NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3166

DAVID L. GEORGE, Petitioner,

v. DEPARTMENT OF THE ARMY, Respondent.

Sarah L. Wixson , Stokes Lawrence Velikanje Moore and Shore, P.S., of Yakima, Washington, for petitioner. Patrick B. Bryan , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent. With him on the brief were Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Of counsel on the brief was Stephen Robert Hart , Office of the Staff Judge Advocate, United States Department of the Army, of Fort Lewis, Washington. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3166 DAVID L. GEORGE, Petitioner,

v. DEPARTMENT OF THE ARMY, Respondent.
Petition for review of the Merit Syst ems Protection Board in SF0752060316-I-1.

__________________________ DECIDED: February 7, 2008

______ ____________________ Before MAYER, DYK, and MOORE, Circuit Judges

. PER CURIAM.

David L. George (Mr. George) appeals the United States Merit Systems Protection Board’s (Board) final order in George v. Department of the Army , SF0752060316-I-1 (Feb. 1, 2007) . The Board affirmed the administrative judge’s June 6, 2006 initial decision, sustaining the Depart ment of the Army’s (agency) reduction of Mr. George’s grade from the position of Super visor Firefighter, GS-8, step 8, to the position of Firefighter, GS-7, step 10, bas ed upon the agency’s char ge that Mr. George engaged in “Retaliatory Behavior Directed Against a Subordinate for Protected Activity.” We affirm

.BACKGROUND Mr. George submitted inaccurate time st atements that over-r eported the overtime hours that he and seven of his subordinate firefighters spent in completing training exercises at the Army’s Yaki ma Training Center (YTC). Another firefighter posted at YTC, who was subordinat e to Mr. George, discovered the inconsistency and reported it to the YTC Base Commander. In res ponse, the agency conducted an internal investigation. During the c ourse of the invest igation, Mr. George made comments about the presence of a “rat” at the YTC fire station. Mr. George also hung a large rat trap on the wall in a prominent locati on at the YTC fire station upon which he attached a piece of paper containing the definition of the term “rat,” which included the following language: “a contemptible person; as one who bet rays or deserts friends or associates.” Based upon the investigator’s findi ngs, the agency proposed Mr. George’s demotion from Supervisory Firefighter to non- supervisory position of Firefighter, based upon a general charge of “Supervisory Misconduct,” which was composed of three specific charges: (1) “Allowing False Ti me Cards to be Processed Resulting in Overtime Payment for Unearned Overtime for Yourself and Subordinates;” (2) “Falsification of the Official Fire Department Incident Report;” and (3) “Retaliatory Behavior Directed Against a Subordinate for hi s Protected Activity.” On December 5, 2005, the Deputy Base Commander of the YTC issued a Notice of Decision, sustaining the agency’s charges and finding that the penal ty of demotion was reasonable. On February 6, 2006, Mr. G eorge filed an appeal of the agency’s action. On June 6, 2006, the administra tive judge issued an initial decision that affirmed the agency’s reduction of Mr. George’s grade based upon Charges One and Three.

2007-3166 2On appeal to the Board, Mr. George argued that the administrative judge erred as a matter of law by finding that Charge Three did not requ ire a showing by the agency that Mr. George had taken or threatened to ta ke an adverse “personnel action” against a subordinate. Although the Board in its February 1, 2007 order found that the administrative judge incorrectly interpret ed Charge One, the Board nevertheless affirmed the initial decision, finding that Mr. George had not demonstrated that the administrative judge had erred in sustaining Charge Thr ee. This appeal followed. DISCUSSION This court affirms a decision of the Boar d unless it is arbitr ary, capricious, an abuse of discretion, or other wise not in accordance wit h law, or unsupported by substantial evidence. 5 U. S.C. § 7703(c). The primary issue in this appeal—whether the Board erred by sustaining the agency’s charge of “Retaliatory Behavior Directed Against a Subordinate for His Protected Activi ty” without requiring pr oof of an adverse “personnel action”—is a legal question that this court reviews de novo . See Augustine v. Dep’t of Veterans Affairs , 429 F.3d 1334, 1338 (Fed. Cir. 2005). George argues that the term “Retaliatory Be havior” as used in the title of Charge Three should be interpreted in such a wa y as to require the agency to prove the elements of the Whistleblower Protection Act, including proof of a “personnel action.” The government counters that the agency di d not charge Mr. George with taking or threatening to take a “pers onnel action” against the subordinate or refer in any way to the Whistleblower Protection Act in its char ging documents. The government contends that the charging documents indicate that the essence of the charge is Mr. George’s improper harassment of a subordinate and the creation of a hostile work environment at

2007-3166 3the YTC fire station. Finally, the governmen t contends that Mr. G eorge’s application of the Whistleblower Protection Act is inconsist ent with its central pur poses, as Mr. George is seeking to invoke the statute as a shield to insulate himself from the effects of his own misconduct. See Watson v. Dep’t of Justice , 64 F.3d 1524, 1530 (F ed. Cir. 1995) (the Whistleblower Protection Act was clearly intended to encourage Feder al employees to “blow the whistle on wrongdoin g” and to “prevent reprisal s against the whistleblowing employee”). We agree with the government. The use of the term “retaliatory” in a charge does not mean that the government must pr ove that Mr. George engaged in an adverse “personnel action.” The agency has the right and the duty to discipline employees, particularly supervisors who engage in acts of harassment, in order to promote the “efficiency of the service.” See 5 U.S.C. § 7513(a) (an agen cy may take an “adverse action” against an employee, such as reduci ng an employee’s grade, for “such cause as will promote the efficiency of the service”). The essence of Charge Three is not that Mr. George violated the Whistleblower Protection Act, but rather that his behavior in hanging the rat trap and commenting about the presence of a rat at t he YTC fire station led to a hostile work environment. In the specifications underlying the charge in the proposal letter, the agency characterized the charge as “retaliatory and harassing behavior that created a hostile work environment.” The final decision letter specif ies that the basis for the agency’s action was Mr. George’s lapse in ju dgment as a supervisor by posting the rat trap while “knowing that an investigation was ongoing” and that the displa y of the rat trap could be “construed as harassment.”

2007-3166 42007-3166 5 George also asserts that even if C harge Three is upheld, removal from supervisory status was not an appropriate penalty. An agency’s penalty determination should only be overturned when “the agency failed to weigh the relevant factors, or . . . the agency’s judgment clearly exceeded the limits of reasonableness.” Hunt v. Dep’t of Health & Human Services , 758 F.2d 608, 610 (Fed. Cir. 1985) (citing Douglas v. Veterans Admin. , 5 M.S.P.B. 313, 333 (1981 )). When the Board sustains fewer than all of the agency’s charges, it may mitigate the agency’s penalty to the maximum reasonable penalty. Lachance v. Devall , 178 F.3d 1246, 1260 (Fed . Cir. 1999). The Board exercises its mitigation after consideration of the relevant Douglas factors. Adam v. U.S. Postal Serv. , 96 M.S.P.R. 492, aff’d , 137 Fed. Appx. 352 (Fed. Cir. 2005). Here, the Board balanced the relevant Douglas factors including the absence of a prior disciplinary histor y and Mr. George’s years of government service, and determined that the penalty of reduction was within the tolerable limits of reasonableness, given Mr. Geor ge’s position as a supervisor and the seriousness of the misconduct. In addition, according to the agency’s Table of Penalties, Mr. George’s reduction in grade fell within the range of penalti es for a first offense of “reprisal.” For the foregoing reasons, we affirm the Board’s decision.