Court Finds Fed Employee’s Removal as Supervisor is Fair

November 3, 2010 ( – A federal appellate court has determined that the Merit Systems Protection Board conducted a fair review when deciding to remove a Department of Defense employee from his supervisory position over charges of sexual harassment.

Thyrman F. Smiley claimed the Board “cherry picked” evidence and testimony during its review, giving more favor to employees’ testimony against him than to the testimony of those saying they never witnessed him doing anything wrong. Smiley also claimed 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.   

However, the U.S. Court of Appeals for the Federal Circuit found the deciding official considered each of the pertinent factors, and, where appropriate, gave Smiley mitigating credit. According to the decision, the deciding official concluded that the nature of the offenses, his lack of trust in Smiley’s ability to act as a supervisor, and Smiley’s slim chance for rehabilitation counseled in favor of removal as the appropriate penalty. The appellate court said in the case, 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; therefore, the penalty of removal is not an abuse of discretion.  

The court also rejected Smiley’s argument 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. The court said the Defense Logistics Agency, of New Cumberland, Pennsylvania, is not restricted to the offenses listed in the table, which is only a suggested guide. In addition, 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 Smiley’s conduct.   

Finally, the appellate court found no evidence of Smiley’s assertion that the agency “coerce[ed] other employees to paint appellant as the monster that he is not.”   

The Defense Logistics Agency removed Smiley as a result of two charges against him: conduct unbecoming a supervisor and conduct unbecoming a work leader. According to the court opinion, 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 his considerable sexual appetite and his desire to share that appetite with the women.  

The opinion in Smiley v. Department of Defense is here.