley claims he should have been given credit for an 

“unusual” mitigating circumstance, which was the fact 

that he had lived and worked for 10 years in Italy, where 

it was customary for people to be “touchy/feely” with each 

other. 

This argument lacks merit. The record is clear that 

the deciding official considered each of the pertinent 

Douglas factors, and, where appropriate, gave Mr. Smiley 

mitigating credit. At the end of the day, the deciding 

official concluded that the nature of the offenses, his lack 

of trust in Mr. Smiley’s ability to act as a supervisor, and 

Mr. Smiley’s slim chance for rehabilitation counseled in 

favor of removal as the appropriate penalty. When the 

severity of a penalty is “totally unwarranted,” the Board 

abuses its discretion by affirming the agency’s penalty — 

as was the case in Miguel, where an employee was removed for theft of two bars of soap. 727 F.2d at 1084. 

This is an altogether different case. Here, a supervisor is 

proven to have engaged in wholly inappropriate conduct 

which undermines his trustworthiness and ability to 

perform the duties required by his position. Whether a 
SMILEY v. DEFENSE 8

penalty is an abuse of discretion “depends on the unique 

circumstances of each case.” Miguel, 727 F.2d at 1083. In 

the circumstances of this case, the penalty of removal is 

not an abuse of discretion. 

 For the foregoing reasons, we affirm the final decision 

of the Board. 

COSTS

No costs. 

AFFIRMED