NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SEAN M. ENSLEY,

Petitioner

v.

PUGET SOUND NAVAL SHIPYARD AND 

INTERMEDIATE MAINTENANCE FACILITY,

Respondent

______________________ 

2021-2082

______________________ 

Petition for review of an arbitrator's decision by Lawrence E. Little.

______________________ 

Decided: December 8, 2021

______________________ 

SEAN MICHAEL ENSLEY, Bremerton, WA, pro se.

 LIRIDONA SINANI, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E. WHITE, JR. 

 ______________________ 

Before LOURIE, HUGHES, and CUNNINGHAM, Circuit 

Judges.

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2 ENSLEY v. PUGET SOUND NAVAL SHIPYARD

PER CURIAM. 

Sean M. Ensley appeals from the decision of an arbitrator sustaining his removal from the Puget Sound Naval 

Shipyard and Intermediate Maintenance Facility

(“PSNS”). Bremerton Metal Trades Council (Union) (Sean 

Ensley) v. Puget Sound Naval Shipyard & Intermediate 

Maintenance Facility (Employer), (May 20, 2021), SAppx 

1–32.1 Because the arbitrator’s decision was supported by 

substantial evidence, we affirm. 

BACKGROUND

Ensley began working as a welder for PSNS in 2013. 

SAppx 230. In 2020, several PSNS employees complained 

to their supervisor regarding Ensley’s behavior. They specifically alleged that he touched them without consent and 

made inappropriate comments. SAppx 154–61, 561. 

In light of those complaints, a special team began to 

investigate. SAppx 173. After the team interviewed several witnesses, it determined that Ensley had acted inappropriately toward his co-workers. SAppx 621. As a result, 

Ensley’s superintendent proposed removing him based on 

a charge of Inappropriate Conduct supported by six specifications. SAppx 471–76. The specifications, as provided

in the proposed removal letter, are as follows:

Specification 1: In or around July 2015 through 

October 2015, you asked a female employee to walk 

up the stairs in front of you and you smacked her 

on her bottom and said words to the effect of, 

“[y]our jeans look tighter around your butt when 

you climb the stairs,” “[y]our assets look good in 

your jeans,” and “I miss those tight skinny jeans 

you had, you looked so good in those.”

1 “SAppx” refers to the supplemental appendix filed 

by the government. 

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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 3

Specification 2: In or around July 2015, you 

texted a female employee and asked her to “[c]ome 

take a bubble bath” or words to that effect.

Specification 3: Around approximately the summer of 2018, you and a female employee were walking to the smoke shack when you told her “I had a 

wet dream about you” or words to that effect.

Specification 4: Around approximately the end 

of 2018, you walked up to a female employee and 

grabbed her ponytail and yanked it backward[]. 

Specification 5: In or around approximately December 2019, while at work, you told a female employee words to the effect of “you look cute in your 

hat.”

Specification 6: Between approximately October 

and December 2013, while at work, you asked a female employee, “[w]hen are you going to leave your 

boyfriend and date me?” or words to that effect.

Id. 

After receiving the letter, Ensley submitted a response 

to the deciding official disputing several of the allegations. 

However, the deciding official sustained PSNS’s decision to 

remove Ensley. SAppx 481–83. Consequently, Ensley invoked arbitration pursuant to his rights under the union’s 

collective bargaining agreement. 5 U.S.C. § 7121(e)(1).2

After the arbitrator held a hearing, he upheld PSNS’s 

removal decision. First, he found that there was “extensive” corroborating evidence that Ensley had engaged in 

problematic conduct. SAppx 9–20, 31–32. Second, he

2 Under 5 U.S.C. § 7121(e)(1), a federal employee 

may appeal his removal to the Merit Systems Protection 

Board (“the Board”) or invoke arbitration. 

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4 ENSLEY v. PUGET SOUND NAVAL SHIPYARD

determined that Ensley’s conduct adversely affected 

PSNS’s work environment. SAppx 29–31. Third, he determined that the removal penalty was reasonable in light of 

Ensley’s “egregious, inappropriate, and repetitive” conduct. SAppx 27, 29–32. 

Ensley appealed to this court. We have jurisdiction to 

review an arbitrator’s decision pursuant to 5 U.S.C. 

§§ 7121(f), 7703, and 28 U.S.C. § 1295(a)(9). 

DISCUSSION

We review the decision of an arbitrator “in the same 

manner and under the same conditions as if the matter had 

been decided by the [Merit Systems Protection] Board.” 5 

U.S.C. § 7121(f). Accordingly, we must set aside the decision of the arbitrator if it was “(1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; (2) obtained without procedures required by law, rule, 

or regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c). 

We review the arbitrator’s “legal conclusions de novo 

and its fact findings for substantial evidence.” Smith v. 

Gen. Servs. Admin., 930 F.3d 1359, 1364 (Fed. Cir. 2019) 

(citing Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560, 1564 

(Fed. Cir. 1994)). A finding is supported by substantial evidence if a reasonable mind might accept the evidence to 

support the finding. See Consol. Edison Co. of New York v. 

NLRB, 305 U.S. 197, 229 (1938).

Ensley raises four arguments on appeal. First, he challenges the arbitrator’s determination that he received sufficient notice of the charges against him. Second, he 

challenges the arbitrator’s finding that he committed the

alleged conduct. Third, he challenges the arbitrator’s finding that his conduct had a nexus to PSNS’s ability to function efficiently. Finally, he contends that the arbitrator

applied the incorrect law. We address each argument in 

turn.

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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 5

I 

Ensley first argues that PSNS’s charge in the proposed 

removal letter was “incredibly vague,” which deprived him 

of notice and an opportunity to defend himself. Appellant’s 

Informal Br. at 2. The government responds that PSNS 

described the charged conduct in sufficient detail. 

We agree with the government that PSNS’s notice letter was sufficiently detailed. An agency’s notice of proposed removal is sufficient if “it apprises the employee of 

the nature of the charges ‘in sufficient detail to allow the 

employee to make an informed reply.’” King v. Alston, 75 

F.3d 657, 661 (Fed. Cir. 1996) (quoting Brook v. Corrado, 

999 F.2d 523, 526 (Fed. Cir. 1993)). Here, PSNS satisfied 

that requirement. Specifically, PSNS’s proposed removal 

letter explained that Ensley was charged with Inappropriate Conduct. It then described each element of that conduct in detail, citing dates, actions, and specific statements

(as shown above). SAppx 471–76. And, as the record 

shows, Ensley had no trouble understanding the charge or 

defending himself. Indeed, in his response to the letter, he

addressed several of the allegations in detail. See, e.g., 

SAppx 740–46. Accordingly, Ensley’s argument is unavailing.

II

Next, Ensley asserts that the arbitrator improperly assumed that he committed the alleged acts, without considering contrary evidence. The government responds that 

the arbitrator’s decision was supported by substantial evidence. According to the government, the arbitrator carefully evaluated Ensley’s testimony and found that it was 

outweighed by the extensive, credible testimony of multiple 

other witnesses. 

We agree with the government that the arbitrator’s decision was supported by substantial evidence. 

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6 ENSLEY v. PUGET SOUND NAVAL SHIPYARD

First, the arbitrator did not simply assume that the 

charged conduct occurred. Rather, he carefully considered 

the evidence and found that it overwhelmingly weighed 

against Ensley. See SAppx 9–20, 31–32. Specifically, the 

arbitrator explained that multiple witnesses “divulged 

their own uncomfortable experiences with [Ensley],” thus 

corroborating the allegations and establishing that he engaged in an inappropriate “pattern of behavior.” 

SAppx 31–32. That pattern involved “placing multiple 

women in positions where they felt uncomfortable, and 

then taking advantage of them in workplace moments

where he found himself alone with them.” Id. The arbitrator also pointed out that, although Ensley supplied unsworn witness statements attesting to his good conduct, he 

did not provide any witnesses at the hearing to refute the 

Inappropriate Conduct charge. SAppx 32. According to the 

arbitrator, “th[a]t absence” of witness testimony was “significant.” Id. We agree. 

Second, even more fatal to Ensley’s argument, he admitted to some of the conduct. For example, in his signed 

statement to the investigator, his oral reply, and his hearing testimony, Ensley conceded that he texted one of his coworkers and asked her to “come take a bubble bath,” as alleged in specification 2. SAppx 205, 235, 275–76. He similarly conceded to the deciding official that he asked a coworker, “[w]hen are you going to leave your boyfriend and 

date me?” as alleged in specification 6. SAppx 208, 277. 

Accordingly, substantial evidence supports the arbitrator’s 

finding that the conduct occurred.

III

Ensley next contends that, even if the charged conduct 

occurred, the arbitrator improperly found that it had a 

nexus to PSNS’s ability to function efficiently, as required 

by 5 U.S.C. § 7513(a); see also Doe v. Dep’t of Justice, 565 

F.3d 1375, 1379 (Fed. Cir. 2009) (citing Brown v. Dep’t of 

the Navy, 229 F.3d 1356, 1358 (Fed. Cir. 2000)) (The agency 

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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 7

must establish “a nexus between the employee’s misconduct and the work of the agency, i.e., the agency’s performance of its functions.”). 

We disagree with Ensley. The arbitrator evaluated the 

evidence and reasonably found that it supported a nexus

between Ensley’s conduct and PSNS’s performance. 

SAppx 29–31. As the arbitrator explained, multiple witnesses testified that Ensley’s conduct adversely affected 

their ability to work efficiently. For example, one witness 

testified that she felt “uncomfortable” at work “all the 

time.” SAppx 24, 30. Another witness felt compelled to 

wear men’s clothing in order to protect herself from 

Ensley’s advances. Id. Yet another witness testified that 

she felt “vulnerable, weak, and really uncomfortable.” Id. 

That evidence was more than sufficient to establish a 

nexus. 

Still, Ensley contends that there can be no nexus because his alleged conduct occurred outside of work hours. 

His argument is not persuasive. First, Ensley does not rebut the extensive evidence that his conduct occurred while 

at work. Second, even assuming that his conduct occurred 

outside of work, substantial evidence supports the arbitrator’s nexus determination. “[A]s long as the agency can 

prove that the removal of [the employee] promoted the efficiency of the service . . . nothing prevents [it] from relying 

upon off-duty behavior.” Weekes v. Dep’t of Homeland Sec., 

351 F. App’x 442, 445 (Fed. Cir. 2009) (citing Brown v. 

Dep't of the Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000)); 

Allred v. Dep’t of Health & Human Servs., 786 F.2d 1128, 

1130 (Fed. Cir. 1986). Such is the case here. As explained 

above, Ensley’s behavior affected his co-workers’ ability to 

work efficiently during work hours, thus establishing a 

nexus. 

IV

Finally, Ensley asserts that the arbitrator committed 

two legal errors. First, Ensley argues that the arbitrator

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8 ENSLEY v. PUGET SOUND NAVAL SHIPYARD

incorrectly applied state law. Second, Ensley contends that 

the arbitrator should have required PSNS to prove that his 

conduct violated Title VII of the Civil Rights Act. We address each argument in turn.

First, as an initial matter, Ensley is correct that the 

arbitrator erred in citing state law. An arbitrator must apply the “same substantive standards” as the Board. Cornelius v. Nutt, 472 U.S. 648, 652 (1985). Here, the Board 

would have considered federal law rather than state law in 

evaluating Ensley’s removal. However, because the arbitrator’s citation of state law was either harmless or extraneous, we decline to reverse his determination. For 

example, the arbitrator explained that, under state law, he 

must consider whether Ensley’s conduct was simply an “action[] of camaraderie” (subsequently concluding that it was 

not). SAppx 28. Ensley does not explain how that extraneous consideration was prejudicial or affected the outcome of the decision. Similarly, the arbitrator, citing state 

law, explained that he must evaluate “the case as a whole 

in determining whether or not the disciplinary action taken 

was appropriate.” SAppx 27. Again, Ensley does not explain how the arbitrator’s consideration of the case “as a 

whole” was prejudicial.

Second, we disagree with Ensley’s argument regarding 

Title VII. PSNS was not required to prove the elements of 

a Title VII violation because it did not charge Ensley with 

violating that law. Rather, it charged him with committing 

Inappropriate Conduct. SAppx 471. Because Ensley does 

not explain the relevance of Title VII here, we reject his 

argument. 

In summary, substantial evidence supports the arbitrator’s determination that Ensley received sufficient notice of the charge against him, that he engaged in 

inappropriate conduct, and that the conduct affected 

PSNS’s ability to operate efficiently. 

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ENSLEY v. PUGET SOUND NAVAL SHIPYARD 9

CONCLUSION

We have considered Ensley’s remaining arguments but 

find them unpersuasive. For the foregoing reasons, the decision of the arbitrator is affirmed. 

AFFIRMED 

COSTS

No costs.

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