UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEROY WORRELL,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-17-0429-I-1

DATE: February 26, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Justin Prato, San Diego, California, for the appellant.

Lauren Leathers, Falls Church, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed his removal for unacceptable conduct. 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

the facts of the case; the administrative judge’s rulings during either the course 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. See 5 C.F.R. § 1201.117(c).
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 employed by the agency as a health technician in San

Diego, California. Initial Appeal File (IAF), Tab 6 at 17. On March 22, 2017,

the agency proposed his removal on one charge of unacceptable conduct. IAF,

Tab 6 at 31-33. The charge contained one specification, which alleged the

following:

On 11 July 2014, you were informed by [a] Personnel Security

Specialist that your computer access was suspended. On 12 July

2016, you entered a closed office and, in front of two staff members,

used [another staff member’s] computer while she was still loggedon but in another room attending to a patient. When questioned, you

recalled entering the closed office at issue but denied using a

computer.

Id. at 31. After receiving the appellant’s oral reply, the deciding official issued a

final decision, removing him from Federal service. Id. at 19-22. 

The appellant filed a timely appeal with the Board, IAF, Tab 1, and the

parties submitted joint stipulations, wherein the appellant stipulated that his

position required him to have access to the computer system, and that it required

that he carry out duties free from constant supervision, IAF, Tab 17 at 4. He

further stipulated that, on July 11, 2016, he was made aware that his computer

access had been suspended. Id. 

2
Following a hearing, the administrative judge issued an initial decision

finding that the agency proved its charge by preponderant evidence, IAF, Tab 20,

Initial Decision (ID) at 11-13, and that the appellant failed to prove his

affirmative defense of harmful procedural error, 2 ID at 13-14. She also found that

the agency proved that removal was a reasonable penalty and that it promoted the

efficiency of the service. ID at 13-17. 

The appellant has filed a petition for review, arguing that the administrative

judge did not properly weigh the evidence and that the penalty of removal is not

reasonable. Petition for Review (PFR) File, Tab 1 at 5-9. The agency has filed a

response, to which the appellant has replied. PFR File, Tabs 3, 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

Similar to a charge of conduct unbecoming a Federal employee, a charge of

unacceptable conduct is a generic charge and has no specific elements of proof;

the agency establishes the charge by proving that the appellant committed the acts

alleged under this broad label and that the conduct was improper, unsuitable, or

detracted from the appellant’s character or reputation. Canada v. Department of

Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010); Miles v. Department of the

Army, 55 M.S.P.R. 633, 637 (1992). Generally, an agency is required to prove its

charges in an adverse action appeal by preponderant evidence. 3 5 U.S.C.

§ 7701(c)(1)(B).

2

 The appellant claimed that the agency committed harmful error when the deciding

official made a determination on an action previously taken against him for the same

alleged misconduct. IAF, Tab 13 at 6. The administrative judge relied on testimony

from a human resource specialist, who stated that a first notice of proposed removal was

rescinded because references to certain agency policies were no longer accurate. ID at

14. The administrative judge found that the appellant failed to identify a specific

agency policy or procedure that prohibits the rescission of a proposed action and a

reissuance of the action at a later time based on the same issues, and that he, therefore,

failed to prove that the agency committed a harmful procedural error. Id. The appellant

has not challenged this finding on review, and we find no reason to disturb it. 

3

 A preponderance of the evidence is that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q)

3
The administrative judge properly weighed the evidence in concluding that the

agency proved the charge of unacceptable conduct. 

At the hearing, the two coworkers named in the proposed notice of removal

both testified that an office mate was out of the room and had left her Common

Access Card (CAC) in the keyboard of her computer. IAF, Tab 19, Hearing

Compact Disc (HCD) (testimony of both coworkers). Both coworkers further

testified that, while they were in the office, the appellant walked in, leaned over

the absent office mate’s computer, and put his hand on the mouse. Id. Both

testified that they believed that he used the mouse to print a document because

they both observed the print icon appear on the screen. Id. 

The appellant also testified at the hearing, claiming that, despite previously

stipulating that he was made aware on July 11, 2016, of the suspension of his

computer access, he did not learn of the suspension until either July 12 or July 13,

2016. HCD (testimony of the appellant). He further testified that he entered the

office to get a sticky note to write down a phone number and noticed that the

absent office mate’s computer screen was blank. Id. He testified that he did not

touch the mouse or keyboard, that he left the room within 5 seconds, and that he

did not print any document from the computer. Id. During his testimony, he

admitted that the agency’s computers can idle for approximately 15 to 20 minutes

before they timeout. Id.

When, as here, there is conflicting testimony concerning the appellant’s

conduct, and it is impossible to believe the testimony of witnesses on opposing

sides, an administrative judge must make credibility determinations to properly

resolve this issue. Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 7

(2000). In the initial decision, the administrative judge assessed the credibility

of, among others, the two coworkers who were present in the office and the

appellant, pursuant to the factors set forth in Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987). ID at 11-13. In doing so, she credited the

coworkers’ testimony, but did not credit the appellant’s. Id. Based primarily on

4
her credibility determinations, she concluded that the agency met its burden to

prove the charge by preponderant evidence. ID at 5-13. 

On review, the appellant does not appear to challenge these credibility

determinations, but, rather, he argues that he was entitled to a negative inference

because the agency failed to produce highly probative evidence including the

following: (1) evidence regarding how a computer locks out after a certain

amount of time if the CAC is left in; and (2) evidence regarding what documents

the appellant allegedly printed. PFR File, Tab 1 at 5-7. 

Generally, the Board will not draw a negative inference from a lack of

specific evidence where it would not have been superior to other evidence in the

record and would have contributed only marginally to the agency’s satisfaction of

its burden of proof. Shustyk v. U.S. Postal Service, 32 M.S.P.R. 611, 614-15,

aff’d, 831 F.2d 305 (Fed. Cir. 1987). Here, the appellant was charged with

accessing a coworker’s computer less than 1 day after learning that his computer

access was suspended. IAF, Tab 6 at 31. We find that any evidence regarding

the amount of time it takes for a computer to lock out is not superior to the

testimonial evidence from the appellant’s coworkers who witnessed the incident

and would only contribute marginally to the agency’s ability to meet its burden.

Moreover, the charge and specification do not allege that the appellant printed

anything at all. Id. Thus, not only would evidence regarding what the appellant

allegedly printed not be significantly probative, but the agency would not have

been required to prove that anything was printed in the first instance in order to

meet its burden. As such, we find that the appellant was not entitled to a negative

inference due to the agency’s nonproduction of the described evidence, and,

therefore, we find the administrative judge properly weighed the evidence before

her. 

The penalty of removal is reasonable.

The appellant challenges on review the deciding official’s assessment of

the penalty of removal. PFR File, Tab 1 at 7-9. When all of the agency’s charges

5
are sustained, the Board will review the agency-imposed penalty only to

determine if the agency considered all relevant factors and exercised management

discretion within the tolerable limits of reasonableness. Ellis v. Department of

Defense, 114 M.S.P.R. 407, ¶ 11 (2010). 

At the hearing, the deciding official testified that he completed a Douglas4

factor checklist to decide the appropriate penalty wherein he weighed aggravating

and mitigating factors. HCD (testimony of the deciding official); IAF, Tab 6

at 24-26. He testified that the appellant must be able to work alone without

supervision, but that he could no longer trust him to handle sensitive information.

HCD (testimony of the deciding official). He further testified that he considered

other penalties, but, given the severity of the offense, the timing of the

notification that the appellant’s access was suspended with the timing of the

misconduct, the appellant’s denial of the misconduct, and his lack of remorse, he

found removal to be the appropriate penalty. Id. In the initial decision, the

administrative judge found that the deciding official properly weighed the

Douglas factors and that the penalty of removal did not exceed the bounds of

reasonableness. ID at 16. 

On review, the appellant argues that the deciding official improperly relied

on his defense of the case as an aggravating factor. PFR File, Tab 1 at 7. He

asserts that the statements regarding his lack of remorse demonstrate error in the

penalty analysis because it is inappropriate to consider an appellant’s denial of

misconduct as an aggravating factor. Id. (citing Smith v. Department of the Navy,

62 M.S.P.R. 616, 621 (1994)). 

To the extent the deciding official considered the appellant’s denial of his

misconduct as showing a lack of remorse, we find this to be error. Smith,

62 M.S.P.R. at 621. Nonetheless, we find that, due to the seriousness and

severity of the appellant’s misconduct, the nature of the appellant’s position,

which is one that requires trust and the handling of sensitive information without

4 Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). 

6
supervision, and the fact that the appellant was on notice that his computer access

was suspended, the penalty of removal is reasonable. Martin v. Department of

Transportation, 103 M.S.P.R. 153, 157 (2006), aff’d, 224 Fed. App’x 974 (Fed.

Cir. 2007) (stating that, in assessing whether the agency’s selected penalty is

within the tolerable limits 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); see Quillen v. Department of the Treasury,

96 M.S.P.R. 154, ¶ 10 (2004) (reversing an administrative judge’s mitigation of a

removal penalty where, despite no prior discipline and several years of service

with positive performance evaluations, an appellant was warned against

unauthorized computer usage, yet continued to engage in such usage), aff’d,

134 F. App’x 449 (Fed. Cir. 2005). Accordingly, we will not disturb the agency’s

selected penalty of removal.

Based on the foregoing, we deny the appellant’s petition for review and

affirm the initial decision. 

NOTICE OF APPEAL RIGHTS5

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

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

5

 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
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

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

any attorney will accept representation in a given case. 

8
(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

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: 

9
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.6 The court of appeals must receive your petition for

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

§ 7703(b)(1)(B). 

6

 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
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. 

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.

11