This decision was overturned by the Board on Dec. 4, 2007 at 2007 MSPB 282

The U.S. Court of Appeals for the Federal Circuit subsequently vacated the Merit Systems Protection Board's December 4, 2007 decision that Mr. Doe's removal from the FBI was reasonable.   Doe v. U.S. Department of Justice, 565 F3d 1375 (Fed. Cir. May 11, 2009).  This decision ultimately resulted in litigant Doe being reinstated by the Board to the FBI with a 45 day suspension and directed reassignment at the FBI's discretion, based on two subsequent Merit Systems Protection Board decisions.

 

MERIT SYSTEMS PROTECTION BOARD

ADMINISTRATIVE LAW JUDGE

 

John Doe,

Appellant,

v.

Department of Justice,

Agency.

 

Docket Number CH-0752-04-0620-B-1

 

2007 MSPB Lexis 4549

 

May 11, 2007

 

   Gregory A. Miksa

   Administrative Judge

 

   INITIAL DECISION

 

Introduction

 

   The appellant was removed June 9, 2004, from his position as a Special Agent with a Federal Bureau of Investigation (FBI) Field Office based on a single charge of “unprofessional conduct.” On July 6, 2005, the appellant timely refiled his June 2004 appeal pursuant to a July 30, 2004, Initial Decision, in MSPB Docket No. CH-0752-04-0620-I-1, that dismissed his appeal without prejudice to his right to refile the appeal within thirty days of the final disposition of his petition for reinstatement before the FBI Disciplinary Review Board (DRB). The DRB issued its letter of decision affirming the appellant’s removal on June 8, 2005. See Record at tab 1; Agency file at tab 1, p. 3.

 

   A hearing concerning the issues raised by the appellant’s original and refiled appeals was conducted in Chicago, Illinois on October 26, 2005.  Finding the Board has jurisdiction over the appeal and that the conduct specified under the agency’s charge occurred, the undersigned nevertheless reversed the agency’s action in a March 3, 2006, Initial Decision for lack of nexus between the appellant’s off-duty conduct and the efficiency of the service. See 5 U.S.C.A. §§ 7511, 7512(1) & 7513(d) (West 1996). On August 14, 2006, however, the Board granted the agency’s petition for review of the Initial Decision, reversed the Initial Decision as to the nexus issue, but remanded the appeal for “further adjudication.” See Doe v. Department of Justice, 103 M.S.P.R. 135, P 14 (2006).

 

   Based on the foregoing, the sole remaining issue for adjudication is the propriety of the agency’s removal penalty for the appellant’s conduct to the extent that it, and its impact on the efficiency of the service, have been proven. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (the agency must demonstrate that removal constitutes a penalty that is within “tolerable limits of reasonableness”). In status conferences following the Board’s remand, I confirmed that the Board’s remand decision is considered part of the record in this case. See RR at tab 1. Because the parties were afforded a full opportunity to address, with testimony and documentary evidence, the issue of the propriety of the penalty prior to the issuance of the March 3, 2006 Initial Decision, I denied the parties’ post-remand request to reopen the record for the purpose of receiving additional evidence and testimony regarding the penalty issue. I did, however, afford the parties the opportunity to present additional written argument concerning the penalty issue in this remand adjudication. This initial decision is, accordingly, based on the Board’s original record concerning this appeal, and the parties’ post-remand written arguments regarding the propriety of the penalty. See RR at tabs 10-13. For the reasons given below, the agency’s action is MITIGATED to a 120-calendar-day (time served) suspension and a directed reassignment, at the agency’s option.

 

ANALYSIS AND FINDINGS REGARDING PENALTY

 

Background

 

   On February 23, 2004, Mary Rook, Chief, Adjudication Unit II of the agency’s Office of Professional Responsibility (OPR) notified the appellant that his removal was proposed based on two charges: 1) Unprofessional Conduct -- Videotaping (his) Sexual Encounters with Women Without Their Consent, and 2) Lying Under Oath During an Administrative Inquiry. See Original Record (OR) at tab 3, Agency file at tab 4e. Ms. Rook’s specification under charge 1 states that a female member of the Division’s support staff (hereinafter “Female # 1”), whom the appellant was dating, had initiated the idea of videotaping her sexual encounters with the appellant at his residence. According to the specification, in October 2002, Female # 1 later discovered at the appellant’s residence a videotape that the appellant had made of one such encounter that she did not know the appellant had recorded. Ms. Rook further specified that Female # 1 also discovered a videotape on which was printed the name of another Division support employee (hereinafter Female # 2) and other women. The removal notice does not allege that Female # 1 viewed the videotape of Female # 2 or any other woman. In her April 8, 2003 statement to agency investigators, Female # 1 stated that after she found videotapes in the appellant’s bedroom she “did not watch any of these videotapes” other than the tape of her own activity with the appellant. Agency file at tab 4y.

 

   Ms. Rook further specified that in a written statement provided to agency  investigators on April 9, 2003, the appellant admitted that after videotaping an unspecified number of his sexual encounters with Female # 1 at her suggestion and with her knowledge, he turned on his video camera during one consensual sexual encounter with her without informing her. Agency file at tab 4s. He further admitted that he videotaped two previous consensual sexual encounters with Female # 2 without her knowledge, although Female # 2 provided a written statement to agency investigators that she engaged in only one sexual encounter with the appellant. Id. Ms. Rook further specified that in a December 3, 2003, written statement, the appellant admitted that on two occasions several years previous to these incidents, he videotaped consensual sexual encounters with Female # 3, who is not an agency employee, without her knowledge. n1 Agency file at tab 4l.

 

   Following consideration of the appellant’s oral and written responses to the agency’s proposal notice, Jody P. Weiss, then the Acting Assistant Director of the OPR, issued a May 28, 2004 letter of decision in which he did not sustain charge # 2, lying under oath during an administrative investigation, thereby exonerating the appellant from this charge. Agency file at tab 4b. The agency’s evidence in support of its first charge otherwise contains no testimony or documentation that the appellant made any affirmative, factually false statement to any employee at the agency. As above noted, the Board’s remand decision now requires a determination concerning whether the agency’s penalty of removal for the appellant’s conduct is within “tolerable limits of reasonableness.” Douglas, 5 M.S.P.R. 280 at 306. In making this determination, the Board’s function is not to displace management’s responsibility or to decide what penalty it would impose, but to assure that management’s judgment has been properly exercised.  Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, P 20 (2001). The Board will modify a penalty when it finds that the agency failed to weigh the relevant factors or that it clearly exceeded the bounds of reasonableness. Wentz v. U.S. Postal Service, 91 M.S.P.R. 176, P 13 (2002)

 

The agency’s removal penalty is not within “tolerable limits of reasonableness.”

 

   In Douglas, the Board held that it retains authority to mitigate penalties that it finds to be clearly excessive or disproportionate to the sustained charges. Id. at 306. In this case, the factors relevant to this determination include the length of the appellant’s service, his lack of a past disciplinary record, his status as a Special Agent with law enforcement responsibilities, the nature and seriousness of his admitted off-duty conduct, his rehabilitative potential, and any mitigating circumstances.

 

     The record shows that the appellant was initially employed by the agency in January 1997, with over seven years as a Special Agent at the time of his removal. Agency file at tab 4s. At all times material to the agency’s charge in this case, the appellant was assigned as a Pilot of agency aircraft at the metropolitan airport of the city in which his Division Field Office was located. He did not, however, work in the Field Office headquarters, several miles distant from the airport, in which Females # 1 and # 2 were employed. See Record at tab 7, Agency Exhibit 1 at 41. Until the agency initiated the instant action in February 2004, the appellant had never been the subject of disciplinary action. Gary D. Klein, an Assistant Special Agent in Charge (ASAIC) of the appellant’s Divisional Office and the appellant’s supervisor, provided deposition testimony that he last rated the appellant’s performance as “Superior,” and that his performance after that rating was at least satisfactory. Record at tab 7, Agency Exhibit # 1; Record at tab 13, Appellant’s Deposition Exhibit # 1 (the appellant’s performance evaluation signed by ASAIC Klein).

 

   Concerning the nature and seriousness of the appellant’s admitted off-duty videotaping conduct, Mr. Klein testified that he believed that the appellant’s misconduct was serious, and he lost confidence in the appellant’s judgment and integrity because he believed the appellant violated the criminal voyeurism law of the state in which the appellant’s admitted conduct occurred. Id. at 22, 40-43. The Board’s remand decision, however, did not alter the undersigned’s determination in the March 3, 2006, Initial Decision that the agency failed to establish the appellant’s conduct violated the applicable state criminal voyeurism statute cited by ASAIC Klein. See Doe, at P 8.

 

   The record, indeed, shows that the agency was twice informed by a local state assistant prosecutor, before initiating the instant action, that based on the agency’s evidence (including the appellant’s admissions) the state lacked probable cause to initiate prosecution of the appellant under the provisions of the applicable state voyeurism statute. Apart from interviewing the local state assistant prosecutor in the midst of its investigation, the agency failed to present evidence showing that it independently researched applicable state law and case precedent in the jurisdiction in which the appellant’s conduct occurred before initiating its investigation to determine whether the appellant’s off-duty conduct, as it was known to Female # 1, might implicate the appellant in criminal, voyeuristic activity. As noted in the March 6, 2006 Initial Decision, research of state court decisions under the applicable statute would have disclosed that in an analogous case where the putative victims of eavesdropping waived their privacy rights as to the defendant, no violation of the statute was found where the defendant surreptitiously used optical equipment to enhance his observations of them to enhance his sexual pleasure. See March 6, 2006 Initial Decision at p. 8-9, citing State v. Frost (Clinton 1994), 92 Ohio App. Ed. 106, 634 N.E.2d 272 (1994).

 

   It is undisputed that the appellant destroyed whatever tapes existed the day after Female # 1 “discovered” the tapes while surreptitiously gaining access to, and searching, the appellant’s private residence when he was out of town. n2 See Hearing tape, the appellant’s testimony. Apart from repeated references to the appellant’s general admission that the subject tapes contained video recordings of his consensual “sexual encounters” with Females # 1, # 2, and # 3, no further description of the specific content of the subject tapes was provided by the agency. Although the hearing in this case and the record in this case were ordered sealed prior to the Board’s hearing to ensure the privacy of Females # 1, and # 2 (whose names have been redacted in the Board’s decisions), the agency did not produce Females # 1 and # 2 to testify with regard to the content of the tapes, or for that matter their personal reaction to disclosure of the existence of the tapes or the actual impact of the appellant’s conduct on their work performance or productivity. See Record at tab 11, Summary of Telephonic Pre-Hearing Conference; see also Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 88-89 (1981) (it is not the appellant’s responsibility to call witnesses the agency needs to support its case).

 

   Accordingly, it is left entirely to the imagination of the trier of fact what images or actions might actually have appeared on the subject tapes, and what impact the disclosure of their existence had on the subject Females. I note the agency produced no information showing that either employee was sufficiently upset to initiate any complaint or civil suit against the appellant. In these circumstances, an assessment of the gravity and seriousness of the appellant’s conduct is somewhat speculative.

 

   While it is clear that the chain of events in this case would not have occurred but for the appellant’s “clearly dishonest,” videotaping activity of his otherwise consensual sexual activity with three women, the evidence shows that the appellant’s conduct would not have become known in the agency’s office but for Female # 1’s own clearly dishonest action in gaining surreptitious access to the appellant’s residence to search his belongings. The agency’s policy at all times material to this case does not appear to condone investigation or disciplinary consideration of an employee’s morality in romantic or intimate relationships in the absence of a violation of criminal law, an adverse impact on the agency’s ability to perform its responsibilities, or a violation of an internal regulation. This policy, as set forth in then FBI Director Louis Freeh’s March 27, 2001 “Memorandum to All Employees,” states:

 

The private lives of FBI employees, and their relationships with others, are subject to inquiry by the Office of Professional Responsibility (OPR) only when the conduct may: (1) negatively impact upon the ability of the Bureau to perform its responsibilities; (2) violate the law; or (3) violate an internal regulation. Current manual provisions prohibit certain conduct, such as sexual harassment, but do not provide overall guidance on how personal relationships may involve misconduct subject to discipline. The following policy statement is intended to inform employees of harmful institutional consequences which can result from personal relationships and require disciplinary action.

 

1. Conduct or relationships involving violations of the law

 

Off-duty conduct which violates federal, state, or local law or involves law enforcement contact is reportable to OPR because it has a direct connection with the FBI’s law enforcement mission and its need to maintain an effective and respected workforce. Employees are subject to discipline for offenses involving prostitution, public indecency, sexual assault, statutory rape, domestic violence, bigamy, and other violations which are prosecuted under the criminal law of the jurisdiction where they are committed. OPR does not investigate relationships based upon the morality of romantic or intimate relationships, or upon the marital status or gender of the parties, unless they would realistically be subject to prosecution and thus impact upon the accomplishment   of the FBI’s mission.

 

2. Misuse or compromise of government position, premises, property, working hours, or other interests

 

While normal interaction between employees in the workplace may involve reasonable discussion of social contacts during non-duty hours, the guiding rule is that personal relationships are to be pursued on personal time with personal resources. Unauthorized passengers may not be transported in FBI vehicles. Personal acquaintances may not be permitted improper access to FBI space. Physical intimacies in a government workspace or vehicle, or while on duty, are inappropriate and unprofessional. Employees must not allow their personal relationships to disrupt the workplace, compromise the interests of the government, or make them subject to manipulation. For example, romantic or intimate relationships between a Special Agent and a current informant, witness, or subject are prohibited because they may negatively impact upon the credibility of the persons involved and of the overall investigation and prosecution, or make the Agent vulnerable to improper pressure. Appellant Exhibit D.

 

   The record shows that the appellant’s conduct is not actionable under Section 1 of this policy, but Female # 1’s activity in discussing her off-duty relationship with the appellant and discovery of the subject tapes in the workplace appears to constitute a violation of Section 2. ASAIC Klein characterized knowledge of the appellant’s off-duty conduct as “disruptive” to the agency’s office because Females # 1 and # 2 were carrying on most of the discussions with their co-workers that led to rumors among employees stemming from Female # 1’s “discovery” of the subject tapes. In this regard, ASAIC Klein testified, “I understand both of them (Females # 1 and # 2) talked extensively about the details to many employees.” n3 Record at tab 7, subtab 4a., p. 53. ASAIC Klein testimony shows that included among office “rumors” was the belief of certain unidentified office employees that “orgies” had taken place among Division Office staff. ASAIC Klein noted that another unidentified male employee, who had previously dated Female # 2, left a voice mail message for Female # 2 telling her that she had “disgraced her family,” in her sexual encounters with the appellant. ASAIC Klein admitted, however, that this employee received only “oral counseling” by the Division SAC for his otherwise unfounded accusation. The agency presented no information that Female # 1 received any discipline for her own “clearly dishonest” behavior with regard to searching the appellant’s residence, or for her apparently extensive and “disruptive” workplace discussions about the unspecified details of her discoveries while searching the appellant’s residence.

 

   The appellant’s emphatic testimony that he was unaware of Female # 1’s office discussions about the tapes until after their engagement to be married in March 2003, and the beginning of the agency’s investigation in early April 2003 is undisputed on this record. His testimony that he immediately and voluntarily entered counseling in October 2002, with Female # 1’s encouragement, to address his addiction to pornography, six months before he became aware of the agency’s investigation, is also undisputed by the agency. Concerning the extent to which the appellant’s conduct could foreseeably disrupt the agency’s operation, I note the agency’s specifications of unprofessional conduct contain no allegation the appellant showed, intended to show, or otherwise broadcast the subject videotapes of Females # 1, # 2, or # 3 to any other person. In response to the appellant’s appeal to the Board, and at the Board’s hearing, the agency presented no evidence to establish that the appellant distributed, copied for distribution, broadcast, or showed the subject tapes to anyone other than to Female # 1, who provided a written statement that she viewed only her own tape. The agency also presented no evidence showing the appellant ever discussed the existence of the subject tapes with anyone other than his private therapist and Female # 1, with whom, according to his testimony, he reconciled after he voluntarily participated in counseling. I find the appellant’s undisputed lack of any information regarding the existence of Female # 1’s disruptive discussions in the Field Office over a six-month period constitutes a circumstance limiting his responsibility for workplace disruptions caused by her behavior. I further find this circumstance constitutes a factor weighing in favor of mitigating the agency’s penalty.

 

   As discussed in the undersigned’s March 6, 2006 Initial Decision, it is also unclear from ASAIC Klein’s testimony whether the several hours he described meeting with Females # 1 and # 2 following Female # 1’s discovery of the appellant’s tapes concerned their upset with the appellant’s conduct or their concern with the manner in which the agency conducted its investigation of the matter. ASAIC Klein provided no testimony that any management official in the Field Office confronted the appellant before the agency initiated its investigation over six months after Female # 1 reported her initial concern about the appellant to her agency EAP counselor. ASAIC Klein characterized OPR’s ultimate investigation of the rumors concerning the appellant as “very disruptive.” Agency Exhibit 1 at 21.

 

   The record shows that on April 7 and 8, 2003, OPR interviewed six Division employees at that Office, including Females # 1 & # 2, as well as two other  female employees of the Office whom they believed may have had sexual relations with the appellant. The record shows that all such interviews were conducted before the appellant, himself, was confronted or interviewed concerning the information provided by Female # 1. Each employee interviewed by OPR was initially advised that OPR was conducting “an administrative inquiry regarding an allegation that (the appellant) engaged in unprofessional conduct by surreptitiously videotaping sexual encounters with various Ohio Division female support employees, possibly without their consent.” See preamble to witness statements at Agency file 4t-4y (emphasis added). Moreover, each witness was advised that they “could expect to be dismissed from the rolls of the FBI,” if they “refused to answer or failed to reply fully and truthfully” during their OPR interviews. Id. ASAIC Klein’s testimony shows that the interviews were individually conducted in a vacant ASAIC’s office at the Division headquarters office where the witnesses were employed, that the employees were given the option of being interviewed off-site, that one employee was initially reluctant to be interviewed at her workplace, but she ultimately agreed to be interviewed at the Division office. Id. I find it is more likely true than not true the agency investigators’ broad description of the appellant as a suspect of “possible” misconduct to prospective agency witnesses, other than Females # 1 and # 2, contributed to the dissemination of rumors about the appellant’s sexual conduct with agency employees, not to mention the resulting negative impact on the appellant’s reputation.

 

   The record shows that despite the agency’s professed concern over disruption of its workplace, the agency did not initiate the appellant’s removal until over ten months after it initiated its investigation in April 2003, and over sixteen months after Female # 1 reported her discovery of the subject tapes to her co-workers and her EAP counselor. ASAIC Klein’s testimony shows that despite local Field management’s unsubstantiated belief that the appellant’s conduct violated a state voyeurism statute and was disruptive to their operation, he recommended that the appellant only be suspended for 30-calendar days and be administratively reassigned to another Field activity.

 

   As an FBI employee, the appellant was expected to behave in a manner that showed him to be honest and trustworthy, and to “so comport [himself] that [his] activities on and off duty [would] not discredit either [himself] or” the FBI. Manual of Administrative Operations and Procedures, Part I, § 1-1; Airtel of Jan. 3, 1994. According to ASAIC Klein, who served as his first-level and later second-level supervisor, he also was expected “to maintain high standards,” and his actions were expected to be “beyond reproach.” Agency Exhibit 1 at 6, 9, 44, I-2 File, Tab 7. Furthermore, the appellant was not only an FBI employee, but also a law enforcement officer; and the Board has held that the FBI has the right to hold its special agents to a high standard of conduct. Ludlum v. Department of Justice, 87 M.S.P.R. 56, P 29 (2000), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).

 

   Although the record shows that the appellant failed to live up to these standards in his private relationships with the three affected females in this case, the record shows that the ASAIC and other management officials’ loss of confidence in the appellant was to some extent grounded in the unsubstantiated belief that the appellant’s conducted violated a local voyeurism statute. ASAIC Klein’s deposition testimony concerning his loss of confidence in the appellant’s judgment and honesty further shows that it was influenced by his belief that the appellant allegedly misused an agency Turnpike Commission Toll Card for personal travel, a charge never fully investigated by the agency or specified in the charges underlying the instant removal action. Id. at 33-35.

 

   The appellant’s law enforcement status does not preclude mitigation of the penalty. Id. at 69, citing Larry v. Department of Justice, 76 M.S.P.R. 348, 361 (1997). Indeed, the Board in Ludlum mitigated the FBI agent’s removal therein to a 120-day suspension despite sustained charges that the appellant “lacked candor” by making an affirmative incorrect statement during an agency investigation. See Ludlum at 67-68. By contrast, the appellant herein is not charged with making any affirmative incorrect or false statement, either on or off duty. At the Board’s hearing, agency management officials acknowledged that clearly dishonest behavior in employees’ marriages with respect to extra-marital affairs resulting in civil divorce proceedings have not resulted in employee removal actions. The agency agrees that in an analogous situation, another Special Agent investigated by OPR received only a three-day suspension for taking agency surveillance equipment to his private residence for the purpose of surreptitiously viewing his wife’s intimate activities with another man. According to the agency, the equipment was discovered by the employee’s spouse before he was able to execute his intended, clearly dishonest, surveillance plan using the agency’s resources. See Hearing Tape and Mr. Weiss’s testimony.

 

   In the instant appeal, the appellant is not charged with having used or abused agency facilities or surveillance equipment in engaging in the personal conduct at issue. The appellant has not otherwise been shown to have made any affirmative false or incorrect statements to agency investigators, or perjured himself in any proceeding. The appellant admitted during his testimony that his conduct in videotaping the subject sexual encounters without the knowledge and consent of Females # 1, # 2, and # 3 was morally “wrong.” See Hearing tape, the appellant’s testimony. I find the agency has failed to distinguish the severity of the appellant’s morally wrongful off-duty conduct in his intimate relationships from the conduct of its other agents whose integrity in their off-duty personal relationships with their spouses or partners in adulterous affairs, or in other private matters, has not been found by the agency to form sufficiently serious offenses to warrant removal. n4 See testimony of witnesses Weiss, Rook, and Klein.

 

   Finally, the agency argues that, due to the Board’s finding in Doe that the appellant’s conduct was “clearly dishonest,” it would be required to inform prosecutors of his potentially impeachable testimony in future cases in which he might be called to testify. The agency states that the purpose of this policy is to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), while protecting the legitimate privacy rights of government employees. See RR at tab 10, Agency Exhibit A to Penalty Argument. Nevertheless, the agency acknowledges:

 

The exact parameters of potential impeachment information are not easily determined.  Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense.

 

Id. In the instant case, it is difficult to imagine a circumstance in which the appellant, as a Pilot of agency aircraft, would be called to testify concerning a matter in which his “dishonest” off-duty conduct in the context of his personal intimate relationships, would be found relevant or material to a defense. Unlike the Special Agent in Ludlum, whose removal was mitigated to a suspension, the agency has not shown that he made any affirmative incorrect or false statement of fact during the course of an agency investigation.

 

   I find the appellant’s voluntary actions in addressing the addiction underlying his conduct months before he became aware of the agency’s investigation, his reconciliation with Female # 1 during the months preceding the agency’s investigation, and his candor in immediately admitting the off-duty conduct for which he was responsible when interviewed by agency investigators, demonstrate the appellant’s substantial capacity for rehabilitation.

 

   Based on the foregoing, I find the penalty of removal exceeds tolerable limits of reasonableness for the appellant’s off-duty behavior. I further find the maximum reasonable penalty to be imposed for the appellant’s admitted conduct is a 120-day suspension and directed reassignment as a Special Agent to another agency Field Office, the latter at the discretion of the agency.

 

   DECISION

 

   The agency’s action is MITIGATED.

 

   ORDER

 

   I ORDER the agency to cancel the removal and substitute in its place a 120-day day (time-served) suspension without pay. This action must be accomplished no later than 20 calendar days after the date this initial decision becomes final. The agency may, at its discretion, direct the appellant’s reassignment to another agency Field Office.

 

   I ORDER the agency to pay the appellant by check or through electronic funds transfer for the appropriate amount of back pay, with interest and to adjust benefits with appropriate credits and deductions in accordance with the Office of Personnel Management’s regulations no later than 60 calendar days after the date this initial decision becomes final. I ORDER the appellant to cooperate in good faith with the agency’s efforts to compute the amount of back pay and benefits due and to provide all necessary information requested by the agency to help it comply.

 

   If there is a dispute about the amount of back pay due, I ORDER the agency to pay the appellant by check or through electronic funds transfer for the undisputed amount no later than 60 calendar days after the date this initial decision becomes final. The appellant may then file a petition for enforcement with this office to resolve the disputed amount.

 

   I ORDER the agency to inform the appellant in writing of all actions taken to comply with the Board’s Order and the date on which it believes it has fully complied. If not notified, the appellant must ask the agency about its efforts to comply before filing a petition for enforcement with this office.

 

   For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. I ORDER the agency to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above. The checklists are also available on the Board’s webpage at http://www.mspb.gov/mspbdecisionspage.html.

 

INTERIM RELIEF

 

   If a petition for review is filed by either party, I ORDER the agency to provide interim relief to the appellant in accordance with 5 U.S.C. § 7701(b)(2)(A). The relief shall be effective as of the date of this decision and will remain in effect until the decision of the Board becomes final.

 

   Any petition for review or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order, either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. § 7701(b)(2)(A)(ii) and (B). If the appellant challenges this certification, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. If an agency petition or cross petition for review does not include this certification, or if the agency does not provide evidence of compliance in response to the Board’s order, the Board may dismiss the agency’s petition or cross petition for review on that basis.

 

FOR THE BOARD:

 

   Gregory A. Miksa

   Administrative Judge

 

Notes:

 

1. Agency investigators have not been able to locate and interview Female # 3. See Hearing tape.

 

2. The appellant testified he destroyed the subject videotapes on or about October 3, 2002, the day after Female # 1 discovered their existence. Female # 1’s April 8, 2003, affidavit to agency investigators corroborates this information. See Agency file at tab 4y.

 

3. Female # 1 admits in her April 8, 2003, affidavit that she talked to other employees at the agency about the appellant’s videotapes, and that resulting rumors had gotten “out of control.” Agency file at tab 4y.

 

4. The appellant’s admitted occasional use of an agency-provided turnpike pass for personal travel was not separately charged by the agency and is irrelevant to this proceeding.